Hon. Donna Dasko: Would Senator Dawson take another question?

Senator Dawson: Yes, Senator Dasko.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak to the second reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

Yesterday, I complimented the Prime Minister and Minister of Justice for introducing the mandatory minimum bill.

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I want to share with you some of the history of mandatory minimum penalties from my experience.

In 1992, when the mandatory minimum sentencing bills were first put in place, we in the legal profession thought it was a temporary measure. Sadly, for many of us, successive governments have continued to impose mandatory minimum sentences.

To date, we have 73 mandatory minimum penalties. That is why, honourable senators, I believe the justice minister and Senator Gold, the sponsor of the bill, are very courageous to have taken the first step towards repealing mandatory minimum penalties.

I genuinely believe that this is a very big step. Over the years, even before I came to the Senate, I used to get into discussions with former Liberal justice ministers to stop imposing mandatory minimum sentences and to repeal them. They found it politically difficult to repeal mandatory minimum penalty bills.

Senators, since I have been in the Senate, I have introduced the following bills to get rid of mandatory minimum penalties: In June 2013, I introduced Bill S-221, An Act to amend the Criminal Code (exception to mandatory minimum sentences for manslaughter and criminal negligence causing death); in November 2013, I introduced Bill S-209, with the same name; and in February 2014, I introduced Bill S-214, once again with the same name.

I have introduced three bills, the last one in 2014. I tabled these bills because I truly believed that mandatory minimum penalties do not work.

As a lawyer, I used to see that it really destroyed my clients, my family and, I believe, society in the long run.

Indeed, traditionally — before 1992 — when a person is determined to plead guilty, the judge is then tasked with looking at sentencing principles, and they would have to ask the following questions: What is the act that is applicable? What crime was committed? How severe was the crime? What are the circumstances of the individual?

In Canada, sections 718.1 and 718.2 of our Criminal Code are very clear. Section 718.1 stipulates that a sentence be proportionate to the gravity of the offence and the degree of the responsibility of the offender. Section 718.2 follows by outlining some of the other principles to be followed in sentencing, as well as aggravating and mitigating circumstances to be considered in determining a sentence.

One of the most important factors the justices are tasked with considering is who has committed the crime and what factors might have contributed to the criminality, and then to look at the circumstances of the person appearing before them.

With regard to proportionate sentencing, section 718.1 of the Criminal Code sets it out as the fundamental principle of sentencing, which directs that all sentences must be proportionate to the gravity of the offence and the degree of the responsibility.

In other words, a sentence must accurately reflect the circumstances of a particular crime.

Mandatory minimum sentences handcuff judges and limit their discretion and ability to determine appropriate and proportionate sentences.

In Canada, at the moment, we have 73 mandatory minimum penalties, 67 of which are in the Criminal Code, while 6 are in the Controlled Drugs and Substances Act.

To date, at least 53 mandatory minimum penalties have been struck down by the courts, found to be violations of our Charter of Rights and Freedoms or called into question by provincial and territorial courts, as well as the Supreme Court of Canada, our country’s highest court.

Of those 53, 10 have been included among the 20 in Bill C-5. Yesterday, Senator Gold spoke articulately about discretion of judges and proportionate sentencing, and over the years, many of us have spoken about judicial discretion and why it is important. I will not dwell on it now.

The fact is that if we trust our judges to do their job — and, by the way, we have the best judges in the world — then we should trust them with sentencing the person in front of them. If we trust our judges to do their job, then we should trust them with having the discretion which allows them to do their job to the best of their ability and with direct relation to the facts and the individual circumstances of any case before them.

In keeping with this sentiment, the Standing Committee on Justice and Human Rights in the other place heard from a majority of witnesses that all mandatory minimum penalties should be repealed. Experts from all manner of experience, perspectives and expertise reached a consensus.

Mandatory minimum penalties and the sentences they carry are predetermined by parliamentarians without knowing the exact circumstances of the case. Members of the other place and senators are determining the fate of countless people in Canada without even having to look at a particular person in front of them, without having to hear their story, without having to look them in their eyes and confront their humanity.

Instead, parliamentarians are predetermining their fate and are putting aside time-proven sentencing principles. In doing so, we are not only putting aside coveted sentencing principles on which the foundation of our Criminal Code is built; instead, we are wholly ignoring them.

Today, I want to explain to you the situation in the best way that I can. The exact numbers may need a little bit more work, and we can do that in the committee, but I want to give you the bigger picture.

As I have said a number of times, there are 73 mandatory minimum penalties in the Criminal Code and the Controlled Drugs and Substances Act. Various levels of courts across the country have struck down 53 mandatory minimum penalties, including appellate courts and the Supreme Court of Canada.

As the judges see the person in front of them, they impose the penalty that fits the crime, and not what we parliamentarians decided many years ago without seeing the eyes of the person standing in front of the judge.

The government has introduced Bill C-5 to repeal 20 mandatory minimum penalties. This bill includes 10 of the mandatory minimum sentences that have been struck down by the judiciary.

Now, senators, I want to repeat that I’m sure the Department of Justice might be able to give us better figures, but my purpose in sharing this with you is to make sure we understand that we parliamentarians have created a patchwork across the country that is inconsistent. For example, if my appellate court in British Columbia strikes down a mandatory minimum penalty, it will be applied in British Columbia, but it will stay in force in the rest of the country, unlike a mandatory minimum penalty that is struck down by the Supreme Court or the Government of Canada. I want to say this again, senators: We have now ended up with a patchwork, and at committee and at third reading, we are going to have to find a way to address the patchwork.

I agree with the leader, Senator Gold, that we cannot shoot for the moon. All my life I have been a political person, and I understand the realities of repealing mandatory minimum penalties. That is why, senators, when the leader says that we cannot shoot for the moon, I get it.

That is why we, at committee or at third reading, will have to deal with this patchwork in a creative way.

I want to repeat, senators, that currently we have 73 mandatory minimum penalties in force in Canadian law, the courts have struck down 53 and Bill C-5 repeals 20. Among the 20 included in Bill C-5, 10 mandatory minimum penalties were struck down by the courts.

I hope that we will be able to address this patchwork situation in committee. Thank you, senators.

The Hon. the Speaker: Senator Lankin, before you begin, it is almost five o’clock. At five o’clock, I’m obliged to leave the chair for the Senate to form Committee of the Whole. Perhaps you could wait until we return after Committee of the Whole. We’re about 30 seconds away.

Senator Lankin: If you keep talking, Your Honour, we will not have that problem. I’m absolutely fine with that.

Senator Gold: Thank you. I did make inquiries and, no, I have not received a response back. Therefore I am not in a position to answer the question, but I will add it to my follow-up.

Hon. Jane Cordy: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian NATO Parliamentary Association concerning the Halifax International Security Forum, held in Halifax, Nova Scotia, Canada, from November 19 to 21, 2021.

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of the Honourable John Hogan, Q.C., Minister of Justice and Public Safety and Attorney General of Newfoundland and Labrador.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Marc Gold (Government Representative in the Senate): In order to answer both aspects of your question, I will have to make inquiries and will report back.

Senator Gold: Thank you, senator. No, I do not know. My understanding is that they are running pilots and tests while, of course, the other system is still functioning as the pay system. I do not know at what stage the transition will be possible. I’ll make inquiries.

[Translation]

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. Unfortunately, I didn’t understand your last sentence. Would you kindly repeat it?

Some Hon. Senators: Hear, hear.

Senator Gold: Again, I do not know what steps the government will be taking, but I would assume that these steps will be the fruit of discussions and consultations with provinces and territories, which have primary constitutional responsibility and jurisdiction over the collection, management and protection of health data of citizens. I will try to get an answer and report back.

[Translation]

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I rise in celebration of National Indigenous Peoples Day. This day is part of the Celebrate Canada program, which also includes Saint-Jean-Baptiste Day, Canadian Multiculturalism Day and Canada Day itself. National Indigenous Peoples Day is an integral part of the Celebrate Canada program in that it completes the recognition of Canada’s multi-faceted diversity. Collectively, these four days allow for a completely inclusive recognition of all the peoples who together have built our country.

From the earliest days of Canada, Indigenous peoples contributed to the defence of Canada, doing so in the War of 1812, in the two world wars fought during the 20th century, assisting in the defence of my homeland of Korea and contributing to Canada’s military efforts in the peacekeeping missions and conflicts that have occurred since that time.

One of the most decorated Indigenous veterans was Tommy Prince, who bravely served in both World War II and the Korean War. Too often the contributions made by Indigenous peoples have not been given the recognition they so justly deserve.

In this regard, I believe it is so important that the War of 1812 Book of Remembrance unveiled in Parliament’s Memorial Chamber just a few years ago incorporates a listing of individual Indigenous warriors who gave their lives in the struggle which preserved their own individual nations and Canada itself in the face of invasion.

We also recognize the countless number of Indigenous peoples in all walks of life who have contributed so much to bettering the lives of their own people and all Canadians. There are literally too many people to name, but in my own field of education, we have the inspiring contributions of people like Verna Kirkness, an educational trailblazer in Manitoba; Janet Smylie, associate professor at the Dalla Lana School of Public Health at the University of Toronto; and our very own former colleague, the honourable Lillian Dyck, who served as a professor in the neuropsychology research unit, Department of Psychiatry, at the University of Saskatchewan before serving in the Senate with distinction.

On this day, we recognize and acknowledge all of their contributions to the building of our country. The historical relationship between Indigenous peoples and Canada has often been difficult, but through the day that we celebrate today, we proclaim both our gratitude and our determination to move forward together as we build Canada.

Thank you.

Hon. Marc Gold (Government Representative in the Senate): Thank you for your question. I regret that you have not received an answer. I will certainly follow up to see whether it dropped off the list as a result of circumstances. I will make inquiries as to your question and report back on the status of the government’s response to those recommendations.

Hon. Senators: Hear, hear!

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Moncion, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.)

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Senator Gold: Thank you for the question. All I can tell you is that the government is working on it, both at the political level and at the level of deputy ministers, public servants and employees.

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Senator Carignan: Leader, I get the impression that there is no leadership. Where are the minister and the department in all this? Where is the Prime Minister? Bureaucrats seem to have been abandoned. Is there anyone flying this plane?

Hon. Marc Gold (Government Representative in the Senate): Listen, this is a serious question and I will try to give a serious answer. I don’t understand all the reasons behind this problem. I am aware of it. I answered you based on the information I had. As for why things have not improved as quickly as we would have liked, I don’t have an answer to that question. I will try to find out. I’m inclined to say that when a solution is implemented it can take time for things to improve and start moving.

In all honesty, I don’t have the information to answer your questions about why there are still delays.

Senator Bellemare: Don’t you find it interesting that, under the current procedure, the Senate can, on the one hand, study bills and, on the other hand, debate changes made later at the other place?