Hon. Kim Pate: Honourable senators, the government’s goals for Bill C-5 are laudable. I repeat, they’re laudable goals, and I support them. Regrettably, Bill C-5 will not significantly reduce the number of federally imprisoned Black or Indigenous people, most especially not Indigenous women.

In the 1999 Gladue decision, the Supreme Court declared the overrepresentation of Indigenous peoples in prisons a national crisis. At the time, Indigenous people represented 10.6% of the country’s federal prison population. Today, that percentage has risen to 32%. Even worse, Indigenous women now make up half of all women in federal prisons, and 1 in 10 federally sentenced women are Black.

In 2015, Prime Minister Trudeau tasked the Minister of Justice with decreasing the number of Indigenous people in prison and repealing mandatory minimum penalties in accordance with the Calls to Action of the Truth and Reconciliation Commission, or TRC, which directed:

. . . the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences. . . .

This and reconciliation remain within the mandate of the Minister of Justice. Bill C-5 will not meet these goals and falls far short of the TRC Call to Action 32 and the subsequent Calls for Justice 5.14 and 5.21 of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

Mandatory minimum sentences are a primary contributor to Indigenous and Black overrepresentation in prisons. As the Missing and Murdered Indigenous Women and Girls inquiry brought into stark relief, Indigenous women do not receive just, fair or equitable treatment under the law. This is Canada’s legacy. The TRC and Missing and Murdered Indigenous Women and Girls inquiry traced Canada’s history of abuse and mistreatment of Indigenous peoples from the ongoing effects of colonialism, including the legacy of residential schools, which reveals itself in the current realities of mass incarceration.

Clearly, urgent action is needed to address this crisis. Bill C-5 will remove mandatory minimum penalties for some drug offences, some firearm offences and one tobacco-related offence. But most mandatory minimums will remain on the books, including the mandatory life sentence for murder. By removing only some mandatory minimum penalties, we are effectively sanctioning continued injustice in Canada.

Retaining the vast majority of mandatory minimum penalties is said to be justified on deterrence grounds. This logic often resonates with people because of a view that long, mandatory sentences will prevent people from committing crimes. If this were true, punishment would not have been abandoned in virtually every other sphere, from parenting to educating. More to the point, if it were true, then we should expect that the United States — the leader in the proliferation of mandatory minimum penalties — would be the safest, most crime-free country in the world.

Yet the deterrent effect of mandatory minimum penalties has been debunked as a myth. The government’s own research reveals that mandatory minimum sentences do not deter and are less effective than proportionate sentences reached through the exercise of broad judicial discretion. I want to thank Senator Cotter for outlining what exactly that means.

In 1952, the Royal Commission on the Revision of the Criminal Code concluded that all mandatory minimum sentences should be abolished. For at least seven decades, experts, commissions of inquiry, judges, community-based advocacy groups and reconciliation commissions have advocated for the repeal of mandatory minimums.

Instead, in this bill, we see the repeal of a select few mandatory minimum penalties. It will barely put a dent in the overincarceration of Indigenous and Black people, not only because it will apply to so few offences but also because mandatory minimum sentences add jet fuel to discrimination and discriminatory law enforcement and prosecutorial practices, magnifying the impact by preventing sentencing judges from addressing the context of offences and the ways in which the criminal legal system replicates and deepens discrimination.

Mandatory minimum sentences coupled with biased police response, investigation and charging practices create miscarriages of justice. For vulnerable populations, interactions with the police are often intimidating and traumatizing. Experiences of force and abuse from authorities begin at a young age for many Indigenous women, often in times when they need support and protection, and that abuse can continue into adulthood.

When police are called but disbelieve Indigenous women, not only are Indigenous women further traumatized, but too many are left to protect themselves. If they have used any force reactively — even defensively — they are likely to find themselves criminalized and imprisoned.

Too often, colonial attitudes held by members of the legal system regard Indigenous women as more blameworthy than others and deserving of harsh punishment by the justice system. This has been labelled as hyper-responsibilization and is a phenomenon experienced by many, particularly the 12 women recently profiled in our report.

As was also noted in The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Canadian legal system:

 . . . criminalizes acts that are a direct result of survival for many Indigenous women. This repeats patterns of colonialism because it places the blame and responsibility on Indigenous women and their choices, and ignores the systemic injustices that they experience. . . .

— and which directly contribute to the behaviour for which they are criminalized.

Mandatory minimum penalties shackle judges, forcing them to impose sentences of incarceration that do not appropriately reflect the context, circumstances or legal blameworthiness of the accused or the abuse they may have experienced within the law enforcement process.

Mandatory minimums break with Canada’s historical trust of our judiciary that granted them discretion in sentencing. Before the fervour for mandatory minimum sentencing started sweeping across our criminal laws in 1995, judges were entrusted to develop individualized sentences that balanced the gravity of the offence against the culpability and circumstances of the accused. When the Criminal Code was first enacted in 1892, it contained six mandatory minimum penalties. Until 1995, the number of mandatory minimums remained constant at around 10.

Now there are more than 70 offences carrying mandatory minimum penalties — this in spite of the fact that judicial discretion in sentencing is overwhelmingly supported by Canadians. In 2017, in a report commissioned by the Department of Justice, 9 out of 10 Canadians wanted the government to consider giving judges the flexibility to not impose mandatory minimum sentences.

The bill does not respond adequately to the judicial decisions that have found mandatory minimum penalties in violation of the Canadian Charter of Rights and Freedoms.

One glaring omission is the failure to deal with the mandatory minimums regarding parole ineligibility for murder, which is particularly important for reducing the overincarceration of Indigenous women. The sentence of mandatory life, in combination with parole ineligibility for at least 10 years for second-degree murder, and 25 for first-degree murder, was the trade-off for the abolition of the death penalty.

Even then, a key component of the parole ineligibility period was a provision allowing for a special judicial review and a five‑step process to which a person may seek access after they have served 15 years of a life sentence. The provision was colloquially referred to as a “faint hope clause” of the Criminal Code.

The significance of the faint hope clause was considered by the Supreme Court of Canada in 1990 when the constitutionality of the mandatory life sentence was challenged. The Supreme Court at that time rejected the challenge and upheld the mandatory sentence on the basis that the faint hope clause preserved the constitutionality of the life sentence for murder.

In 2011, the Conservative government repealed the faint hope clause, thereby further limiting opportunities for parole and rendering the mandatory minimum unconstitutional.

Moving forward, we must consider that last year, on the first National Day for Truth and Reconciliation, Prime Minister Justin Trudeau gave a speech saying that:

Today, we . . . recognize the harms, injustices and intergenerational trauma that Indigenous peoples have faced — and continue to face — because of the residential school system, systemic racism, and the discrimination that persists in our society.

Colleagues, it’s time for us to do our job. Let’s help the government along this path by making Bill C-5 fit for purpose.

Meegwetch, thank you.

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