Thank you, Mr. Chair.
Thank you very much for the opportunity to appear before the committee today. My name is Royland Moriah. I'm the policy research lawyer at the African Canadian Legal Clinic. With me today is Charlene Theodore.
I'd like to apologize at the outset for not having our written submissions. I know there obviously was an issue with Mr. Doob's submission, at least with respect to his slide not being available or translated. Unfortunately, ours isn't translated yet, but I have spoken to the clerk and she has assured me that it will be done and will be available to the members of the committee as soon as possible. I would urge you to contact me if you do have any specific questions with respect to those submissions after you have received them.
I'll give you a little bit of information about the African Canadian Legal Clinic, which I'll refer to as the ACLC throughout the course of my submission. We're a specialty legal clinic funded by the Ontario legal aid system. We conduct legal work aimed at addressing systemic racism and racial discrimination in the province of Ontario. We engage in our work using a test case litigation strategy. To that end, we've represented litigants at tribunals and all levels of courts, up to and including the Supreme Court of Canada. We also monitor legislation—that is why I'm here today—and engage in advocacy and legal education in eliminating racism, and anti-black racism in particular.
Criminal law issues and issues of racism and discrimination in the justice system, of course, are central to our mandate. As noted in our brief, which you will hopefully have an opportunity to read, we've been involved in a number of interventions at all levels of court. For example, we were involved at the Supreme Court of Canada, in Regina v. Spence and Regina v. Williams, which dealt with addressing issues of race in jury challenges for cause; and Regina v. Golden, wherein the Supreme Court outlined strip search procedures for police. At the Court of Appeal, we were involved in some of the seminal racial profiling cases, including Regina v. Brown and Regina v. Richards. More recently, we've been involved in a lot of policy work, particularly with respect to Justice Patrick Lesage's review of the Ontario police complaints system. And this past summer we had part II standing in the Ipperwash inquiry, wherein we provided the inquiry with a report on police use of force.
We're very pleased to have an opportunity to present submissions on Bill C-10, as criminal justice issues are obviously very important to the community we serve. As already noted, numerous reports from jurisdictions across Canada and from all levels of court have raised concerns about the impact of race on the Canadian criminal justice system.
It probably comes as no surprise to many of the people on the committee, because the information is out there, that African Canadians are particularly overrepresented in the criminal justice system. For example, in the recent 2001 census, African Canadians represented approximately 4.5% of the population. However, the federal offender management system, as of this past April, indicated that African Canadians right now comprise 16.1% of federally incarcerated individuals.
Many reports have noted that the overrepresentation of the African Canadian community is due to systematic over-policing. Research by criminologists such as Scot Wortley, from the University of Toronto, have confirmed that African Canadians are targeted by police, and African Canadian males, particularly young males, generally are at greater risk of being stopped and harassed, and thus more likely to be charged with an offence.
The issues that are raised by Bill C-10 are of particular importance to our community, especially the community in Toronto. As most of you have probably seen from the media reports that have been out there over the past year and a half, there has been a rash of gun violence in Toronto over the past year and a half, and it has particularly impacted our community. Given this reality, we submit that there's a clear need to develop effective strategies for addressing this problem.
As noted in our brief, since the outbreak of gun violence, our community has in fact called for strategies that address the root causes of gun crime, with a focus on preventing gun crime from happening rather than punishing its effects. I would submit that most Canadians would agree with us that it's not good enough for us to react to the issue of gun crime and put people in jail after people are maimed and killed, but to prevent it where possible, to prevent the loss of life.
Part of the approach that we had recommended, recognizing that this is a complex issue that will require a multi-faceted approach, was the need to increase funding for services in at-risk communities. It was the need to re-establish many of the social programs that had been cut by the successive governments over the past decade or so. These are governments at all levels, too--both the provincial level and the federal level through transfer payments.
However, our concern with respect to Bill C-10's approach to dealing with gun violence is that at best it is simplistic and at worst it is a reckless response to gun violence. Instead of considering the causes of gun crime and implementing effective strategies, we are essentially relying on rhetoric and ideology, giving the appearance of action while doing little to truly address the problem. It is the ACLC's submission that the proposed Criminal Code amendments won't be effective because they fail to address the complexity of the problem of illegal guns. Unless we commit to recognizing and addressing these underlying causes, we cannot have effective strategies for addressing the problem.
While there are numerous problems that arise out of the proposed mandatory minimums—Professor Doob has raised some of them, and I'm sure you've heard quite a few over the course of the hearings into Bill C-10—my submissions for the ACLC will focus on three main issues: the impact of mandatory minima on the fundamental principle of proportionality—to which Professor Doob has alluded somewhat; the recognized ineffectiveness of mandatory minima—as Professor Doob and I'm sure many others have raised again and again before this committee; and particularly important to the people we serve, the impact of mandatory minima on African Canadians and African Canadian communities, and I would also say communities at large across Canada.
With respect to the principle of proportionality, as Professor Doob noted, sentences under section 718.1 of the Criminal Code should be proportionate to the gravity of the offence and the degree of responsibility of the offender. Mandatory minima distort this principle by removing judges' ability to consider other relevant factors, including aggravating and mitigating circumstances. As noted in an article by Julian Roberts:
A mandatory sentence prevents judges from modulating the severity of the sentence to reflect the seriousness of the offence and the degree of blameworthiness of the offender.
An example given by Ms. Sue Barnes in her speech to the House, which is actually referenced in our written submissions--and again, I'm sorry that you don't have those available to you--highlights the importance of judicial discretion in the sentencing process. What she talked about was a situation where somebody without a criminal record who's carrying an unloaded gun would actually, under the proposed amendments, get a higher sentence than somebody with a criminal record with a loaded long gun. I think right there that raises some issues with respect to the issue of proportionality.
This is only a very limited example; there are many examples. This is something we really have to consider, how this will impact the criminal justice system and the way our sentencing procedures work under the system.
That's why it's important to consider the role that judges do have. They are uniquely situated to assess all the circumstances of an offence to fashion a suitable sentence that takes into account all the relevant factors, including the need for deterrence, rehabilitation, and protection of society where it's demonstrably necessary. Mandatory minimum sentences usurp this critical role of judges, and they will result in disproportionate sentences. The evidence is clear. They will not adequately consider all the circumstances that are necessary for the proper functioning of proportionate sentencing under the criminal justice system.
In terms of effectiveness, I know I'm probably beating a dead horse, because this is something that has been talked about again and again by probably many of the people who have appeared before this committee and the many people who have a lot of expertise, more expertise than I do in this area. There's just no doubt that mandatory minima do not work. This debate isn't new in Canada. It has been going on for quite some time. The last sentencing commission looked at sentencing commissions and law commissions over the course, I believe, of 40 or 50 years and noted that none of them endorsed mandatory minimum sentences as an appropriate response in the criminal justice system. They were quite clear that they simply do not serve their stated purpose of deterrence or incapacitation.
Recent research done by academics or even commissioned by government departments also concludes that mandatory minimums are not effective. Reports from other jurisdictions--primarily a lot of research in the States and also research in Australia, because they followed some of the mandatory minimum sentences provisions in their country--also confirmed that mandatory minimum provisions do not lower crime rates, do not serve as a deterrent, do not have an incapacitation effect, do not work. In fact, jurisdictions in the States are now moving away from mandatory minimums as lawmakers are starting to understand that they have gone down the wrong path, that these are not effective, and they have a very detrimental impact on the functioning of their criminal justice system.
Even the legislative summary for Bill C-10 noted the questionable effectiveness of such provisions. Yet, under the guise of being tough on crime, the government has introduced amendments that, given the available research, you should be well aware, will do little to address the problem of gun violence.