Third reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act—Amendment of Senator Clement

By: The Hon. Pierre Dalphond

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Canadian Museum of History, Gatineau, Quebec

Hon. Pierre J. Dalphond: Honourable senators, I’d like to begin by thanking Senator Clement for taking over from Senator Jaffer and Senator Pate, who have been advocating for the elimination of mandatory minimum sentences for years now. They are not the only ones campaigning for this.

For example, in 2015, the Truth and Reconciliation Commission, which was chaired by our former colleague, the Honourable Murray Sinclair, recommended an option similar to what Senator Clement proposed because mandatory minimum sentences resulted in the overrepresentation of Indigenous individuals in provincial and federal prisons.

The National Inquiry into Missing and Murdered Indigenous Women and Girls, which our colleague, Senator Audette, was part of, called for it too, asking federal, provincial and territorial governments to, and I quote:

 . . . thoroughly evaluate the impact of mandatory minimum sentences as it relates to the sentencing and over‑incarceration of Indigenous women, girls, and . . . people and to take appropriate action to address their over‑incarceration.

The Parliamentary Black Caucus, which senators Bernard, Clement, Gerba, Mégie and Moodie belong to, also recommends the elimination of mandatory minimum sentences because it finds that they result in the overrepresentation of racialized groups in prisons and penitentiaries. The Canadian Association of Black Lawyers concurs.

These are important messages from credible people. It would be a mistake for any government to ignore them.

The government chose to respond not by repealing all mandatory minimum sentences, but by proposing three targeted measures.

I would point out, incidentally, that nowhere in the Prime Minister’s mandate letter to the Minister of Justice does it say that he must work to repeal all minimum sentences, but rather that he must reduce reliance on mandatory minimum penalties and develop an Indigenous justice strategy as well as a Black Canadians justice strategy.

Here are the targeted measures the government included in Bill C-5. First, the abolition of all mandatory minimum sentences under the Controlled Drugs and Substances Act, which were one year, eighteen months, two years or three years, depending on the nature of the offence, many of which have been declared unconstitutional, either by the Supreme Court of Canada in Nur or by decisions of the Alberta, British Columbia and Quebec courts of appeal.

However, the jurisprudence is rather confusing when it comes to superior courts and provincial courts, which do not have the authority to declare provisions unconstitutional.

Second, the bill proposes to do away with about 15 minimum sentences set out in the Criminal Code for offences that, according to the government’s analyses, are associated with an overrepresentation of Indigenous and Black people in prisons and penitentiaries.

Third, the bill proposes to repeal most of the exclusions in the regime for accessing sentences served in the community, also known as conditional sentences.

Clearly, all of these measures will expand the options available to judges when it comes to sentencing, including the possibility of imposing shorter prison sentences and more conditional sentences. According to the Department of Justice’s analyses, that should significantly reduce the rate of incarceration of Indigenous and Black people who are found guilty of an offence. However, only time will tell whether that is indeed the case.

Instead of proposing to eliminate all mandatory minimum penalties, also called MMPs, the amendment now before us would maintain the majority of MMPs and add a provision authorizing judges not to apply them on a case-by-case basis. Such a provision is called a “safety valve” by some, and an “escape clause” by others.

At the Standing Senate Committee on Legal and Constitutional Affairs, Senator Pate proposed an escape clause that would have allowed judges not to apply any remaining MMPs, including in cases of first- and second-degree murder, if the judge were satisfied that doing so would be in the interests of justice. A debate followed, and this amendment was defeated by a vote of 9 to 4.

The escape clause now before us is different. It will be applicable only in exceptional circumstances — a higher standard to meet. As mentioned by Senator Clement, this is the threshold applied by judges in England and Wales to justify the imposition of an imprisonment term lesser than the applicable MMP.

At committee, a leading expert in sentencing — a Canadian, incidentally — Professor Julian Roberts of the University of Oxford described this threshold as the highest one. With that context in mind, let me add that the Supreme Court of Canada considers that it is not only legal, but legitimate for Parliament, in considering sentencing policy options, to enact MMPs in order to send a powerful message of deterrence and denunciation. Previous governments have all enacted some MMPs going back, incidentally, to Prime Minister Pierre Trudeau. However, the court said that when Parliament decides to enact an MMP, it should act carefully to avoid casting too wide of a net that could result in a breach of section 12 of the Canadian Charter of Rights and Freedoms that protects all Canadians against cruel punishment.

In the recent unanimous decision of the Supreme Court in the Bissonnette case, which was released in May 2022, the Supreme Court stated that an MMP is cruel only if it results, in some cases, in a punishment that is grossly disproportionate in effect to what would have been appropriate otherwise. That said, for the Supreme Court, an MMP of 25 years further to a conviction for a first-degree murder is not a cruel punishment.

Incidentally, in Lloyd, another judgment of the Supreme Court released in 2016, Chief Justice Beverley McLachlin said that to avoid constitutional challenges to MMPs that cast a wide net, Parliament should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences. She added that another option would be for Parliament to establish a safety valve that would allow judges to exempt outliers for whom the MMP will constitute a cruel punishment. She went on to say that this residual discretion is usually confined in other countries to exceptional cases, and may require the judge to give reasons justifying departing from MMPs prescribed by the law. This is what Senator Clement is now proposing.

With all this in mind, let me explain why I cannot support this new attempt to introduce an escape clause into Bill C-5.

First, the proposed escape clause is drafted to apply to all remaining MMPs, including first- and second-degree murders, high treason, crimes against humanity, impaired driving causing death and child sexual offences. To me, MMPs are fully justified in such cases to send a powerful message of deterrence and denunciation.

Incidentally, in the U.K., the escape clause does not apply to all kinds of murders.

Here in Canada, in 2013, the Criminal Section of the Uniform Law Conference of Canada, a working group that includes prosecutors, defence lawyers, academics and others, did not recommend removing MMPs for murders, nor did the Canadian Bar Association, which appeared before our Senate committee. By adopting the proposed amendment — assuming it is within the scope of the bill, which I also doubt for the reasons mentioned by Senator Cotter on Tuesday — we will go further than any country in the world. I am not prepared to do that, and I do not think such a change would reflect Canadian society’s values.

Second, the opportunity of adding such an escape clause at third reading and thus returning Bill C-5 to the House of Commons instead of sending it to Rideau Hall for Royal Assent relies on the assumption that it will significantly reduce the frequency of the imposition of MMPs by Canadian judges. However, the evidence before the Senate committee is to the contrary. In a written answer to my questions at the committee, Professor Roberts wrote that such an escape clause in England, because of its very high threshold, has been narrowly interpreted by the courts in England and Wales and used by sentencing judges in only a very small number of cases. Therefore, this is not a change that would bring a lot of significant changes.

Third, many witnesses have argued against the adoption of an escape provision — whatever its content — because they fear that the systemic discrimination that exists toward racialized, Indigenous and vulnerable people will not result in fewer MMPs being imposed on these groups by the justice system. In fact, they fear that such an escape clause will tend to benefit White offenders and those with privileged access to legal representation, resulting in new inequalities.

This concern makes sense if you assume that the overrepresentation of Indigenous and racialized people in our jails is due to overpolicing, overcharging, poor access to adequate defence counsels and bias in the court system.

Fourth, some witnesses pointed out that, contrary to the U.K. where there is no constitutional authority for judges to declare a cruel sentence to be unconstitutional, in Canada, we have section 12 of the Charter. In cases where an MMP may result in a breach of section 12 or section 15 — the equality right — Canadian judges can declare it unconstitutional and thus invalid. Such invalidity will apply to all persons exposed to that MMP, and will not be on a case-by-case basis.

As indicated previously, to avoid constitutional challenges, Parliament has two options: to draft individual offences and penalties properly or to add an escape clause applicable in exceptional circumstances. In other words, the adoption of the proposed escape clause would provide a shield against attack pursuant to section 12 of the Charter of Rights and may encourage future parliaments to adopt more MMPs, with the possible safety valve, contrary to the very goal that is pursued by the proponents of the amendment.

Finally, I want to mention that the Minister of Justice and the NDP justice critic, MP Randall Garrison, are publicly urging the Senate to adopt Bill C-5 as soon as possible, since it will immediately broaden the ability of judges to render conditional sentences when more appropriate than imprisonment in provincial jail. Most witnesses before our committee support the broadening of that judicial discretion.

Further, as to the recent Sharma decision, the Criminal Lawyers’ Association, the Canadian Bar Association and the Canadian Association of Black Lawyers, many scholars and other stakeholders have written to us, and on social media, urging us to adopt Bill C-5 without any further delay. I don’t see, in the reasons being exposed to justify the amendment, a justification to remain deaf to these calls.

For all these reasons, colleagues, I invite you to vote against this amendment. Thank you, meegwetch.

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