Hon. Kim Pate: Thank you, Your Honour, and thank you, Senator Jaffer. Thank you to all who have contributed to this, and a special thank you to Senator Clement for moving an important and necessary amendment.

Honourable senators, as we know, the government’s goals for Bill C-5 are to deal with issues of systemic racism and discrimination in our criminal legal system and to reduce incarceration rates for Indigenous and Black people in Canada. I support these laudable goals. But without this amendment, Bill C-5, although promisingly aspirational, does not go far enough and does not allow for the government’s own objectives to be met.

When introducing this bill, Minister Lametti was clear that:

. . . too many lower-risk and first-time offenders, including a disproportionate number of Indigenous peoples and Black Canadians, are being sent to prison because of laws that do not deter crime or help keep our communities safe. Along with other efforts across government, these reforms represent an important step forward in the fight to root out systemic racism and ensure a more effective justice system for all.

Unfortunately, this bill, without this amendment, will not actually result in the promised reforms. It will only scratch the surface. We cannot promote a fairer, more just legal system while mandatory minimum penalties, or MMPs, remain. At the very least, we must restore judicial discretion and allow judges to consider circumstances that warrant departure from mandatory minimum penalty frameworks.

The amendment Senator Clement introduced would allow judges to do their job and bring us closer to rooting out systemic racism.

As you have already heard, the majority of witnesses, especially those representing communities most impacted by systemic racism in the legal system, advocated for this amendment to fix Bill C-5.

Since we studied the bill in committee, the Supreme Court of Canada, as Senator Jaffer just raised, sent a clear message to Parliament via its decision in the R. v. Sharma case.

As Jonathan Rudin of Aboriginal Legal Services explained:

The decision makes it all the more important that C-5 gets . . . amended to address as many of the flaws in it as possible. The Court has made it clear that criminal law policy rests almost solely now with Parliament and so it’s up to Parliament to find the courage to do what the TRC asked it to do in respect of criminal justice reform.

Call to Action number 32 of the Truth and Reconciliation Commission, or TRC, urged the repeal of all mandatory minimum penalties, or at least to allow judges to not impose any mandatory minimum penalty not repealed.

As the former chief commissioners of the TRC and the National Inquiry into Missing and Murdered Indigenous Women and Girls also pointed out, without this amendment, Bill C-5 prevents judges from doing their jobs by prohibiting them from applying section 718.2(e) of the Criminal Code, otherwise known as Gladue sentencing principles, when sentencing Indigenous and other racialized people.

Honourable senators, it is imperative that we support Senator Clement’s amendment; it offers an opportunity to counteract the crisis of overrepresentation and over-incarceration of Black and Indigenous people.

The next chance to amend mandatory minimums may not happen for many years and, during that time, too many more of the most marginalized and discriminated against will continue to face disproportionate and unfair sentences.

We must heed the advice of our former colleague the Honourable Murray Sinclair, as well as those of Justice Marion Buller, National Chief Archibald and many other Indigenous and Black experts who have urged us to be courageous and address the fundamental flaws in Bill C-5.

This amendment meets the government’s commitment to the TRC Calls to Action and criminal justice reform. The time to fix this bill with this amendment is now.

Jonathan Rudin clearly and eloquently spelled out why waiting for some future action should not even be considered an option:

“Wait.” What are they supposed to wait for? . . . We already have mass incarceration. We can’t wait. . . . We have to stop waiting and we have to stop pretending that waiting doesn’t carry its toll, because there is a toll. The reason that we, as a broad society, can say we can wait is because we’re not bearing that toll. Indigenous communities bear that toll. Indigenous children bear that toll. It’s time to stop. It’s time to just do what we said we were going to do when the TRC made their recommendations. This government and many people agreed to adopt the recommendations of the TRC. Let’s finally do it. For goodness’ sake, there is no reason to wait any longer.

Contrary to the rather isolated opinion of the outgoing criminal law section chair of the Canadian Bar Association, based on his years of experience on the ground, Mr. Rudin agrees with Senator Sinclair and so many others about the many advantages of judicial discretion, telling us,”First, it is quicker than having to challenge the constitutionality of a mandatory minimum” for each person on a case-by-case individual basis while leaving the legislation in place for everyone else. And second:

. . . decisions of trial judges are . . . subject to appellate review. Within a few years, we would have a robust set of jurisprudence on what sort of cases merit the use of a safety valve. Introducing an amendment to permit judges to rely on a safety valve for other mandatory minimums —

— not otherwise repealed by Bill C-5 —

— is a necessary and positive step forward.

Thank you to Senators Clement, Jaffer and Simons for such cogent and clear explanations as to how and why mandatory minimum penalties result in discriminatory sentences that disproportionately affect Indigenous and other racialized groups.

For those of you still wondering about this, though, allow me to share the testimony Alain Bartleman from the Indigenous Bar Association shared with us when he advised us that:

Mandatory minimum sentences contribute to this crisis by placing individuals, especially vulnerable individuals, into positions where they either feel obliged to plead down to lesser offences in order to avoid the spectre of mandatory minimums or, alternatively, to stare down the prospect of running a gauntlet of section 12-related challenges.

The Native Women’s Association of Canada spoke about the impact this bill will have on the lives of Indigenous women and their families:

. . . when a sentencing judge gets to look at an Indigenous woman before them as a whole person and consider all of the relevant factors that have shaped this offender’s story right up until the moment they stand before them, that’s the kind of crafting they are legislatively enabled to do when mandatory minimums are repealed. They can take a wholesome and holistic approach to crafting a sentence that meaningfully considers Parliament’s goals under 718.2(e) to reduce overincarceration by considering those factors and seeking alternatives to incarceration.

They went on to say the immediate impact of this amendment “will be fewer Indigenous women incarcerated” if it immediately empowers sentencing judges to avoid incarceration.

NWAC supports providing more mechanisms for judges to be able to consider the holistic background of Indigenous women. Furthermore, NWAC encouraged us to pass the proposed amendment — to advance reconciliation — because it:

. . . allows judges to be judges, to do the job that we trust them to do and advance reconciliation in the courtroom after Parliament and the Senate have advanced reconciliation through amendment here.

In her submission to the Legal and Constitutional Affairs Committee, the Honourable Judge Marion Buller, the first First Nations woman judge in British Columbia and Chief Commissioner of the National Inquiry into Missing and Murdered Indigenous Women and Girls, discussed the effect of Bill C-5 on judges as preventing them from carrying out the sentencing provisions prescribed by the Criminal Code and effectively forcing them to obviate — to not apply — those sentencing provisions according to their legal obligations.

In addition, she described the impact on Indigenous families and:

The incarceration of women resulting in the separation of the mother and child is a violation of the child’s rights under the Convention on the Rights of the Child . . . .

Indigenous women, children, families and communities can no longer wait — and neither can any other marginalized group — nor should they be expected to sacrifice so much because we lack the courage to do what is necessary, and what is right.

Finally, when the Honourable Murray Sinclair spoke in support of this amendment at committee, he further helped us understand how mandatory minimum penalties have particularly negative impacts on Indigenous communities, and why this amendment is necessary to answer the Truth and Reconciliation Commission, or TRC, Call to Action 32. He reminded us the TRC:

. . . called upon 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. . . . This recommendation has been widely supported by Indigenous and Black organizations, women’s groups and other expert bodies. Mandatory minimum sentences and the restrictions on conditional sentences are used more frequently and egregiously against Indigenous and racialized peoples, and have a much harsher impact on these groups. . . .

He added:

I urge the government to reconsider and fully implement Call to Action 32. We need to move away from a simplistic, punitive, one-size-fits-all response, and we need to trust and allow our judges to do the job they have been appointed to do.

Also, he specifically explained why, at the minimum, this amendment is necessary by saying:

I think short of repealing every one of the mandatory minimum provisions that are in the Criminal Code right now, another suitable amendment would be to give sentencing judges the jurisdiction and authority to ignore mandatory minimum sentences if they provide written reasons . . . . I would prefer that approach rather than looking for an amendment or looking to reject the bill because I think the bill is amendable and salvageable, based upon that kind of amendment being included.

Colleagues, this is not the perspective of a naïve, or unsavvy, individual. This is sage advice from the author of the very report that the government claims it acknowledges by offering up Bill C-5 as its response. Who am I — indeed, who are we — to challenge Senator Sinclair’s expertise and experience by essentially responding, “You may be right, but we lack the courage to go there”?

This is the root of our insistence: We reject the foil of fear to take bold action at this time. Let’s not make the same mistakes of our forebears when they ignored the realities of residential schools. Let’s, at least, take this step to try to address the mass incarceration legacy of residential schools.

Dear colleagues, the choice today is simple. Do we listen to the majority of witnesses and experts, or do we give in to fear? Do we demonstrate the courage requested of us to take responsibility and try to fix this bill, or will we leave the burden on those who will bear the toll of consequences we could avoid? Today, colleagues, that is our choice.

I hope you will join us as we individually, and collectively, try to remedy this wrong, and make this bill fit for purpose by supporting this small step in the right direction. I hope you will join us and vote in favour of this vital amendment.

Meegwetch. Thank you.

Hon. Dennis Glen Patterson: Thank you, Senator Pate and Senator Jaffer, for your compelling speeches.

There is a concern that this amendment will mark the end of mandatory minimums, and, frankly, I’m not sure I’m willing to go that far, although I suspect that may be an outcome you would welcome, Senator Pate.

The amendment has two qualifications: There must be exceptional circumstances, and reasons must be given. My questions are as follows: Is this a vehicle to eliminate mandatory minimums? Or, for anyone who is concerned that there is still some place for appropriate mandatory minimums, will they be comforted that the two conditions will retain some balance?

Senator Pate: I’ll make a number of statements, and you can indicate whether you agree.

In the case of Luxton, the Supreme Court of Canada ruled the life sentence was constitutional because there was a safety valve of a 15-year review available. In the Bissonnette case, the Supreme Court of Canada said:

In any event . . . the existence of a discretion cannot save a provision that authorizes the imposition of punishment that is cruel and unusual by nature.

It also talked about the need to inject humanity into sentencing and left the suggestion that even a life sentence may be problematic. We know that the overwhelming majority of Indigenous women, who now form one out of two federally sentenced women, are in for violent offences, many of them for murder, as a result of responding to violence first perpetrated against them.

Would you agree those are the facts as well?

[Translation]

The Hon. the Speaker pro tempore: Honourable senators, do we have agreement on five minutes?

The Hon. the Speaker pro tempore: I heard a no.

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, I also rise today to speak to Senator Clement’s amendment. I find myself in the strange position where I might vote with the government leader on an amendment, but tonight I will ask for forgiveness for that.

Colleagues, the original version of this amendment was first presented at committee by Senator Pate, and it did not include the expression “exceptional circumstances.” Senator Pate’s amendment would have, in effect, nullified all mandatory minimum penalties present in the Criminal Code.

This amendment does indeed include the phrase “exceptional circumstances,” as is the case in section 311 of the Sentencing Act in Britain. However, I do worry about the application of this clause and fear it risks having the same effect as the original version in practice.

If we are going to use Britain as a model for this clause, we need to consider the context of their legal system. Senator Dalphond already alluded to it, at least in part. England and Wales also have “whole life orders” in the most serious cases of murder. This means, colleagues, that the British Parliament allows for circumstances where both judges or even a cabinet minister — a politician — can direct that any individual never be eligible for release from prison.

That is quite the responsibility for a politician.

This is quite a severe system and a stark deviation from what is considered acceptable practice or even constitutional in Canada. The key point is this: If we are going to reference practices in other democratic legal systems, we need to reference the totality of those practices.

Canada’s mandatory minimum penalties were individually studied and considered. The minimum sentence was always put in place with the notion that it would be an appropriate sentence for the least culpable offender or the most exceptional of circumstances.

As the Macdonald-Laurier Institute published in their evaluation of mandatory minimum penalties:

Mandatory minimums reflect the lowest possible sentence for the least culpable offender. The policy underlying any given sentencing floor is a function of Parliament’s answer to an important question: “What sentence would be appropriate for the least morally culpable person whose behaviour still constitutes the elements of the offence?” Answering this question requires Parliament to perform a nuanced, multi-faceted policy analysis of the moral status of the behaviour in question.

Parliament has done precisely that, yet this proposal undoes all of it without the same nuanced, multi-faceted analysis. My concern is that this approach risks having the effect of abolishing mandatory minimums entirely, which is the declared objective of proponents of this amendment.

The inherent supposition is that judicial discretion has been unduly taken away from the courts and that the minimum parameters that have been set by Parliament for certain criminal offences are inappropriate.

Some have cited the number of constitutional challenges to mandatory minimum sentences as if that, in and of itself, constitutes an indictment of these sentences. I think it is useful for us to examine that assumption.

Colleagues, the simple presence of a legal challenge does not mean that a law is illegitimate. Legal challenges are to be anticipated whenever lawyers think that such a challenge might work for their client. However, the mere existence of a challenge does not mean that the courts will support the argument.

Obviously, in the case of mandatory minimum sentences, if lawyers believe that many judges will be sympathetic to such arguments, then such sentences will be challenged. However, it is clear that, while the Supreme Court of Canada has indeed struck down particular provisions relating to mandatory minimum sentences, it has not challenged Parliament’s right to impose such penalties. Senator Dalphond already mentioned that in his speech.

In R. v. Lloyd, the Supreme Court stated that:

. . . Parliament is not obliged to create exemptions to mandatory minimums as a matter of constitutional law. Parliament may legislate to limit judges’ sentencing discretion. Limiting judicial discretion is one of the key purposes of mandatory minimum sentences, and this purpose may be inconsistent with providing judges a safety valve to avoid the application of the mandatory minimum in some cases. Whether Parliament should enact judicial safety valves to mandatory minimum sentences and if so, what form they should take, are questions of policy that are within the exclusive domain of Parliament. The only limits on Parliament’s discretion are provided by the Constitution and in particular, the Charter right not to be subjected to cruel and unusual punishment. . . .

The court noted that Parliament could respond to court rulings related to mandatory minimums by potentially narrowing their reach so that they only catch offenders who merit such mandatory minimum sentences. This would be entirely appropriate in that the drafting of legislation to respond to judicial rulings would reflect envisaged dialogue between Parliament and the judiciary on measures that are necessary for the protection of society and obligations that may exist in relation to the Charter.

In the Macdonald-Laurier Institute’s publication, the authors point out:

Opponents of mandatory minimum sentences tend to focus on the restrictions that these laws impose on a sentencing judge’s ability to tailor the sentence to an offender’s unique circumstances. . . .

Canadians must know what the law is in advance so that they can govern their conduct accordingly.

However, scrutinized in light of the rule of law, it is clear that, at least in the abstract, mandatory minimum sentences should be capable of functioning as effective tools to ensure the even, equal, and proportionate application of sentences to offenders guilty of the same offence. Rather than eliminating a judge’s ability to assess a proportionate sentence, mandatory minimums set a stable sentencing range for an offence, permitting citizens to understand in advance the severity of the consequences that attend the commission of that offence, regardless of the individual offender’s particular degree of responsibility.

Many have cited the issue of Black and Indigenous overrepresentation as a rationale for abolishing these penalties. We know, however, that overrepresentation is a much more complex societal issue that extends well beyond the matter of sentencing parameters.

Chief Inspector David Bertrand, Inspector Michael Rowe and Rachel Huggins, who testified at the Legal Committee, addressed the issue of overrepresentation in the correctional system. They cited homelessness, substance abuse, addiction and mental health issues among other factors that ultimately lead to a higher rate of contact with the police and the criminal justice system.

Inspector Rowe stated unequivocally that prevention needs to be top of mind, and that:

The mandatory minimum penalties assigned to these sections of the Criminal Code create a meaningful legal condemnation of the decision to unlawfully pick up a firearm and reflect the important distinction between offences involving firearms and those that do not.

While some witnesses who testified on Bill C-5 at committee were certainly of the view that the government should abolish all mandatory minimum penalties, it must be said that the committee only studied and considered the value of specific offences referenced in this bill. For example, Mothers Against Drunk Driving and law enforcement officials were called upon to speak about very specific concerns associated with impaired driving and firearms offences, respectively.

Likewise, we would need to hear evidence for and against the merits of every other mandatory minimum penalty in the Criminal Code before considering this sweeping proposal.

Colleagues, let’s remember what mandatory minimums are at stake with this amendment: first-degree murder; high treason; the crime of living off the avails of child prostitution, which has carried a mere five-year minimum sentence; the crime of hostage taking with a firearm, which has carried a four-year mandatory minimum sentence; and the crime of manslaughter when committed with a firearm, which has also carried a four-year minimum sentence. These are serious crimes, colleagues.

We must also remind ourselves that the minimum sentences in Canada do not mean that the entire period of that sentence will be spent behind bars. Our law provides for a graduated release based on the offender’s performance in programs in the institution and their risk to society, among other considerations.

For instance, every offender serving a fixed sentence in Canada will be released on mandatory supervision at the two-thirds mark of their sentence. Offenders serving a fixed sentence are also usually eligible for parole at the one-third mark of their sentence and for day parole six months before that. This means that even those rare offenders who might receive a five-year minimum sentence for living off the avails of child prostitution, for example, will be released on statutory release in 40 months, will be eligible for parole in 20 months and will be eligible for day parole in only 14 months.

Many Canadians would regard this as actually supremely lenient. Many, in fact, would see it as excessively lenient. I would submit that the appropriateness of automatic release at the two-thirds mark of a sentence, regardless of the offender’s performance in an institution, is more in need of a review by Parliament than are our relatively modest minimum sentences.

Proponents of this approach have cited that 90% of Canadians want the government to consider giving judges the flexibility to not impose mandatory minimum sentences. I believe that if we’re honest, the reality is much more nuanced in that. In polling, much depends on how a question is asked and what specific information is presented when the question is asked. I dare say that few Canadians would object to stringent mandatory minimum penalties for offences such as sexual assault committed against young children, for example.

In 2012, the Toronto Star reported a survey by the Angus Reid Institute that found that 63% of Canadians believed that the death penalty was an appropriate sentence for murder. That was in 2012, colleagues. In 2016, a report done by Kari Glynes Elliott and Kyle Coady of the Research and Statistics Division of the Department of Justice found that:

. . . if certain types of offences are considered, there is general public support in Canada, Britain, and the USA for harsh penalties/mandatory minimums for homicide . . . .

The same publication also found historic support in Canada for the notion that sentencing is too lenient.

So I think, colleagues, if we were honest, we would admit that the evidence is mixed, but the notion that the public does not support harsh penalties for the most serious of crimes is generally misleading.

While this amendment is an improvement from the version presented at committee, I fear that in practice, it will risk having the exact same effect.

Again, a minimum sentence is just that — a minimum — meaning that it was evaluated and considered with the least culpable offender in mind. While it has been said that the escape clause in Britain is used sparingly, we are operating under an entirely different legal system and have no guarantee that it would be used the same way or in the same types of circumstances.

Who determines what is exceptional? It is entirely subjective. Therefore, in effect, it abolishes the sentencing floor for all sentencing ranges carefully established by Parliament. For that reason, this exact amendment was rejected by the House of Commons Justice Committee, and as Senator Cotter stated, would almost certainly face the same fate if we passed this amendment.

If senators want to bring forward new legislation to study the value of minimum penalties on specific offences, I think it would be a reasonable approach. We could call in witnesses to discuss the benefits and the drawbacks of those specific penalties. However, we have not done that, colleagues. We heard from witnesses who discussed the offences affected by Bill C-5. For that reason, I do not believe we are at a place where we can have an informed debate on this proposal, let alone support it.

Colleagues, I will be voting against this amendment and strongly encourage all of you to do the same. Thank you.

Senator Pate: I listened carefully to your comments, and I have a couple comments and then a question.

You actually quoted from the minority decision in Lloyd when you talked about them suggesting that we’re not obliged to create exemptions. In fact, the majority did support the creation of exemptions.

You also mentioned mandatory supervision which hasn’t existed for more than a decade, and has been replaced by a statutory provision that allows for application but doesn’t guarantee any release.

I think you’re probably familiar with the many reports of the Office of the Correctional Investigator showing that, in fact, most people — particularly Indigenous and Black prisoners — don’t get out at their dates. In fact, those serving the longest sentences, particularly life sentences, sometimes serve 10 or 20 times what their eligibility periods are.

But my question is this: In the situation of an abused woman — which is the majority of the Indigenous women who are serving life sentences and who are essentially deputized to protect themselves because of the abuse they experienced — because of the many issues you and Senator Dalphond ably raised about the discrimination throughout the system, when they are in the midst of being attacked, they may need to grab a weapon. That will ensure they receive a mandatory minimum penalty, and in most cases, it will ensure the charge laid against them will be a charge of first-degree murder.

Hon. Senators: Agreed.

(Motion agreed to.)

(At 8:07 p.m., the Senate was continued until Tuesday, November 22, 2022, at 2 p.m.)

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?