Honourable senators, I am pleased today to speak to you about Bill S-213, An Act to amend the Criminal Code (independence of the judiciary).

I speak today with a certain sense of déjà vu. It was almost two years ago precisely in February 2020 that I rose in the chamber to speak to what was then known as Bill S-208, An Act to amend the Criminal Code (independence of the judiciary). And it was in November 2020 that I gave my inaugural Senate speech via video from this same desk in this same room on what was then known as Bill S-207, An Act to amend the Criminal Code (independence of the judiciary).

Both Bill S-207 and Bill S-208 were sponsored by our esteemed colleague Senator Kim Pate, and both died on the Order Paper.

This session, it is another esteemed colleague Senator Jaffer who is bringing this bill forward. While I honour and salute both Senator Pate and Senator Jaffer, I wasn’t sure I was going to speak to this bill in its current incarnation. After all, I have made my arguments in this chamber more than once.

The blinkered adoption of mandatory minimum sentences in our Criminal Code ties the hands of our judges. It forces them to impose one-size-fits-all sentences without nuance, mercy or common sense. This approach often robs them of discretion, imagination and flexibility. A mandatory sentencing rubric undermines judicial independence and, in the worst cases, reduces judges to little more than rubber stamps — humanoid algorithms who have to impose a penalty without any reference to the specific facts, specific case or a specific circumstance of a specific offender.

Beyond that, the threat of mandatory minimum sentences often frightens people into accepting plea deals rather than fighting their cases in court, for fear they might receive an especially heavy sentence should they lose. These sentences distort our criminal justice system and undermine public faith in the impartiality and independence of our courts.

So, having said all that and having it said more than once, why did I decide I needed to speak to this bill in its most current iteration? It’s primarily because I wanted to update you all on the case of Helen Naslund, the Alberta woman whose story I first told you in this chamber back in November 2020.

To remind anyone who has forgotten, or to bring up to date those who weren’t here when I last spoke, Helen Naslund was a farm wife who lived near Holden, Alberta. She had endured a lifetime of physical, mental and economic abuse at the hands of her husband Miles, a violent drunk who held Helen a virtual prisoner on their failing family farm. On a September night in 2011, after an evening of violence and threats, Miles finally passed out and Helen Naslund, pushed to the end of her endurance, in fear of what might happen next, took a .22 revolver and put a bullet in the back of his head. Then, with the help of one of her sons, she weighed down and hid the body in a nearby slough.

It took years before neighbourhood gossip gave the RCMP the tip they needed to find the body.

The Crown charged Helen Naslund with first-degree murder. The mandatory minimum sentence? Life in prison, with no parole consideration for at least 25 years. Given Naslund’s age, that might literally have been a life sentence — and a death sentence.

And so, on the advice of her lawyer, and with the agreement of the Crown prosecutor, Helen Naslund pled guilty to manslaughter and accepted a sentence of 18 years — one of the longest ever for manslaughter in the wake of domestic abuse. She might have been able to advance a legitimate argument at trial that she acted in self-defence or that she acted in a moment of extreme emotional disturbance and was perhaps not criminally responsible for her actions. But faced with the real prospect of spending the rest of her life behind bars, she took the deal, poor though it was.

Mrs. Naslund was sentenced in October 2020, and her case immediately provoked outrage from women’s groups, legal academics, retired judges and social activists from across the country and around the world. She even attracted advocates and supporters from as far away as Afghanistan.

Could Helen Naslund appeal her sentence? It wouldn’t be easy. After all, it had been agreed to by the judge, the Crown and her own lawyer — and by the defendant herself.

The test to overturn a sentence agreed to by all such parties is extremely strict, for obvious reasons. A sentence must not just be deemed demonstrably unfit, but rather so unacceptably harsh that the sentencing judge’s agreement to accept it would not only be contrary to the public interest but would bring the administration of justice itself into disrepute. More than that, a defendant has only 30 days to appeal a sentence, and those 30 days had passed.

Our own Senator Pate played a key role in helping Helen Naslund win an unusual extension of the appeal period and in connecting her with one of Edmonton’s fiercest and most effective criminal defence lawyers Mona Duckett.

Last month the Alberta Court of Appeal, in a 2 to 1 ruling, found in favour of Helen Naslund and reduced her sentence by half.

Madam Justice Sheila Greckol, writing for the majority, found that the sentence was so “unhinged” from the circumstances of the crime that it could give reasonable observers the impression that the proper functioning of the justice system had broken down. Moreover, Madam Justice Greckol found that the risk of a mandatory minimum sentence had created a power imbalance that had led to what she called a “coercive bargain” which gave the Crown further leverage to extract a guilty plea.

Madam Justice Greckol continued:

. . . a woman subjected to 27 years of egregious abuse may be accustomed to seeing herself as worthy only of harsh punishment. That does not mean the justice system should follow suit.

Helen Naslund is still in prison, but she will at least be eligible for parole next year. Thanks to the hard work of advocates from across the world, including Senator Pate, this one abused wife from a rural Alberta farm has just now received some measure of justice. But the Naslund case should lay bare some of the fundamental problems with mandatory minimum sentences which can themselves become unhinged from the facts of the case, and leave reasonable observers and reasonable Canadians with a well-founded belief that the proper functioning of the justice system has indeed broken down.

What is the point of having judges? What is the point of talking about the principles of judicial independence if we do not trust judges to listen to the facts, weigh the evidence, consider all of the circumstances and justly apply the law?

In a free and fair democracy, the judiciary should not be controlled by government edict. And neither MPs nor senators should be micromanaging our courts. If we want our judges to administer impartial, thoughtful justice, we can’t back-seat drive from behind the bench. Today, I stand again with my friends Senator Jaffer and Senator Pate. And today, I stand with judges and justices across Canada who share an awesome and solemn responsibility. Let us restore public confidence in our courts, remove the partisan politics from sentencing and let those whom we have asked to sit in judgment use their own best judgment when circumstances require. Thank you, hiy hiy.

Thank you very much for that question, Senator Boisvenu. In the case of house arrest, these are obviously not cases that have those sorts of strict mandatory minimum sentences. House arrest can be an extremely effective way of handling low-risk offenders in the community and helping those offenders to reintegrate and to become functional parts of society again. They have their use and their place.

In the case of first-degree murder, there would never be such a sentence.

I’m sorry, Senator Boisvenu, I have no capacity to answer that question in such granular detail at this point. I simply don’t have access to that data up to date at the moment.