Senator Moodie: I would, yes.

[Translation]

Senator Moodie: Certainly, Senator Boisvenu, that would be the case. But in really heavily evidence-driven conversation like I just presented, I would spend a lot of my time, more than half of my speech, referring to sources. I can provide that to you and the clerks if that is useful, but I don’t think it was valuable to our time here to be referring back to bibliographies.

(On motion of Senator Martin, debate adjourned.)

Hon. Rosemary Moodie: Honourable senators, I rise today to speak to Bill S-213, An Act to amend the Criminal Code (independence of the judiciary), a bill that amends the Criminal Code to give judges more discretion not to impose minimum sentences when they consider it just and reasonable.

I would like to begin by thanking my honourable colleague Senator Mobina Jaffer for reintroducing this bill in our new parliamentary session. This bill has been a long-term project of the office of the Honourable Kim Pate since the Forty-second Parliament, and I know Senator Jaffer is the perfect champion to continue this initiative. We owe a debt of gratitude to both of these experienced and dedicated leaders who continue to push for a more just, equitable and inclusive Canada.

Bill S-213 is an essential step forward for our justice system because it addresses the need to restore judicial discretion to our legal system after years of regressive reform. I support the bill because it addresses the human and social costs of imposing mandatory minimum sentences.

Colleagues, as I have said before, we have available to us the results of decades of research, and the evidence is clear: Mandatory minimum sentences do not deter crime, do not reduce recidivism rates, and do not make our communities safer.

Honourable senators, let us discuss and consider this evidence. We can recall that the Supreme Court of Canada, as well as numerous judicial bodies, commissions, parliamentary committees and organizations, have all concluded that mandatory minimum sentences do not deter crime.

We must consider that Canadians are broadly supportive of judicial independence in sentencing. The Department of Justice found in 2018 that Canadians are not supportive of mandatory minimums and prefer a more individualized approach to sentencing. Seventy-seven per cent of Canadians believe, in principle, that applying the same minimum sentence to all offenders convicted of the same crime is not fair or appropriate, and only 16% of Canadians believe that mandatory minimums lead to fair sentencing. Moreover, 90% of Canadians believe that judges should have the flexibility to impose a sentence less than mandatory minimum penalties where reasonable and appropriate, and that they make the best decisions based on the individual elements of a case. Simply put, the plurality of Canadians think that flexibility in sentencing would better address the root causes of crime and make our communities safer by deterring future crime.

Honourable senators, Bill S-213 addresses a significant concern in our judicial system because it brings back into our focus the person, their circumstances and their perspective. In our current system, judges cannot develop a fair sentence based on the individual’s specific circumstances and must impose minimum penalties. However, this system is blind to the implications of the constraint because it is blind to the human, social and financial costs of imposing mandatory minimum sentences.

So, colleagues, what are these costs?

First, we must consider the well-documented systemic racism that is pervasive within our institutions and how Bill S-213 would help address some of the institutional racial inequities in our justice system.

We know that Black and Indigenous offenders are overrepresented in admissions to federal custody. According to data provided by Justice Canada, in 2017, 2.9% of the total Canadian population identified as Black, 4.3% as Indigenous, and 16.2% as other visible minorities. Over a 10-year study period between the fiscal years 2007 and 2017, Indigenous offenders comprised 23% of the federal offender population at admission, while Blacks and other visible minorities comprised about 9% each.

Honourable senators, let us dig deeper into the statistics. Over the 10-year period that Justice Canada considered, the department found that Black and other visible minority offenders were more likely to be admitted to federal custody for an offence punishable by a mandatory minimum penalty. Almost 39% of Black offenders were admitted with a conviction for an offence punishable by a mandatory minimum penalty. For other visible minorities, the rate was about 48%. Not only are visible minorities overrepresented in federal custody, but they are also more likely to be there under a mandatory minimum penalty.

In a statement by the Parliamentary Black Caucus in 2020, BIPOC parliamentarians and civil society came together to speak to this well-documented over-policing and over-incarceration of Black and Indigenous Canadians. Through careful consultation and research, this caucus called for reforms to the justice systems that perpetuate anti-Black racism and systemic bias, specifically through measures like eliminating mandatory minimum sentencing measures.

Beyond the impact on sentencing, mandatory minimum penalties hurt Canadian families, and specifically our children and youth.

A new report published by Campaign 2000 confirmed that one in five children, or 17.7%, lived in poverty in 2019. They note that at this pace, it would take 54 years, or more, to end child poverty. This rate is even higher among racialized and immigrant communities. Even more alarming is that we do not yet have the data to understand the impact of the pandemic, and we continue to observe the widening gaps that have characterized systemic inequities during COVID.

This high poverty rate is of concern, as research demonstrates that poverty has a lifelong impact on educational and occupational opportunities, as well as on the chances for meaningful engagement in society. Moreover, the inequities that arise from poverty can propel vulnerable youth into increased involvement in the criminal justice system as they transition into adulthood. While research is ongoing on how this correlation may contribute to incarceration statistics down the line, it is clear that continuing to rely on mandatory minimum sentencing will continually fail to consider the context and individual circumstances that have led to these offences and perhaps higher rates of future crime.

In fact, in another study conducted by the Department of Justice in 2018, young people noted themselves that two of the essential factors judges should be considering in fair and equitable sentencing are personal circumstances and the history of the accused person. Those who believed in providing flexibility for judges to offer sentencing less than the stated mandatory minimum penalty thought that there are too many personal and contextual circumstances that mandatory minimums do not take into account and could further criminalize vulnerable people. They argued that the criminal justice system should be searching for ways to heal people. This, senators, shows us that the younger generation is searching for a more just, fair and equitable justice system that is responsive to the circumstances of both youth and adults.

Honourable senators, the effects of mandatory minimum sentencing are undeniable and tell a narrative of a system failing to provide justice to Canadians. Our research shows a story of a justice system where racial and ethnic minorities, children and youth are disproportionately represented and affected.

It paints a disturbing picture of systemic inequities that may contribute to increased chances of future crime. It showcases a justice system relying on outdated practices that do not make us safer, do not deter crime and do not decrease recidivism. While criminal reform is a longer and more complex process, we can move it one step forward by passing Bill S-213 and giving our judiciary the ability to exercise discretion in mandatory sentencing to address some of the system’s challenges.

Judicial discretion would allow for the consideration of the impact of incarceration on dependent children and other sectors of our society. Judicial discretion would also give room for the review of reduced or delayed sentencing, where appropriate, and in situations where significant harm could result, such as for dependent children. For this reason, today I stand in support of Bill S-213, which allows our judiciary to move away from mandatory minimum sentencing, where appropriate.

To conclude, I would like to again thank Senator Pate for your leadership and tireless work in starting this journey of reform, and to Senator Jaffer for sponsoring this bill and marching us onward. I would also encourage you, senators, to give serious consideration to the disproportionate impact of mandatory minimum sentences on children and youth in your communities as you consider how to vote on Bill S-213.

Thank you.

Senator Moodie: Senator Boisvenu, I’m referring to past studies — and I’m not going to be specific because I don’t have it in front of me but I can get back to you — that have been done polling Canadians on this matter and that have gathered this information. I can find out that information and send it to you. It’s not here on my sheet of paper.

[Translation]