Hon. Michael L. MacDonald, Chair of the Committee of Selection, presented the following report:

Thursday, December 2, 2021

The Committee of Selection has the honour to present its

THIRD REPORT

On November 25, 2021, the Senate authorized your committee to make recommendations to the Senate on issues relating to the scheduling and coordination of hybrid committee meetings. Your committee now presents an interim report.

Pursuant to the order of the Senate of November 25, 2021, authorizing committees to hold hybrid meetings, and based on the Senate’s current capacity to support hybrid meetings, your committee makes the following recommendations:

1.That Senate committees be authorized to meet according to a fixed committee schedule provided that:

(a)meetings of committees be prioritized for those that are meeting on government business, subject to available capacity;

(b)any changes to the approved schedule be subject to approval by the Government Liaison, the Opposition Whip, and the whips and liaisons of all recognized parties and recognized parliamentary groups.

2.Your committee also appends to this report an interim schedule for hybrid Senate committee meetings, and further recommends that:

(a)the interim schedule be implemented immediately; and

(b)any subsequent changes deemed useful or necessary be done in consultation with the Government Liaison, the Opposition Whip, and the whips and liaisons of all recognized parties and recognized parliamentary groups.

Respectfully submitted,

MICHAEL L. MACDONALD

Chair

Hon. Senators: Question.

The Hon. the Speaker: Are honourable senators ready for the question?

Hon. Peter Harder rose pursuant to notice of November 25, 2021:

That he will call the attention of the Senate to the role and mandate of the RCMP, the skills and capabilities required for it to fulfill its role and mandate, and how it should be organized and resourced in the 21st century.

He said: Honourable senators, I appreciate your indulgence at this hour for me to rise on this inquiry. But I want to remind those of you who aren’t particular Order Paper aficionados that this inquiry has been on the Order Paper since March 14 and this is the first day since then that we actually got to this point on the Order Paper, so I want to take full advantage.

I rise on a matter of compelling national interest, one that has special relevance to members of this house, because it has to do with the health, competence and future of a once-great institution. That institution is the Royal Canadian Mounted Police. I speak as a former deputy solicitor general and deputy minister of public security. Also, prior to my appointment to the Senate, I served as the volunteer chair of the National Police Services Advisory Council.

As honourable senators will know, the RCMP was the subject of a recent, scathing report by the Honourable Michel Bastarache, a former justice of the Supreme Court of Canada. The report was entitled Broken Dreams, Broken Lives and it makes for harrowing reading.

Justice Bastarache was appointed in 2017 as the independent assessor responsible for adjudicating claims of sexual harassment and assault by more than 3,000 current and former female employees of the RCMP, regular members, civilian members and public servants over a period of more than 30 years. He and his colleagues spent literally hundreds of hours interviewing women whose dreams of a rewarding career as members of an iconic Canadian institution were destroyed by what he calls “. . . a toxic work environment . . .” and an institutional culture that, in his words:

. . . has resulted in incalculable damage to female members of the RCMP as well as those working for the public service.

It is a damning report. According to Justice Bastarache, “The level of violence and sexual assault that was reported was shocking.”

This is not a problem of a few bad apples. It is a systemic problem. He says:

. . . the culture of the RCMP is toxic and tolerates misogyny and homophobia at all ranks and in all provinces and territories.

Justice Bastarache, like others before him — including a distinguished former Auditor General — described a deeply troubled institution whose problems stem from an outdated paramilitary culture, from poor management over many decades and, importantly for this house, a mandate that is simply too large and too heavily oriented to a provincial policing role that is no longer appropriate for a critically important federal organization. It’s too big to succeed.

The RCMP mandate today includes everything from municipal policing, even in large urban areas such as Surrey and Richmond, B.C.; to provincial policing in 8 of 10 provinces and three territories; policing on hundreds of First Nations and responsibility as Canada’s federal police service dealing with everything from organized crime to terrorism to drugs and human smuggling. To that, you can add responsibility for providing forensic and other technical services in support of police agencies across the country.

This is an enormous mandate. Many members of the RCMP will tell you this uniquely comprehensive policing role brings great advantages. They will tell you that time spent chasing police cars on the Trans-Canada Highway is useful training for white-collar investigations of money laundering or online sexual abuse of children. I don’t agree. Many Canadians, especially in Western Canada, see the RCMP as a much-loved symbol of a measured and responsible approach to policing in their communities.

The scarlet coat, the iconic image of the mounted police officer, the rigorous training at Depot in Regina — these are all seen as noteworthy elements of Canadian history and worthy subjects of national pride. Honourable senators, that was the view of the RCMP I grew up with, as I’m sure many of you did, and some of you joined. I not only believe but I know the vast majority of men and women in the RCMP are serving their community and country with honour. It is not the individuals as much as the institution that is often failing Canada today.

Today, we are asking the RCMP and its employees to do the impossible. An increasing number of thoughtful people in the criminal justice world see the RCMP today as an organization that is simply ill-equipped and unprepared to deal with the new challenges to public safety we face in 2021.

Challenges that require new kinds of people, different skills, different training, a different organizational structure and focus and a dramatically different allocation of resources. Is the RCMP in those eight provinces — all but Ontario and Quebec — a province police force or a federal one? Speaking as a former deputy minister of the federal department responsible for the RCMP, I can tell you the answer is never clear. In fact, the RCMP in those eight provinces sees itself as both federal and provincial, something that does nothing to clarify accountability when things go wrong.

Last April, we witnessed a tragic incident in Nova Scotia where 22 people were killed. There are questions over the immediate response and confusion over which level of government — provincial or federal — should be responsible for the subsequent inquiry.

Sadly, experience suggests the RCMP is a provincial force accountable to the provincial Attorney General when that suits the interests of the divisional commander, and a federal force when the advantage tips the other way.

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One thing that seems to always be true is that the focus of the organization as a whole is on its traditional policing responsibilities at the provincial level — serving communities, responding to individual problems and dealing with local offences. After all, those eight provinces pay at least 70% of the cost of provincial policing, and in some cases as high as 90%. Many would argue that they should pay the full cost, let alone the bizarre situation of taxpayers in have-not provinces subsidizing police offerings in the other half of the provinces. What all of this means, however, is that in a very real sense, the provinces call the tune for a large part of the policing activity of a $3.5 billion federal organization with over 30,000 employees.

At the same time, the RCMP is widely seen as neglecting its critical federal role, a role that only it can play. Canada’s capacity to deal with 21st century threats such as money laundering, human smuggling, transnational crime, hate crime, illegal immigration and opioid smuggling is, in the minds of most observers, simply inadequate. Something doesn’t add up here. Our national police service is spending most of its efforts on activities the provinces can and should be doing while neglecting the job that only it can do. In summary, the RCMP is both too big to succeed and unfit for its purpose.

Honourable senators, I believe we need to take a look at this. I believe the members of this chamber are well equipped to do what Justice Bastarache recommended, which was to carry out:

. . . an in depth, external and independent review of the organization and future of the RCMP as a federal policing organization.

I’m not suggesting we go over ground already covered all too thoroughly by Justice Bastarache or by the office of previous reports on problems of the RCMP. Rather, I am proposing that we conduct an inquiry into the future of the organization; its role and mandate; how it should be organized and resourced to deliver on what we see as an appropriate role and an appropriate mandate for the 21st century; the skills and other capabilities required to be an effective national police force; related issues of recruitment, training and development; and any other issues that, in the view of the honourable senators, are relevant to the affirmation and renewal of a great national institution.

There should be no doubt in the mind of any Canadian that a vital national institution that we’ve all been brought up to admire and respect has serious problems that require rigorous examination, public debate and an openness by the government to consider significant change. Again, in the words of Justice Bastarache:

. . . the time has come for an in depth, external and independent review of the organization and future of the RCMP as a federal policing organization.

Honourable senators, this is a job we can do. It is a job where we have within our ranks the experience, knowledge and judgment to carry out this vital role both expertly and responsibly. We can even do it efficiently. I’ve always believed that one of the essential responsibilities of this legislative body is the care of Canada’s national institutions. We can exercise that duty in a relatively non-partisan way. We can bring a national perspective to national concerns.

The RCMP is too important a Canadian institution to be ignored at this critical juncture in its history. I am therefore suggesting the creation of a special Senate committee to inquire into the future of the RCMP with membership to be determined after consultation with all groups in this chamber. I hope that this inquiry can spark some Senate interest and urge senators who have an interest in this matter to speak so in the future of this inquiry’s discussions. Thank you.

The Hon. the Speaker: Senator Harder, you have a little less than five minutes left in your time and there are three senators who wish to ask questions. Would you take a question?

Senator Harder: Certainly.

Hon. Larry W. Campbell: Would the honourable senator take a question?

Senator Harder: Certainly.

The Hon. the Speaker: Senator Harder, you are coming to the end of your time and there are three other senators who wish to ask questions. We are also going to bump up against six o’clock, the time when I’m required to leave the chair.

First, would you ask for five more minutes to answer questions from three other senators?

Senator Harder: I’d be happy to.

The Hon. the Speaker: Senator Boniface, we have one minute for your question and an answer.

The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?

(On motion of Senator Carignan, bill placed on the Orders of the Day for second reading two days hence.)

[English]

Hon. Julie Miville-Dechêne: Will Senator Moodie take a question?

Hon. Claude Carignan introducedBill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.

(Bill read first time.)

Hon. Pierre J. Dalphond: Honourable senators, I urge you to support this motion whose purpose is twofold: First, to serve as a reminder that despite the commitment made in 1982 to have a fully bilingual Constitution, in accordance with section 55 of the Constitution Act, 1982, to this day 22 of the 31 texts forming the Constitution of Canada are official in English only, including most of the Constitution Act, 1867; second, to call on the government to include, in the context of the review of the Official Languages Act, the obligation to periodically report back on the efforts made to implement section 55 and the constitutional commitment made almost 40 years ago.

With its Bill 96 to amend the Charter of the French Language, the National Assembly of Quebec is preparing to propose that two provisions be added to the Constitution Act, 1867, to affirm that French is the official language of the Quebec nation and the common language of Quebecers. In the recent election campaign, all federal parties promised to support this bilateral constitutional amendment.

At the same time, the government made a commitment in the Throne Speech to table a bill to modernize the Official Languages Act in order to reaffirm the importance of French in Canada and to promote its use.

While the status of French is becoming an issue of concern, both in Parliament and at the Quebec National Assembly, we keep forgetting that although our country’s official languages are French and English, there is still no official French version of the Constitution Act, 1867. The majority of the founding document, an imperial statute adopted by the Westminster Parliament, is only legally valid in English. Canada is probably the only country in the world that claims bilingual status but has a Constitution essentially written in just one of its official languages.

It is even more surprising that this is the case in 2021, since section 55 of the Constitution Act, 1982, states the following:

A French version of the portions of the Constitution of Canada referred to in the schedule shall be prepared by the Minister of Justice of Canada as expeditiously as possible and, when any portion thereof sufficient to warrant action being taken has been so prepared, it shall be put forward for enactment by proclamation issued by the Governor General under the Great Seal of Canada pursuant to the procedure then applicable to an amendment of the same provisions of the Constitution of Canada.

(1630)

[English]

As you know, our Constitution is made principally of the Constitution Act, 1867, often called the British North America Act, or the BNA Act, and is complemented by 30 other pieces of legislation, including acts to officially add the colonies of Prince Edward Island, British Columbia and Newfoundland to Confederation.

While eight of these additional texts, including federal statutes creating new provinces, including Manitoba, Alberta and Saskatchewan, were adopted in both official languages, to this day, 22 constitutional documents remain official in English only, including, as I said previously, most of the Constitution Act, 1867, the foundational text of our federation.

While French-speaking Canadians have the constitutional right to rely on the French text of all ordinary federal statutes, they lack the means to exercise this fundamental right in regard to nearly all of Canada’s constitutional texts, despite the country being officially bilingual since 1968.

During the patriation of the Constitution in 1982, following the Quebec referendum, two things were promised to rectify this situation, which was no longer acceptable, with the adoption of section 55 of the Constitution Act, 1982: first, a constitutional obligation for the Minister of Justice to have the French version of all texts that are part of the Constitution drafted as soon as possible; and second, the obligation of the governments of the country to take the necessary steps for the coming into force of these French texts as soon as available.

[Translation]

In 1984, the Honourable Donald Johnston, Canada’s justice minister, created the constitutional drafting committee to draft the French text of the Constitution. The committee was made up of distinguished jurists, including Senator Gérald Beaudoin, former Supreme Court of Canada justice Louis-Philippe Pigeon, Robert Décary, who was later appointed to the Federal Court of Appeal, and Gil Rémillard, who later became Quebec’s justice minister.

In 1990, the committee submitted its final report to the Minister of Justice, the Honourable Kim Campbell, who then tabled it in the House of Commons and the Senate in December 1990. That fulfilled the first institutional obligation in section 55. Unfortunately, the second obligation is a whole different story.

Over the next seven years, governments took no concrete action to adopt the French versions of the constitutional texts. It wasn’t until April 1997, a little more than a year after Quebec’s second referendum, that the Right Honourable Jean Chrétien’s federal government invited the Government of Quebec to start talking about fulfilling the second obligation. The provincial government, under the Honourable Lucien Bouchard at the time, declined the offer.

In April 1998, the federal Department of Justice again contacted the Government of Quebec to advise it that Prince Edward Island, New Brunswick and Saskatchewan had indicated that the French texts were acceptable to them and that other provinces were awaiting approval from Quebec and Ontario before giving their final response.

This request was ignored by Quebec City, and no one in Ottawa seemed to want to restart the process that would have finally led to an official French version of the country’s most important law, the Constitution Act, 1867.

Accordingly, nearly 40 years after the solemn commitment made in 1982 and 30 years after the tabling of the French versions of some of the texts, we still don’t have a French version of the founding text of the country, on the grounds that an adoption of the whole text requires, in accordance with the amendment procedure put in place in 1982 at the time of the repatriation of the Constitution, a resolution passed by both houses of Parliament and a majority of the provinces representing more than 50 per cent of Canada’s population, or, according to some, perhaps even unanimity among the provinces.

[English]

As the Commissioner of Official Languages, Mr. Raymond Théberge, explained in his appearance before the Standing Senate Committee on Official Languages last June, in response to a question from Senator Bovey:

The timeline is in the hands of the Minister of Justice and the Attorneys General across the country. In order to do that, we have to bring the provinces around the table so that they can agree.

Mr. Théberge also said that:

The work still has to be done. It is up to the federal government to bring people around the table from the other provinces and territories to do this.

[Translation]

Fearing the risks involved in starting such a process, successive Conservative and Liberal governments have done nothing for over 20 years to ensure that Canada has a bilingual Constitution. They nevertheless have recognized that Quebec is a distinct society, a nation, that the Acadian nation is important, and that the government wants to promote the use of French across Canada, especially in regions where many francophones live.

Because Canadian governments have shown such a lack of appetite to use an amendment process that yet would change nothing in terms of the division of powers, the structure of the federation and its institutions, these governments have clearly neglected their constitutional obligation set out in section 55 of the Constitution Act, 1982.

It is of course a travesty that Canada does not have a bilingual Constitution that reflects a fundamental characteristic of our country, but there are also practical implications. In an October 2018 report entitled Access to Justice in French and English in the Context of Modernizing the Official Languages Act, the Canadian Bar Association stated the following:

The absence of an official French version has practical implications for the development of law and devalues French-speaking jurists’ and litigants’ participation in discussions on the interpretation of our society’s most fundamental legal texts.

Honourable senators, it would be an understatement to say that not having an official French version of our Constitution, despite the constitutional obligation under section 55, is a source of embarrassment, particularly for federalists living in Quebec; it is also evidence of a lack of political leadership. I am not the first person to point this out, but I am doing so today in a very specific context. As indicated in the Speech from the Throne, the government plans to modernize the Official Languages Act to strengthen the use of French in Quebec, in Acadia and elsewhere in the country.

As the government works on drafting the proposals it intends to table in the other place in the near future, I would like to see this chamber invite it to include a provision requiring reports to Parliament every five years outlining efforts made to finally ensure compliance with section 55 of the Constitution Act, 1982. Incorporating this provision into the Official Languages Act would ensure that the government’s efforts are periodically shared with the public and would remind other governments in this country of their constitutional obligation to complete this woefully incomplete part of the repatriation of the Constitution. As the Canadian Bar Association explained in its report, the addition of a requirement to report every five years would contribute to the accountability of all the stakeholders whose participation is essential to making the applicable constitutional amendment procedure work.

As a final point, I would like to highlight another initiative taken to remind the government of its obligation to remedy the unilingualism of the Constitution of Canada. In August 2019, Senator Serge Joyal, our former colleague, together with Professor François Larocque of the University of Ottawa, filed an application for a declaratory judgment and judicial review before the Quebec Superior Court.

(1640)

The purpose of this process is to have the federal government initiate talks on the accuracy of the French version of the text as soon as possible with the provinces whose approval is required, in accordance with the applicable procedure for amending the Constitution.

In closing, honourable senators, I invite you, by means of this motion, to call on the government to do what is required to ensure that the constitutional rights of the francophones of the country are fully respected.

Thank you, meegwetch.

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, it is an honour for me to rise today to speak to the commemoration of the seventieth anniversary of the historic Battle of Hill 355, which took place on November 26, 1951 during the Korean War.

It was cold, there was fog, and uncertainty hung in the air. Canadian troops from the Royal Canadian Regiment, the Princess Patricia’s Canadian Light Infantry and the Royal 22nd Regiment, nicknamed the “Van Doos,” redeployed to Hill 355. Hill 355, so named on military maps because it was 355 metres above sea level, was nicknamed “Little Gibraltar” because of its shape and size. Located about 40 kilometres north of Seoul, it was highly valued because it was the highest ground overlooking the surrounding front lines and supply routes.

Outnumbered and exposed, the Van Doos held their ground until the Americans retook Hill 355 for good on November 25 and the communist attacks came to an end.

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The Battle of Hill 355 remains a proud moment for the Van Doos, but it came with a heavy price. On November 26, I had the honour to organize a special commemorative ceremony to pay tribute to the service and sacrifices of all those who fought in the Battle of Hill 355 and all of our beloved Korean War veterans.

Two of our proud Van Doos, Claude Charland and Delphis Cormier, who fought in the Korean War, participated in the seventieth anniversary ceremony. They spoke about their wartime experiences and the pride they felt for their comrades. They were moved to tears by our tribute to them and by their own memories of fierce battles and lives that were lost.

The colonel of the Royal 22nd Regiment, Lieutenant-General Marc Caron, spoke about the long, proud history of the regiment and its members’ sense of honour and duty. He spoke about the gratitude that all members of the Van Doos have for our Korean War veterans, and he spoke about the brotherhood, the camaraderie and the teamwork —

Hon. Gwen Boniface: I will be very quick then, Your Honour. Senator Harder, would you agree with me that as you look at provincial-federal responsibilities of the RCMP you may want to start looking at the three provinces that have provincial police services to see how those divisions take place today, particularly in the integrated fashion, and that may be helpful to look at some of the fit-for-purpose issues that you raise? Would you agree with that?

(On motion of Senator Busson, debate adjourned.)

(At 6:03 p.m., the Senate was continued until Tuesday, December 7, 2021, at 2 p.m.)

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Frances Lankin: Senator Harder, thank you for that. I think that it would be a fascinating study, and I think that it’s important that we turn our minds to leadership of this particular important institution as well as — as Senator Jaffer talked about today — Corrections Canada. And, of course, we’ve had discussions about the Canadian military. You’re right in terms of the RCMP being a paramilitary culture, and that’s the same in corrections as well. It brings with it — as evidenced by the crisis that we see in the Canadian military itself — this kind of cultural behaviour that follows attitude.

I want to participate in your inquiry and potentially a study looking at that, but I want to ask you today about federal policing powers. I think that you’ve hit on something very important. I know that the RCMP has certainly put forward this position at the Standing Senate Committee on National Security and Defence. I have been part of conversations that the National Security and Intelligence Committee of Parliamentarians have had about this. In addition to the list of federal policing powers, you talked about organized crime. So, for example, in this latest round of special measures for CERB, we found that organized crime was involved in skimming money from those benefit programs. Yet it is my understanding that the RCMP is very strained in terms of its budget to be able to fulfill its federal policing duties. Could you speak a little bit more to that, please, and what the impact of that is? Thank you.

Senator Harder: Thank you very much, senator. It is a bizarre situation where a national organization such as the RCMP has a contractual understanding with the Attorney Generals of the provinces, for whom they are provincial forces, on precisely what the priorities and obligations of the force are in respect to the provincial policing role. They don’t have such a contract with the federal government, so the constraint of budgets is all felt at the federal level. And the training that is necessary for the kind of RCMP work that you and I referenced just isn’t up to scratch with our competitors or even the criminals with whom they are dealing. I think the time has come, at least in my view, that the federal policing role be adequately resourced, deliberately defined and properly managed.

Senator Gold: Canada’s two official languages are fundamental to its identity. Recognition of Indigenous languages is also an important step on the path to reconciliation. I think the appointment of the current Governor General and her commitment to mastering French are assets for Canada.

Senator Boisvenu: I think you’ve identified the real problem. What’s really disappointing is that it takes a private member’s bill to protect women in Canada, when it should be the Justin Trudeau government introducing this bill. As a member of the Privy Council, will you commit to asking the Minister of Justice to introduce the same bill that I have introduced here, but as a government bill, to protect women in Canada?

Hon. Mobina S. B. Jaffer moved second reading of Bill S-213, An Act to amend the Criminal Code (independence of the judiciary).

She said: Honourable senators, I rise today to speak to my bill regarding the repealing of mandatory minimum penalties and upholding the coveted sentencing principle of judicial discretion.

[Translation]

Before I begin sharing with you all why this bill is so important, I would be remiss if I did not begin by acknowledging and truly thanking Senator Pate for her tireless advocacy and work on this and so many other issues.

[English]

Senator Pate, I want to thank you for your exceptional work around these issues and for helping me draft this bill.

Senators, I viewed Senator Pate in prisons and I tell you that prisoners across the country look to her to protect their rights. She has built such credibility on these issues that they look to her to make sure that she will be there to speak in the Senate to protect the prisoners’ rights.

Senator Pate, I’m in real admiration of your work and thank you for your work.

In spite of their name, mandatory minimum penalties are in direct contravention of judicial discretion of one-size-fits-all. The cookie-cut approach to sentencing, such as mandatory minimum penalties, destroy the ability of judges to determine appropriate sentences based on an individual’s particular circumstances.

Honourable senators, it is easy for us to make laws we believe are right in the warmth of this chamber. We make laws we believe will benefit society and yet we, most of us, do not see the people who are most impacted by these laws.

The judges across the country do see these people. They come to know their circumstances, the circumstances on which they base the judicial sentencing principle. Every day the judges see their faces when they are making a decision about whether or not to send a person to prison and for how long.

In their current form, mandatory minimum penalties tie a judge’s hands. They give them little other options than to look at the person in the face and sentence them without sufficient consideration of their circumstance.

We parliamentarians, without knowing these individual cases, have decided that their sentence is against sentencing principles. In doing so, we parliamentarians are directly preventing judges from doing the job they were appointed to do.

The bill I have in front of you, in summary, says it allows a court to decide to not make a mandatory prohibition order provided for under a provision of that act, or to add conditions or vary any conditions set out in that provision if the court considers it just and reasonable to do so. It requires the court to provide its reasons for making such a decision.

[Translation]

What is more, the imposition of mandatory minimums effectively rejects considerations of aggravating and mitigating circumstances.

[English]

In this way, mandatory minimums undermine the founding principles of sentencing outlined in section 718 of the Criminal Code, namely:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives . . . .

As many of you know, I have long been an advocate for the importance of judicial independence. A cornerstone of independence rests on the ability of a judge to use their discretion and determine the correct ruling in the matter they are tasked with adjudicating.

Honourable senators, those of you who have been in this place for some time will also know I’ve always been in support of addressing the injustices which persist due to mandatory minimum penalties. I have introduced a bill not once, not twice but three times regarding the use 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 of the same name.

In February 2014, I once again introduced Bill S-214 with the same name.

[Translation]

As is clear by the title of all three bills, I was focused on addressing the use of mandatory minimum penalties with regard to changes of manslaughter and criminal negligence causing death. I know now that I did not go far enough.

[English]

Honourable senators, that was then and this is now. I now realize that I should have had a more extensive bill.

Last parliamentary session, the federal government introduced Bill C-22, an Act to Amend the Criminal Code and the Controlled Drugs and Substances Act. The bill marked a step forward in that the government was at last acknowledging the failures of mandatory minimum penalties and seemingly committing to moving fast on their routine use.

Despite these very commendable efforts, the bill did not go far enough. Rather than taking a clear stand against all mandatory minimum penalties, and thus wholly reinstating judicial discretion, the bill simply repealed 19. The number is even more inadequate when you consider with the fact that to date at least 43 — I repeat, senators — 43 mandatory minimum penalties have already been struck down by the courts at all levels throughout this country.

As I speak, the courts continue to rule mandatory minimum penalties unconstitutional and disproportionate in how they are applied, with an emphasis on how they reinforce systemic racism.

Honourable senators, as we all know when hearing bill titles, speeches and political rhetoric from all sides in both this and the other place, it can be easy to lose sight of the human beings at the forefront of every issue we face and every decision we make.

In fact, when it was first tabled in the other place, I was very supportive of Bill C-22 and I argued with some of you to let us encourage this bill to go through as it’s important that we have something in place. It was important that we have some kind of government acknowledgment in place. I saw it as a step forward, and I still do.

That said, we know that the government is planning to reintroduce a bill regarding mandatory minimum penalties. Before they do, senators, we now have a chance to send a very strong message by sending this bill to the other place. We can send a message that this time we will not just accept a tick mark. We’ll not accept going one quarter or even halfway on this issue.

Senators, we have the opportunity to tell them the time is now to restore judicial discretion and to ensure justice is upheld for all people in Canada. Honourable senators, this bill is so important because flawed legislation directly impacts lives.

[Translation]

Most often, it is the lives of those who are most readily ignored and who are forced to find ways to survive that come into conflict with the law.

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[English]

Some of you may have heard of the story of Cheyenne Sharma, a young Indigenous girl. At the time of her sentencing, Cheyenne was 23 years old and a single mother. Cheyenne’s grandmother is a residential school survivor who was impregnated at age 13. Her mother was caught in the grips of the foster care system.

When Cheyenne was just 5 years old, her father was deported to Trinidad. Cheyenne first ran away from home at 13 years and then 15 years old. Consequently, she was forced to begin prostituting herself. She said the reason was because she needed the money to pay rent, as she was facing eviction. Honourable senators, I ask you for a moment to think about our own children. Where were they at 13 and 15 years old? What were they doing? Were they in school? Were they playing their favourite sports? Did they spend a lot of time out having fun with their friends? Cheyenne did not have the opportunity to do any of these things. By age 17, Cheyenne had attempted suicide multiple times.

[Translation]

From the moment she was born, Cheyenne was forced into circumstances entirely out of her control.

[English]

Honourable senators, mandatory minimum penalties do not allow a judge to consider any of Cheyenne’s circumstances, only that she committed a crime.

Thankfully, in this instance, the Ontario Superior Court justice, Justice Casey Hill, who was presiding over her case concluded that the mandatory minimum sentence of two years, which he was being tasked with imposing, “. . . would outrage standards of decency” and would violate Canada’s Charter of Rights and Freedoms.

In Cheyenne’s all-too-rare instance, a semblance of justice prevailed. However, honourable senators, we cannot leave the balance of justice to lean on the goodwill of some well-meaning and compassionate judges. Honourable senators, I really wish that this was a precedent-setting ruling, but it was not. Unfortunately, other judges across the country are not bound to follow Justice Hill’s stellar example. Far too often this is not the end result.

Over the summer, I was very shaken when I accompanied Senator Pate and saw firsthand the realities of prisons in Canada after two years of the pandemic. There is a conception around society that prisoners are very well treated. Well, senators, I did not see that. I was also most outraged by the disproportionate numbers of racialized men and women in maximum security prisons.

[Translation]

In Fraser Valley Institution, there are women from minimum and medium all the way up to maximum security.

[English]

When we first met with staff inside the prison’s gymnasium, we were told that 61% of prisoners and 89% of those classified as maximum security are Indigenous women. This is yet another example of the overrepresentation of Indigenous peoples, in particular of women in prisons across Canada.

We also visited Kent Institution, the only federal maximum security prison for men in the Pacific region. When we arrived, we were met by the senior staff at the prison who informed us that out of 240 men inside, 88 — about one third — are Indigenous, and 22 are Black. I would like to remind you all that Indigenous people represent less than 5% of our entire population. We also learned that some prisoners feel that prison has created a racist and toxic environment. This is another reminder of the racism and discrimination that happens behind prison walls every day.

Honourable senators, these people are suffering and very few people are listening. When the length of their sentence is blindly decided by the mandatory minimum sentencing legislation we pass, it should not be considered a punishment. It is sheer cruelty. It follows that, according to the Office of the Correctional Investigator, 30% of all federally sentenced prisoners and 42% of federally sentenced women are Indigenous. This rate has increased by 43% since 2010. During the same period, rates of non-Indigenous incarceration decreased by 14%. The Office of the Correctional Investigator pointed to the ongoing failure of the criminal legal system to respond to needs, histories and social realities of Indigenous peoples at the root of these high rates of criminalization.

There is a further problem with mandatory minimum penalties. It makes it impossible for the court to follow section 718.2(e) of the Criminal Code to ensure Gladue factors are taken into account. Fundamentally, the Gladue principles ensure judges account for the fact that Indigenous people rarely have the same access to justice as non-Indigenous people, which often impacts the outcome of their cases. Gladue also pushes judges to act with increased awareness with regard to their legal matters and, if applicable, their sentencing. Honourable senators, how can judges look at this if they are bound by mandatory minimum principles?

For clarification, Gladue principles means a judge must consider:

• your community’s perspective on the situation, their needs, and their suggested alternatives to jail. Your community can be the Indigenous community where you live or come from, but it’s also your support network or the people you interact with. If you live outside an Indigenous community and aren’t connected to one, you still have a community.

• the laws, practices, customs, and legal traditions of your Nation or the Nation where the alleged offence took place.

• ways of making decisions that are sensitive and appropriate to your culture.

Ultimately, the principles aim to account for documented daily and seemingly routine injustices faced by Indigenous people within the justice system.

Accordingly, this bill is directly aligned with the Calls to Action of the Truth and Reconciliation Commission and the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

In 2015, the government’s election platform included a promise to implement the Calls to Action of the Truth and Reconciliation Commission. In 2019, the Minister of Justice’s mandate letter reiterated the need for progress toward this goal and toward the implementation of the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Both demand that minimum sentences be remedied.

Echoing this sentiment, the federal government itself noted that the percentage of Indigenous people in prison federally due to a mandatory minimum penalty has almost doubled in the last 10 years: 39% of all Black and 20% of all Indigenous federal prisoners have been convicted of a crime that carries mandatory minimum penalties.

[Translation]

Honourable senators, how can we expect people to be able to safely and successfully reintegrate into our communities when we keep locking them away for longer and longer sentences, without considering what circumstances led them there in the first place?

[English]

To date, Canadian courts have found a significant number of minimum penalties invalid on such grounds. Nearly half — some 31 of the 72 minimum penalties currently in force — have been found unconstitutional by at least one court. Of these, about 25 mandatory minimums have been struck down as invalid in various provinces. In 11 cases, a court that struck down the mandatory minimum was a Court of Appeal or the Supreme Court.

(1550)

In 2016, in R. v. Lloyd, the Supreme Court drew attention to Canada’s precarious position with respect to mandatory minimums and called on Parliament:

. . . to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment.

This exemption is related to the application of minimum penalties.

Senators, I repeat what the Supreme Court of Canada has said: It will constitute cruel and unusual punishment.

Without legislation such as this bill before you all, mandatory minimum penalties have to be challenged one by one before the courts, tying up significant court and government resources, and requiring individual Canadians to shoulder the heavy burden of mounting constitutional challenges. In too many cases, those facing a potential unconstitutional minimum simply do not have the means to defend their rights. At the same time, for those with the most resources, mandatory minimum penalties allow for and even encourage drawn out legislation, including constitutional challenges.

[Translation]

Individuals have nothing to lose and everything to gain by going to trial and trying every trick up their lawyers’ sleeves to avoid a harsh sentence, rather than seeking early resolution.

[English]

Honourable senators, you may remember the report of the Standing Senate Committee on Legal and Constitutional Affairs on court delays identified the strain that mandatory minimums place on scarce judicial resources and pressing issues of trial delays. During the study, at least 11 different criminal justice experts singled out minimum penalties as a factor contributing to overall delays and inefficiencies in the court system. Worst yet, such principles are in sharp contrast to what occurs in cases where mandatory minimum penalties are applied. Mandatory minimums often shift discretion from judges to other actors with virtually no accountability either to the public or to the appeal process.

Honourable senators, those other actors are us. For instance, Crown prosecutors are often tasked with determining what charges to lay and whether to pursue a mandatory minimum penalty. Far too often, their reasons have little to do with legal principles. In some instances, these powers are used as bargaining chips to encourage a person to plead guilty to a lesser charge rather than risk facing the mandatory minimum penalty of a more serious one, if they are convicted.

Honourable senators, today we have an opportunity to send yet another clear message that we do not support this flawed approach to federal sentencing. This bill will provide judges with the long overdue alternative to imposing mandatory minimum penalties. In fact, it provides judges an unfettered ability to exercise their expertise when determining whether or not it is appropriate to apply mandatory minimum penalties. In doing so, it ensures judges are freely able to not impose a mandatory minimum penalty, in particular when doing so is determined to be inappropriate or unjust.

What this bill does not do is give judges a golden ticket to act unfairly or arbitrarily. In fact, the powers this bill aims to provide judges are not new and are in line with the Criminal Code. As many of you will know, section 726.2 of the Criminal Code clearly states:

When imposing a sentence, a court shall state the terms of the sentence imposed, and the reasons for it, and enter those terms and reasons into the record of the proceedings.

It follows that all judges are required to give reasons for their sentencing decisions. In addition, their decisions must be rooted in legal principles and are subject to scrutiny from the general public, the legal community and other judges through appeal processes.

Honourable senators, I know these principles of transparency and fairness are ones which we will take seriously. The bill intentionally does not go so far as to prevent judges from imposing minimum sentences. It will simply add a requirement that judges must reflect on and provide justification and fairness in imposing mandatory minimum sentences.

In 1987, the Canada Sentencing Commission found that 9 in 10 judges concluded that mandatory penalties had interfered with their ability to render a just sentence. Also in 1987, when there were 10 mandatory minimum penalties and their approach was deferred to file less frequently, still 57% of judges approved of their use. They went so far as to state that their use inhibited their ability to determine fair and appropriate sentences fitting of the circumstances surrounding the crime.

Since then, the issue continues to worsen. In the decades since, the use of mandatory minimum penalties in Canada has continually grown at an alarming rate. This bill follows the experts’ leads by allowing judges not to impose a mandatory minimum penalty.

[Translation]

I would ask you all to carefully consider this question. Honourable senators, what are we waiting for?

[English]

The reality in Canada can and should be contrasted with the experiences of other democratic states whose laws include mandatory minimum penalties. Many, including England and Wales, New Zealand, South Africa, Australia and jurisdictions, and even a number of U.S. jurisdictions, have taken steps to ensure the integrity and constitutionality of their laws and the rights of their citizens by allowing some form of judicial discretion. In most cases, the judicial discretion extends to even the most serious life sentences.

Honourable senators, I want to share with you the words of a man at William Head Institution, in my Province of British Columbia, whom I had the privilege of speaking with this past summer. He told me “the way the federal prison system functions is churning out broken people.” I cannot get those words out of my head: “churning out broken people.”

We now have an opportunity to change this long-held course.

Senators, when I was a young defence counsel, I often went to court with my senior partner, the Honourable Mr. Dohm, who used to be a judge before he retired. He taught me that when a judge sentences somebody, he has to balance everything. He has to balance what kind of person will return to society. He always used to say to me:

We do not throw the key away. Sooner or later, those prisoners will be released, and they will have to be reintegrated into society.

Honourable senators, I ask you, with the system we have at the moment, when a prisoner from William Head said that we are “churning out broken people,” is this the right system?

[Translation]

I am deeply troubled as to whether we are doing anything meaningful to prepare prisoners to be reintegrated into society.

Honourable senators, please join me in opposing unnecessary mandatory minimum penalties and standing up for judicial discretion.

[English]

Honourable senators, we are supposed to look after the most marginalized people. The time is nigh for us to stand against this injustice. The time is now to stand up for true fairness and equality for all. The time is now to move forward together.

I hope, senators, you will give this bill serious consideration. Thank you.

Hon. Frances Lankin: Thank you, Senator Omidvar, for your work on the charity committees report that Senator Mercer chaired. I think that it is some very important work and this recommendation is one piece of that. I am entirely supportive of what you’re trying to accomplish.

The question I wanted to ask you, because I believe it’s important to put it on the record — you spoke a number of times about resource accountability. I think you said that in the States they use different terminology, but the intent here is not at all to diminish the accountability that charities have for the proper stewardship of donor dollars. I am wondering if you would speak to the term “resource accountability” and what is envisioned in terms of how that would work. And with the CRA, how do you envision that we will be able to really ensure accountability to donors? Thank you very much.