Senator Batters: Senator Gold, you referenced some examples that Senator Simons gave regarding situations she found would be acceptable for conditional sentences. Which particular examples that Senator Simons referred to do you think are acceptable for conditional sentences?

Senator Dalphond: Thank you for expressing your policy on the issue. I think you’re right: The Supreme Court has made clear there are policy decisions to be made here.

You tell me that conditional release should not be imposed to protect the victims, but here we’re talking about the less serious offences that deserve less than two years.

Are you saying that someone who receives a sentence of three months — and the judge thinks that is the proper sentence, according to all the principles and based on his case-by-case analysis — should serve the time in jail? So after three months, what would you do? The person will be released, and will maybe live next to the victim again.

What are you proposing — that the law be amended to specify that the person be forced to live in a different city? Please explain it to me. I understand the victim’s perspective, and the right to be protected, but you think that the conditional sentence is a fix? I don’t think it is a fix. So after three months, what would you do?

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Hon. Denise Batters: Honourable senators, I rise today to speak in support of Senator Boisvenu’s amendment to Bill C-5. Senator Boisvenu’s amendment would remove conditional sentences from Bill C-5 for a list of offences, including those related to domestic, family and sexual violence. This would mean that offenders convicted of serious crimes like sexual assault, assault with a weapon, criminal harassment, kidnapping, human trafficking and causing bodily harm by criminal negligence could not receive a conditional sentence.

There are crimes that most reasonable people would agree are so grievous that society demands some form of reparation both to victims and to society. Generally, for more serious crimes, we have accepted that is generally sought through time spent in custody and through denial of one’s freedom to circulate within a community. Usually, the types of crimes Senator Boisvenu has listed in his amendment should warrant this, particularly because vulnerable victims are involved.

In reality, those sentenced to prison in Canada almost never serve their entire terms of incarceration. In almost all cases, prisoners are released after serving two thirds of their sentences. Quite frequently, their term may be reduced further to only one third of their original sentence. Most Canadians wouldn’t find that even close to acceptable.

Prisoner rehabilitation is certainly an important goal for the safety of society. But we can work to promote that goal while simultaneously ensuring greater truth in sentencing. In some of these cases, prison may be a place where offenders access programming to help them deal with their violence and abuse issues. And an offender’s removal for a custodial sentence may give the victim in a domestic abuse situation time to secure the supports she needs to establish her own safety and that of her family. In the event of a non-custodial sentence, such as the conditional sentences the Liberal government proposes with Bill C-5, these offenders may be returned to the very communities and, in some cases, the very homes where they abused their victims.

Last week, in its ruling on the R. v. Sharma case, the Supreme Court of Canada upheld the constitutionality of current limitations on the use of conditional sentences imposed by Parliament in 2012 during the Harper government. The case concerned Ms. Sharma, a 20-year-old Indigenous woman, who was found at the airport transporting a suitcase full of heroin for her boyfriend. Ms. Sharma had a troubled background of significant hardship, intergenerational trauma and sexual assault, and was a young, single parent with few supports. Ms. Sharma appealed her sentence for importing drugs, challenging the constitutionality of Criminal Code provisions limiting conditional sentences from being applied for certain offences, contending that they are over broad, arbitrary and discriminatory to Indigenous offenders.

The Supreme Court majority held that a conditional sentence was unavailable to Ms. Sharma and dismissed her challenges under sections 7 and 15(1) of the Charter. They ruled that Ms. Sharma’s personal circumstances did not make her crime any less serious. While a judge must — and, in this case, did — take an offender’s circumstances into account, it does not mean that an Indigenous offender cannot be given a sentence of incarceration. And, writing for the majority, Justices Brown and Rowe stated:

The impugned provisions do not limit Ms. Sharma’s s. 15(1) rights. While the crisis of Indigenous incarceration is undeniable, Ms. Sharma did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non-Indigenous offenders, as she must show at the first step of the s. 15(1) analysis.

Nor do the impugned provisions limit Ms. Sharma’s s. 7 rights. Their purpose is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences and categories of offences. And that is what they do. Maximum sentences are a reasonable proxy for the seriousness of an offence and, accordingly, the provisions do not deprive individuals of their liberty in circumstances that bear no connection to their objective.

When Minister of Justice Lametti proposed Bill C-5 to our Senate Legal Committee, he raised the example of “. . . an Indigenous mother who was caught in very low-level trafficking in order to put bread on the table” as the type of person this legislation was meant to target with conditional sentences. Clearly, the Supreme Court of Canada found in the Sharma ruling that, although personal circumstances should be taken into consideration, a sentence still must fit the severity of the crime and that the limitations Parliament placed on the application of conditional sentences in 2012 is constitutional.

With Bill C-5, this activist Trudeau government is further chipping away at Canadians’ confidence in the justice system. Half of Canadians surveyed earlier this year indicated they were not confident in the fairness of our justice system. Senator Boisvenu’s amendment aims to correct this problem.

One statistic that stood out to me, being from Saskatchewan, is that intimate partner violence is experienced by rural women at the rate of 75% higher than that of urban women. In fact, my home province of Saskatchewan has the highest rate of family violence in Canada, so this is an issue of paramount importance to me and to my region.

Legislation like Bill C-5, which would have repealed mandatory minimum penalties on a number of significant crimes, and allow for conditional sentences in others, will devalue the justice system further in the eyes of victims of crime and the Canadian public.

At the Senate Legal Committee, we heard testimony to this effect from Jennifer Dunn, Executive Director of the London Abused Women’s Centre. She told us:

It is already hard enough for a woman to come forward, and when she does, it takes years to get to the point of a conviction, if there ends up being one at all. This makes women feel as if the justice system isn’t taking them seriously. Just today, I was told by a woman we serve that if we have less protection in sentencing, we are less likely to report offences and this would be a real setback for us.

Crimes involving violence against women are already some of the most under-reported in our country. Statistics Canada estimates that more than 80% of violence against girls and women at the hands of an intimate partner, spouse or relative goes unreported. Only 6 out of every 100 sexual assault cases are reported to police. The last thing these victims need is to fear that the perpetrator of violence against them may receive a conditional sentence so that they will be back in the community where they live or work.

Jennifer Dunn told us about the chilling effect conditional sentences can have on victims of crime:

Conditional sentences for some offences can undermine the seriousness of the crimes. Women report to us that they believe this makes them feel as if they must watch their backs in the community when conditional sentences are imposed. We need to remember that sometimes victims and offenders are from the same communities as each other.

At our centre, there was a situation with a woman where the perpetrator was ordered to stay off her property, among many other conditions, of course. The perpetrator decided, though, to bring a lawn chair to a neighbouring yard and sit in that yard, facing her house and there was nothing that she could do about it.

Victims of crime should not have to endure this kind of intimidation or the threat that a perpetrator will turn up unexpectedly in the home community that a victim expects to be their safe space.

Honourable senators, if this Trudeau government passes Bill C-5 without Senator Boisvenu’s amendment, they will make conditional sentences available to: criminals convicted of abduction of a person under 14 years of age, those who benefit from human trafficking and those who sexually assault someone — and potentially serve those sentences at home? Show me where the justice is in that. Because, believe me, the survivors of these crimes don’t see the justice in this either. How can we expect them to report crimes against them when they happen again?

Victims of domestic violence already face barriers to justice in the courtroom. Bill C-5 could make that problem worse. University of British Columbia law professor Isabel Grant has written about the justice system’s lack of regard for female victims of abuse and related crimes and sentencing. She wrote this about female victims of criminal harassment:

The power of judicial discourses can also act to silence women who encounter the law. This is especially true of those women who do not comply with the construction of the “responsible victim.”

Female victims of crime know all too well that a court placing conditions on an offender is no guarantee of that perpetrator’s adherence to the rules. Because of the under-reporting of intimate partner violence it’s hard to know precisely, but the women’s shelter Interval House estimates that recidivism of domestic abuse falls somewhere between 39% and 66%. On its website, Interval House notes that abusers are often sentenced to lighter sentencing, carrying lighter penalties — similar, we could expect, to those the Trudeau government has listed in Bill C-5 as eligible for a conditional sentence.

Even if an offender is deemed low or no risk to the community and released on a conditional sentence with orders not to contact a victim, we know orders can be, and often are, breached.

Earlier this month in this chamber, Senator Fabian Manning — my friend and seatmate — gave an impassioned speech on his bill, Bill S-249, advocating for a national framework for the prevention of intimate partner violence in Canada. He presented us with many staggering statistics about the magnitude of domestic violence and the frequency with which it occurs. Senator Manning shared that 3 in 10 women who suffer intimate partner violence endure it — in some form — at least once a month, if not more often. One in five who suffers sexual abuse by their partners say it happens to them monthly or more frequently than monthly.

Domestic violence is a crime that repeats, and it is a crime that escalates. Often violence escalates through what might seem like less severe behaviour, which might fall on the lighter end of the criminal spectrum — the very offences that might receive a conditional sentence under Bill C-5 — for example, unlawful presence in a dwelling house or criminal harassment.

One such example is criminal harassment, which is a highly gendered crime. The Department of Justice estimates that females account for 76% of all victims in criminal harassment cases, while men account for 78% of the accused perpetrators. Stalking is a crime that can have devastating and profound psychological effects on its victims, and it is also often a precursor to repeated and increased violence. One study found that 76% of femicide and 85% of attempted femicide respondents had reported at least one episode of stalking within 12 months of the violent incident — more than had reported physical assault during that same period.

Domestic violence victims are often highly vulnerable once they have broken free from a relationship: 26% of all women who were murdered by a spouse had left the relationship, and 60% of all dating violence occurs after a relationship has ended. For the Trudeau government to institute conditional sentencing for these serious crimes against the person is dangerous. For these offenders to be returned to the communities where their victims live is unconscionable.

The government argues that removing mandatory minimums and increasing conditional sentences under Bill C-5 will address the overrepresentation of Black and Indigenous Canadians in the prison system. Two of the only witnesses we heard from at committee who presented actual data, University of Ottawa criminology professor Cheryl Webster and researcher Dawn North, testified that the provisions of Bill C-5 will barely touch Indigenous overrepresentation in incarceration. Further, Ms. North stated that Indigenous offenders tend to have higher breach rates when granted conditional sentences. The increase is further troubling for the Indigenous women and girls who may be victims of abuse by their partners. Among Indigenous women, 6 in 10 have experienced physical or sexual abuse at some point in their lives, and Indigenous women are 61% more likely to suffer from intimate partner violence than non-Indigenous women. For Indigenous women who are a sexual minority, the number is a shocking 83%.

Increased access to conditional sentences by offenders is not an advantage for victims of crime, especially Indigenous women and girls. As Jennifer Dunn repeated at committee:

I said in the House of Commons, and I’ll say it again, we need to view this bill through the lens of male violence against women. There needs to be a focus on women, specifically marginalized women, how they will be impacted by this bill and not get the justice they deserve.

It’s not just Indigenous victims who are vulnerable under Bill C-5. The statistics for other marginalized groups are shocking as well. An estimated 83% of disabled women will be assaulted at some point in their lives. Two thirds of sexual minority women have experienced intimate partner violence. Immigrant and refugee women and girls are especially vulnerable to the effects of intimate partner and family violence given language barriers, social isolation, a lack of resources, concern for their children and precarious immigration or deportation scenarios.

Honourable senators, the statistics on domestic abuse in this country are heartbreaking, but we need to act, not just talk about it. It is not enough for us to tweet supportive messages a couple of times a year or give a short speech here on an inquiry about domestic violence.

Colleagues, our opportunity to protect women and children living in these dangerous and very vulnerable situations is right here and right now. Your vote on this amendment is what can actually make a difference. Don’t let these abusers back into their communities so they can hurt or perhaps kill these women. Please take a stand, vote yes to this important amendment and help us protect victims of domestic abuse.

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