Therefore, honourable senators, in amendment, I move:

That Bill C-5 be not now read a third time, but that it be amended on page 3 by adding the following after line 10:

“13.1 The Act is amended by adding the following after section 718.3:

718.4 (1) The court that sentences an accused may impose a sentence other than the prescribed minimum punishment for the offence if, after having considered the fundamental purpose and principles of sentencing as set out in sections 718 to 718.2, it is satisfied that doing so is justified by exceptional circumstances.

(2) The court shall give reasons for imposing a sentence other than the prescribed minimum punishment for an offence and shall state those reasons in the record.”

Thank you.

Honourable senators, I understand the spirit in which this amendment was put forward, and I share many of the values behind it. However, I rise today to explain why the government does not support it.

Certainly, an amendment of this nature was recommended by several witnesses. At the same time, credible stakeholders have expressed concerns about the unintended consequences of this so-called “safety valve” approach. These include the Canadian Bar Association, the Criminal Lawyers’ Association and Janani Shanmuganathan, a lawyer who successfully argued the landmark case R. v. Nur on mandatory minimum sentences before the Supreme Court.

One of the main concerns is that this amendment could actually incentivize the proliferation of mandatory minimums in the Criminal Code.

As we heard from Tony Paisana of the Canadian Bar Association:

. . . Under section 12 of the Charter, if you introduce a safety valve, it will, in effect, mean that any future mandatory minimum penalty will be impervious to a Charter challenge, which has the risk of encouraging mandatory minimum penalties to be introduced in the future . . . .

In other words, adopting this amendment could have the unintended effect of providing constitutional cover to a future government inclined to tack a mandatory minimum onto everything that moves. This would mean that, in more and more cases, there would be a presumption at sentencing that a mandatory minimum applies, and it would be up to the defence to fight the uphill battle of rebutting that presumption.

On this point, it is important to remember what we heard at committee from Oxford University criminologist Julian Roberts. Speaking about the safety valve mechanism in England and Wales, he told us that, “Only a small number of cases actually get saved this way.”

That raises the question of what cases will be deemed worthy of special “safety valve” treatment. In committee, Anne-Marie McElroy from the Criminal Lawyers’ Association warned us that the approach proposed in an amendment of this type might, and I quote:

 . . . only benefit those people who are more privileged and are not part of the marginalized populations for whom we’re hoping to reduce incarceration or representation in the system.

Furthermore, Ms. Shanmuganathan believes that it would only, and I quote, “create further litigation around how we consider what ‘exceptional’ means.”

Of course, people who have money and privilege will be better positioned to enter into the long legal battles that could be necessary to benefit from such a “safety valve” provision. As I mentioned in committee, similar arguments could be made with regard to the process for Charter challenges. However, at least with Charter challenges, a case only has to be successfully argued once before other people in similar circumstances are able to benefit. The approach proposed by this amendment could condemn every offender to have to plead their own case.

On this subject, by making mandatory minimums in the words of the Canadian Bar Association “impervious to a Charter challenge,” this amendment could undercut challenges of mandatory minimum penalties that are currently before the courts.

There was some discussion at committee about whether we should simply eliminate all mandatory minimums. To be frank, as I said in my earlier remarks, the Canadian public simply isn’t there, nor are the elected members of the House of Commons.

There have been several successful constitutional challenges of mandatory minimums, and more are progressing through the courts as we speak. If our goal is to allow for more judicial discretion at sentencing, let’s not amend Bill C-5 in a way that risks obstructing that progress.

Finally, if we were to proceed with an amendment along these lines, we would be well-advised to thoroughly consider the way safety valve provisions work elsewhere. There are versions of this in other jurisdictions, but they’re all different. In some places, the safety valve only applies to certain types of offences, like drug offences or non-violent offences. In other places, the judge can deviate from the mandatory minimum if the accused cooperates with authorities — for instance, by accepting a plea or testifying against third parties. In several places, the law sets out a list of factors for judges to consider when deciding whether to treat a case as exceptional, and, of course, those factors differ from one jurisdiction to another.

There is also the question of what wording to use — thank you for your speech, Senator Clement. It was really well done.

This amendment proposes to allow deviation from the mandatory minimum in “exceptional circumstances.” At committee, the proposal that was put before the committee — and voted down — was to let judges set aside mandatory minimums if doing so is “in the interest of justice.”

There are many other possible approaches. A proposal in the United States would let mandatory minimums be set aside if “it is necessary to do so in order to avoid violating” sentencing guidelines. In New Zealand, until recently, the law required that certain repeat offenders receive the maximum penalty unless such a sentence would be considered “manifestly unjust.”

Colleagues, these details matter. When Madeleine Redfern, President of the Nunavut Inuit Women’s Association, was asked at committee if she supported the safety valve approach, she quite reasonably responded with questions of her own by asking, “. . . who designs the valve. How does it work in practice? How are people held accountable when the system fails?”

Before we adopt such a measure, it would be wise to conduct an in-depth analysis of international examples, hear testimony on the pros and cons of different models and obtain expert advice on the way specific legislative language is likely to be applied.

We heard the perspective of just one such witness at committee, at the very end of our study. He was a leading criminologist, but I think that his testimony alone is not enough.

The committee focused on the content of Bill C-5. Witnesses kept telling us that this is a good bill and a major step forward. Throughout our study, criminal lawyers urged us to pass Bill C-5 without delay. Since the recent Supreme Court ruling in Sharma, which narrowly confirmed the restrictions on conditional sentences, calls to swiftly pass Bill C-5 have only grown louder.

The Canadian Bar Association, or CBA, said this:

While there’s certainly room for further debate and reform, it’s vital that we don’t throw out the baby with the bathwater in hopes of perfection. It’s critical that this bill pass, and pass with haste.

Colleagues, the exhortation from the Canadian Association of Black Lawyers, or CABL, was “. . . we encourage you to work expeditiously to pass this bill so we can start implementing on the ground . . . .”

The CABL further stated, “We can’t let the perfect be the enemy of the good.”

This is what our colleague in the other place, NDP MP Randall Garrison, told The Hill Times about the Senate’s consideration of Bill C-5:

. . . this bill is agreed upon, and if you pass this, we’re done on this part . . . . If they —

— senators —

— want other things done, then pass a [new] bill and send it to us . . . but don’t hold this one up.”

Colleagues, I think that’s good advice.

With great respect, I urge you to oppose this amendment — both because of the substantive concerns raised by credible stakeholders, and because of the importance of moving this legislation expeditiously toward Royal Assent. Thank you for your kind attention.

Would Senator Gold take a question?

Yes, of course.

Senator Gold, thank you for that.

The CBA is actually in the process of reconsidering its position, despite what the soon-to-be past president has indicated.

I want to go back to something you said about the CBA’s assertion that this kind of clause would make mandatory minimum penalties immune to constitutional challenges. Wouldn’t you agree that authorities like the Honourable Murray Sinclair — who, through the TRC, weighed all of this — would have some knowledge of the appropriateness of these kinds of valves, and the fact that the Supreme Court of Canada in Bissonnette, at paragraph 111, stated they are of the view that:

In any event . . . the existence of a discretion cannot save a provision that authorizes the imposition of a punishment that is cruel and unusual by nature. . . . Since such a punishment must quite simply be excluded from the arsenal of punishments . . .

Does that sound, to you, like a statement from the Supreme Court of Canada that, in fact, the mere possibility that a sentence imposing an infringement of the Charter might be upheld by this kind of amendment?

Thank you for your question. There are two things I’d like to say: The first is that I respect enormously the eminence of the folks and former colleagues you mentioned — as I do of the other jurists in this chamber — and reasonable people can disagree. It’s the government’s position — and correctly — that this does, in fact, increase the risk that mandatory minimums that could be introduced in the future will be immunized from a successful constitutional challenge.

I do want to also respond to your comments about the Canadian Bar Association. At committee, the Canadian Bar Association was represented by Tony Paisana, past chair of the Criminal Justice Section, and he did, as I mentioned and as members of the committee know, clearly express concerns with the safety valve approach.

Just this morning, I had my office check with the Canadian Bar Association’s Criminal Justice Section to see if their position has changed, as has been suggested and implied in your question. Colleagues, this is the reply we received:

While we at the section take pains on an ongoing basis to make sure our positions remain meritorious, it would be inaccurate to suggest that the position taken by the section and delivered to the committee this fall in relation to Bill C-5 by our representatives Tony Paisana and Jody Berkes was being reconsidered or amended or currently undergoing an evolution of any kind.

Would you take another question, Senator Gold?

Of course.

As you may be aware, the Canadian Bar Association actually passed a resolution in 2011 authorizing precisely this kind of mechanism as one of their resolutions. Although I didn’t say that they are undergoing that right now, there is going to be new leadership, and the clear message has been — to our office, in response to sending out the email that came from Tony Paisana today — that, in fact, this is not a done deal.

I do want to come back to the Supreme Court of Canada. Senator Gold, are you suggesting to this chamber that the CBA’s position would trump the words of the Supreme Court of Canada on this very issue?

No, Senator Pate, I’m not suggesting that. We have a responsibility as parliamentarians, as members of one of the two houses of Parliament, to assume our responsibilities in legislating for the good of Canadians. This is a bill that came to us from the House of Commons — that was supported by the government and by another party: the New Democratic Party. This is a minority Parliament. This is a policy choice that the government has made.

The Minister of Justice explained very clearly and candidly before the committee and in other fora that the judgment of the Government of Canada is that these measures will make a difference, respectfully, to the overincarceration and overrepresentation of Indigenous, Black and other marginalized members of our community; that it is a major step in the right direction; that the mandatory minimums that are being repealed represent a significant number of cases affecting members of those groups; that the restoration of conditional sentence possibilities is a major step forward on which virtually all witnesses would agree; and that this is what the government and the House of Commons believe is the appropriate step forward and the step that they believe is in line with what the public does accept and can accept.

We did a serious study, we heard witnesses and we heard overwhelming testimony to the effect that this is a good bill and that it’s a bill that deserves to be passed. No bill is perfect. All bills, perhaps, have room for improvement, but this is a policy decision of a government in a minority Parliament that we studied carefully and judiciously. We did our constitutional duty. I believe it’s time for us now to do our constitutional duty and pass this bill unamended. That’s why it’s the position of this government that this amendment is not one that should be supported, and I urge all colleagues to vote against it.

Honourable senators, I rise to speak to Senator Clement’s amendment to Bill C-5 and, inferentially, to speak about Bill C-5 itself. My remarks are divided into two parts. The first addresses three points with respect to which I am sympathetic regarding the proposed amendment, and it’s only fair to say that I’m supportive in principle of nearly all of the arguments that have been advanced in favour of the bill.

The second part of my remarks will address the reasons why I will reluctantly vote against the amendment and in support of Bill C-5 unamended.

A number of speakers here and before the committee have identified a variety of reasons why Bill C-5 is a good legislative initiative but one that could be made significantly better. I wish to limit my own observations today to the section of the bill that would remove a number of mandatory minimum sentences from our criminal law and, in that respect, highlight three points.

The first relates to the importance and value of largely unconstrained judicial discretion in the area of sentencing criminal trials. While each of us can identify a decision or a sanction imposed by a judge in an individual case that is troubling to us, on the whole we have an outstanding judiciary in Canada composed of thoughtful jurists.

When it comes to sentencing, it’s not as though the judges impose sanctions on convicted people on the basis of whim. Indeed, there’s a vast body of law that addresses the subject matter of sentencing in criminal cases. Indeed, at my now-former law school, there’s a course in sentencing law, and this is the case at many other law schools in Canada. The legal framework for sentencing is complex and also needs to be adapted to the circumstances of individual cases, as we have heard.

With the greatest respect to parliamentarians, judges generally — and in particular in individual cases with which they are understandably intimately familiar — are the best arbiters of the appropriate sanction.

Indeed, for me it is passing strange that we seem to be perfectly comfortable with judges alone, in the vast majority of cases, making decisions about guilt or innocence — by far the most important function — but then we suddenly lose confidence in these very same judges when it comes to sentencing and tell them, at least in part, what they must do, regardless of the specific facts associated with the very cases they are judging.

My second point is one that was mentioned by a few witnesses and, based on aspects of my former career teaching legal ethics, is bothersome to me. In some cases, as we have seen in the courts and in arguments in this place, the imposition of mandatory minimum sentences will be manifestly unfair — even unconstitutional, not just in your view or mine or the view of the accused or his or her lawyer, but even to the prosecutor. Now, some of you may be disdainful of the cold hearts of prosecutors, but in my experience the vast majority of prosecutors are interested in justice. Sometimes that includes avoiding the imposition of a sentence upon an accused person that, even in the eyes of the prosecutor, would be unjust.

So what’s a prosecutor to do? The obvious answer is to search around for some different criminal charge more or less associated with the evidence that has a punishment that better suits the crime — indeed, Senator Batters suggested such an approach in her dialogue with Senator Gold a bit earlier — and then the prosecutor has the person charged with that offence instead.

There’s a very good chance that the accused is not guilty of this more or less suitable offence, and both the prosecutor and the defence lawyer know this. But the accused’s lawyer advises the client to plead guilty to avoid being convicted of the offence that was committed, probably, and for which a mandatory minimum requirement would lead to a much harsher and unjust punishment.

You might say that’s fair enough, and that justice is served. But to get there, both the prosecutor and the defence counsel have to violate central obligations of their codes of conduct and professional obligations. The prosecutor must proceed with a charge that he or she knows does not meet the standard that is the reasonable likelihood of conviction — in fact, prosecutors get in trouble if they act without reference to that standard, a central obligation of prosecutors — and the defence lawyer must recommend to the client that he or she plead guilty to a criminal offence that there’s a very good possibility they didn’t commit.

We are in a strange place indeed if, in the sophisticated and much-envied justice system that we have, to achieve justice in these problematic cases — made problematic by the harshness of mandatory minimums — we have to ask both prosecutors and defence counsel to act unethically.

Let me say at once that these two points are relevant to virtually all mandatory minimums and would be resolved by legislative provisions that would remove their imposition.

My third point relates specifically to the amendment we are considering. I support the amendment in principle. Indeed, at an earlier point this fall, when I had hopes for it, I led the drafting of a version of an amendment almost identical to what Senator Clement has proposed.

Let me be clear: I support the idea that people should be held accountable for their actions, but what that accountability should look like can vary a lot. In some cases it should be incarceration — sometimes for a very long time, and sometimes less so. If we think that rehabilitation is an important goal of the criminal justice sentencing system, lengthy jail terms — and sometimes any jail term at all — may not be the answer.

This is a serious debate and I hesitate to introduce even a modest amount of levity, but, as you might know, I can’t resist. I used to serve as the Deputy Attorney General and Deputy Minister of Justice in Saskatchewan for a period of time, and that included responsibility for the provincial jails. As Senator Pate and others have noted, Saskatchewan’s provincial jails have a lot of Indigenous people incarcerated in them — deeply troubling — and we did work, I think, in some respects to improve that.

I used to visit these jails regularly and spent a third of my time with the jail managers, a third with the guards and a third with the inmates. On one occasion, in the Prince Albert Provincial Correctional Centre, I was visiting with some of the inmates, and one fellow in particular who was in a training program; he was squatting down, working with a blowtorch and cutting through metal. That was his training program. I chatted with him for a minute or two. I asked him, “What are you in for?” He said, “Safe cracking.”

Now, I think he was probably pulling my leg, but it did cause me to think it’s not necessarily the case that the training programs we make available inside the jails are really the best training programs for lawful life outside.

So judges will not always get it right, but they will know better than we parliamentarians sitting hundreds of kilometres and years away from the event and clueless about the actuality of the circumstances.

This amendment would license judges to make assessments and achieve justice in sentencing, and where justice cries out for a deviation from a mandatory minimum, justice could be done. It would resolve both of the dilemmas I mentioned earlier.

I won’t go on to speak about the debate with regard to who supports it and who does not, other than to say this. A number of years ago, the Uniform Law Conference of Canada, a criminal law section made up of senior prosecutors, senior defence counsel and senior federal criminal justice policy people from the federal and provincial governments supported the idea of this “exceptional circumstances” approach in almost the language identical to this amendment.

Now the reason why I reluctantly will not support the amendment. Simply put, I’ve come to the considered conclusion that it will go nowhere in the other place. I could elaborate on that in greater detail — others have commented — but it comes down to two points. First, based on such information as I have been able to gather independently of the proponents of the bill, I have concluded that it will not garner sufficient support to be adopted. I’m disappointed in this, but I’m trying not to be naive about it.

My second concern is that an amendment almost identical to this one was overwhelmingly rejected as out of scope at the Justice Committee in the other place. It seems highly unlikely that this amendment would meet anything other than the same fate. I’m disappointed in this, but, again, I’m not naive.

The consequence of this amendment being adopted and referred back to the other place, then, would, in my judgment, have the necessary consequence of delaying the passage of Bill C-5 for a period of time and to no achievable purpose, to the disappointment of those who support the amendments in the bill and many of whom called for it to be adopted as urgently as possible.

There’s also the risk, perhaps remote, perhaps real, that the bill would flounder in the other place. I should observe at this point that this is a bill to which the government is significantly committed, including in its electoral platforms, and in my view, we need to be respectful of that.

I am hardly an expert on how these things work in the other place for sure — a 30 handicap, you might say — but speaking only for myself, in my view, creating that risk takes me beyond the boundaries of my limited parliamentary legitimacy as a senator, and I’m not prepared to take that risk.

Let me reiterate that Bill C-5 is a good bill and I will support it. That said, whatever decision is made with respect to this amendment and on the various issues we are debating, I’m more than prepared to start immediately with others to examine the whole terrain of sentencing in Canada, with the goal of achieving a better, more responsive and fairer criminal justice system. Thank you.

On debate on the amendment, Senator Simons. I apologize in advance, but at six o’clock I will have to interrupt you.

Apologies, Senator Simons, but I must interrupt.

Pursuant to rule 3-3(1), I’m required to leave the chair until 8 p.m., unless there is agreement that we not see the clock. Is there agreement?

I hear a “no.”