Debates of the Senate (Hansard)

1st Session, 41st Parliament,

Volume 148, Issue 56

Thursday, March 1, 2012

The Honourable Noël A. Kinsella, Speaker

Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak to third reading on Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other acts.

This omnibus bill groups together nine bills. Most of them have been dealt with separately during the third session of the Fortieth Parliament.

After hearing from 110 witnesses over 11 days, for over 50 hours, the Standing Senate Committee on Legal and Constitutional Affairs seemed to agree on several very important principles: all members from both parties wish to deter organized crime; all members from the Senate wish to protect our youth and our children from sexual assault; and, finally, all members wish to ensure that Canadian families live in safe communities with safe streets. That is the expectation that we are setting out with Bill C-10.

Honourable senators, although I agree in principle with Bill C-10, which is to promote public safety, I am quite concerned that this bill will be unable to fulfill this objective. Instead, Bill C-10 simply raises the expectations of Canadians but will undoubtedly fail to deliver the desired outcomes.

Bill C-10 will not only be unable to deter crime and make our communities safer, it will further oppress already marginalized groups, most notably people who suffer from mental illnesses, our youth and Aboriginal people.

As I mentioned, Bill C-10 is composed of nine different pieces of legislation and is 114 pages in length. Throughout our committee study, several aspects of this bill were called into question, and a number of very important and pressing concerns were raised. Although there are several components of this bill that I am particularly concerned about, time permits me to touch on only a few of these concerns.
As a result, I rise today to speak on mandatory minimum sentences and the adverse effects they will have on those who suffer from mental illnesses, on our youth and on Aboriginal people.

Honourable senators, many of the witnesses who appeared before our committee spoke about the detrimental effects that instituting mandatory minimum sentences would have on Canadians. Among the witnesses who spoke to this aspect of the bill was Daniel MacRury from the Canadian Bar Association, who stated:

We believe that the substance of this legislation will ultimately be self-defeating and counterproductive if the goal is to enhance public safety. The bill takes a flawed approach to dealing with offenders in all stages of their interaction with the criminal justice system, from arrest, through to trial, to their treatment within the correctional institutions, to their inevitable reintegration back into society. It represents a profound shift in orientation from a system that prioritizes public safety through individualized sentencing, rehabilitation and reintegration, to one that puts punishment and vengeance first.

Honourable senators, although mandatory minimums are often said to deter, this will not be the case. Imposing mandatory minimum sentences will tie the hands of judges by limiting their ability to assess individual cases and use their discretion. It will also hinder the plea bargaining process and strain the justice system, which cannot meet the current needs, let alone the future needs, that will be created by this bill.

Throughout my career as a lawyer, I have learned many important lessons. One of those lessons has been that when it comes to sentencing, a cookie cutter approach will never work. No two cases are the same. Each case must be examined in its own unique context, and sentences should be imposed accordingly. Unfortunately, Bill C-10 fails to recognize this.

One group which will be harmed if this bill is adopted is those who suffer from mental illnesses. Thirteen per cent of males and 25 per cent of females currently in our correctional system suffer from mental disorders. During our committee study, we heard from Howard Sapers, who is a correctional investigator from the Office of the Correctional Investigator Canada. In his remarks, Mr. Sapers posed the following question:

. . . the real question, I suppose, is how to deal with the fact that prisons are not hospitals, but some offenders are patients. It is about how to deal with the fact that you have chronically and acutely ill people in prison. Some will point their finger at law enforcement and say that at that point of intervention, a different decision should have been made; and some will point their finger at courts and say that when these mentally ill folks were brought before courts, the courts should have made different decisions.

Honourable senators, by imposing mandatory minimum sentences, we will be increasing the number of mentally ill people in prison as we would be limiting the court’s ability to use its discretion. This bill takes an approach that is centred on deterrence and denunciation at the expense of rehabilitation and reintegration.

My law partner and mentor, the Honourable Thomas Dohm, Q.C., who was a lawyer and a justice of the Supreme Court of British Columbia, told me that when he was a judge he was always very aware that when he was sentencing a person to prison, he was not throwing away the key. Most offenders will someday have to be reintegrated into society, and he always told me that he considered what would happen to that person when he came back into society.

By adopting an approach that is so focused on deterrence and denunciation, rather than an approach focused on rehabilitation and reintegration, we are denying those who are suffering from mental illnesses the help they so desperately require.

Honourable senators, Bill C-10 raises our expectations by alleging to keep our streets and communities safer. However, we know that those who suffer from mental illnesses will not be helped. Therefore, our streets and our communities will not be safer.

Until those offenders who need to be rehabilitated receive the help that they need, our correctional goals will never be achieved and our streets and communities will not be any safer.

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Another group that will be adversely affected by mandatory minimum sentencing is our youth. Canada is a signatory to the United Nations Convention on the Rights of the Child. Our government has a duty to assess proposed pieces of legislation in order to ensure that they are in compliance with this convention. Unfortunately, no such assessment has been tabled, so we as parliamentarians do not know what the assessment stated. This is exceptionally troubling, given that Bill C-10 appears to be in direct violation of Article 37 of the UN convention, which states detention “shall be used only as a measure of last resort and for the shortest appropriate period of time.”

Honourable senators, Bill C-10 makes the assumption that being tougher on crime and punishing our younger people will force them to be held accountable for their actions. The problem with this is that we are making the assumption that these young people understand the concept of accountability.

During our committee study we learned that deterrence and denunciation are not effective in trying to deter youth crime. In fact, this leads to more young people spending long periods of time in prison, which is unfortunate for many reasons, especially considering that prisons have been shown to be schools or universities to learn crime. They will receive a university education on how to become better criminals.

Our committee heard from Justice Merlin Nunn, who is often given credit for the reason we have this bill. He said:

. . . all you can do when you are looking at an amendment is ask yourselves if it is in the best interests of the child because that is the standard that the government should be following. That is the standard they said they were going to follow. I am not picking on this government. It does not matter which side is in; I think this is bad. They must look at it from the point of view of the best interests of the child.

Bill C-10 has raised our expectations by stating that being tough on crime, even when it comes to young offenders, will make our streets and our communities safer. Unfortunately, this will not be the case. Not only will throwing young offenders in jail fail to keep our streets safe, it will increase the likelihood that these young people will learn more about crime in prison and reoffend.

Honourable senators, lastly, I would like to talk about the adverse effects this bill will have on Aboriginal people who are currently overrepresented in our prison populations. In the 1999 Supreme Court case of R. v. Gladue, several very important sentencing principles were outlined. The decision made in the case appropriately responded to the dramatic overrepresentation of Aboriginal Canadians within our justice system and was mindful of the historical poverty and abuse that many Aboriginal people in Canada have been confronted with.

The Supreme Court of Canada has stated that the number of Aboriginals in prison is staggering. These principles do not in any way imply that Aboriginal offenders will receive less harsh penalties than non-Aboriginal offenders. Instead, they insist that courts take into consideration the harsh realities many Aboriginal Canadians face when sentences are imposed. Unfortunately, with the mandatory minimum sentences that accompany Bill C-10, the principles set out in the Gladue case will now be ignored as the hands of a judge will now be tied.

Our committee had the opportunity to hear from Professor Michael Jackson who stated:

I have, for 40 years, advocated as a professor, as counsel, as a member of committees of the Correctional Service of Canada and adviser to royal commissions, on the importance of recognizing and respecting the rights of Aboriginal peoples and the rights of those who find themselves in the deep end of the criminal justice system in Canadian penitentiaries.

Honourable senators, it is of utmost importance that we, like Professor Jackson, recognize and respect the rights of Aboriginal people. Although Bill C-10 has raised our expectations by promising to help keep our streets safer, throwing individuals who have historically been plagued by violence, abuse and poverty into prison, rather than giving them the help they require, will not make our streets any safer.

If we want to keep our streets and communities safer, we need to commit ourselves to getting to the very root of the problem. It is my belief that we should be investing our resources not in building big prisons but rather in rehabilitation programs that will in turn help vulnerable populations such as our youth, the mentally ill, Aboriginal people and minorities, and keep them from reoffending in the future.

Honourable senators, during our committee study, we heard from Mr. Howard Sapers, who pointed out certain facts that I found to be particularly troubling. He stated:

The profile of the offender population is changing. They are getting older. They are more addicted and more mentally disordered. Visible minorities, Aboriginal people and women are entering federal penitentiaries in greater numbers than ever before. One in five federal inmates are aged 50 or older; 36 per cent are identified at admission as requiring some form of psychiatric or psychological service or follow-up intervention; 63 per cent of offenders report using either alcohol or drugs on the day of their current offence; 20 per cent is of the Aboriginal descent; and 9 per cent of inmates are Black Canadians.

Honourable senators, I want to remind you that in the document, The Canadian Senate in Focus, the duties of the Senate chamber are described:

. . . its principal duty would be the revision and correction of legislation from the popular chamber, which would require “impartiality, expert training, patience and industry” in tandem with the representation of provinces, regions and minorities.

Honourable senators, it is our responsibility to represent provinces, regions and, in particular, minorities. We have not only a duty but an obligation to ensure that those who are mentally ill, our youth, visible minorities, Black Canadians and Aboriginal peoples are protected.

We have often heard this saying: It takes a village to raise a child. I want to add to that saying. It takes a village to raise a child, it takes a community to keep that child safe, and it takes a country to protect all of its citizens.

As members of the Senate of Canada, we must work hard to ensure that all of our citizens are protected. Although Bill C-10 sets out to keep our communities and our streets safe, it will not achieve this end. Instead, it will adversely affect populations that are already marginalized, populations that we as senators have an obligation to protect.

I urge honourable senators not to support Bill C-10.

 

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