Senator Tony Dean

Honourable senators, I rise today to speak to Bill S-251, An Act to amend the Criminal Code dealing with the independence of the judiciary and to make related amendments.

I know that I join with other colleagues here in saying that I support the bill. It has been somewhat of a voyage of discovery for me in learning about the issue of mandatory minimum penalties. Senator Pate, I thank you for bringing our attention to the complexities of this issue and for the wealth of information that you have provided to us.

We know that criminalization causes significant social harms to individuals and their families, and as the Law Reform Commission of Canada has pointed out, longer sentences with harsher penalties are not an effective means of preventing crimes. In fact, the evidence suggests that individuals serving custodial sentences that include time in prison are more likely to repeat offend than those serving non-custodial sentences that mandate community-based programs and options.

In Ontario alone, the rate of recidivism within two years of completing a prison sentence of six months or more was 35 per cent between 2014 and 2015. While this rate has been consistently dropping over the last decade, it remains the case that community-based sentences with a focus on intervention and rehabilitation showed a recidivism rate of only 20 per cent in the same year.

Mandatory minimum penalties, or MMPs, limit judges in their ability to be more lenient with sentencing in appropriate cases. They do not allow for community-based sentencing. If an individual is convicted, a mandatory minimum means time in prison, which not only increases the societal and mental risk of harms to the inmate, but is more costly than alternative sentencing that focuses on rehabilitation.

According to Statistics Canada, in 2015-16, the federal government spent $4.6 billion on corrections, with 70 per cent of that going towards incarceration, showing that mandatory minimums in some cases not only constitute cruel and unusual punishment, as stated by the Supreme Court in R. v. Nur in 2013, they also create unnecessary expenses.

Bill S-251 would restore judicial discretion in sentencing all crimes that have mandatory minimum penalties attached to them, of which there are now more than 60. In particular, clause 3 of the bill gives courts the discretion to order an individual who has been found guilty of an offence to attend a treatment or counselling program instead of the required prison time that accompanies MMPs.

Senator Pate also reminds us that individuals with significant mental health issues are among those who are disproportionately affected by mandatory minimums. Those recidivism rates I spoke about earlier rather suggest that a public health approach to the issue, including the use of alternative sentencing focusing on rehabilitation and not punishment, is a more effective means of helping the individual with their addiction and keeping them out of prison.

But it goes the other way, too. For crimes that have MMPs attached to them, prosecutors are encouraged to accept guilty pleas in order to avoid harsher penalties. Critics have stated that this results in individuals being convicted of offences that do not correspond to the offence actually committed. For example, someone might plead guilty to manslaughter, even though the facts disclose that it was intentional. Judicial discretion would ensure that the sentence is appropriate to the crime and to the individual’s situation. This is an issue that has received significant study and criticism. In fact, the Supreme Court of Canada has stated that:

Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes.

In R. v Lloyd, the majority decision of the Supreme Court noted that:

. . . mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable.

Some penalties have already been struck down for incompatibility with the Charter, such as in R. v. Nur.

Honourable senators, Bill S-251 does not eliminate minimum penalties — far from it. Judges will still be able to rule the sentence required by the MMP or even a harsher sentence if they find it appropriate as a course of action. But giving them the discretion to rule a different sentence will, I believe, ensure that justice is being done and that an appropriate sentence is being handed out according to the nature of the crime.

Senators, I hope you will join me in supporting Bill S-251. I look forward to continued debate on the subject.