Senator Ataullahjan: Senator Gold, these Afghan families have been through a lot of trauma, from leaving their country to now adapting to new surroundings, a new language and their new lives. While they are very grateful for Canada’s help, their current living arrangements are only aggravating their already failing mental health. What is being done to offer Afghan refugees appropriate and much-needed support services?

Hon. Kim Pate: Honourable colleagues, I rise today in support of Bill S-213 and meaningful action on all, not only some, mandatory minimum penalties.

Thank you, Senator Jaffer, for generously taking the lead on this legislation to redress the injustices and inequities that mandatory minimum penalties both create and perpetuate.

Mandatory minimums violate Charter and human rights, in particular for Indigenous peoples, African-Canadians and other racialized people, for women, for those living with disabilities and those below the poverty line.

Where mandatory minimum penalties apply, judges cannot apply the sentencing principles that structure their discretion in determining fair and proportionate sentences. Notably, mandatory minimums interfere with judges’ obligations to consider alternatives to prison sentences, in particular as a means of redressing systemic racism and mass incarceration of Black and Indigenous peoples.

Government proposals to address mandatory minimum penalties have so far only focused on repealing a very small fraction of these penalties, as Senator Jaffer has ably pointed out. In particular, they have ignored the harshest mandatory minimums that too often cause the most egregious harms.

For Indigenous women who have experienced violence and abuse, Canada’s longest mandatory minimum penalty, the mandatory life sentence for murder, has resulted in countless miscarriages of justice.

These women’s stories underscore how important it is to take a comprehensive approach to all mandatory minimums taken in Bill S-213 and insisted on by the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls, and the Parliamentary Black Caucus.

Too often, though, these women’s stories go unknown and untold.

Mandatory life sentences reinforce racism and misogyny in a criminal legal system that minimizes the safety concerns of Indigenous women, is unresponsive when they are at risk, blames and stigmatizes women for the violence they experience, therefore effectively deputizing them to protect themselves and then swoops in to hold them criminally responsible when they must protect themselves and/or their children.

Mandatory life sentences transfer discretion from judges to police and prosecutors. Behind closed doors, women are charged with crimes carrying inflexible, lifelong punishments that often leave judges unaware of or forced to ignore the context of the charges, much less the violence women have experienced.

Faced with an unthinkably long and harsh sentence, in a racist and misogynist system, women too often plead guilty to a lesser charge, even if they are not legally responsible. They forgo valid defences and waive their rights to fair trials.

What is at stake when we talk about mandatory life sentences? They ensnare, isolate and wrongfully label as dangerous mothers, daughters, sisters, aunties and grandmothers; they tear apart families and communities; they deepen the destruction caused by colonial policies of forced separation and institutionalization of Indigenous peoples.

Two First Nations sisters, “O” and “N,” have spent the better part of 30 years in prison serving mandatory life sentences. Like their siblings, parents and grandparents, they are residential school survivors. “O” was sexually abused at residential school and struggled with consequent substance use.

As teens, “O” and “N” were charged with the murder of a non-Indigenous residential school caretaker. He was known to offer young people a place to party, alcohol and money, usually with the expectation of sex. He made sexual advances toward “O” and “N” and offered them money when they refused. “O” felt ashamed but also angry and wanted to protect her younger sister. She was too ashamed to tell her lawyer these details.

The 14-year-old male cousin of “O” and “N” confessed to killing the man but said he was induced by police and the Crown, who were focused on holding “O” and “N” primarily responsible, to testify against his cousins.

The sisters were convicted of second-degree murder by an all-White jury in Saskatchewan. By choosing to lay charges that carried a mandatory life sentence, the Crown and police exercised significant decision-making power over the sentences the women received. The judge, usually responsible for considering whether a sentence is fair in light of a person’s individual circumstances, had no power in this regard.

One key reason no one considered, let alone properly contextualized, was the racist and misogynist violence that these two sisters had experienced. As well, no one challenged the gendered myths and stereotypes that resulted in them being seen as more culpable than their male cousin.

Each year, 40 to 50% of women sentenced to life in prison are Indigenous and 91% of them have histories of physical and sexual abuse.

“S” is another residential school survivor of horrendous physical, sexual and psychological abuse. She turned to drugs to anaesthetize herself due to the trauma she experienced and was first jailed as an accomplice to an abusive partner’s drug dealing.

While in prison, “S” pleaded guilty to a murder that correctional staff and prisoners alike are adamant was actually a suicide. The woman who died was like a sister to “S.” She lived with disabling health issues, and prison staff left her to rely on other prisoners for such necessities as cleaning, dressing and feeding herself.

The inquest into her death concluded that the cause of death was unknown; yet “S,” who felt responsible, confessed nearly four years later while suffering severe psychological stress in segregation. Her guilty plea was accepted, despite inconsistencies with the records of the death and despite being based on her feelings of intense guilt and personal responsibility, not her legal responsibility.

Like so many others, “S” was hyper-responsibilized — trained to say sorry and to feel responsible for everything, including things she had not done, or played only a negligible role in — by the misogyny and racism in society and the criminal legal system.

Her hyper-responsibilization meant that the criminal legal system did not spend time determining the true circumstances surrounding an Indigenous woman prisoner’s death, yet sprang rashly into action to ensure that another Indigenous woman would spend the rest of her life serving a mandatory life sentence.

Like “S,” “Y” is an Indigenous survivor of sexual abuse. She was charged alongside several others with killing a man believed to be abusing children in their Alberta community.

Though “Y” played a limited role in the man’s death, police and Crown prosecutors focused on her. As the mother of one of the children believed to have been victimized, and a sexual abuse survivor herself, they suggested, in the absence of any other evidence, that she could have a stronger motive and should therefore be held more responsible than the other accused, including her child’s father.

The motherhood and the history of abuse of “Y” was not considered, although it was used against her to suggest she had a motive.

“Y” was the only person tried for first-degree murder. Because of the resulting mandatory life sentence and 25-year parole ineligibility, she received by far the harshest penalty among equally, if not more, culpable perpetrators.

Indigenous women face numerous barriers when seeking to explain how colonialism, marginalization, and histories of abuse or violence that precede their attempts to protect themselves have shaped their criminalization. Too many are never able to do so, due to shame, stigma and systemic discrimination. Too many more are not believed if they manage to speak.

The mandatory life sentence prevents consideration of these factors during sentencing. Women end up convicted of murder in situations where they were reacting to violence or were induced to act or take responsibility for the actions of another who might also have victimized them and/or be their co-accused.

“C” is also an Indigenous woman, abandoned to the streets as a youth. She received a mandatory life sentence for second-degree murder of a woman involved in procuring her to exploit, including by creating videos and photos of her sexual assaults. “C” reacted with force to try and protect herself. She had a history of childhood trauma and victimization but was too afraid to discuss this history with her male lawyers.

The threat of a life sentence also incentivizes many women to plead guilty to lesser charges rather than raise the context of their attempts to defend themselves or others.

In 1996, the Department of Justice Self-Defence Review examined the cases of 98 women convicted of using lethal force while protecting themselves or their children from abusers. Most women pleaded guilty to manslaughter or even to second-degree murder, despite having a potentially valid claim of self-defence.

Facing a mandatory life sentence with no chance of parole for 25 years, many women accept plea bargains, particularly given the limited financial resources, a legal system that failed to protect them from violence and the prospect of putting their children through the harrowing process of testifying on their behalf in criminal court. In a system that too often fails to believe women, if there are any witnesses, they are likely their children.

Within the prison system, the fact that a woman has received a life sentence is used by authorities to characterize her as dangerous in ways that further obscure her history of marginalization and victimization, not to mention her vital need for health, cultural and community supports. Wrongly labelled as violent because of her mandatory life sentence, “S” spent decades in isolation and suffered psychological damage from which she may never recover.

Another Indigenous woman, “SN,” transferred from the youth to the adult system and has now spent more than three decades in prison serving a mandatory life sentence, mostly in conditions of brutal segregation. This prolonged isolation has caused her mental health to seriously deteriorate.

For all these Indigenous women and more, life sentences remain lifelong burdens. Even on parole, they live under surveillance and isolating parole conditions, such as prohibitions on travelling to see family or on entering into friendships, employment or other relationships. Women end up reincarcerated not because they reoffend but because, even for minor administrative breaches, they can be returned to prison for years on end.

If you close your eyes and picture those who represent the greatest threat to the public, particularly public safety in Canada, do you picture an undereducated, underemployed Indigenous mother struggling in poverty and with past trauma? A survivor of residential school and the forced removal from families of origin by the child welfare system? Someone struggling to care for and protect her kids and living in fear of an abusive partner? Because mandatory minimum penalties are inflexible and because they incentivize guilty pleas to lesser crimes, these women are the ones who are overrepresented among those serving Canada’s harshest sentences.

People who support mandatory minimum penalties usually indicate that they do so because they want to reduce crime and make everyone safer. I know no one, of any ideological or political stripe, who does not share this goal.

After decades of clinging to the empty promise of mandatory minimum penalties, it is our duty as representatives of those most marginalized, in the name of justice and equality, to make clear that the emperor has no clothes. Mandatory minimum penalties do not deliver. They are brutal for those who are most marginalized and victimized. They don’t stop crime. They represent yet another failure of the criminal legal system to protect and do justice for racialized people, in particular women with lived experiences of violence. They require us to pay from $200,000 to $600,000 and more per person per year to jail these women.

Bill S-213 is a step toward redressing the racism and colonialism that has been allowed to persist within the legal system and that harms us all by making Canada less equal and less just. With this bill, we can do better. Meegwetch. Thank you.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Omidvar, seconded by the Honourable Senator Duncan, for the second reading of Bill S-216, An Act to amend the Income Tax Act (use of resources of a registered charity).