Kim Pate

Kim Pate
ISG - Ontario

Senator Kim Pate wants to let judges decide what sentences are appropriate for people convicted of crimes.

An elderly prisoner shuffles down a range at Ontario’s maximum security Millhaven Institution.

A Millhaven man waits to speak to members of the Senate Committee on Human Rights during a 2017 fact-finding mission.

Her Senate Public Bill S-251, An Act to amend the Criminal Code (independence of the judiciary) and to make related amendments, would allow judges to depart from Criminal Code provisions known as mandatory minimum penalties.

“Through legislated mandatory minimum penalties, we, as legislators, have passed untold numbers of sentences without ever knowing the names or faces of the people whom we have condemned to three, five or ten years, or even life in prison,” Senator Pate said during her speech at second reading.

“The promise of a fairer criminal justice system lies before us.”

As things stand now, a judge who finds someone guilty of certain Criminal Code offences must sentence that person to a minimum time in custody. A murder conviction, for example, carries an automatic sentence of life imprisonment; first-degree murder requires a judge to impose a period of parole ineligibility of 25 years.

Senator Pate’s bill would allow judges to impose whatever sentence they think fit, based primarily on the specific circumstances of the crime and that of the convicted person. The bill would require judges to give written reasons for imposing a minimum penalty and to first consider all other available options. 

The Criminal Code says the fundamental principle of sentencing is that the “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

For Senator Pate, mandatory minimums prevent judges from applying this concept. She argues that this can result “in unduly harsh sentences being imposed on individuals who are most marginalized by sexism, racism, impoverishment and disabling health issues, including those related to mental health and intellectual disabilities.”

She notes, for instance, that 26% of federally sentenced prisoners — people who have received sentences of two years or more — are Indigenous, whereas Indigenous people make up less than 5% of the population. One of the Truth and Reconciliation Commission’s calls to action was for the federal government to allow judges to depart from mandatory minimum penalties.

The courts have also frequently struck down mandatory minimum penalties. In 2016, then-Supreme Court chief justice Beverley McLachlin, writing for the majority, ruled that a minimum sentence for drug trafficking violated the Canadian Charter of Rights and Freedoms.

“I concluded this provision … will sometimes mandate sentences that violate the constitutional guarantee against cruel and unusual punishment,” she wrote in R. v. Lloyd.

“The reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge,” former chief justice McLachlin wrote.

“If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.”

All available evidence shows that mandatory minimum penalties fail to deter crime, Senator Pate said. The Senate Committee on Legal and Constitutional Affairs has also heard that they contribute to court delays as accused people with the means to do so are more inclined to take matters to trial rather than plead guilty when faced with the guarantee of harsh punishment.

“Justice demands individualized — not one-size-fits-all — sentences,” Senator Pate said.

Read Bill S-251 and follow its progress through Parliament.

Senator Kim Pate receives a note from a prisoner during a 2017 fact-finding mission to the Regional Reception Centre in Sainte-Anne-des-Plaines, Que.

The Regional Reception Centre in Sainte-Anne-des-Plaines.

Image of "Fact Sheet: Judicial Discretion Bill"


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