The Hon. the Speaker: I hear a “no.” The amendment is defeated. Sorry?

Senator Plett: We said “yes.”

Senator Plett: Do I have time?

Senator Plett: Yes, I fully agree with that. Thank you.

Senator Pate: Would you take a question, Senator Plett?

Hon. Donald Neil Plett (Leader of the Opposition): Government leader, a few weeks ago, the Minister of Transport appeared before the Senate during Question Period and answered a number of questions related to his portfolio. When asked whether he had approved the Georgina Aerodrome in Ontario, the minister responded:

The minister him or herself needs to wait for officials — independent, non-partisan officials — to do the assessment and submit a recommendation to the minister, which I have not yet seen.

Those were his words.

However, it has come to my attention that, in fact, Transport Canada has already completed their regulatory review of the proposal, meaning the minister had already approved the aerodrome as for the CAR-307 regulations.

Senator Gold, will Minister Alghabra correct his statement and apologize to the residents of Georgina, and the Senate, for his lack of transparency on and attentiveness to the issues surrounding the Georgina aerodrome?

Senator Plett: Assertions, possibly; but assumptions, no. They are facts, leader Gold, not assumptions.

The member of Parliament for the area Scot Davidson had been advocating for his constituents for months on the issue of the aerodrome. He has tried on numerous occasions to get answers on the status of the proposal and to advise the minister’s office of the many issues with it, but the entire process has lacked any transparency or communication.

The fact that the Minister of Transport did not present the facts accurately when specifically asked here is very concerning, Senator Gold, but seems to be part of a pattern regarding this file and, indeed, many others. Senator Gold, what is the minister trying to hide?

Hon. Donald Neil Plett (Leader of the Opposition): Government leader, on Tuesday, the Auditor General released a report that referenced significant delays in procuring Arctic‑capable vessels and icebreakers. When it comes to the icebreaker fleet, that fleet is now between 35 and 53 years of age. It’s urgent that the vessels be replaced since, given the age of the ships, a major failure could occur at any time, leader, yet no replacement vessel has been ordered, let alone construction started.

Why has this government failed so completely in addressing the issue — an issue that is so vital for Canada?

Senator Plett: Government leader, in 2019, the government announced that it would add a third shipyard to the National Shipbuilding Strategy specifically for the purpose of building icebreakers. That shipyard was to be Davie Shipbuilding in Quebec.

In 2020, the government indicated that an agreement with Davie, adding it as a third shipyard, would be initiated by the end of 2020. Nothing happened, government leader.

In 2021, the government publicly stated that an agreement with Davie, adding it as a third shipyard, would be initiated by the end of 2021. Again, nothing happened.

Now, this past June, the government said once again that an agreement with Davie would be reached by the end of this year. Government leader, is something actually going to happen this year or will there just be another promise next year?

Senator Plett: I guess my answer to your question is I have sympathy for anybody who is in the situation that you’re describing. But do I believe that they should be treated differently in law? No, I’m sorry, I do not.

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.