Senator Jaffer: Yes, “consent of the accused,” Senator Plett. You can debate later. It is my turn. What I would say to you, senators, is that it was very clear to us that there was enough protection in the act to have trials. These are not all trials. For example, if the technology wasn’t available, obviously there wouldn’t be a video trial; the accused would have to appear in person. It is only in certain circumstances that the court “may allow.” Honourable senators, I want you to remember that it is not “shall.” It is “may.”

Hon. Mobina S. B. Jaffer: Thank you, Senator Batters, for your amendment. I want to intervene for a few minutes to let senators know that regarding trial for a summary convention offence, the bill states the court “may allow” it. Considering the circumstances, the court may allow, “with the consent of the accused and the prosecutor” if the accused is not in custody. If the accused is in custody, the court may allow it with the consent of the accused.

Regarding a trial for an indictable offence, the court “may allow.” Honourable senators, I keep saying “may” because it is not “shall.” The court is not bound by it. Considering the circumstances, the court may allow an accused to appear by video conference, “with the consent of the prosecutor and the accused,” except “when evidence is being presented to the jury.” Then the accused has to appear in court.

For a plea, “the court may, with the consent of the prosecutor and the accused. . . .” And regarding sentencing, the court may allow “with the consent of the prosecutor and the offender. . . .”

Honourable senators, I’m not going to speak for all of the members who supported or didn’t support this, but it was very clear the court “may allow.” Obviously, I have not spoken to the same judges to whom Senator Batters has spoken, but looking at what is in the bill, it says the court “may allow.” So the judges who had a problem with the issue would not have to allow a video trial. It is in there. The court “may allow” with the consent of the accused and the consent of the prosecutor. Senators, I think there is enough —

Senator Plett: Consent of the accused —

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak to the second reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

Yesterday, I complimented the Prime Minister and Minister of Justice for introducing the mandatory minimum bill.

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I want to share with you some of the history of mandatory minimum penalties from my experience.

In 1992, when the mandatory minimum sentencing bills were first put in place, we in the legal profession thought it was a temporary measure. Sadly, for many of us, successive governments have continued to impose mandatory minimum sentences.

To date, we have 73 mandatory minimum penalties. That is why, honourable senators, I believe the justice minister and Senator Gold, the sponsor of the bill, are very courageous to have taken the first step towards repealing mandatory minimum penalties.

I genuinely believe that this is a very big step. Over the years, even before I came to the Senate, I used to get into discussions with former Liberal justice ministers to stop imposing mandatory minimum sentences and to repeal them. They found it politically difficult to repeal mandatory minimum penalty bills.

Senators, since I have been in the Senate, I have introduced the following bills to get rid of mandatory minimum penalties: In June 2013, I introduced Bill S-221, An Act to amend the Criminal Code (exception to mandatory minimum sentences for manslaughter and criminal negligence causing death); in November 2013, I introduced Bill S-209, with the same name; and in February 2014, I introduced Bill S-214, once again with the same name.

I have introduced three bills, the last one in 2014. I tabled these bills because I truly believed that mandatory minimum penalties do not work.

As a lawyer, I used to see that it really destroyed my clients, my family and, I believe, society in the long run.

Indeed, traditionally — before 1992 — when a person is determined to plead guilty, the judge is then tasked with looking at sentencing principles, and they would have to ask the following questions: What is the act that is applicable? What crime was committed? How severe was the crime? What are the circumstances of the individual?

In Canada, sections 718.1 and 718.2 of our Criminal Code are very clear. Section 718.1 stipulates that a sentence be proportionate to the gravity of the offence and the degree of the responsibility of the offender. Section 718.2 follows by outlining some of the other principles to be followed in sentencing, as well as aggravating and mitigating circumstances to be considered in determining a sentence.

One of the most important factors the justices are tasked with considering is who has committed the crime and what factors might have contributed to the criminality, and then to look at the circumstances of the person appearing before them.

With regard to proportionate sentencing, section 718.1 of the Criminal Code sets it out as the fundamental principle of sentencing, which directs that all sentences must be proportionate to the gravity of the offence and the degree of the responsibility.

In other words, a sentence must accurately reflect the circumstances of a particular crime.

Mandatory minimum sentences handcuff judges and limit their discretion and ability to determine appropriate and proportionate sentences.

In Canada, at the moment, we have 73 mandatory minimum penalties, 67 of which are in the Criminal Code, while 6 are in the Controlled Drugs and Substances Act.

To date, at least 53 mandatory minimum penalties have been struck down by the courts, found to be violations of our Charter of Rights and Freedoms or called into question by provincial and territorial courts, as well as the Supreme Court of Canada, our country’s highest court.

Of those 53, 10 have been included among the 20 in Bill C-5. Yesterday, Senator Gold spoke articulately about discretion of judges and proportionate sentencing, and over the years, many of us have spoken about judicial discretion and why it is important. I will not dwell on it now.

The fact is that if we trust our judges to do their job — and, by the way, we have the best judges in the world — then we should trust them with sentencing the person in front of them. If we trust our judges to do their job, then we should trust them with having the discretion which allows them to do their job to the best of their ability and with direct relation to the facts and the individual circumstances of any case before them.

In keeping with this sentiment, the Standing Committee on Justice and Human Rights in the other place heard from a majority of witnesses that all mandatory minimum penalties should be repealed. Experts from all manner of experience, perspectives and expertise reached a consensus.

Mandatory minimum penalties and the sentences they carry are predetermined by parliamentarians without knowing the exact circumstances of the case. Members of the other place and senators are determining the fate of countless people in Canada without even having to look at a particular person in front of them, without having to hear their story, without having to look them in their eyes and confront their humanity.

Instead, parliamentarians are predetermining their fate and are putting aside time-proven sentencing principles. In doing so, we are not only putting aside coveted sentencing principles on which the foundation of our Criminal Code is built; instead, we are wholly ignoring them.

Today, I want to explain to you the situation in the best way that I can. The exact numbers may need a little bit more work, and we can do that in the committee, but I want to give you the bigger picture.

As I have said a number of times, there are 73 mandatory minimum penalties in the Criminal Code and the Controlled Drugs and Substances Act. Various levels of courts across the country have struck down 53 mandatory minimum penalties, including appellate courts and the Supreme Court of Canada.

As the judges see the person in front of them, they impose the penalty that fits the crime, and not what we parliamentarians decided many years ago without seeing the eyes of the person standing in front of the judge.

The government has introduced Bill C-5 to repeal 20 mandatory minimum penalties. This bill includes 10 of the mandatory minimum sentences that have been struck down by the judiciary.

Now, senators, I want to repeat that I’m sure the Department of Justice might be able to give us better figures, but my purpose in sharing this with you is to make sure we understand that we parliamentarians have created a patchwork across the country that is inconsistent. For example, if my appellate court in British Columbia strikes down a mandatory minimum penalty, it will be applied in British Columbia, but it will stay in force in the rest of the country, unlike a mandatory minimum penalty that is struck down by the Supreme Court or the Government of Canada. I want to say this again, senators: We have now ended up with a patchwork, and at committee and at third reading, we are going to have to find a way to address the patchwork.

I agree with the leader, Senator Gold, that we cannot shoot for the moon. All my life I have been a political person, and I understand the realities of repealing mandatory minimum penalties. That is why, senators, when the leader says that we cannot shoot for the moon, I get it.

That is why we, at committee or at third reading, will have to deal with this patchwork in a creative way.

I want to repeat, senators, that currently we have 73 mandatory minimum penalties in force in Canadian law, the courts have struck down 53 and Bill C-5 repeals 20. Among the 20 included in Bill C-5, 10 mandatory minimum penalties were struck down by the courts.

I hope that we will be able to address this patchwork situation in committee. Thank you, senators.