Senator Dean: I could say more, but that is where I will end. Thank you for the opportunity to respond.

Hon. Tony Dean: Honourable senators, on the same point of order, if I could briefly respond for the record and for context, because context is always important.

The context last week — and I was sitting here listening to the discussion — was one in which Senator Housakos spent a considerable period of time, Your Honour, insinuating that hybrid sittings and those who are supportive of them were in some way deleterious to the effective operations of the Senate.

I think a number of us sat here listening to that discourse and were rather offended by it. I know I certainly was. Some of the senator’s remarks signified to the public that senators were in some way shirking their responsibilities to Canadians. It’s not a stretch to say that. I’m not reaching to say that. I’m not digging deep to say that. That was the nature of the comments made — that somehow those who support hybrid sittings were not living up to their responsibilities.

Nothing could be further from the truth. This chamber and people on all sides of it, in the context of hybrid sittings, have given of their best, have processed government bills, processed government business and processed private members’ business; have made important statements; have been productive in every sense of the word; have lived up to their constitutional responsibilities. Suggestions to the contrary were, frankly, deeply offensive to many of us in this room. Actually, that’s one of the reasons that I’m grateful for the opportunity to comment on that right now.

Senator Housakos was certainly not speaking in the spirit of unity and commonality that Senator Plett exhorts us to do today. If that had been the case, perhaps those remarks would have been more evenly balanced. It was negative, it was critical and it was far from collaborative.

Your Honour, thank you for the time to say this. There was very little mention made of the health concerns associated with the reasons for hybrid sittings, for the devastation across this country and to people across this country, the devastation to relatives of some people in this chamber, the devastation to one particular person in this chamber who is no longer with us. That’s the backdrop to hybrid sittings.

Senator Dean: I stand by my word. Please do not interrupt me, Senator Plett.

Senator Colin Deacon pointed out to us that there were other reasons to confront the possibilities and virtues of hybrid sittings, which related to the benefits of the use of digitization and digital technology for productivity that could contribute to the savings of costs as we do our work in this place, that could contribute to those who worry about their health as they travel from the coasts and to those who may, over time, be concerned about the environmental impact of long-term travel.

Hon. Tony Dean: Honourable senators, I rise today to speak to Bill S-213, An Act to amend the Criminal Code (independence of the judiciary). I would like to thank Senators Jaffer and Pate for their perseverance in pursuing this important issue, session after session.

I spoke in support of Senator Pate’s Bill S-251 back in the Forty-second Parliament, and I will speak in support of Senator Jaffer’s bill today, which shares many of the same features of Bill S-251. We have heard many colleagues and Senator Pate in particular speak about mandatory minimums and the harms they cause. I will not repeat those comments, but I do want to offer my own thoughts on how we have moved the issue along since then.

Over the past decade, colleagues, the Supreme Court of Canada has struck down a number of drugs and firearms mandatory minimum penalties, or MMPs, and ruled them unconstitutional. This includes MMPs for the first-time offence of unlawfully possessing a loaded or easily loaded prohibited or restricted firearm, contrary to section 95 of the Criminal Code. That offence carried a mandatory term of imprisonment of three years, and five years for repeat offenders.

The Supreme Court also struck down the one-year mandatory minimum for an offender with a previous conviction for the offence of possession of drugs for the purpose of trafficking. The 2016 court case R. v. Lloyd acknowledged the frequent correlation between possession and trafficking of drugs with that of addiction and other mental health issues.

In R. v. Lloyd, the majority decision noted:

At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of drugs, and who has been convicted many times for similar offences. At the other end of the range stands the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before. Most Canadians would be shocked to find that such a person could be sent to prison for one year.

The majority decision goes on to state that although the completion of a drug treatment program provides an exception to the one-year mandatory sentence, it is limited to specific programs that might not be accessible to all individuals. In addition, in order to be admissible to those programs, the individual must usually plead guilty and forfeit their right to a trial. Finally, the requirement that an individual successfully completes the program might not be realistic for those with serious addictions challenges.

Colleagues, we know harsher penalties do not reduce crimes, and for those struggling with addictions and mental health issues, receiving a prison sentence makes it even more difficult for them to access the resources they need.

Many other senators have also spoken at length on the disproportionate impacts that mandatory minimums have on disadvantaged persons and members of minority groups. The same is true of Indigenous peoples. Mandatory minimums do not allow judges to consider the social context of the offender in criminal sentencing, and as a result, vulnerable people may be adversely and disproportionately affected by mandatory minimums.

Larry Chartrand, Professor Emeritus of Law at the University of Ottawa, argued that the application of minimum imprisonment penalties on Aboriginal peoples is contrary to the stated penal objectives of the Supreme Court of Canada in R. v. Gladue, which recognizes that a different analysis and approach are required by judges when sentencing Indigenous offenders, “which may specifically make imprisonment a less appropriate or less useful sanction.”

Racialized Canadians are also overrepresented in prisons. CBC reported in 2021 that Indigenous adults make up more than 30% of the prison population despite representing less than 5% of the general population, while Black adults represent 3% of the population but more than 7% of federal offenders. These disproportionate impacts perpetuate systemic racism in our justice system and may impede efforts towards equality in many other aspects of our society.

Unlike jurisdictions with mandatory minimum penalties, Canada does not have a safety valve. It doesn’t have a provision for judicial discretion in certain instances. These safety valves can allow judges to use alternatives to mandatory minimums in those cases where they feel that mandatory minimums cannot be fairly or justly applied. The idea of a safety valve is important as it permits the acknowledgment of variation in the severity of criminal conduct at the time of sentencing.

I’m pleased, colleagues, that the government has acknowledged that mandatory minimums do not reduce crime and, in fact, cause significant social harms to convicted individuals and their families. We applaud Bill C-5, which eliminates mandatory minimums for drug-related offences and gives discretionary powers to police and prosecutors to allow them to make alternative sentencing decisions such as requiring the individual to undergo treatment and rehabilitation instead of punishing them with a prison sentence. This is an important first step and one which I support. However, Senator Jaffer’s bill would give judges discretionary power to choose alternative sentencing for all mandatory minimums.

I know some colleagues believe this is a step too far, especially when it comes to sentences for offences such as a murder. I want to highlight one case in particular which convinces me that it’s necessary to give judges such discretion to decide on all offences. You’ve heard about this before, and it’s the case of Helen Naslund.

In 2020, Ms. Naslund pleaded guilty to killing her husband, who was verbally and physically abusive. In 2011, after 27 years of enduring domestic abuse, Ms. Naslund reached breaking point and shot her husband in the head while he was sleeping. She was sentenced to 18 years in prison on a manslaughter charge. The court had not taken into account the fact that she had been a victim of domestic abuse. However, in January of this year, the Alberta Court of Appeal ruled that her sentence should be reduced to nine years, in a landmark decision.

In the majority decision, Justice Sheila Greckol said the original sentence was unduly harsh because it failed to take into account Ms. Naslund’s abusive marriage. In the decision, she states the following:

The sentencing judge suggested that Ms. Naslund had “other options” open to her, implicitly the option to walk out the door. . . .

For the sentencing judge to suggest that battered women have “other options” is to invoke a stereotype that a battered woman stays in a situation of domestic violence by choice . . . .

And further:

It is beyond time for this Court to explicitly recognize that cases of battered women killing abusive partners involve unique circumstances that must be considered by the sentencing judge, particularly where “battered woman syndrome” is involved. . . .

Observers have noted, colleagues, that the mandatory minimum sentence for murder — a life sentence — has negative implications for cases similar to Ms. Naslund’s. Individuals may be under pressure to plead guilty to manslaughter despite the fact that they have a legitimate defence of self-defence. The Court of Appeal’s decision is, therefore, an important step in recognizing that the social context of an offender must be taken into consideration in the sentencing. Providing for judicial discretion on mandatory minimums would allow judges to consider all aspects of the crime and the offender’s history.

Colleagues, one of our key responsibilities in this place, in the Senate of Canada, is to examine the unintended consequences of legislation, but also sometimes the impact of the intended consequences of legislation — tough-on-crime legislation — where that has been found wanting or overreaching, with horrendous consequences for those like Ms. Naslund, who have been victims of long-term abuse and violence, or those who have a history of mental illness or other trauma. This is one of those cases, and it cries out for our attention.

This is where we are called upon to be at our very best in exercising our own judgment, our own experience, in some cases our knowledge of the law — and we have lots of that in this place — and the sometimes overly sharp edges of the law and our sense of justice and fairness. In this case, as in many others, this place and we in it are a place of last resort. We can’t turn away from that, colleagues. Senator Jaffer and Senator Pate have drawn these issues to our attention, and I’m convinced that they have found an appropriate and balanced approach.

For that reason, I support their bill and, colleagues, I ask you to consider doing this too. Thank you.

Senator Dean: Yes.

Senator Dean: Thanks very much for the question. It’s obviously a very pertinent one. Senator Dalphond, in my remarks, I did choose to recognize the government’s bill, and I applaud that bill and will support it. As far as I’m concerned, it should move apace.

I’m also of the view, though — and I said this, too, in my remarks — that it is wanting in some respects. I think that Senator Jaffer and Senator Pate before her and now the two senators together are drawing our attention to some of the shortcomings in that bill, and I believe for that reason this bill deserves serious consideration. It deserves rigorous debate, and it’s something that we should consider pushing all the way. But at the same time, absolutely I agree. I will do nothing to stand in the way of moving the government bill, because it would represent a significant improvement.

I see absolutely no reason why in this place we can’t consider the two bills in parallel, and I think we should, to the extent that we have the time and opportunity available to do that. Thank you for the question.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Pate, seconded by the Honourable Senator Dean, for the second reading of Bill S-233, An Act to develop a national framework for a guaranteed livable basic income.