Hon. Pierre-Hugues Boisvenu: Would the senator take a question?

Senator Pate, thank you very much for your speech on the social revolution surrounding violence against women. However, that is not what my bill is about. That is not my goal.

I heard Senator McCallum’s questions. I had the pleasure of speaking to her about the treatments offered to violent men in Indigenous communities, which are very successful.

You seem opposed to the monitoring measure set out in Bill S-205. Are you also opposed to mandatory treatment for abusers?

[English]

Senator Boisvenu: Of course.

Hon. Pierre-Hugues Boisvenu: Honourable senators, I rise today as the critic for the Honourable Mobina Jaffer’s Bill S-213.

As you know, dear colleagues, because I have said it many times in this chamber, I believe that mandatory minimum sentences are important to ensure balanced sentencing and to make sure victims have access to a rigorous and credible justice system.

I oppose this bill because it would have us believe that judges will still have the option to use mandatory minimum sentences, whereas victims’ groups see it as a veiled attempt to abolish them.

Under Bill S-213, mandatory minimum sentences will be neither “mandatory” nor “minimum.” They will become a sort of category of sentences that judges can use as they see fit, and they will be added to a range of sentences that already exist. They will lose all meaning, which just happens to undo the work of all previous governments, both Liberal and Conservative, in the name of pseudo-progressive moral standards backed by a government whose primary concern is making the justice system as lenient as possible for criminals. As usual, the government’s excuse is that the Charter of Rights and Freedoms justifies criminals’ right to such leniency.

That is not my idea of fair and equitable justice, and it is not the system of justice that the Fathers of Confederation built in this place, which has always recognized the sacred principle that a sentence must be fair, just and proportionate to the gravity of the crime committed. In my view, victims must be recognized and protected, while criminals must be convicted and rehabilitated.

Honourable senators, I would first like to comment on one of the passages in the preamble, which I see as rather disturbing, and I quote:

Whereas judicial discretion to depart from a minimum punishment is necessary to prevent a miscarriage of justice — including, but not limited to a wrongful guilty plea — and to ensure a just and appropriate sentence;

Colleagues, a plea is entered before sentencing. At that stage, the court is obliged to ensure the validity of the guilty plea, in particular that the person admits to the elements of the offence. A person must therefore admit to committing the acts of which they are accused and having the requisite state of mind to do so, and they must be informed that the court is not bound by any suggestion or agreement as to the sentence to be imposed upon conviction, before a court can accept the plea and find the person guilty of the offence that they admitted to having committed. This is set out in section 606 of the Criminal Code.

That is the first inaccurate statement.

It is inaccurate to say that a court’s discretion to depart from a minimum punishment could have an impact on guilty pleas validated before sentencing and, moreover, prevent wrongful pleas.

During her speech on Bill S-207, which is identical to Bill S-213, Senator Pate tried to justify this bill using the example of the Supreme Court of Canada’s recommendation in R. v. Lloyd, which was to enact:

 . . . “a safety valve that would allow judges to exempt” from the application of minimum penalties “outliers for whom the mandatory minimum will constitute cruel and unusual punishment.”

It would seem that the purpose of this bill is to be a legislative response to this Supreme Court of Canada decision. However, I refute the idea that this bill responds to the recommendation I just cited. It develops no mechanism, because abolishing mandatory minimum sentences is not its only purpose. It provides no new solutions, and it does not respond to the recommendation from the Supreme Court, which clearly stated that this should apply only to “outliers.”

I remind senators that Canadian legislators established objectives in the Criminal Code that must guide the courts in sentencing. These objectives are set out in section 718 of the Criminal Code. It has been accepted that the courts must show deference to the will of the legislator regarding the principles of sentencing and the restrictions on sentencing. The minimum sentences established by the legislator indicate the strong social disapproval of certain morally unacceptable behaviours in our society and reflect the values of society. In certain cases, the objectives of deterrence and punishment must override other objectives.

R. v. Lloyd provides some guidance to the legislator to prevent minimum mandatory sentences from being struck down as unconstitutional. I would like to quote a few passages.

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.

Furthermore:

If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.

Courts that are seized with the constitutionality of a mandatory minimum sentence take a prudent and rigorous approach to the work of Parliament. In that same ruling, the Supreme Court was clear about the scope of the courts’ judicial discretion. The Supreme Court stated:

The residual judicial discretion is usually confined to exceptional cases and may require the judge to give reasons justifying departing from the mandatory minimum sentence prescribed by the law. It is for the legislature to determine the parameters of the residual judicial discretion.

However, Bill S-213 clearly has a much broader scope than is needed to prevent a provision from being declared unconstitutional, and it disproportionately deviates from the Supreme Court’s objective as established in Lloyd. The courts recognize that they must show great deference to Parliament and to the legislative intent behind its decision to impose mandatory minimum sentences for various offences. The minimum sentences will be proportionate and appropriate in most cases.

Under Bill S-213, the courts will be required to consider all possible alternatives to avoid imposing a minimum prison sentence. The combined effect of these new provisions will force the courts to ignore the restrictions already set out in the Criminal Code, especially as regards the types of sentences associated with a given offence, in order to consider any sentence but imprisonment. Courts will have to be convinced that there is no option other than a minimum prison sentence and that the minimum sentence is a fair and reasonable punishment. In such cases, they will have to provide written reasons.

This bill promotes an approach that is dangerous for all serious crimes, such as first or second degree murder, because it gives the most lenient judges the freedom to eschew minimum sentences in favour of sentences of less than 10 years or 25 years.

That is what is surprising about this bill, because in R. v. Luxton, the Supreme Court of Canada ruled on sentencing for first degree murder as follows:

These sections provide for punishment of the most serious crime in our criminal law, that of first degree murder. This is a crime that carries with it the most serious level of moral blameworthiness, namely subjective foresight of death. The penalty is severe and deservedly so. The minimum 25 years to be served before eligibility for parole reflects society’s condemnation of a person who has exploited a position of power and dominance to the gravest extent possible by murdering the person that he or she is forcibly confining. The punishment is not excessive and clearly does not outrage our standards of decency.

Take the case of Marylène Levesque, which shocked Quebec in 2020. The murderer, who had originally been sentenced for murdering his wife, Chantale Deschênes, escaped the supervision of the Correctional Service of Canada and murdered a second woman, Marylène Levesque.

The murderer, who had stabbed his first wife to death, had managed to trick the court into convicting him of second degree murder by claiming that the killing was unintentional and that the whole thing was his wife’s fault because she had come after him first with a hammer. A minimum sentence would have kept this murderer off our streets for many years.

Unfortunately, as a result of the CSC’s negligence, which had already been condemned in the Auditor General’s 2018 report, the murderer was let out on day parole and killed a 22-year-old woman, Marylène Levesque, by stabbing her 30 times. In this sordid case, investigator Guy Carrier managed to get the murderer to admit that the killing was premeditated. A minimum sentence of 25 years will ensure that this monster is kept out of society for a long time.

The question I obviously ask myself is the following: Had this legislation been in force at that time, what would have been the verdict in cases involving a man as manipulative as Eustachio Gallese?

The bill requires that the judge consider all other possible options before handing down a minimum sentence. This turns mandatory minimum sentences into sentences of last resort.

This bill puts Canadians in terrible danger because it makes it possible for offenders to get out of jail much more quickly. Men like Gallese cannot be rehabilitated as easily as you think.

According to the Parliamentary Budget Officer’s report on the previous version of this bill, Bill S-207, 3% of persons convicted of murder will receive determinate sentences rather than life sentences and, in the long term, this means 100 fewer offenders in prison. As members know, offenders who receive determinate sentences receive statutory release after serving two thirds of their sentence, in accordance with section 127 of the Corrections and Conditional Release Act. The report also said that 87 offenders convicted of murder will serve their sentences in the community.

For example, in 2017, in Lanaudière, Quebec, a 78-year-old man murdered his spouse. He locked her in the trunk of his car and deliberately crashed into a truck. The car caught on fire, and his spouse died of asphyxiation. He was sentenced to six years and nine months in prison, which was far too lenient. He is now out on day parole, having served half of his sentence, and the parole board members believe he is at low risk of reoffending.

One of the parole board members, however, had the following to say about this man’s actions. I quote:

You have not shown an ability to fully acknowledge your responsibility. You focused quite a bit on the victim’s alcohol consumption, which is not relevant.

The victim’s son told La Presse, and I quote:

What do we want correctional services to do? Actually rehabilitate people, or just release them as soon as possible?

This is a serious matter, colleagues, because this man took someone’s life, and yet he was released without really acknowledging his responsibility.

I believe that Bill S-213 will result in more of these types of injustices and sentences that do not make sense. That is not what we want to do to keep Canadians safe, and it is not what we want to do to show respect for the victims.

I would like to come back to the Auditor General’s 2018 report entitled Community Supervision. According to his findings, there is a real problem with regard to accommodation options when offenders are reintegrating into society. CSC does not have a long-term program to deal with the growing demand for parole. Parole officers across Canada already have workload issues, as the Gallese case showed. I am very concerned about all this, because Bill S-213 may accelerate the release process, which would only aggravate the situation. Clogging up our release process will inevitably lead to more risks in terms of assessment, reintegration and supervision. This bill seeks to make the system more lenient without accounting for these realities.

A penitentiary or prison may not be the best solution depending on your perception of justice. However, these institutions still allow society to protect its members by sequestering dangerous individuals. In many cases, imprisonment prevents further tragedy. Better still, the correctional system enables offenders to take a break from their criminal trajectory and work on their deviant behaviour.

The job of the courts is to administer justice. They apply the rules of justice in accordance with the legal and constitutional structure. The judicial branch is independent, but it is responsible for interpreting laws passed by the legislative branch. We are the legislative branch, and we represent Canadians as a whole. As such, our responsibility is not to find ways to give judges more discretion, but to ensure that Canadians are adequately protected from criminals. Minimum sentences are important because they meet that objective. I would like to quote the Department of Justice on that:

Politicians may implement these MMPs as a response to public perception that these types of crimes (or offenders) are especially egregious or irredeemable.

Judges alone cannot determine the sentence. It is up to us as legislators to set guidelines and establish rules to better equip them. The Criminal Code cannot disregard public opinion, which is that certain crimes should be punished more harshly.

Senator, your philosophy runs up against the reality that judges have some power, but they do not have absolute power.

In the words of the Department of Justice:

Discretion is not unfettered or whimsical; it is exercised, constrained and guided by jurisprudence, the facts of a case, and existing sentencing legislation.

In your quest to eliminate mandatory minimum sentences, you run into another problem. By conferring more power on judges, you will increase sentencing inequality between offenders who committed the same crime in similar circumstances.

You should consider that without minimum sentences, the decision may differ from one judge to the next, and this difference could be influenced by external factors or considerations other than the arguments in the courtroom. This will bring the administration of justice into disrepute in the eyes of the victims’ families and the public.

Judges must always navigate carefully between independence and impartiality. There is a delicate balance between those two elements. Judges cannot be seen as individuals who hold the absolute truth. They are human beings who, like everyone else, have their own contradictions. The debate on the impartiality of judges is not new. Finding answers to these questions is no easy task. We would have to analyze every decision a judge has taken in their career to know how impartial they are.

In a 1997 article, Luc Bégin of Laval University acknowledged that judges provide a moral reading of rights. However, structural restrictions other than those described by the philosopher Dworkin may help ensure the impartiality of judges.

With your bill to condemn systemic racism and discrimination against communities, the opposite could occur. There are always risks that the ruling could be biased by considerations other than the legal arguments, potentially opening the door to discrimination against the very people you are defending.

That is the second contradiction that I see in Bill S-213. Ever since Gladue in 1999, judges have had all the leeway required in sentencing a member of an Indigenous community. As you know, that ruling requires the justice to consider the culture of origin of the accused.

In her speech, Senator Jaffer gave the impression that her bill responds to a request from the Indigenous, Black and disabled communities.

I believe that there are families from Indigenous, Black and disabled communities that are the victims of serious crimes and that want the offenders to be sentenced by the courts and removed from their communities.

Minimum sentences are necessary because they put everyone on an equal footing and they prevent discrimination. If people are found guilty of murder when it was a legitimate case of self-defence, it is the legal process that must be reformed, not the sentence. Mandatory minimum sentences provide the legal system with a guideline for the type of sentence that should apply depending on the type of crime committed.

I completely agree that society needs to find both economic and social solutions to prevent potential offenders from committing offences or crimes. I am well aware that our society is not perfect and that there are certain circumstances that can lead to criminality, such as disadvantaged neighbourhoods, street gangs, drug addiction or a difficult upbringing.

Honourable senators, this bill does not take victims’ perspectives into account. Rather, it again takes the perspective of offenders and criminals into account. It treats inmates like victims and faults our justice system.

I heard a lot of arguments about the difficulties that offenders and their families face in the speeches that have been made in support of this bill. I often hear that most offenders convicted of murder would give their lives to bring back the person who died.

No one will bring back my daughter. No one can erase her suffering. Like many other families, I must live every day with the image of her brutal death. My mission now is to ensure that when her murderer is released from prison he will never do to another victim what he did to my Julie and he will never put another family through what my family went through.

For Senator Pate, who is constantly working to make our Criminal Code softer on crime, does an equitable justice system mean allowing repeat offenders who commit crimes against children, women or seniors to be given sentences that are less harsh than minimum sentences?

What is more, I am appalled that none of her speeches have alluded to victims of crime.

Senator Wetston provided a perfect illustration when he shared Professor Kent Roach’s comments on minimum sentences, and I quote:

 . . . they are blind to whether offenders live in abject poverty, have intellectual disabilities or mental-health issues, have experienced racism and abuse in the past or have children who rely on them.

I would like to remind you that in the case of murder, victims’ families are destroyed forever. Far too often, we ignore the collateral damage among loved ones. On television, no one ever talks about job losses, depression, high suicide rates among fathers, school dropout, and divorce, but most of all, no one talks about how many families never recover.

Survivors of attempted murder or sexual assault can be scarred for life and can develop serious health problems.

Statistics show that the scourge of intimate partner violence accounts for one third of violent crimes committed and reported by police. The numbers don’t quite reflect reality, because many women don’t dare report their partner for fear of reprisals. According to data collected in 2021, during the pandemic, for every woman killed, another 3,000 lived in fear of reporting their abuser. I believe that one of the problems with our justice system is that victims of intimate partner violence don’t have the protection guarantees they need to report their abuser. This bill will exacerbate that feeling, because it does not guarantee minimum sentences for attempted murder, sexual assault and homicide.

Victims will be even more alienated from the justice system, and many will be deterred from reporting. These women take huge risks to report their abuser. For many, it amounts to signing their own death warrant. To take that step, they need assurances that they will be safe and protected and that their abuser will not be allowed to get near them. Yet here we are sending them a signal that we, as lawmakers, have decided to relax sentencing, and that will cause them to lose faith in us. The upshot is that the lives of many women will be in jeopardy.

This bill seeks to discredit and even demonize mandatory minimum sentences. Yet mandatory minimum sentences are not an ideological issue. Previous governments, both Liberal and Conservative, chose to increase them because they felt they were effective and well suited to the reality of crime. This debate is not always initiated by the Conservatives. It is a debate that the Liberals and Conservatives have been having for a very long time. In fact, I repudiate the so-called polls or studies that suggest that Canadians are against mandatory minimum sentences and think they are unfair. The scenarios proposed in those studies gave extreme examples that are not representative of crimes committed in Canada.

Senator Pate’s 2018 speech on the importance of minimum sentences cited several examples. I would like to quote a few of them now:

For example, in 1988, Gordon Stuckless, a former Maple Leaf Gardens equipment manager, pled guilty to 24 counts of indecent and sexual assault. He had been sexually abusing young boys at the Gardens for years. His sentence? Two years less a day.

Four days after Gordon Stuckless was sentenced, one of his victims, Martin Kruze, killed himself. How ironic that not only did the original offence create a victim, but the sentence itself created another victim. While Stuckless’s sentence was later increased to five years by the Ontario Court of Appeal, this is still ridiculously low.

Then there was Graham James in 1997. James pled guilty to two counts of sexual assault which involved [more] than 350 incidents with two underage players over a span of 10 years. He was sentenced to only three and a half years in jail.

In 2010, James faced new charges for sexually assaulting two other players. He pled guilty and was sentenced to two years for each charge but was able to serve them concurrently.

At the time, legal experts noted that light sentences like these were not unusual. They pointed to a Newfoundland man who was given a three-year sentence in 2012 for raping and sexually assaulting his 11-year-old niece over a six-year period of time. That same year, a Saskatchewan man was sentenced to 18 months for raping his stepdaughter.

Dear colleagues, of course I am not indifferent to the arguments concerning the incarceration of Indigenous women. I am well aware that it is a major and worrisome issue. I am prepared to sit down with Senator Pate or Senator Jaffer to find constructive solutions to this problem.

I am open to dialogue and solutions. I believe that Senator Pate raises a legitimate problem, but I do not believe that the solution her bill proposes is appropriate. However, it is inconceivable to me that this bill could pass through all the stages of the parliamentary process. Abolishing minimum sentences outright is a danger to public safety and an affront to victims of crime.

Colleagues, in all honesty, I strongly oppose sending this bill to committee. On behalf of victims, I urge this chamber to reject this bill. Thank you.

[English]

Hon. Pierre-Hugues Boisvenu: My question is for Senator Gold. In 2019-20, a number of newspapers reported on serious revelations about partisan judicial appointments by the Liberal government.

The Liberals were accused of vetting judges using the Liberalist, a database containing confidential information on candidates’ interactions with the Liberal Party of Canada over the years, such as supporting the Prime Minister, participating in federal campaigns and, most importantly, donating to the Liberal Party.

It was also revealed that François Landry, an adviser to the Minister of Justice at the time, wrote emails to his chief of staff saying that he and other aides were being pressured by the PMO about judicial appointments. He said, and I quote:

What we are doing is similar to what led to the Inquiry Commission on the Process for Appointing Judges back in 2010 in Quebec.

We have now learned that Paul Rouleau, the judge presiding over the independent public inquiry into the invocation of the Emergencies Act, had previous involvement with the Liberal Party.

Do you agree with the Prime Minister’s decision to appoint one of his friends to head an investigation that Canadians have been waiting for and that is specifically meant to be independent?

Senator Boisvenu: Senator Gold, you and I both know that, in justice matters, the appearance of a conflict of interest is just as damaging as an actual conflict. The revelations I mentioned earlier raised legitimate concerns in the court of public opinion in June 2020.

The Trudeau government responded to the criticism by stating that it would no longer use the Liberalist, but recent partisan appointments show that it did keep using that list. In fact, a friend of Minister Lametti’s who made a campaign contribution was appointed to the bench.

In order to allay any suspicion that politics might play a part in the judicial system, and to enable the Senate to get involved in the process, would you agree to the Standing Senate Committee on Legal and Constitutional Affairs conducting a study to uncover the truth about the Liberal government’s appointment of partisan judges?

Senator Boisvenu: Thank you very much for your question, Senator Pate. Regarding the whole Indigenous issue, I’ve reviewed some court decisions, and a number of judges referred to the Supreme Court’s direction to take cultural factors into account during sentencing or to issue rulings that are more favourable to Indigenous communities. These are people who live under very specific circumstances. For my bill, I had the opportunity to talk to many members of Indigenous communities, both in Quebec and elsewhere in Canada. Poverty and violence among Indigenous people is much more of a social issue than a criminal one.

We obviously do not have the same perspective on your bill. I disagree with the approach you’re taking to achieve your goal of ensuring that judges all have the freedom to decide on sentencing, rather than being restricted to minimum sentences in some cases. The Supreme Court already authorizes judges to depart from minimum sentences in exceptional cases if they can justify their decision.

Unfortunately, when I spoke to Crown attorneys this week, I learned that even judges are not fully informed on decisions made by the Supreme Court. If you go back 5, 10 or 15 years, you might be surprised to learn that some Supreme Court directives have not been followed.

What I am saying is that the approach your bill takes shifts the debate, in my opinion, because currently, judges can, in some exceptional cases, choose not to impose minimum sentences. Why abolish those sentences or change the system? If you’re telling me that this bill does not abolish minimum sentences, then why introduce it, if judges already have the ability, in accordance with the Supreme Court directive, to decide whether or not to apply them, provided they can justify their decision?

[English]

Senator Boisvenu: I will make a comment. Go back and look at my speech, more specifically the case I quoted, the Supreme Court ruling that allows a judge not to apply the minimum sentence provided the judge can justify his decision.