1st Session, 41st Parliament,

Volume 149, Issue 179

Friday, June 21, 2013

The Honourable Noël A. Kinsella, Speaker

Criminal Code

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator White, seconded by the Honourable Senator McIntyre, for the third reading of Bill C-299, An Act to amend the Criminal Code (kidnapping of young person).

Hon. Mobina S. B. Jaffer: Honourable senators, before speaking on Bill C-299, I want to take this opportunity as we are finishing this session to thank Senator Runciman, the Chair of Standing Senate Committee on Legal and Constitutional Affairs and Senator Fraser, the deputy chair, for the support they have given to committee members, and to Shaila Anwar and all the staff of the Senate who do such good work for us. I want to thank them and wish them a good summer. They have been truly supportive of what I wanted to do.

Honourable senators, I rise today to speak on Bill C-299. This bill would amend the Criminal Code to prescribe a minimum punishment of five years when a kidnap victim is under 16 years of age, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of a victim.

In my second reading speech on Bill C-299, I asked, “How can the federal government best protect children against violence and exploitation?” I argued that there is no honour in passing a bill that is supposed to deal with child abduction but does not. Doing so would mean failing in our duty to respect children’s rights.

Today, I will debate the mechanism that this proposed legislation would employ in a failed attempt to protect children against violence and exploitation, and that is mandatory minimum sentences. To impose mandatory minimum sentences is just not necessary in this bill. Offenders in serious kidnappings usually receive sentences of 10 to 15 years.

Honourable senators, we are putting in a minimum sentence of five years when judges are already imposing, in the majority of cases, 10 to 15 years of imprisonment.

The existing punishment in 279(1.1)(b) of the Criminal Code already provides for the maximum sentence of life imprisonment in stranger kidnapping cases, but Bill C-299 removes the judge’s discretion in determining the minimum sentence. To remove discretion in such cases, honourable senators, is wrong and it is to interfere with the role of judges.

In a recent article published in the Criminal Lawyers’ Association newsletter, Justice Melvyn Green of the Ontario Superior Court speaks out against a series of recent Criminal Code amendments that institute mandatory minimum sentences.

As honourable senators know, it is very rare for judges to speak out.

Justice Green argues that these amendments do not “correspond with Canadian sentencing jurisprudence or a century of social-science research.”

Justice Green begins his article by emphasizing that sentencing guidelines in the Criminal Code are based on the principles of proportionality and restraint. Section 718.2(d) of the Criminal Code states:

an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;

The main premise of Justice Green’s article is that proportionality and restraint in sentencing are being undermined by amendments that focus on punishment, incapacitation and stigmatization. Proportionality and restraint are out the door, honourable senators, when we look at this bill. The focus is on punishment, incapacitation and stigmatization.

Further, according to Justice Green, mandatory minimum sentences undermine the flexibility and discretion that are important to crafting an individualized sentence that balances deterrence and denunciation with rehabilitation. Justice Green views recent sentencing amendments as “a regressive step that will neither enhance justice nor reduce the incidence of criminal conduct.” These amendments are “an almost incomprehensible departure from the theory of penal justice that has prevailed in Canada for the past 40 years.”

Honourable senators, today I will present three principal criticisms of mandatory minimum sentences: First, there is no evidence to support the effectiveness of mandatory minimum sentences in preventing crime; second, mandatory minimum sentences harmfully erode judicial discretion; and, third, mandatory minimum sentences contravene the principle of proportionate sentencing and violate the legal rights constitutionally enshrined in the Canadian Charter of Rights and Freedoms. I will begin with the lack of any evidentiary basis of mandatory minimum sentences.

In his article, Justice Green asks, “what exactly is it about the principle of restraint that is not working?” He points out that the crime rate in Canada has been declining for the last 25 years. He points out that the United States has begun to realize that incarceration as a primary response to crime “enhances neither public safety or individual security.”

Honourable senators, he goes to say that absent any evidence- based justification for recent amendments, the amendments are driven by “an ideology of unabashed Puritanism, marketed through fear-mongering and the invidious exploitation of communal differences.”

Drawing from recent social science research, testimony from our Legal and Constitutional Affairs Committee’s hearings on Bill C-299 and the commentary on the United States’ experience with mandatory minimum sentences, I want to further explore these points.

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In a 2009 article entitled The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings, Dr. Michael Tonry states:

One claim often made for mandatory minimum sentence laws is that their enactment and enforcement deter would-be offenders and thereby reduce crime rates and spare victims’ suffering. This claim, if true, makes a powerful case. Unfortunately, the accumulated evidence shows that this is not true.

The Canadian Sentencing Commission reached the same conclusions when it reported in 1987:

Evidence does not support the notion that variations in sanctions affect the deterrent value of sentences.

The report also said:

In other words, deterrence cannot be used with empirical justification to guide the imposition of sentences.

Michael Spratt, a criminal lawyer who practices in Ottawa, appeared before the Standing Senate Committee on Legal and Constitutional Affairs as a representative of the Criminal Lawyers’ Association. He also rejected the claim that mandatory minimum sentences deter crime. He said:

Quite simply, the evidence demonstrates that minimum sentences do not deter one from committing a crime,

He also said that it is the Criminal Lawyers’ Association’s position that:

… when the government wishes to change the Criminal Code, those changes should not be done lightly. They should be supported by the evidence. One should foster evidence- based policy when making the changes.

In an article published by the CBC on March 24, 2013, Justice Minister Rob Nicholson, when asked if circumstances surrounding a crime should factor into the sentencing, said:

The government’s role is to set the guidelines. Mandatory minimums send the “right message” that certain offences carry serious consequences.

Social scientists have proven that mandatory minimums do not succeed in sending that “right message” to which Minister Nicholson referred. Dr. Michael Tonry, the McKnight Presidential Professor in Criminal Law and Policy at the University of Michigan, stated:

Evaluated in terms of their stated substantive objectives, mandatory penalties do not work. The record is clear… that mandatory penalty laws shift power from the judges to prosecutors, meet with widespread circumvention, produce dislocations in case processing, and too often result in imposition of penalties that everyone involved believes to be unduly harsh.

Michael Spratt similarly referred to the harmful side effects of mandatory minimums in his appearance before the Standing Senate Committee on Legal and Constitutional Affairs. He said of mandatory minimums:

They are a simple way of looking at a complex problem. In my submission they are a myopic way of looking at that problem..

He went on to say:

If the intent of the bill is to decrease the kidnapping of young people, to protect young people, the evidence shows that mandatory minimum sentences will not accomplish that goal. They will accomplish those deleterious side effects that I would be happy to speak about in more detail: the increase in court time; the potential for re-victimization; the shift in discretion from judges to Crowns and police; and the elimination of judicial discretion, which is a pillar of our justice system. Of course, one must always remember that as sentences increase — and if they are applied in an unfair manner — prospects for rehabilitation and reintegration can decrease, which can lead to recidivism and a situation that is more unsafe for the public at large.

Honourable senators, Michael Spratt’s point of view is reinforced by Tim Lynch of the libertarian-leading CATO Institute in the United States. He said:

What Canada needs to do is take a look at the American experience. We are turning away from mandatory minimums and Canada would make a big mistake in following in our footsteps.

The American Civil Liberties Union recently reported that there are 2.3 million people behind bars in the United States, which is near triple the number of prisoners in 1987. Further, taxpayers spend almost $70 billion per year on corrections and incarcerations in the United States.

Spending too much money on prisons skews provincial and federal budgetary priorities. It takes funds away from things that are proven to drive crime even lower, such as increasing police presence in high-violence areas and providing drug-treatment services to addicts. More than a decade of minimum sentencing in the United States has packed prisons to the point where every open space is filled with bunks; and in Arizona, outdoor tent camps are beginning to replace prison cells.

Chief Justice William Rehnquist at the National Symposium on Drugs and Violence in America stated:

Mandatory minimums… are frequently the result of floor amendments to demonstrate emphatically that legislators want to “get tough on crime.” Indeed, it seems to me that one of the best arguments against any more mandatory minimums, and perhaps against some of those that we already have, is that they frustrate the careful calibration of sentences, from one end of the spectrum to the other….

Honourable senators, the imposition of criminal sentences must never be taken lightly. Although deterrence and retribution are important principles that must be taken into consideration when sentencing, it is also important to remember that prison sentences remove offenders from society. They deprive the prisoner of the freedom to pursue his livelihood and to interact with his family and friends; and the conditions in prison can be harsh. For these reasons, the men and women who serve in Canada and the United States judiciary imprison offenders with no sense of joy.

I want to share with honourable senators something that I was told many times by my boss and then law partner, the Honourable Thomas Dohm, former Justice of the B.C. Supreme Court. He used to say to me that he travelled all around British Columbia and Yukon. Often he would see some of the worst and saddest cases before him. Often he would think, “What is the best way to deal with this person who has committed an offence and to protect society?” One of the most important lessons he taught me, and he taught me many, was that in the majority of cases you do not throw the key away when you send someone to jail. Sooner or later that person is released. He said that paramount on his mind when he sent someone to jail was to try to ensure that when the person was released, he would not reoffend or was rehabilitated. He also said that as a judge, he spent many sleepless nights worrying about what should happen to the offender before him.

Honourable senators, I have had the privilege of speaking to many judges. The majority, if not all, of the judges in our country are honourable, hard working and full of integrity. Judges take their jobs seriously. I do not say that simply because I am a lawyer; I say that because I have seen many of them at work. I believe that when we take away judges’ discretion, we are doing great harm to society.

Some Hon. Senators: Hear, hear.

Senator Jaffer: Honourable senators, I have quoted many Americans in this discourse, which is not something I tend to do. I do this today because they have had the experience with mandatory minimums and are telling us that it is wrong. They are telling us that they made mistakes and that we should learn from their mistakes. Sadly, that is falling on deaf ears.

A well-known senior judge, Vincent L. Broderick, from the Southern District of New York State, said:

I firmly believe that any reasonable person who exposes himself or herself to this [mandatory minimum] system of sentencing, whether judge or politician, would come to the conclusion that such sentencing must be abandoned in favor of a system based on principles of fairness and proportionality.

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To put the effects of mandatory minimum sentences into perspective, I would like to quote Judge J. Spencer Letts, from the Central District of California, after he imposed a mandatory 10- year sentence on a person:

Under the statutory minimum, it can make no difference whether [someone] is a lifetime criminal or a first-time offender.

He went on to say:

Indeed, under this sledgehammer approach, it makes no difference if the day before making this one slip in an otherwise unblemished life, the offender had rescued 15 children from a burning building, or won the Congressional Medal of Honor while defending his country.

Honourable senators, mandatory minimum sentencing applies a one-size fits all to sentencing offenders, even though the punishments might have been designed for more serious criminals.

Barbara S. Vincent from the Federal Judicial Center wrote, in the The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings:

There is substantial evidence that the mandatory minimums result every year in the lengthy incarceration of thousands of low-level offenders who could be effectively sentenced to shorter periods of time at an annual saving of several hundred million dollars.

Honourable sentences, not only is there a lack of any evidentiary basis for mandatory minimum sentences in Canada, there are also enormous financial and social ramifications. The second point I would like to make is that mandatory minimum sentences harmfully erode judicial discretion, which is an important pillar of our criminal justice system. Judges, I believe, are in the best place to determine sentences. That is why, in our great country, we have some of the best lawyers, who we nominate as judges. We have some of the best judges in the world in our system.

When Michael Spratt appeared before our Standing Senate Committee on Legal and Constitutional Affairs as a representative of the Criminal Lawyers’ Association, he said:

Judges are in the best place to impose just sentences. They are most familiar with the facts of the offender and of the offence, and they are situated in the community. Judges are well trained and if a judge is wrong —

— and that happens from time to time —

— we have a good appeal mechanism to correct any errors.

In a meeting on May 15, 2012, the House of Commons Standing Committee on Justice and Human Rights, a very respected former Supreme Court Justice, the Honourable John Major said:

The trouble in the minds of the legislators and the public at large is, “Can we trust the judges?”

He went on to say:

That’s a question that comes up from time to time on a number of things. If the judge is law-and-order, he’ll perhaps lean to a tougher sentence. If he’s more rehabilitative-minded, he’ll go the other way.

But we do and should have great confidence in our judges.

As a citizen, I feel more comfortable with them having some jurisdiction on the severity or leniency of sentence.

Honourable senators, when we were holding these hearings, we had Indira Stewart, a representative of the Canadian Council of Criminal Defence Lawyers, appear. On the topic of a five-year mandatory minimum sentence in kidnapping cases, she said:

When these cases do occur, they are very serious, but there is no evidence to suggest that when they do occur, judges are showing leniency….

In the rare cases where a sentence under five years is imposed, there are, in every case, mitigating circumstances to explain it. It is exactly for this reason that trial judges, who have the opportunity to hear all of the aggravating and mitigating circumstances, are in the best position to determine a sentence. If there is any concern about a trial judge getting it wrong, Crowns can and do appeal sentences that they believe are unfit.

Further affirming this point, the Honourable John Major testified before our committee. He said that there is a philosophy that says that a criminal does not believe he will be caught, and therefore experience shows that the severity of the penalty for the crime seldom acts as a deterrent.

He further said:

It’s interesting to look at the range of sentences for kidnapping in our judicial history where there’s no minimum. The sentences, nonetheless, have been severe. By severe, I mean lengthy.

He went on to say that the sentences, honourable senators, are between 10 to 15 years. The minimum sentence that we are asking for here is five years. Will we say to judges that they can look a five-year sentence? I do not think so. The judges are already sentencing offenders for this offence for 10 to 15 years. Why are we meddling with this?

Justice Major went to say:

The courts, to my knowledge, have always treated commercial kidnapping as a very serious offence, and in my experience the sentences have been 10 years and 15 years, so that the five year minimum is not extreme. I think you’d have to look hard to find a case where a serious kidnapper was sentenced to less than that.

Honourable senators, as the Honourable Justice Major testified before the house committee, the range of sentences for these kinds of cases is approximately 10 to 15 years, which is well above the minimum sentence of five years being proposed. Judges, of course, have the option of a life sentence in these cases, and that is a reflection of the gravity of this offence.

In appearing before the Senate Legal Committee, the Honourable John Major explained the nature of the cases in which he was involved. He stated that offenders were young men who each received 15 years for kidnapping a child, although it was their first offence. He said:

Judges respond as the public do to the horrific nature of that kind of crime…. However, when you ask about a judge’s discretion, you are putting a case before a person who presumably has heard other cases. He has perhaps been a trial lawyer. He understands the system and the circumstances that make almost every case different in some respect.

When we take away judicial discretion, it results in a lack of transparency and the circumvention of justice.

On May 15, 2012, Mr. Irwin Cotler, justice critic for the Liberals, spoke out about the shift in judicial discretion created by mandatory minimums before the House of Commons Standing Committee on Justice and Human Rights. He said:

Leaving aside the constitutional issues for the moment, there is a policy concern. In the matter of mandatory minimums, you remove discretion from the judges and transfer it to the police or the crown. When you transfer it from judicial discretion in open court with the possibility of appeal to a more private type of plea bargaining and the like, you can have one of two outcomes.

You can have an outcome whereby the accused pleads to a lesser charge, so the objective of denunciation, which was held to be the principal purpose of the bill, gets diminished or lost. Or there’s the alternative, where the accused goes to trial and thereby the courts become clogged up because of these mandatory minimums.

Honourable senators, I suggest that judges’ discretion should not be removed. It simply shifts into a form that is not transparent or accountable and not visible to members of the community. Moreover, mandatory minimum sentences overburden the justice system.

As honourable senators know, I come from British Columbia and I still work with many of my colleagues, whether they are advocating for things or I see them in court. One of the things I have observed is that we pass these laws, but the cost of operating is to be borne by the provincial courts.

Honourable senators, believe me when I say that our courts are bursting. Prosecutors look at me and say, “I have not even read the file. I do not even know what the case is about. What do you want to do?” They are bursting at the seams. We are passing these laws, but we are not providing the resources to implement these laws.

Honourable senators, I do not think that you should go away this summer and think that we are doing a good job of protecting Canadians. If we truly want to protect Canadians, then we should pass this law and then provide resources, because otherwise we are doing half a job.

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David Daubney, former General Counsel, Criminal Law Policy and Coordinator of Sentencing Reform at Justice Canada, said this in his blog on Sunday, March 11, 2012 of this increase in mandatory minimum sentencing:

The proliferation of mandatory minimum sentencing will lead to fewer guilty pleas, significant processing delays, big increases in the number of accused persons awaiting trial in already overcrowded provincial remand facilities and just plain injustice as discretion is moved from judges to prosecutors.

Honourable senators, I see this all the time. When I go into the court systems, I see the discretion is moving from the judges to the prosecutors. They are not trained to be judges. Their job is to present the case on behalf of us. We are making them lawyers and judges. This is just wrong.

I know that there will be many charter challenges and acquittals. Will that make Canadians safer? I put it to you that it will not.

Honourable senators, I will say to you that minimum sentences lead to more matters going to trial and fewer matters resolving in the appropriate way. Mandatory minimum sentences do not only produce financial costs, but also practical costs to the participants in the justice system and the victims of crime, themselves. That is why I say to you all that sentencing discretion should be with the judges and not the prosecutors.

According to Erik Luna in “Mandatory Minimum Sentencing Provisions Under Federal Law,” mandatory minimum sentences “act as grants of power to federal prosecutors to apply the laws they see fit, even to minor participants in non-violent offenses.”

I have seen, honourable senators, that prosecutors may set pre- punishment through creative investigative and charging practices, which could produce troubling punishment differentials among offenders with similar culpability.

Honourable Federal Judge John Martin could not have described the effects of mandatory minimum sentences on judicial discretion better. He said:

Mandatory minimums are over-inclusive, they’re unfair, and they can even be draconian.

They transfer sentencing power from the neutral judges to partisans in the criminal process.

They make for poor criminal justice policy and raise all sorts of constitutional problems.

Other than that, they’re a great idea.

The third and final point that I would like to make is that mandatory minimum sentences are contrary to the principle of proportionality.

Referring to the constitutional issues surrounding mandatory minimum sentences and exceptional cases, in an article entitled “A More Lasting Comfort? The Politics of Minimum Sentences, the Rule of Law and R v. Ferguson,” Professor Berger of Osgoode Hall Law School stated that mandatory minimum sentences:

… represent an a priori political judgment about what constitutes just punishment in all circumstances.

Such judgments are intrinsically dangerous.

Parliament has declared that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The essence of a minimum sentence is that it purports to know in advance the floor of proportionality for a given offence, irrespective of the specifics of the case.

But life serves up circumstances far more complex and difficult than even the most prescient Parliamentary committee can anticipate.

Cases can find their way before courts… in which exceptional circumstances make a minimum sentence so unfit as to unjustifiably offend the section 12 protection against cruel and unusual treatment or punishment.

Given the combined effects of time and the extraordinary vicissitudes of life, cases will arise that put pressure on any substantial minimum sentence tested against our constitutional commitments and fidelity to the morality of proportionality in sentencing.

Honourable senators, Bill C-29 is overly broad and it risks capturing people not intended. This is a case that really bothers me. That is why I have spent hours and hours researching this issue: To bring it to you to say, “Look, honourable senators, this is just wrong.”

This is the Batisse case. It involves a young, mentally ill Aboriginal woman. She pled guilty to abducting a newborn baby. The Court of Appeal reduced her sentence from five years to two and a half. The Court of Appeal said of her, after careful assessment of the various mitigating factors in her case, that she had been abused by virtually every person she had ever known, and, as a result of years of abuse, she had developed a mental illness.

Her story is horrific. The court found that the defendant’s mental illness played a central role in the commission of her offence and that, in such circumstances, deterrence and punishment assumed a less important role. These are not one- off cases.

Honourable senators, I cannot believe that one senator in this room thinks that she should have gone to jail for five years. I would ask: Would you pass legislation of mandatory minimum if you knew that Ms. Batisse would have to be sent for five years to jail when she had had such a horrific life?

Honourable senators, this is our responsibility. That is why we are in this august place: to make decisions for all Canadians.

An Hon. Senator: Hear, hear.

Senator Jaffer: Mandatory minimums often result in sharp variations in sentences, based on what are often only minimal differences in criminal conduct or prior record.

This is demonstrated in a statement made in 2004 by United States District Judge Paul Cassell, when he proclaimed that he “saw no rational basis for the law to require him to sentence a 25- year-old first-time drug offender to 55 years in prison on the same day that he meted out a 22-year term to a man who had clubbed an elderly woman to death.”

Honourable senators, studies and evidence have shown that when the public is informed about what happens in our criminal justice system, the confidence of the public is enhanced in terms of procedure and ultimate results. However, public polls should not be used solely as a way to justify legislation. Rather, there should be concentration on the informational component to ensure that the public knows what the participants in the justice system know.

The Honourable Justice John Major stated:

The public does not understand what you describe as and what appears to be a light sentence, and so they feel better when there is a mandatory sentence imposed.

However… when the principle of mandatory sentencing and the principle of, let me call it, discretionary sentencing is explained, that makes a big difference in people’s outlook.

In a study done by the Pew Center of the United States, recent opinion polling suggests that rolling back mandatory minimum sentencing provisions is being well received by the public. Furthermore, a national January 2012 poll of 1,200 likely voters revealed that the public is broadly supportive of reductions in time served for non-violent offenders, as long as the twin goals of holding offenders accountable and protecting public safety can be achieved.

Honourable senators, in conclusion, I want to acknowledge the hard work of organizations like the Canadian Council of Criminal Defence Lawyers, the Criminal Lawyers’ Association and the Canadian Bar Association. These organizations play an invaluable role in promoting fairness and integrity in our criminal justice system, a fundamental pillar of our democratic society. They work tirelessly and voluntarily for us to get a balanced view of our justice system.

Honourable senators, they work every day in the trenches, and then they come back and report to us what they see happening to the legislation that we pass.

Therefore, I tell you, honourable senators, a new mandatory minimum sentence will not help to protect our precious children against violence or exploitation. What will protect our precious children from violence and exploitation? We must provide the resources so they can have a better education and a home in which to live. Canada is a very rich country. We should not be looking at sending people to jail and using mandatory minimum sentences.

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An Hon. Senator: Hear, hear.

Senator Jaffer: Honourable senators, there is no evidence to support the effectiveness of mandatory minimum sentences in preventing crime. Mandatory minimum sentences harmfully erode judicial discretion. Finally, mandatory minimum sentences contravene the principle of proportionate sentencing and violate the legal rights and constitutional rights enshrined in the Canadian Charter of Rights and Freedoms.

Honourable senators, I want to end on what was said by Justice Major, a distinguished Canadian and a former justice of the Supreme Court of Canada:

In your wisdom, when you look at the bill, ask yourselves or ask anyone if they can give you an example of where a mandatory sentence in any jurisdiction has reduced the crime — anywhere.

Some Hon. Senators: Hear, hear.

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

An Hon. Senator: Question.

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

Some Hon. Senators: No.

Some Hon. Senators: Agreed.

The Hon. the Speaker: Carried, on division.

(Motion agreed to and bill read third time and passed, on division.)

 

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