Hon. Mobina S. B. Jaffer moved second reading of Bill S-213, An Act to amend the Criminal Code (independence of the judiciary).

She said: Honourable senators, I rise today to speak to my bill regarding the repealing of mandatory minimum penalties and upholding the coveted sentencing principle of judicial discretion.

[Translation]

Before I begin sharing with you all why this bill is so important, I would be remiss if I did not begin by acknowledging and truly thanking Senator Pate for her tireless advocacy and work on this and so many other issues.

[English]

Senator Pate, I want to thank you for your exceptional work around these issues and for helping me draft this bill.

Senators, I viewed Senator Pate in prisons and I tell you that prisoners across the country look to her to protect their rights. She has built such credibility on these issues that they look to her to make sure that she will be there to speak in the Senate to protect the prisoners’ rights.

Senator Pate, I’m in real admiration of your work and thank you for your work.

In spite of their name, mandatory minimum penalties are in direct contravention of judicial discretion of one-size-fits-all. The cookie-cut approach to sentencing, such as mandatory minimum penalties, destroy the ability of judges to determine appropriate sentences based on an individual’s particular circumstances.

Honourable senators, it is easy for us to make laws we believe are right in the warmth of this chamber. We make laws we believe will benefit society and yet we, most of us, do not see the people who are most impacted by these laws.

The judges across the country do see these people. They come to know their circumstances, the circumstances on which they base the judicial sentencing principle. Every day the judges see their faces when they are making a decision about whether or not to send a person to prison and for how long.

In their current form, mandatory minimum penalties tie a judge’s hands. They give them little other options than to look at the person in the face and sentence them without sufficient consideration of their circumstance.

We parliamentarians, without knowing these individual cases, have decided that their sentence is against sentencing principles. In doing so, we parliamentarians are directly preventing judges from doing the job they were appointed to do.

The bill I have in front of you, in summary, says it allows a court to decide to not make a mandatory prohibition order provided for under a provision of that act, or to add conditions or vary any conditions set out in that provision if the court considers it just and reasonable to do so. It requires the court to provide its reasons for making such a decision.

[Translation]

What is more, the imposition of mandatory minimums effectively rejects considerations of aggravating and mitigating circumstances.

[English]

In this way, mandatory minimums undermine the founding principles of sentencing outlined in section 718 of the Criminal Code, namely:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives . . . .

As many of you know, I have long been an advocate for the importance of judicial independence. A cornerstone of independence rests on the ability of a judge to use their discretion and determine the correct ruling in the matter they are tasked with adjudicating.

Honourable senators, those of you who have been in this place for some time will also know I’ve always been in support of addressing the injustices which persist due to mandatory minimum penalties. I have introduced a bill not once, not twice but three times regarding the use 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 of the same name.

In February 2014, I once again introduced Bill S-214 with the same name.

[Translation]

As is clear by the title of all three bills, I was focused on addressing the use of mandatory minimum penalties with regard to changes of manslaughter and criminal negligence causing death. I know now that I did not go far enough.

[English]

Honourable senators, that was then and this is now. I now realize that I should have had a more extensive bill.

Last parliamentary session, the federal government introduced Bill C-22, an Act to Amend the Criminal Code and the Controlled Drugs and Substances Act. The bill marked a step forward in that the government was at last acknowledging the failures of mandatory minimum penalties and seemingly committing to moving fast on their routine use.

Despite these very commendable efforts, the bill did not go far enough. Rather than taking a clear stand against all mandatory minimum penalties, and thus wholly reinstating judicial discretion, the bill simply repealed 19. The number is even more inadequate when you consider with the fact that to date at least 43 — I repeat, senators — 43 mandatory minimum penalties have already been struck down by the courts at all levels throughout this country.

As I speak, the courts continue to rule mandatory minimum penalties unconstitutional and disproportionate in how they are applied, with an emphasis on how they reinforce systemic racism.

Honourable senators, as we all know when hearing bill titles, speeches and political rhetoric from all sides in both this and the other place, it can be easy to lose sight of the human beings at the forefront of every issue we face and every decision we make.

In fact, when it was first tabled in the other place, I was very supportive of Bill C-22 and I argued with some of you to let us encourage this bill to go through as it’s important that we have something in place. It was important that we have some kind of government acknowledgment in place. I saw it as a step forward, and I still do.

That said, we know that the government is planning to reintroduce a bill regarding mandatory minimum penalties. Before they do, senators, we now have a chance to send a very strong message by sending this bill to the other place. We can send a message that this time we will not just accept a tick mark. We’ll not accept going one quarter or even halfway on this issue.

Senators, we have the opportunity to tell them the time is now to restore judicial discretion and to ensure justice is upheld for all people in Canada. Honourable senators, this bill is so important because flawed legislation directly impacts lives.

[Translation]

Most often, it is the lives of those who are most readily ignored and who are forced to find ways to survive that come into conflict with the law.

(1540)

[English]

Some of you may have heard of the story of Cheyenne Sharma, a young Indigenous girl. At the time of her sentencing, Cheyenne was 23 years old and a single mother. Cheyenne’s grandmother is a residential school survivor who was impregnated at age 13. Her mother was caught in the grips of the foster care system.

When Cheyenne was just 5 years old, her father was deported to Trinidad. Cheyenne first ran away from home at 13 years and then 15 years old. Consequently, she was forced to begin prostituting herself. She said the reason was because she needed the money to pay rent, as she was facing eviction. Honourable senators, I ask you for a moment to think about our own children. Where were they at 13 and 15 years old? What were they doing? Were they in school? Were they playing their favourite sports? Did they spend a lot of time out having fun with their friends? Cheyenne did not have the opportunity to do any of these things. By age 17, Cheyenne had attempted suicide multiple times.

[Translation]

From the moment she was born, Cheyenne was forced into circumstances entirely out of her control.

[English]

Honourable senators, mandatory minimum penalties do not allow a judge to consider any of Cheyenne’s circumstances, only that she committed a crime.

Thankfully, in this instance, the Ontario Superior Court justice, Justice Casey Hill, who was presiding over her case concluded that the mandatory minimum sentence of two years, which he was being tasked with imposing, “. . . would outrage standards of decency” and would violate Canada’s Charter of Rights and Freedoms.

In Cheyenne’s all-too-rare instance, a semblance of justice prevailed. However, honourable senators, we cannot leave the balance of justice to lean on the goodwill of some well-meaning and compassionate judges. Honourable senators, I really wish that this was a precedent-setting ruling, but it was not. Unfortunately, other judges across the country are not bound to follow Justice Hill’s stellar example. Far too often this is not the end result.

Over the summer, I was very shaken when I accompanied Senator Pate and saw firsthand the realities of prisons in Canada after two years of the pandemic. There is a conception around society that prisoners are very well treated. Well, senators, I did not see that. I was also most outraged by the disproportionate numbers of racialized men and women in maximum security prisons.

[Translation]

In Fraser Valley Institution, there are women from minimum and medium all the way up to maximum security.

[English]

When we first met with staff inside the prison’s gymnasium, we were told that 61% of prisoners and 89% of those classified as maximum security are Indigenous women. This is yet another example of the overrepresentation of Indigenous peoples, in particular of women in prisons across Canada.

We also visited Kent Institution, the only federal maximum security prison for men in the Pacific region. When we arrived, we were met by the senior staff at the prison who informed us that out of 240 men inside, 88 — about one third — are Indigenous, and 22 are Black. I would like to remind you all that Indigenous people represent less than 5% of our entire population. We also learned that some prisoners feel that prison has created a racist and toxic environment. This is another reminder of the racism and discrimination that happens behind prison walls every day.

Honourable senators, these people are suffering and very few people are listening. When the length of their sentence is blindly decided by the mandatory minimum sentencing legislation we pass, it should not be considered a punishment. It is sheer cruelty. It follows that, according to the Office of the Correctional Investigator, 30% of all federally sentenced prisoners and 42% of federally sentenced women are Indigenous. This rate has increased by 43% since 2010. During the same period, rates of non-Indigenous incarceration decreased by 14%. The Office of the Correctional Investigator pointed to the ongoing failure of the criminal legal system to respond to needs, histories and social realities of Indigenous peoples at the root of these high rates of criminalization.

There is a further problem with mandatory minimum penalties. It makes it impossible for the court to follow section 718.2(e) of the Criminal Code to ensure Gladue factors are taken into account. Fundamentally, the Gladue principles ensure judges account for the fact that Indigenous people rarely have the same access to justice as non-Indigenous people, which often impacts the outcome of their cases. Gladue also pushes judges to act with increased awareness with regard to their legal matters and, if applicable, their sentencing. Honourable senators, how can judges look at this if they are bound by mandatory minimum principles?

For clarification, Gladue principles means a judge must consider:

• your community’s perspective on the situation, their needs, and their suggested alternatives to jail. Your community can be the Indigenous community where you live or come from, but it’s also your support network or the people you interact with. If you live outside an Indigenous community and aren’t connected to one, you still have a community.

• the laws, practices, customs, and legal traditions of your Nation or the Nation where the alleged offence took place.

• ways of making decisions that are sensitive and appropriate to your culture.

Ultimately, the principles aim to account for documented daily and seemingly routine injustices faced by Indigenous people within the justice system.

Accordingly, this bill is directly aligned with the Calls to Action of the Truth and Reconciliation Commission and the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

In 2015, the government’s election platform included a promise to implement the Calls to Action of the Truth and Reconciliation Commission. In 2019, the Minister of Justice’s mandate letter reiterated the need for progress toward this goal and toward the implementation of the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Both demand that minimum sentences be remedied.

Echoing this sentiment, the federal government itself noted that the percentage of Indigenous people in prison federally due to a mandatory minimum penalty has almost doubled in the last 10 years: 39% of all Black and 20% of all Indigenous federal prisoners have been convicted of a crime that carries mandatory minimum penalties.

[Translation]

Honourable senators, how can we expect people to be able to safely and successfully reintegrate into our communities when we keep locking them away for longer and longer sentences, without considering what circumstances led them there in the first place?

[English]

To date, Canadian courts have found a significant number of minimum penalties invalid on such grounds. Nearly half — some 31 of the 72 minimum penalties currently in force — have been found unconstitutional by at least one court. Of these, about 25 mandatory minimums have been struck down as invalid in various provinces. In 11 cases, a court that struck down the mandatory minimum was a Court of Appeal or the Supreme Court.

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In 2016, in R. v. Lloyd, the Supreme Court drew attention to Canada’s precarious position with respect to mandatory minimums and called on Parliament:

. . . to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment.

This exemption is related to the application of minimum penalties.

Senators, I repeat what the Supreme Court of Canada has said: It will constitute cruel and unusual punishment.

Without legislation such as this bill before you all, mandatory minimum penalties have to be challenged one by one before the courts, tying up significant court and government resources, and requiring individual Canadians to shoulder the heavy burden of mounting constitutional challenges. In too many cases, those facing a potential unconstitutional minimum simply do not have the means to defend their rights. At the same time, for those with the most resources, mandatory minimum penalties allow for and even encourage drawn out legislation, including constitutional challenges.

[Translation]

Individuals have nothing to lose and everything to gain by going to trial and trying every trick up their lawyers’ sleeves to avoid a harsh sentence, rather than seeking early resolution.

[English]

Honourable senators, you may remember the report of the Standing Senate Committee on Legal and Constitutional Affairs on court delays identified the strain that mandatory minimums place on scarce judicial resources and pressing issues of trial delays. During the study, at least 11 different criminal justice experts singled out minimum penalties as a factor contributing to overall delays and inefficiencies in the court system. Worst yet, such principles are in sharp contrast to what occurs in cases where mandatory minimum penalties are applied. Mandatory minimums often shift discretion from judges to other actors with virtually no accountability either to the public or to the appeal process.

Honourable senators, those other actors are us. For instance, Crown prosecutors are often tasked with determining what charges to lay and whether to pursue a mandatory minimum penalty. Far too often, their reasons have little to do with legal principles. In some instances, these powers are used as bargaining chips to encourage a person to plead guilty to a lesser charge rather than risk facing the mandatory minimum penalty of a more serious one, if they are convicted.

Honourable senators, today we have an opportunity to send yet another clear message that we do not support this flawed approach to federal sentencing. This bill will provide judges with the long overdue alternative to imposing mandatory minimum penalties. In fact, it provides judges an unfettered ability to exercise their expertise when determining whether or not it is appropriate to apply mandatory minimum penalties. In doing so, it ensures judges are freely able to not impose a mandatory minimum penalty, in particular when doing so is determined to be inappropriate or unjust.

What this bill does not do is give judges a golden ticket to act unfairly or arbitrarily. In fact, the powers this bill aims to provide judges are not new and are in line with the Criminal Code. As many of you will know, section 726.2 of the Criminal Code clearly states:

When imposing a sentence, a court shall state the terms of the sentence imposed, and the reasons for it, and enter those terms and reasons into the record of the proceedings.

It follows that all judges are required to give reasons for their sentencing decisions. In addition, their decisions must be rooted in legal principles and are subject to scrutiny from the general public, the legal community and other judges through appeal processes.

Honourable senators, I know these principles of transparency and fairness are ones which we will take seriously. The bill intentionally does not go so far as to prevent judges from imposing minimum sentences. It will simply add a requirement that judges must reflect on and provide justification and fairness in imposing mandatory minimum sentences.

In 1987, the Canada Sentencing Commission found that 9 in 10 judges concluded that mandatory penalties had interfered with their ability to render a just sentence. Also in 1987, when there were 10 mandatory minimum penalties and their approach was deferred to file less frequently, still 57% of judges approved of their use. They went so far as to state that their use inhibited their ability to determine fair and appropriate sentences fitting of the circumstances surrounding the crime.

Since then, the issue continues to worsen. In the decades since, the use of mandatory minimum penalties in Canada has continually grown at an alarming rate. This bill follows the experts’ leads by allowing judges not to impose a mandatory minimum penalty.

[Translation]

I would ask you all to carefully consider this question. Honourable senators, what are we waiting for?

[English]

The reality in Canada can and should be contrasted with the experiences of other democratic states whose laws include mandatory minimum penalties. Many, including England and Wales, New Zealand, South Africa, Australia and jurisdictions, and even a number of U.S. jurisdictions, have taken steps to ensure the integrity and constitutionality of their laws and the rights of their citizens by allowing some form of judicial discretion. In most cases, the judicial discretion extends to even the most serious life sentences.

Honourable senators, I want to share with you the words of a man at William Head Institution, in my Province of British Columbia, whom I had the privilege of speaking with this past summer. He told me “the way the federal prison system functions is churning out broken people.” I cannot get those words out of my head: “churning out broken people.”

We now have an opportunity to change this long-held course.

Senators, when I was a young defence counsel, I often went to court with my senior partner, the Honourable Mr. Dohm, who used to be a judge before he retired. He taught me that when a judge sentences somebody, he has to balance everything. He has to balance what kind of person will return to society. He always used to say to me:

We do not throw the key away. Sooner or later, those prisoners will be released, and they will have to be reintegrated into society.

Honourable senators, I ask you, with the system we have at the moment, when a prisoner from William Head said that we are “churning out broken people,” is this the right system?

[Translation]

I am deeply troubled as to whether we are doing anything meaningful to prepare prisoners to be reintegrated into society.

Honourable senators, please join me in opposing unnecessary mandatory minimum penalties and standing up for judicial discretion.

[English]

Honourable senators, we are supposed to look after the most marginalized people. The time is nigh for us to stand against this injustice. The time is now to stand up for true fairness and equality for all. The time is now to move forward together.

I hope, senators, you will give this bill serious consideration. Thank you.