Honourable senators, I rise today to speak to Bill C-46, which amends the Criminal Code’s provisions concerning drug-impaired and alcohol-impaired driving.

I support the important objective of this bill — that of decreasing the prevalence of impaired driving, for which so many colleagues, including the sponsor of the bill, Senator Boniface, have eloquently advocated. I will not repeat the issues raised by other colleagues. Rather, I wish to raise some concerns about the penalty provisions of this bill.

Bill C-46 variously reinforces, creates and increases mandatory minimum punishments. All available empirical evidence suggests that this is a step in the wrong direction.

In the other place, multiple witnesses, including the Canadian Centre for Justice Statistics, the Insurance Brokers Association of Canada and Dr. Barry Watson of Queensland University of Technology’s Faculty of Health, testified that there is no evidence to suggest that severe penalties have any deterrent effect on impaired driving.

Moreover, as the head of prisons in Nova Scotia has said, in order to justify his work to move away from a punitive model over the past several years:

Anyone who’s taken a basic psychology course in university knows punishment isn’t effective in changing behaviour.

Mandatory minimum sentences will not prevent impaired driving, and they will not save lives. There can be no doubt that we must address issues at the root of impaired driving, issues of inequality, issues of public education, and issues of access to health care, particularly treatment for addictions — drug and alcohol addictions alike.

However, I urge us to take note that a key regret expressed by experts in the states of Washington and Colorado regarding the experience of introducing a regulatory system for cannabis was that a system for public education was not put into place soon enough.

The result, among other consequences, was actually higher rates of impaired driving. Research and numerous witnesses before the committee in the other place credit public education as key to the gains that have been made in limiting alcohol-impaired driving here and elsewhere. The government has set aside up to $161 million to support Bill C-46 to be allocated to law enforcement, research and raising public awareness regarding impaired driving.

The details regarding allocation of funds have not yet been released, other than the fact that the majority of this amount is being directed towards law enforcement initiatives. This raises concerns about inadequate resources for education and prevention efforts. The Canadian Automobile Association testified:

We and other non-profit groups in this country have been left to carry the burden of creating and executing public education campaigns on our own. We’re going to continue to do our part, but we want help.

Effectively addressing impaired driving also requires a focus on issues related to addictions in addition to coexisting mental health issues that often underlie and are associated with experiences of past trauma. Individuals who seek to anaesthetize themselves with drugs or alcohol can be among some of those most marginalized by race, sex, income and other discriminatory experiences.

Criminalization and institutionalization only make their circumstances and path to obtaining treatment more difficult. This injustice is particularly abhorrent for those who lack the resources needed to access treatment, whose addictions go untreated and unaddressed, except and until police or criminal justice involvement.

Many of us are very concerned that harsher penalties will only further burden and punish and limit avenues of treatment for those already struggling with issues of addictions and mental health.

While Bill C-46 acknowledges the importance of a health care approach to issues of impaired driving, and I certainly know this is the view of its sponsor in this place, the current penalty provisions risk perpetuating systemic inequalities and injustices within the criminal law system. In the bill, proposed new section 320.23 of the Criminal Code, for instance, creates an exception to the mandatory minimum punishments that apply to impaired driving. Where impaired driving does not cause bodily harm or death, the provisions allow the court to delay sentencing while an individual attends a treatment program and then, at the sentencing phase, to not apply a mandatory punishment. This sounds good.

As a preliminary issue, this key potential to obtaining a treatment order and to avoid a mandatory minimum does not extend, though, to all individuals. Mandatory minimum sentences in general infringe individuals’ rights to a sentence that reflects their individual circumstances, and this is no different.

The logic of the mandatory minimums in Bill C-46 in particular is problematic in an additional way, however. The treatment order exception applies only to cases not resulting in bodily harm or death. This exception to mandatory minimums therefore generates two very different outcomes for two individuals who create the same risk of harm by driving while impaired. Regardless of need or potential for rehabilitation, only one of them will have the option of a treatment order and of having the fairness of a mandatory minimum punishment assessed in light of his or her individual circumstances.

Furthermore, the availability of a treatment order and, by extension, the possibility of an exception to a mandatory minimum is dependent on the consent of the Crown prosecutor. Besides the problem of further limiting the availability of treatment orders, this provision is discouraging because it perpetuates a key concern relating to mandatory minimums, that of transferring discretion regarding sentencing from judges, whose reasons must be recorded, to prosecutors who can act without this mechanism of accountability.

The availability of treatment orders is also dependent on the availability of treatment programs and services. There is already a need for more such services in most jurisdictions.

An additional and more fundamental problem relates to systemic discrimination in the criminal law system. In speaking to this bill, several of our honourable colleagues, including Senator Pratte and Senator Saint-Germain, have already discussed the imperative of guarding against racial profiling in the implementation of random alcohol screening of drivers. I support Senator Saint-Germain’s call to explore the option of mandatory screening only at organized and announced roadblocks, as is done currently in Ireland, or only following a traffic accident that results in injury or death. To do otherwise risks simply and too hastily accepting a regime more likely to infringe constitutional rights when more appropriate alternatives may exist.

These alcohol-screening provisions are not the only part of Bill C-46 that, while appearing neutral on their face, have the potential to perpetuate discrimination. Mandatory minimums have a long history of being recognized as being problematic in this respect. Mandatory minimums also run contrary to principles of restorative justice and contravene section 718(2)(e) of the Criminal Code of Canada, which requires that all other available sanctions be considered before imprisonment is ordered, particularly with respect to indigenous individuals. This principle recognizes the failure of the criminal justice system to recognize indigenous law and to respond adequately to indigenous social history and experiences of substantive inequality, particularly ongoing legacies of racism and colonialism that have led to alarming rates of overrepresentation of indigenous peoples in the criminal and prison systems.

The role that mandatory minimums have played in creating the current overrepresentation of racialized prisoners, particularly indigenous peoples, in prisons in Canada cannot be denied. Call to action number 32 of the Truth and Reconciliation Commission focuses on allowing judges to depart from any mandatory minimum sentence and establishes this as a necessary step toward redressing a legacy of colonialism and discrimination in the criminal justice system.

Impaired driving charges are the criminal charges most likely to be challenged in Canada’s courts. This is notably because, in this area of the law, more individuals than usual tend to have the means to hire lawyers and more fully litigate their cases. Well-resourced individuals will be well positioned to make use of Bill C-46’s exception to mandatory minimums based on obtaining a treatment order. For those most marginalized in our society, however, access to this treatment order exception is significantly restricted by lack of knowledge of the provision, lack of representation in court, all of which further is compounded by a lack of available treatment resources. These are additional issues related to systemic discrimination. I urge us all to be mindful that as part of our responsibilities to ensure any legislation does not disproportionately impact those who are already most marginalized, we must ensure that all individuals will have knowledge of — and then access to — treatment orders and other exceptions to the mandatory minimum sentencing provisions in Bill C-46.

More broadly, I also encourage us, whether in our deliberations on Bill C-46 at committee or here in this chamber, to seek to ensure that alternatives to criminal law responses exist for those with addictions and mental health issues, particularly for those in our societies whose experiences of trauma and abuse are compounded by inadequate or non-existent supportive interventions, those who anaesthetize themselves as part of trying to cope with past victimization, to negotiate poverty, racism, sexism, violence.

I discussed earlier some of the devastating effects of criminalization on those who are in need of positive intervention. They need intervention, not further condemnation or punishment. There are also costs for the criminal law system of failing to more fully implement proactive responses to addictions. The Canadian Bar Association and the Barreau du Quebec both agreed that this bill’s approach risks placing a significant additional burden on a system that is already struggling with delays.

As we learned from the legal committee’s report on court delays, mandatory minimum penalties burden the criminal and correctional system in many ways, from increasing rates of trials for those who have the means, to pressuring those who do not into guilty pleas, resulting in too many individuals, especially poor and racialized people, as well as those with mental health issues and addictions, being imprisoned. As the Human Rights Committee is hearing in its study of human rights in prisons, this results in their issues not even being fully acknowledged, much less addressed.

The Legal Committee ranked as one of its top priorities for action on court delays the over-representation of persons with mental health issues, including those with drug and alcohol addictions in Canada’s court and prison system. In our considerations of Bill C-46, we have before us an opportunity to act against this injustice, and I urge honourable senators that we not let this opportunity pass. We must ensure that treatment orders and judicial discretion with respect to sentencing are available to all. More fundamentally, we must support this approach with investment in public education and increased accessibility to community-based addiction and mental health treatment services and supports. I suggest we could also buttress these measures with guaranteed livable income, housing and education supports that cumulatively are far more likely to prevent individuals from being rendered more vulnerable to begin with.

We all know that the criminal law is the least effective and in fact can be a very destructive means of intervening when past trauma, mental health and addictions are the issues that most need to be dealt with and addressed. We must ensure that the experience of the criminal law of marginalized individuals reflects this reality. I look forward to working with all of you on this issue and urge that we move Bill C-46 to committee for just such further examination.Meegwetch, thank you.