Speech by Senator Pate - Criminal Code Bill to Amend—Second Reading—Debate Adjourned

Criminal Code

Bill to Amend—Second Reading—Debate Adjourned

May 31, 2018

The Honourable Senator Kim Pate :

moved second reading of Bill S-251, An Act to amend the Criminal Code (independence of the judiciary) and to make related amendments.

She said: Honourable senators, today we begin second reading of Bill S-251, An Act to amend the Criminal Code (independence of the judiciary) and to make related amendments.

This bill provides judges with the discretion to impose a fair and just sentence in every case, notwithstanding the presence of a mandatory minimum penalty.

The purpose of today’s speech is to provide 10 reasons why I believe this issue requires urgent and concerted action from this chamber.

First, judicial discretion regarding mandatory minimum penalties was part of the government’s campaign promises, particularly those made to Canadians to further reconciliation with Indigenous peoples.

Second, the majority of Canadians support judicial discretion.

Third, courts are increasingly ruling mandatory minimum penalties unconstitutional and disproportionate.

Fourth, the proliferation of mandatory minimums in recent years is an aberration, at odds with historical non-partisan consensus about them.

Fifth, Canada’s rigid and harsh mandatory minimum penalties have made us an outlier among Western democracies.

Sixth, mandatory minimum penalties do not deter crime.

Seventh, mandatory minimum penalties do not serve the interests of victims.

Eighth, mandatory minimum penalties undermine legal certainty and the rule of law by encouraging wrongful guilty pleas.

Ninth, they carry enormous and needless financial costs.

Tenth, they discriminate against those who are marginalized and result in a less fair and just society for all.

Bill S-251 furthers the government’s electoral platform by assisting them to implement the calls to action of the Truth and Reconciliation Commission. Call to action number 32, in particular, urges “. . . the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.”

The TRC’s work traces a clear link between the trauma and marginalization that are the legacy of residential schools, as well as other racist colonial policies, and the current overrepresentation of Indigenous peoples in prisons. Although Indigenous peoples represent less than 5 per cent of Canada’s population, 26 per cent of all federally sentenced prisoners and 39 per cent of federally sentenced women are Indigenous.

As we ask what our legacy as legislators will be for future generations, we must consider that a full 43 per cent of girls in custody, practically one in two in prisons for youth, are Indigenous.

Call to action number 32 recognizes mandatory minimum penalties as a primary contributor to this overrepresentation. The harshest mandatory minimum penalty in the Criminal Code is life in prison. Between 2006 and 2016, 45 per cent of women sentenced to life in prison were Indigenous, not because they represent the gravest threat to public safety, but rather because Canada’s principles of justice, fairness, proportionality and restraint in sentencing, including an obligation in the Criminal Code to consider an individual’s Indigenous history, have been obliterated by mandatory minimum penalties. Mandatory minimum penalties interfere with the ability of judges to do their jobs, namely considering all of the evidence, all the circumstances of each case, and determining just and appropriate ways to hold individuals to account.

Judges have been telling us for decades that mandatory sentences limit their ability to do justice. In 1987, when the Criminal Code contained a total of 10 mandatory minimum penalties, 57 per cent of Canadian judges said that mandatory minimums restricted their ability to mete out a just sentence.

In the intervening years, rather than reducing the numbers and impact of mandatory minimum penalties, successive federal governments have increased mandatory sentencing provisions some six, almost seven, fold.

The proliferation of mandatory minimum penalties not only disproportionately impacts Indigenous peoples but also harms us all by making Canada a harsher, more punitive country and by undermining our commitment to equality and the rule of law.

The Canadian public recognizes this, in fact. Canadians elected the current government on a platform that promised to implement the TRC calls to action, including to restore judge’s discretion regarding mandatory minimum penalties. While the government has not yet taken action in this respect, Canadians still overwhelmingly support judicial discretion in sentencing.

In 2017, 9 in 10 Canadians wanted the government to consider giving judges the flexibility to not impose mandatory minimum sentences. Research from the United Kingdom has also demonstrated that members of the public who initially appear to support mandatory minimum penalties tend to characterize even the life sentence as unjust and an unfit sentence once they are provided with factual details about individual murder cases.

This empirical data shows that the principle of proportionate, individualized sentences is fundamental to Canadians. Section 718.1 of the Criminal Code requires judges to impose sentences proportionate to the seriousness of the offence and the responsibility of the person being sentenced. Trial judges must craft just sentences based on the context that shape the crime, the circumstances and experiences of the individuals involved, and the options available to hold people accountable.

Yet, mandatory minimum penalties prevent judges from imposing sentences that take into consideration relevant circumstances that might merit a different response, particularly where a lesser sentence is appropriate. 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.

The principle that judges ought to have discretion in sentencing dates back at least to Aristotle, who recognized that legislation is necessarily general, while the circumstances of each case are resolutely particular. Justice demands an individualized, not a one-size-fits-all, sentence.

Canada has a long history of upholding the principle of judicial discretion. Every committee tasked with making sentencing recommendations to the government has emphasized the need for judicial discretion regarding sentencing.

As long ago as 1938, the Archambault commission recommended an end to the use of mandatory minimum penalties. The Fauteux Committee of 1956 reiterated that removing responsibility for criminal law sentencing from judges would be:

. . . repugnant to established Canadian concepts of law. . . .

The Ouimet report of 1969 reiterated the need to eliminate mandatory minimum penalties, as did the Law Reform Commission of Canada in 1975 and the Canadian Sentencing Commission of 1987.

The parliamentary committee chaired by Conservative MP David Daubney in 1988 clearly opposed the introduction of new mandatory minimums. The consistent and non-partisan unanimity regarding the read to repudiate mandatory minimums over decades of considered study is both sobering and striking.

In their preoccupation with abolishing the death penalty in 1976, the majority of parliamentarians gave little thought to the consequence of the measure they imposed in its place, Canada’s harshest mandatory minimum, the life sentence for murder, coupled with mandatory parole ineligibility periods of 10 and 25 years for first and second degree respectively. David MacDonald, the Conservative Member for Egmont, objected to the tradeoff of one “barbarous, cruel and unacceptable punishment for one that is not equally as bad but is certainly moving in that direction.”

Liberal Senator George McIlraith, a former solicitor general, was critical of the mandatory 25-year parole ineligibility period for first-degree murder and remarked, “I hope, in the course of a few years, after some have been sentenced under this provision, that the government will look to amending this clause and coming forward with a better provision.” Clearly, he did not anticipate the regressive reforms that followed.

Even prison guards have opposed these harsh and absolute sentencing provisions. Guards were so concerned about the mandatory life sentence creating hopelessness amongst prisoners that they strongly supported the introduction of a potential 15-year review of the parole ineligibility period. Aptly referred to as the “faint hope clause,” fewer than two-in-five prisoners who were eligible even applied to have their parole ineligibility period revisited, and only 19 per cent had their parole ineligibility period reduced.

The clear conclusion? It did provide hope and benefited those who deserved a break. Those who knew they had little chance of a reduction of their parole ineligibility periods tended not to even apply. Of those who did apply, only those considered deserving of a reduction were granted an opportunity to apply for parole by juries who considered the merit of their applications, and even fewer were actually granted conditional release by the parole boards.

The question is: How did we lose our way? Why, despite decades of consensus from every committee that has seriously studied the issue that we must retreat from mandatory minimum penalties, have we seen such proliferation in the past 20 years and, particularly, in the past 10?

When the Criminal Code was first enacted in 1892, it contained six mandatory minimum penalties. Until 1995, the number of mandatory minimums remained constant at around 10. Then the Liberal government’s Bill C-68 tripled this number by introducing 19 new mandatory minimum penalties. In the 10-year period between 2005 and 2015, a series of one Liberal and four Conservative government bills more than doubled the mandatory minimum penalties in the Criminal Code from 29 to 63 and then 72.

In 2011, the Conservative government made the mandatory life sentence for murder harsher by further limiting opportunities for parole and eliminating the faint hope clause. Regressive law reforms premised on the flawed view that crime and its associated harms can be addressed by punitive prison sentences runs contrary to all available evidence. On a basic level, studies have shown that most individuals do not know the penalties for crimes and most people who commit crimes do not think about the penalty if they do know if beforehand. The data suggests instead that other factors such as appropriate noncriminal justice intervention and certainty of being held accountable are much more likely to prevent crime. Yet, despite more than 50 years of mounting evidence, governments have persisted in enacting mandatory minimum penalties based on erroneous claims that they deter others who might engage in similar behaviour. As the Supreme Court of Canada concluded in 2015, in R. v. Nur, that empirical evidence suggests that mandatory minimum sentences do not in fact deter crimes.

Our obsession with mandatory minimum sentencing laws also runs contrary to the experience of other jurisdictions. Most other Western democracies whose laws include mandatory minimum penalties contemplate some form of judicial discretion — countries like England, Wales, New Zealand, South Africa, most Australian jurisdictions and even some United States. Canada lags behind other countries with respect to its position on mandatory life sentences in particular. Canada’s sentencing regime for murder is among the harshest and most inflexible in Western democracies, except for the United States, because massive incarceration rates make it an extreme outlier.

About 60 per cent of the European Union’s member states refuse to impose a mandatory life sentence for murder. In fact, in Portugal, the sentence for murder is 25 years in prison and life sentences are considered unconstitutional. The constitutional court of South Africa decided that the mandatory life sentence for murder in that country complied with its Bill of Rights only because the sentence was qualified by a provision giving judges discretion not to impose mandatory minimums. Furthermore, the framework of mandatory minimum penalties in the Criminal Code is already beginning to unravel.

Two Supreme Court cases and at least 10 decisions from provincial courts of appeal have struck down various provisions of the Criminal Code as a result of unconstitutional mandatory minimum penalties. Most recently, in 2016, in the case of R. v. Lloyd, the Supreme Court of Canada struck down a provision of the Controlled Drugs and Substances Act that imposed mandatory minimum sentences for drug trafficking on the basis that it prevented judges from examining the particular circumstances of individual cases. The court further concluded that such mandatory minimum sentences are vulnerable to constitutional challenge and suggested that Parliament should enact a provision like the one in the bill before us.

Mandatory minimum sentences also fail victims of crime. Canada prides itself on being a world leader in terms of victims’ rights and governments have justified mandatory minimum penalties by claiming they are in the interest of victims. When polled, however, victims consistently ranked informational needs as their highest priority, along with increased participation in the justice system, restitution and recognition of the losses they have suffered — factors unrelated to harsh punishment.

When judges can exercise their discretion, they can hear from victims through victim impact statements and use these statements in their determinations of appropriate sentences. We also know that mandatory minimums will neither undo harm caused nor deter further harm. As the president of Mothers Against Drunk Drivers Canada recently testified before the Standing Committee on Justice and Human Rights:

As a mom, as a stepmom, as a victim, I can’t support it. There’s no evidence to support that this will actually make a difference. We know once we bury our children or bury a loved one, it’s too late. We need to focus on deterring it before it happens.

In my years of working with those convicted in relation to homicides, I can tell you that it is the rare person who would not give up her life if it would bring back the person who died. No sentence can do this. So we try to do our best to otherwise remedy such wrongs by providing other ways for people to pay their debts and provide future positive contributions to society.

Mandatory minimum penalties also fail to guarantee certainty in the law. They do not ensure everyone is sentenced in the same way for the same crime. Where there is evidence to support a charge carrying a mandatory minimum penalty, the discretion available to prosecutors takes on new importance. They can, for example, choose not to lay a charge or to include a charge with a mandatory minimum as a bargaining chip to extract a guilty plea to a lesser charge. Rather than removing all discretion from sentencing, mandatory minimums tend to shift this enormous power from judges, who must offer principled reasons for their decisions to the public, into the hands of actors with less accountability.

As the Sentencing Commission of Canada observed, the rule of law requires the discretion be exercised in a public forum, but the public almost never has access to the reasons why prosecutors foresee one charge rather than another. Moreover, judicial decisions may be appealed whereas exercises of prosecutorial discretion are not subject to comparable review.

Mandatory minimums do not ensure that if you do the crime you do the time. For many, in fact, mandatory sentencing laws can result in people doing the time without having even done a crime. Many choose to plead guilty to lesser charges and accept a shorter prison sentence rather than going to the court and risking the prospect of a harsher mandatory minimum or discriminatory treatment even if they are not guilty or have a valid defence.

This situation is particularly apparent and appalling in cases of women convicted as a result of their use of lethal force against their abusers. In 1995, then Justice Minister Allan Rock charged Justice Lynn Ratushny with reviewing 98 such convictions. Justice Ratushny determined that a key reason that far too many women had pleaded guilty, despite having a defence, was the spectre of a mandatory minimum sentence of life in prison, particularly for women with children. The significance of this is sobering when we bear in mind that the majority of the women in prison are mothers.

The experience of Kim Kondejewski, a woman from Manitoba, as documented by Professor Elizabeth Sheehy, in her book Defending Battered Women on Trial, shows why so many battered women plead guilty to manslaughter rather than risking a trial for murder. Unlike many women charged with killing an abusive partner, Kim’s case went to trial. For Kim, this meant exposing and reliving the abuse in a public forum, in front of her own friends and family, those of the deceased and the media. In most cases, there are few witnesses of domestic violence, as we’ve just heard from our colleague, and women like Kim are usually required to provide evidence in their own defence and being cross-examined by a prosecutor. The transcript of her testimony shows how, frequently sobbing, shrinking before the cross-examiner and requiring time to regain her composure, she told the court that her husband began to abuse her after she married him at age 17, and that his abuse became more and more brutal and degrading as the years passed. In addition to verbal, physical and sexual abuse, threats requiring her to work up to 16 hours a day and forbidding her from leaving the house in which he kept over 50 weapons, including rockets and grenades, he had decided that she should commit suicide so that he could benefit from her life insurance policy to relieve him of his own debts.

After failed attempts at planning her suicide, including a plan that she drive a car into a semi trailer on the highway, he told Kim one day that if she hadn’t committed suicide by the time he came home from his date with his girlfriend, he would kill her and their two children. Kim shot him when he returned from work that evening to prevent him from hurting her daughter and son and then tried to kill herself.

Many women in Kim’s situation end up with defence lawyers unfamiliar with dynamics of abuse and therefore less likely to recognize behaviours that represent threats to battered women or the economic social and legal inequalities that they experience.

Despite clear evidence of the threat her husband posed to her and her children, she did not want her children to suffer any further and wished to prevent them from being called by either her lawyer or the Crown to testify. She tried to plead guilty to manslaughter or even second-degree murder. Her lawyer formalized an offer for her to plead to manslaughter but the Crown was so convinced that the case was a slam-dunk first degree murder that Kim’s offers to plead guilty were rejected. Kim, however, benefited from a lawyer who could ably present the reality that she reasonably believed she had no recourse to protect herself and her children other than to kill her husband.

The facts in her case fit well with stereotypical generalizations of what a battered woman looks like. The case did not depend only her credibility. Her account was supported by the testimony of many other witnesses. She also had an excellent expert witness who strongly connected her experiences to the paradigm of battered women syndrome, explaining how years of feeling powerless in the face of her husband’s abuse led her to believe there was no escape from him.

The jury heard the horrific details of the decades of abuse she experienced and the imminent threat to her life and the lives of her children and, after a mere 55 minutes of deliberation, found her not guilty.

Despite Kim’s strong case, Professor Sheehy makes clear the precariousness of her position. The slightest departures from the stereotypes of a good woman, a good mother, a good wife and of a battered woman, such as the strategies of resistance that Kim displayed in intervening to divert her husband’s wrath away from their children and toward herself, telling him that she wanted to leave and disclosing his violence to family members and co-workers put her defence at risk because this resourcefulness might not appear to the jury to be the behaviour of a true battered woman.

Years of having her self-esteem systematically attacked made Kim more likely to believe she deserved the abuse, to blame herself for her husband’s death and, consequently, to take responsibility for it in court. She tried to do that; so do many others.

First and foremost for many women like Kim, however, is a concern for protecting their children from the traumatizing experience of testifying in court. What is shocking and sobering is that Kim would have served a federal sentence and, possibly, she might still be serving a life sentence if the prosecutor had accepted her request to plead guilty. Instead, unlike most prosecutors, he refused to negotiate. Kim’s case shows the incredible pressures on women to plead guilty even when they have a valid defence that justifies their actions in order to avoid the crushing weight of a life sentence.

We know now that all evidence indicates that mandatory minimum penalties utterly fail in their stated goals of deterring crime and offering fairness and certainty in the law. That alone, honourable senators, should be sufficient to convince you that judicial discretion regarding mandatory minimums is needed. But the case in favour of discretion is much stronger than that. All Canadians stand to benefit from reducing both the significant financial investments and the harmful unintended consequences associated with mandatory minimum sentences.

The recent report of the Standing Senate Committee on Legal and Constitutional Affairs, under the chairmanship of our former colleague Senator Runciman and our current colleague Senator Joyal, elaborates the strain that mandatory minimums place on scarce judicial resources and the pressing issue of trial delay.

In their testimony before the committee, no fewer than 11 different criminal justice experts named mandatory minimum penalties as a factor contributing to trial delays. When faced with the prospect of a mandatory minimum sentence, those with means have nothing to lose and everything to gain by going to trial and trying every avenue to avoid a harsh sentence rather than seeking early resolution.

For those convicted and sentenced to a mandatory minimum penalty, the cost to taxpayers of administering a harsher-than-necessary sentence is significant. For a woman in federal prison, for example, each additional year of a prison sentence was estimated by the Parliamentary Budget Officer to needlessly cost taxpayers between $343,000 and $600,000 a year. By contrast, the cost of supporting a woman for a year while she serves a sentence in the community is only approximately $18,000, which also increases her chance of reintegrating successfully into that community and thereby decreases her likelihood of being criminalized again in the future.

We must ask ourselves if paying hundreds of thousands of dollars per woman per year for the label of being tough on crime is worth it when we know that mandatory minimums do not achieve the safer society that they promised.

In speaking about the fiscal costs of mandatory minimum penalties, we must not lose sight of their social costs. The Criminal Code tells us that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. And just sanctions, according to the Supreme Court, are those that do not operate in a discriminatory manner. Yet, again and again mandatory minimums have led to the increased criminalization and imprisonment of those who are impoverished; women; those who live with disabling mental health issues; and those who are racialized, especially those who are Indigenous and African-Canadian.

I have spoken already about the effects of mandatory minimum penalties on Indigenous peoples as highlighted by the Truth and Reconciliation Commission of Canada. A key reason for this disproportionate disadvantage is that mandatory minimums require a judge to ignore a principle of sentencing codified in section 718.2(e), often referred to as the Gladue factors.

This provision was enacted in the 1990s in response to concerns about discrimination against, and the over-incarceration of, Indigenous peoples in the criminal justice system. It requires judges to consider all available sanctions other than imprisonment at sentencing and to direct particular attention to the circumstances of Indigenous peoples, which may specifically make imprisonment a less appropriate or less useful sanction.

As I think of all those who could have benefited from alternatives to imprisonment, I cannot help but mention S. You may remember S, honourable colleagues, from my first speech as a senator and my recent closing of Inquiry 19. I was able to visit her recently, and in the year and a half since the first time that I spoke to you about her, far too little progress has been made toward freeing her. She remains Canada’s longest-serving woman prisoner. She is an Indigenous prisoner who, as a child, experienced over a decade of horrendous physical, sexual and psychological abuse first in residential school, all of which made her easy prey for men in the years that followed.

She turned to drugs to anaesthetize herself to the trauma she experienced, and she was first jailed as an accomplice to her abusive partner’s drug dealing, but she remains in prison today because of a mandatory life sentence for second-degree murder.

S pleaded guilty to the murder of another prisoner while she was imprisoned at the Kingston Prison for Women. To this day, correctional staff and prisoners alike at the prison who knew both the woman who died and S reject that the death of the woman, whose name was Lorna, was anything but a suicide. She was extremely palsied and prone to seizures, yet, shockingly, prison authorities left her to rely on other prisoners for such functions as cleaning, dressing and feeding.

Parenthetically, those of us on the Human Rights Committee have seen many other similar situations for men, too. S and Lorna were extremely close and considered themselves sisters. Though she officially refused, S says she eventually did agree to help Lorna commit suicide. The inquest into Lorna’s death concluded that the cause of death was unknown, and S was not initially charged due to a lack of evidence. This changed only when, over a year later, while suffering the severe psychological stress of segregation, S confessed to “murdering” Lorna. She felt intense guilt and responsibility, a sense of personal responsibility that cannot be equated with legal responsibility and that should not have been accepted as the basis of a guilty plea.

The judge who accepted her guilty plea described the situation as follows: Lorna is dead. The authorities believed her death probably was a suicide. S, because her conscience was bothering her, confessed to killing Lorna. If she had not done so, she would not have been charged.

S was allowed to plead guilty despite inconsistencies between her confession and both the accounts of the Correctional Service of Canada, or CSC, and photos of the crime scene. CSC delayed in turning over key evidence to the police and failed to investigate or recover missing items belonging to Lorna. The unfortunate image that emerges is of a criminal justice system that did not spare any time determining the true circumstances surrounding an Indigenous woman prisoner’s death yet is willing to spring rashly into action on dubious grounds to let another Indigenous woman spend the rest of her days serving a mandatory life sentence because of it.

The travesty for S is that the record of this murder conviction led correctional authorities to wrongly label her as violent. As a result, she has spent significant amounts of time in prison in segregation, a situation that caused psychological suffering from which she will likely never recover. This segregation and the resulting lack of access to programming and opportunities for connections to her community have also prevented her from obtaining parole. She is now more than 17 years — 17 years, colleagues — past her parole eligibility dates. The harsh sentence that she serves has only increased her isolation from her community and utterly failed to support her in rebuilding her life following the experiences of intergenerational trauma, abuse and addiction that led to her marginalization and criminalization.

S’s case is not an outlier or an exception. The systemic harm that the Canadian government’s racist residential school policies have inflicted on her, her family and her community and so many other families and communities is perpetuated today in policies like mandatory minimum sentencing that disproportionately criminalize and imprison Indigenous peoples negotiating the ongoing effects of trauma, violence, impoverishment and other marginalizations.

Like the other legacies of systemic racism and colonialism in Canada — residential schools, the so-called Sixties Scoop, all of them — one of the most cruel consequences of the overrepresentation of Indigenous peoples in prisons is that it means another generation of Indigenous children is growing up without their parents.

As we debate this bill, honourable colleagues, let us imagine the injustices we can prevent instead of multiply, the families and communities we can support and bring together instead of tear apart. The promise of a fairer criminal justice system, of a truly just society, lies before us. The voices of the public and the experts alike tell us that judicial discretion regarding sentencing is one step down that path. 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, without knowing the harshness or injustices of what we have meted out.

As we consider the bill, honourable colleagues, let us challenge ourselves to see just one of these people before us as a judge does; to take the time to know and understand her before we pass judgment; and when we do, to ask not only what she deserves but what we deserve as a society. Let us reflect on our reasons as a judge does, and consider the decision, the principles and the future to which we, as legislators, want to sign our names.

I hope you will join me in supporting this bill. Meegwetch, thank you.