Hon. Brent Cotter: Senator Tannas, will you take a question or two?

Senator Tannas: Yes.

Senator Cotter: Thank you.

This is a fascinating initiative, Senator Tannas. It raises a variety of fascinating potentials and also some challenges.

I want to begin by channelling Senator Batters, if I might. In Saskatchewan, there are casinos on reserve — on roughly five reserves. Every dollar that is earned in those casinos goes back to First Nations communities now as is.

Second, that money is distributed, pro rata, to all the bands in the province, even the ones in the Far North that could never sustain a casino even if they wanted one; there would be no customers.

So empowering individual First Nations that are in attractive geographical locations to have the jurisdiction to operate their own casinos seems to be, quite frankly, a disruption of that fairly equitable arrangement in Saskatchewan. The band outside of Saskatoon — my good friend and yours, Darcy Bear, oversees a casino on the White Cap Dakota reserve, but the money that casino makes gets pooled in a province-wide arrangement. It seems to me that your proposal makes it possible that Chief Bear could carry on with his casino and keep all the profits, which would be great for White Cap Dakota — as it is for some First Nations around Phoenix, for example — but it is not so good for the rest of the province.

Could you comment on that?

Senator Tannas: Yes, and you’re right —

Senator Cotter: I didn’t go back and study the record, Senator Batters, and I wasn’t referring to the quality of examination of mandatory minimums. I was referring to the vast body of law in the law of sentencing, and my guess is that it was not extensively studied and adequately enough respected in this exercise. In my judgment, the introduction of mandatory minimum sentences imposes constraints on judges implicitly because of lack of confidence in them and the system they administer.

Hon. Brent Cotter: Honourable senators, I rise to speak to Bill C-5 introduced by Senator Gold earlier this week and, if I may say so, spoken to in depth and with elegance.

I support the bill, but am hopeful that at committee we will have the opportunity to explore the bill and potentially go further.

Many colleagues will have a deeper empirical appreciation than I do of the implications of many aspects of this bill. I will not try to replicate those deeper understandings or appropriate them. Today, I would like to speak to the principles associated with two aspects of the bill and that I hope we will have the opportunity to study in depth.

The first relates to the removal of a series of statutorily imposed mandatory minimum sentences for approximately 20 criminal offences. As others have noted, including the sponsor of the bill, these offences represent a minority of the existing mandatory minimums in federal criminal law. I want to explore the principles upon which this initiative is based and will suggest that these principles are equally applicable to the sentences for the remaining 50 or so mandatory minimum sentences.

I want to suggest that there are two governing principles that underlie this aspect of the bill. The first is the principle of constitutionality and the consequences of unconstitutional laws on the books. As we have heard, a significant motivation for this amendment is that over 40 courts have struck down mandatory minimum sentences as unconstitutional violations of the Charter of Rights and Freedoms, either because of the imposition of cruel and unusual punishment or as an unjustified violation of the principles of fundamental justice.

The presence of mandatory minimums has created at least four problematic consequences. First, they have, in many cases, led to incarcerations that can only be viewed as harsh and unfair and, as we have heard, these harsh and unfair consequences have been disproportionately assigned to offenders from racialized and marginalized communities.

Second, consider the circumstances where you are charged with an offence that carries a significant mandatory minimum sentence. Even if you think you are not guilty of the offence, the sword of that mandatory minimum hanging over your head is liable to induce you to admit to a lesser offence just to avoid that sword. The coercive nature of mandatory minimums is unacceptably weighty, and consequently too susceptible to leveraging unfair plea bargains.

Third, for those who wish to challenge the constitutionality of a mandatory minimum sentence, they must launch and fund such a challenge on their own. Given that many who are caught up in the criminal justice system are of modest means, to say the least, absent the willingness of a lawyer or legal organization, the opportunity to launch such a challenge is minimal — unfairly minimal.

Fourth, the cases that challenge mandatory minimum sentences are complex and, in certain respects, unique. They consume an enormous amount of both court time and court cost. They require courts to develop imaginative approaches to analyzing the constitutionality of mandatory minimums. Indeed, one of our leading judges on these issues, Justice David Doherty of the Ontario Court of Appeal, is rapidly becoming the “emperor” of so-called “reasonable hypotheticals,” a necessary, though unusual, technique to analyze mandatory minimums.

These questions of unconstitutionality are important to us as senators in relation to our responsibilities, and the implications of unconstitutional mandatory minimums have great significance for offenders, the system and the big issues of access to justice that deserve our serious consideration.

The second principle involved here with respect to the initiative to eliminate a number of mandatory minimums is an implicit statement of our confidence in our judiciary and their wise exercise of discretion. This is also really important. We are a society governed by law and, as we like to say, the rule of law. We, as senators, are part of that framework, but judges are at the centre.

Given the importance of the rule of law, it is surely an understatement to say that we repose enormous authority in, and responsibility upon, our judges. With rare exceptions, we try our best to pick the best people available to serve as judges. Once there, they have important work to do in ensuring that proceedings are fair; they hear and assess the witnesses; and they reach decisions, some of which are life-determining for the people before them — weighty decisions, to say the least.

That is no less true in cases where mandatory minimum sentences are at play.

But keep this in mind: Long before the sentencing decision and question arise, it is the judge who must oversee the proceedings and, in most cases, weigh the evidence in determining this most important question of whether the person before them should be convicted of the offence in the first place. So is it not passing strange that we parliamentarians have decided that these very judges are not capable of administering the next stage of justice; they cannot be fully trusted to impose a fair and just punishment?

Sentencing is a process itself that is guided by a body of law — the law of sentencing — that has been developed over the decades. At my law school, for example, we offer a popular course exclusively dedicated to sentencing in criminal law. So there is a thoughtful system in place.

If one thinks that the judge got it wrong in the application of those sentencing principles, the decision is capable of being reviewed.

It is a remarkably good system.

I don’t want to be uncharitable to parliamentarians, and I have not studied the work of Parliament when mandatory minimum sentences were introduced over the years, but my guess is that this body of law — this law of sentencing — was not much studied at the time.

Regarding this bill, to the government’s credit, the bill expresses the support for and endorses those two principles: a commitment to constitutionality and a recognition of the independence of judges and their exercise of judicial discretion in doing the difficult jobs we ask them to do. Each of those principles is applicable to the amendments before us that will remove some mandatory minimums.

But here is the rub for me and, I think, for others: Each of these principles also applies to those mandatory minimums left in place, not even moderated where exceptional circumstances exist and might justify them. Indeed, to the credit of Senator Jaffer and other colleagues in this house, the sponsorship of other bills would take those two principles to their logical conclusion and address the range of mandatory minimums in honourable and principled ways.

On that point, I want to end by observing that some may say that political expediency — half a loaf — is sometimes necessary; that is, half measures are required. I’m new to this kind of work, and I think I understand that principle in a general way, but we’re talking about principles here that are deeply embedded in our law. We are a people who adhere to law, especially our Constitution, and we trust one of the best judiciaries in the world to deliver the law well, honourably and fairly.

My hope is that we will choose such principles over expediency and go further than Bill C-5 on this issue of mandatory minimums.

My second set of comments relating to Bill C-5 is focused on the diversion measures contemplated for inclusion in the Controlled Drugs and Substances Act. I support these measures but want to pose two questions or concerns. The first is contextual. Here I am borrowing and, to some extent, critiquing the observations that Senator Gold made in his speech with respect to the bill.

The bill proposes that prosecutions proceed on charges of simple possession only if the prosecutor is of the opinion that none of the alternatives — a warning, referral or alternative measures — is appropriate. That none of those other measures is appropriate is a requirement for a prosecutor to proceed. But by any other measure — and to some extent, Senator Gold referenced this — this is a description of prosecutorial discretion. All of this authority already exists for prosecutors, so the section seems redundant and unnecessary.

Furthermore — and this is a mystery to me, although perhaps this is already in place — nearly all the charges under the Controlled Drugs and Substances Act are prosecuted by federal prosecutors or their agents rather than prosecutors within provincial governments who prosecute most other criminal matters; that is, those who handle drug cases are agents of the Attorney General of Canada. The Attorney General can give this directive to prosecutors without one word of legislation. Although Senator Gold observed that this is helpful in provincial contexts, the fact of the matter is that provincial prosecutors do not prosecute these cases except in the most extraordinary of circumstances.

It feels like a redundancy. I support the concept, but it seems to me that it’s unnecessary in legislation.

My second and, quite frankly, more serious concern with this part of the bill is the curious disconnect between what prosecutors are to do in the context of alternative measures — the process I have just described — and what is required of police officers.

This is a fairly significant dimension of the bill in real time. This is where the issues of individuals facing potential charges are encountered the most. In most Canadian jurisdictions, when the police officer has a reasonable basis on which to believe that a crime has been committed, they have the authority and discretion to lay a charge — in legal terms, “laying an information.” The same is true particularly for charges of simple possession with respect to the Controlled Drugs and Substances Act.

You will recall that the proposed amendment for prosecutors requires that they proceed with a charge only when alternative measures are inappropriate. The way it works is that they take up the prosecution of the charges laid by the police officers and make a judgment. Hence, you would expect that, for police officers who initiate the process, the standard for laying the charge in the first place — that is, only when other options are inappropriate — would be the same. But it is not. Police officers need only consider whether it would be “preferable” to pursue an alternative measure. That is far less than a mandatory requirement: “prosecution only where no other option is appropriate.”

You might be inclined to think, “This is okay. The prosecutor will clean things up.” True, but that fails to take into account a number of observations, including ones Senator Gold made, about the consequences of being charged: if one thinks about it, the lost opportunity of an alternative measure; the embarrassment to an accused of a charge, though subsequently withdrawn, having been laid in the first place; and it doesn’t take into account the waste of police, court and prosecution resources when matters are resolved later in the process than necessary.

If “only where appropriate” is the requirement for proceeding with a charge in court, surely it should be the requirement for laying the charge in the first place. That has to be addressed.

While I support the bill, in my view, it can be improved and expanded. I hope that those and other aspects of Bill C-5 will be carefully considered at committee and that a good initiative can be made even better.

Thank you, hiy hiy.