Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak to Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act. I would like, first of all, to thank Prime Minister Trudeau and Minister Lametti, who had the courage to introduce Bill C-5. As Minister Lametti remarked in committee, Bill C-5 is a solid first step. I also want to thank the sponsor of Bill C-5, Senator Gold. Senator Gold, I have seen how hard you worked on this bill; thank you very much. I want to thank the Legal and Constitutional Affairs Committee members, who have spent a considerable amount of time and effort studying this important bill. Senators, we had more than 45 witnesses, and many, many meetings. The clerk of the committee, Mark Palmer, and analysts Julian Walker and Michaela Keenan-Pelletier have also worked very hard. Thank you.

Honourable senators, my speech on Bill C-5 today will focus on the amendment introduced by Senator Clement. Many have spoken articulately about the amendment. I adopt their remarks, and will support the amendment and Bill C-5.

Historically, we know that judges apply sentencing principles from the Criminal Code by following precedents. In the mid-1990s, this changed. The liberal government introduced mandatory minimum sentences and snatched away the discretionary powers of the judges under the pretense that they were tough on crime. Throughout various governments, policy‑makers added more mandatory minimums such that today over 70 mandatory minimum sentences are enshrined into law. In fact, my office has found that in counting subsections, as courts tend to do, the number of mandatory minimums rose to 135.

In 2008, in R. v. Ferguson, the court maintained a strict threshold to strike down mandatory minimums and close the door to constitutional exemptions. From then on, the only way to repeal a mandatory minimum was to strike it down under section 52 of the Constitution Act, 1982, rather than using section 24(1) of the Canadian Charter. A crucial step, Ferguson, which was recently confirmed in Bissonnette, would lead the way to the dysfunctional patchwork of mandatory minimums that we witness today in Canada.

In 2015, in R. v. Nur, the Supreme Court struck down its second and third mandatory minimums in almost 30 years. This decision was critical in initiating the shift that’s been happening across the entire landscape of mandatory minimums in the country. In R. v. Nur, the court reminded us there are two facets to the application of section 12 of the Canadian Charter.

Essentially, the Supreme Court explained that a judge may strike down a mandatory minimum if it’s grossly disproportionate, either when applied to the case at hand or when applied in fictional and hypothetical cases. This was confirmed in R. v. Lloyd in 2016, but not without a warning. In R. v. Lloyd, the Supreme Court explained that if Parliament didn’t act, mandatory minimums would soon disappear. At the decision’s third paragraph, the court wrote:

Another option to preserve the constitutionality of offences that cast a wide net is to provide for residual judicial discretion to impose a fit and constitutional sentence in exceptional cases. This approach, widely adopted in other countries, provides a way of resolving the tension between Parliament’s right to choose the appropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment.

Senators, that is what Senator Clement’s amendment is asking for — exceptional circumstances.

The court called upon us parliamentarians to act to provide judges with more judicial discretion to ensure the stability of our current criminal justice framework. Honourable senators, we didn’t listen; we did not act.

Since R. v. Lloyd, we know that the courts have been very active in striking down mandatory minimum penalties across all jurisdictions in Canada. We have heard of this national patchwork of mandatory minimum penalties. Beyond the four mandatory minimums struck down by the Supreme Court, different provinces and territories have different mandatory minimum penalties in force, some having struck down more mandatory minimums than others.

Honourable senators, mandatory minimum sentencing is in a mess, and we are expecting many more Charter challenges to come. For instance, as of December 2021, a third of approximately 650 constitutional challenges to the Criminal Code were aimed at mandatory minimum penalties. There’s no reason to think that courts will change course. The courts will continue to strike down mandatory minimums.

The Canadian courts keep urging us politicians to fix the patchwork we have created. Forty-three mandatory minimums, honourable senators — 43 — of the 72 mandatory minimums have been struck down in at least one province. Certainly, of the 20 mandatory minimums that are being repealed in Bill C-5, many of them have never been contested before the court, and the patchwork I mentioned will remain. The mess that we parliamentarians made will remain.

As it stands, Bill C-5 won’t fix these problems. Although Bill C-5 takes a step towards cleaning up the patchwork, Minister Lametti claimed many times that he would have liked to have done more. When I asked him why he could not do more, he explained — and I understand his position — that we can’t shoot for the moon. Bill C-5 is a solid first step, in his words.

Honourable senators, our courts will likely continue to strike down mandatory minimums to avoid applying disproportionate sentences, and the patchwork will only get more confusing. In its recent decision in R. v. Sharma, the Supreme Court reiterated its warning at paragraph 244. The majority wrote:

Parliament’s enactment of harsher sanctions in general is not the problem; the issue lies in its manner of doing so.

Honourable senators, our manner of doing so hasn’t been compliant with the Charter. Rather, we have been deaf to the courts and blind to the protections of the Canadian Constitution. The courts have been sending us a very strong signal to address the patchwork of mandatory minimum penalties across Canada, but we haven’t listened. Let us not allow their request to once again fall on deaf ears. Let’s listen.

Senator Clement’s amendment answers the plea of the judges to amend the Criminal Code while addressing the government’s concerns that the remaining mandatory minimums will be struck down. With this amendment, judges will be able to apply proportionate sentences that diverge from mandatory minimum penalties without having to declare mandatory minimum penalties as unconstitutional. This way, offenders also won’t have to pursue costly constitutional challenges to assert their rights.

With this amendment of Senator Clement, judges will be able to give full consideration to the sentencing principles, to the Gladue principles — which consider the special circumstances of Indigenous peoples — and the relevant circumstances when appropriate.

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Honourable senators, we shouldn’t be forcing judges to strike down mandatory minimum penalties when they violate section 12 of the Charter. It is up to the judges to assess the circumstances of the accused and determine a suitable sentence for their rehabilitation. This has been our criminal system for hundreds of years. All the while, offenders who commit serious crimes will be given serious sentences.

Honourable senators, when I first came to the Senate, I was taught one of the tasks of the Senate is to protect the rights of the vulnerable people and minorities. In every bill that was presented by the House of Commons to the Senate, we had to study the bill and see if minority rights and rights of vulnerable people are protected. This bill is essential to protecting fundamental rights. It is an opportunity to stand true to our role.

In 2015 many of us moved away from our party affiliations and became senators who are independent. We are now in a position to think independently and to be bold. Let us do just that.

When you vote for the amendment, I respectfully ask that you consider your role as senators. As Mahatma Gandhi once claimed, the true measure of any society can be found in how it treats its most vulnerable members.

Thank you.