Senator Don Plett, Leader of the Opposition

Bill to Amend—Third Reading—Debate Suspended

On the Order:

Resuming debate on the motion of the Honourable Senator Dyck, seconded by the Honourable Senator Cordy, for the third reading of Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women).

Hon. Donald Neil Plett: Honourable senators, before I begin my remarks on Bill S-215, I want to make a couple of personal comments.

First, I have not yet had the opportunity to welcome all the new senators to the chamber. I do that, and I look forward to getting to know and working collaboratively with all of you when we come back.

On behalf of my wife and myself, I would like to wish each and every one of you a Merry Christmas and a safe and enjoyable holiday spent with family. I already look forward to seeing you all at the beginning of February, but more importantly, I look forward to not seeing any of you until the beginning of February.

As a member of the Standing Senate Committee on Legal and Constitutional Affairs, I want to express my profound gratitude to members of the committee on all sides. First and foremost, to Senator Bob Runciman for his excellent chairmanship.

This is a committee made up of lawyers, constitutional experts and law enforcement professionals. Originally, I felt intimidated when I joined this committee. I want to thank all of you scholars for making a plumber from Manitoba feel welcome and for routinely encouraging my participation.

I learned a great deal from many of the witnesses but more from the senators around the table. In particular, I want to thank Senator Baker and Senator Joyal. I found it a pleasure watching them engage in debate with the witnesses and express their expert opinions.

With the latest committee realignment, I am no longer a member of the Legal Committee, but I know that the senators on the committee will continue to do a great job, and I look forward to my new role as a member of the Standing Senate Committee on Banking, Trade and Commerce.

With respect to Bill S-215, I want to commend Senator Lillian Dyck on her past and future work on this critically important and complex issue. For her, this is an emotional and personal issue, and she should be honoured for the tenacity and professionalism that she has displayed throughout this process. Seeing Senator Dyck's emotional reaction to the bill's passage at clause by clause was an inspiring reminder that we should all bring that level of passion to the issues that we are fighting for.

Bill S-215 would require the courts to consider the fact that when the victim of an assault or murder is an Aboriginal female, this constitutes an aggravating circumstance for the purposes of sentencing.

There is no question that the intentions here are good. However, as criminal defence lawyer Solomon Friedman said at committee:

. . . good intentions are insufficient to make good law, and Bill S-215 is not, in my respectful view, good law.

A recent report by the Department of Justice found that:

Perpetrators of violence against Aboriginal people are most often other members of the Aboriginal community such as spouses, relatives, or friends of the victim, and as such, victimization among Aboriginal people in Canada is often regarded as a mirror image of Aboriginal offending.

Mr. Friedman also quoted the Truth and Reconciliation Commission's report when he said:

Violence and criminal offending are not inherent in Aboriginal people. They result from very specific experiences that Aboriginal people have endured, including the intergenerational legacy of residential schools.

The Criminal Code treats Aboriginal offenders differently largely because of their overrepresentation in the Canadian criminal justice system, specifically with respect to incarceration. In Gladue, the Supreme Court of Canada ruled that the court must take into account all reasonable alternatives to incarceration when it comes to Aboriginal offenders.

How do we square this box? We know that Aboriginal men are most often responsible for violence against Aboriginal women, so the aggravating factor would most often apply to the sentencing of an Aboriginal man. Because of the Gladue principle, the judge has to consider all available sanctions other than imprisonment that are reasonable in the circumstances. With the new provisions, the judge will have to consider it an aggravating circumstance when the victim is an Aboriginal female. This will therefore work in direct contrast to the Gladue sentencing principle and, more importantly, to the overarching goal to reduce the number of Aboriginal people in Canadian prisons.

Senator Baker argued at committee that this bill would not violate the principles of Gladue. Senator Baker has always encouraged me to stay on and be part of this committee, stating that we need the opinions of common-sense people. Senator Joyal shared this sentiment. Well, senators, common sense clearly suggests that this bill works in direct contrast to Gladue, and this was substantiated by the legal experts who testified at committee.

My question to my friends Senator Baker and Senator Joyal is: At what point does common sense get pushed aside in order to support legislation initiated by one of our colleagues?

Yesterday, we spent nearly an hour talking about the placement of a few words in Senator Sinclair's amendment; a highly decorated justice brings in an amendment, and everyone that wanted to be a lawyer had better ideas than Justice Sinclair. Senator Sinclair's amendment resulted in the adjournment of the debate. But on this bill, which the committee evidence proved is so clearly flawed to the point that we are creating classes of victims, I hear not so much as a whimper from these same people.

Another lawyer at committee, Mr. Edward Prutschi added:

. . . the introduction of Bill S-215 is an invitation to those judges who wish to use whatever other measures they can find in the Criminal Code in order to send a tough-on-crime message to Aboriginal offenders. That's ultimately what's going to happen in most of the circumstances. We all know and recognize the statistics. The reality is that, . . . disproportionately, this kind of bill is going to apply to Aboriginal male offenders rather than anyone else.

Most honourable senators in this chamber would know that, unlike the lawyer I quoted, I strongly support a tough-on-crime approach to violent offenders, and most certainly when it comes to violence against women and children. However, the specific focus on Aboriginal women will in turn disproportionately impact Aboriginal men, which could make the bill subject to a section 15 equality rights Charter challenge. I'm sure Senators Baker and Joyal would agree with that.

Perhaps most importantly, the bill will not solve this serious and extremely complex problem of violence against Aboriginal women, as there is no evidence to suggest that this will be a deterrent for perpetrators of violent crimes.

Another issue I want to flag is one that was first raised by Justice Sinclair, who as Senator Baker noted yesterday is a strong asset to the committee. I want to echo those comments and go further by stating that he will also be a huge asset to this chamber as a whole and will be a strong resource for all of us when it comes to legal expertise. The question he asked was with respect to the application of this law and the transgender community.

Senator Dyck made a very compelling case to illustrate the incredibly unique experience Aboriginal women in Canada face. In drafting of this legislation, she makes an important distinction between men and women, and rightly so. There is a marked difference between the experiences of men and of women with respect to perpetration and victimization. Senator Dyck also told this chamber how the societal perception of Aboriginal women differs from that of both non-Aboriginal women and men.

We also know that gender-based analyses have become an important tool in scrutinizing legislation from an equality standpoint. All in all, colleagues, gender distinctions have been and continue to be an important consideration in the implementation of social policy. Senator Dyck has made that expressly clear in this initiative.

We are, however, with another piece of legislation currently before the chamber, moving away from gender distinctions and moving toward viewing gender on a spectrum. Some proponents of the gender identity bill consider binary genders to be arbitrary, obsolete and a tool to perpetuate the patriarchal society we live in.

This whole narrative, largely initiated by university social science departments, has led to a wildly increasing number of young adults identifying as gender non-conforming and non-binary. For example, this year at the University of Toronto, 7 per cent of enrolling students checked the box "other." This 7 per cent does not include transgender people who identify as the other gender. This includes only those students who belong to neither gender. That number is on the rise. So, some consideration must be given to the impact of that on legislation like this which clearly and deliberately distinguishes between men and women.

Following up on Senator Sinclair's line of questioning, I asked Senator Dyck about whether a transgender Aboriginal woman would qualify as an Aboriginal woman under this legislation. I also asked whether a biological woman, transgender man would qualify as an Aboriginal woman. Senator Dyck did not have a clear answer for that, noting that Bill C-16 is not yet law, and said it's a very complicated situation. Indeed it is.

I further asked her about the increasing number of Canadians who identify as gender-fluid, which of course means that they could identify as male one day and female the next. I asked what that would mean for the application of this law. She stated that it would apply, and I quote, "if the person was Aboriginal and they at the time said they were a female."

I asked this question: "At what time? Before or after?"

She responded: "At the time they were assaulted and/or murdered."

Colleagues the problem is evident.

Another question I would have liked to ask was about a person born female who grows up with the unique Aboriginal female experience that we have heard about and now does not identify as a woman, and whether that individual qualifies as an Aboriginal woman in law.

To be clear, my issue is not with the distinction made between men and women in this bill. My concern is how legislation like this will interface with the remarkably powerful push to move away from gender distinctions.

With respect to self-identification, lawyers at committee raised the issue of the victim being able to self-identify as Aboriginal. Senator Dyck confirmed that this would apply, even if the person happened to be 1 per cent Aboriginal, and even if the perpetrator is unaware of the victim's Aboriginal ancestry.

Mr. Prutschi said at committee:

In a scenario where we create a class of victims based on self-identification, I don't believe the Criminal Code can permit that.

He later said that defence lawyers will absolutely argue that the accused did not know that the victim was Aboriginal, and they could very easily make that case. The same principle applies when a victim falls somewhere on the gender identity spectrum but identifies as female at the time of the incident.

Colleagues, as I said, Senator Dyck has fought vehemently for the protection of Aboriginal women and girls. She needs to be applauded for that. Nearly 1,200 Aboriginal women and girls have been murdered or have gone missing over a 32-year period. For that reason, it pains me not to be able to support an initiative aimed at reducing this statistic. However, I do not believe that this bill will achieve that. Further, I believe it will have a negative impact on the issue of overrepresentation of Aboriginal people in the criminal justice system. For that reason, colleagues, I cannot support this bill. Thank you.