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Speech on Bill S-251: Eliminating mandatory minimum sentences is a bad idea

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Mandatory Minimum Sentences (Bill S-251)

Bill to Amend the Criminal Code—Second Reading

Hon. Donald Neil Plett: Honourable senators, I rise today to speak to Bill S-251, An Act to amend the Criminal Code (independence of the judiciary) and to make related amendments.

According to Senator Pate:

"This bill provides judges with the discretion to impose a fair and just sentence in every case, notwithstanding the presence of a mandatory minimum penalty."

I would like to rephrase that as follows:

"This bill provides judges with the latitude to completely ignore the mandatory minimum penalty in each and every case, entirely at their discretion."

In other words, this bill effectively abolishes the words “mandatory” and “minimum” from the phrase “mandatory minimum penalties.”

Whether or not we are left with a penalty will be left entirely to the discretion of each judge. This troubles me, honourable senators.

A number of years ago I participated in a program called Open Circle where we regularly visited people in prison. The objective was to build authentic relationships in order to address the separation and alienation that results from incarceration. This program was found to help inmates, both while they were in prison and when it came time after their release to return to society.

But, colleagues, just because I visited inmates in prison and had compassion for their needs did not mean I thought they should not serve the sentence for their crime. Compassion and justice are not incompatible.

Today, I volunteer for a program called God Zone, a church-sponsored program where kids in Winnipeg’s inner city are given an opportunity to participate in an afternoon of fun and learning. On Sunday afternoons I drive a bus and pick up kids in Winnipeg from the very, very worst parts of the city.

The bus I drive carries 54 students. It is only one of four buses being used by our church, which indicates the success of the program and what we are doing to help inner city youth. I believe it is far more important to be working to keep people from committing crime than trying to reduce their sentence after the crime has been committed.

The kids who participate in this program grow up in horrible situations. In fact, just a few weeks ago a woman living in this neighbourhood, right at a house where I picked up children or beside a house where I picked up children, was shot through the front door of her home by a shotgun when she refused to open the door to intruders. The shooter, colleagues, is 15 years of age.

We need to do everything in our power to help these kids. But this does not, colleagues, include suggesting that just because of the challenges they face growing up they might be subject to a lesser penalty than others for breaking the law. Yet this is the kind of thinking Bill S-251 will foster. Everyone gets to be treated like a victim, even the criminals.

Now, no one argues with the need to do everything possible to ensure all sentences are fair and just. I am confident that everyone in this chamber supports that objective. I would argue that rather than being a hindrance to that objective, mandatory minimums are a necessary part of ensuring fairness in sentencing.

As Senator Pate pointed out in her second reading speech, the issue of mandatory minimum sentencing has a long history in Canada. She noted the Criminal Code contained six mandatory minimum penalties when it was first enacted in 1892. By 1995, that number stood at 10, when it was then almost tripled by the Liberal government to 29. Between 2005 and 2015, mandatory minimum penalties were more than doubled again by both Liberal and Conservative governments from 29 to 63.

This, colleagues, is important to note because some people like to portray the debate over mandatory minimums as a partisan issue. While the current Liberal government prides itself in reducing penalties for the most heinous of crimes and welcomes known terrorists back into Canada with open arms, even paying them $10 million for their crimes, this has not always been the case.

Historically, mandatory minimum sentencing has been about how to effectively address crime and ensure fairness in sentencing. Rather than being driven by ideology, there were real world situations which needed to be addressed and introducing or increasing mandatory minimums helped to do just that.

For example, in 1988, Gordon Stuckless, a former Maple Leaf Gardens equipment manager, pled guilty to 24 counts of indecent and sexual assault. He had been sexually abusing young boys at the Gardens for years. His sentence? Two years less a day.

Four days after Gordon Stuckless was sentenced, one of his victims, Martin Kruze, killed himself. How ironic that not only did the original offence create a victim, but the sentence itself created another victim. While Stuckless’s sentence was later increased to five years by the Ontario Court of Appeal, this is still ridiculously low.

Then there was Graham James in 1997. James pled guilty to two counts of sexual assault which involved for than 350 incidents with two underage players over a span of 10 years. He was sentenced to only three and a half years in jail.

In 2010, James faced new charges for sexually assaulting two other players. He pled guilty and was sentenced to two years for each charge but was able to serve them concurrently.

At the time, legal experts noted that light sentences like these were not unusual. They pointed to a Newfoundland man who was given a three-year sentence in 2012 for raping and sexually assaulting his 11-year-old niece over a six-year period of time. That same year, a Saskatchewan man was sentenced to 18 months for raping his stepdaughter.

As outrageous as these sentences were, they were the norm. That, colleagues, does not make them right.

The argument against mandatory minimums is primarily centred around ensuring that judges have flexibility to exercise discretion in sentencing. Yet, while judicial discretion is a critical part of a fair justice system, such discretion was never meant to be unlimited.

To quote the Department of Justice, discretion is “exercised, constrained and guided by jurisprudence, the facts of a case, and existing sentencing legislation.”

Mandatory minimum sentencing purposefully limits judicial discretion in order to strengthen, not weaken, the fairness of and public support for our justice system. It does this in a number of ways: first, by helping to ensure equality in sentencing. We have all seen the statue that represents justice. It is blindfolded. It doesn’t see cultural, economic or social differences. The mandatory minimum serves in this way — it is applied uniformly, regardless.

I should point out that this does not mean that everyone receives the same sentence for the same crime. For starters, Crown prosecutors can often choose between proceeding with a charge as either a summary or indictable offence. The sentencing range between these two options varies significantly.

Furthermore, the mandatory minimum is just that — a minimum. In reviewing the length of sentences given for specific crimes which have mandatory minimums, Statistics Canada found that the length of sentences varied greatly, many times well exceeding the required minimum. This illustrates the use of judicial discretion within legislated parameters.

The second reason for mandatory minimums is denunciation. Not every crime has a mandatory minimum sentence. Mandatory minimums are reflective of the need for certain crimes to receive greater public denunciation.

The previous Conservative government’s decision to increase the mandatory minimums for child pornography and sexual violations against children is an example of this. It sends a strong message that society denounces the crime and those who are guilty of it.

Third, mandatory minimums serve as a deterrent by ensuring that every offender receives a minimum sentence. Although some studies have questioned whether mandatory minimums achieve this goal, it is difficult to deny that an incarcerated offender is effectively deterred from repeating his or her crime while serving their sentence.

Fourth, mandatory minimums underscore that for some crimes there is a minimum price that must be paid regardless of the circumstances surrounding that crime. Sometimes it is the heinous nature of the crime itself. Other times, the minimum is applied because the person is a repeat offender. In each case, society is saying through Parliament that a minimum consequence for such a crime is just.

These are but a few of the many well-established reasons for mandatory minimums, and they should not be casually brushed aside. This does not mean, however, that there are no legitimate concerns about mandatory minimums.

Senator Pate gave a number of examples of where it is possible for a sentence to be unjust. However, colleagues, the Supreme Court has ruled on more than one occasion that in some cases, mandatory minimums have the potential to be “grossly disproportionate” and violate a person’s constitutional rights.

This is not acceptable and should be addressed, as recommended by the Supreme Court of Canada.

In R. v. Lloyd, 2016, the Supreme Court of Canada gave two possible solutions to this problem. One was to narrow the reach of mandatory minimums so that they can only catch offenders that merit them. The alternative was to implement a safety valve which would be limited in scope and application.

The Supreme Court suggested that such a safety valve would kick in if the application of a mandatory minimum sentence would be “grossly disproportionate and would constitute cruel and unusual punishment.” Yet neither of these two solutions are reflected in Bill S-251.

Instead of narrowing the reach of mandatory minimums or providing a safety valve, this bill effectively abolishes all mandatory minimums by allowing judges to ignore them as they see fit. It does not tweak them or provide clarification for when they should be used. It eliminates them subject only to the sole discretion of the judge.

In other countries such as England and South Africa, the reach of mandatory minimums was moderated by allowing judges to impose a lesser sentence only when substantial and compelling circumstances exist. There is no such requirement in Bill S- 251.

Honourable senators, as you all know, the Prime Minister has mandated the Minister of Justice to look at this issue. I am not clear why this chamber would feel compelled to upstage the government and address this issue before the Minister of Justice has had the opportunity to do so.

Furthermore, if you are creating legislation to respond to the Supreme Court’s concerns, then it should at least fall within the parameters recommended by the Supreme Court. Bill S-251 fails to do this.

Honourable senators, you have heard me say in the past that I typically support legislation being sent to committee for further study. Quite frankly, however, I find this bill so utterly contemptible and wrong-headed that we should not be wasting this chamber’s time by even sending it to committee. I am opposed to this bill in principle and urge this chamber to defeat it at the earliest opportunity. Thank you.


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