Honourable senators, let me tell you more about S.B., and the story I started to tell before the dinner break.

S.B. had a poor, transient and traumatic childhood filled with sexual and physical violence. Indeed, according to the pre-sentencing report, she described being abused by 13 different family members as a child.

In an affidavit, she said she began drinking at 15, and became addicted to crystal meth at 18. She said she had gotten off meth successfully when she became pregnant with her first child, and she stayed off the drug for 14 years. She fell back into addiction in 2019, and she lived homeless on the streets of Winnipeg for five months before her arrest. She is now the mother of six children, and, by the time of that arrest, she had lost custody of all of them.

S.B. did have a criminal record with 19 offences which sounds pretty dire, except that 14 of those offences were for things like failure to appear in court and failure to meet her curfew. The longest she had ever spent in prison at one time was 30 days. She did not have a history of serious violence. In fact, prior to her arrest in this case, she had only one minor assault charge in 2017, for which she had received a conditional discharge.

Now, you could imagine that this woman might have been able to fight her second-degree murder charge at trial. You might suppose, for example, that her lawyer could have argued that she was not criminally responsible because she was suffering from a mental disorder that rendered her incapable of appreciating the nature and quality of her actions, or of knowing they were wrong — especially in light of the young woman’s avowed belief that she was possessed by demons, or in a trance.

You might imagine that a lawyer could have argued that S.B. was in the grips of drug-induced psychosis or self-induced extreme intoxication, especially since the young woman was sentenced before we rushed to pass — without due consideration, I might say — Bill C-28 last June. You might presume it could have been a viable legal strategy to simply demand that the Crown prove beyond a reasonable doubt that S.B. had actually committed the crime, given the paucity of physical evidence against her.

Indeed, in June of 2021, after the preliminary hearing, the Crown actually applied to stay the proceedings in the case, stating that it had determined there was no reasonable likelihood of conviction. Yet, in January of 2022, the woman’s lawyer wrote to the court that her client would be accepting a guilty plea. After all, a second-degree murder charge comes with a mandatory life sentence without even a chance of parole for 10 years. By pleading guilty to manslaughter, S.B. received a sentence of eight years — less credit for time served in custody — which left her with a little more than four years remaining on her sentence.

This may not be the intent, but our mandatory minimum sentencing regime is positively set up to invite such guilty pleas, even when a defendant might have a viable courtroom defence. The poorest, most vulnerable and most powerless defendants are the very ones most often pushed to take those plea deals because they have no capacity to fight back and, frankly, no hope.

Let’s consider the outcome here: Since there was no trial, there was no news coverage, no public attention, no public questions about the facts and no public outrage. S.B. was sentenced quietly and invisibly — and with no chance for people to hear her story, or champion her cause. She was then sent to serve her sentence thousands of kilometres from her family in an overcrowded prison filled with Indigenous women with stories nearly as bleak as hers.

I decided to take the time to tell you the story of this one individual because it is so representative of the crisis within our criminal justice system and, frankly, within our society. The amendment I support today would not give judges unbridled licence to ignore mandatory minimum sentences; it would simply give them the opportunity in only the most extraordinary cases — cases where a mandatory minimum sentence would be manifestly unfit — to suggest, and then justify, the substitution of a sentence apt for that particular defendant.

It is — I accept, and for all of the reasons Senator Gold outlined — an imperfect solution. Perhaps it is an impolitic one. I know that in the world of realpolitik, we run a real risk by pushing for this at third reading.

Honourable senators, I had the privilege of serving as a member of the Standing Senate Committee on Legal and Constitutional Affairs during its study of Bill C-5, and I heard witness after witness come before us — academics, lawyers and advocacy groups — asking us all for an amendment such as this one. I cannot in good conscience ignore their advice any more than I can ignore stories such as the one I’ve told you this evening.

I hope you will think carefully when it comes time to vote.

Thank you. Hiy hiy.