Mr. Chair, it's certainly a delight for me to contribute to the debate on Bill C-10, and specifically on the clauses that are under consideration dealing with minimum mandatory sentences.
I listened quite intently to the comments of my friends, Mr. Harris and Ms. Boivin. Of course, I disagree with their assessment on minimum mandatory sentences, specifically their suggestion—or I would suggest, accusation—that they would somehow lead to arbitrariness and unjust conclusions and sentences. I would suggest—and for those Canadians who are still watching this debate—it is quite the opposite.
If you'll indulge me for a couple of moments, I want to quote from a decision of the highest court in Alberta. As the members on this committee know, I too am a lawyer. I practised in the law courts of Alberta for perhaps not quite as long as Mr. Harris did in the courts of the Maritimes, but for a considerable period of time.
In any event, the Chief Justice of Alberta, in a decision released in 2010, Regina v. Mr. Arcand, in a very lengthy judgment talked about the principles of sentencing. I will only refer to the facts of this case very briefly to give the members of the committee some background, but the individual was convicted of a sexual assault, and not a minor sexual assault. It was what the former Criminal Code would have referred to as rape. In fact, the victim in this case was a second cousin of the accused. She was passed out from alcohol intoxication when her second cousin sexually assaulted her. The trial judge sentenced Mr. Arcand to a period of three months incarceration to be served intermittently on weekends.
With that background I want to briefly, if the committee will indulge me, read three or four paragraphs from this court of appeal decision. I think its very elucidating in the way the jurists themselves feel about ranges, starting points, and the principles of sentencing. I think it will refute Mr. Harris's concern about arbitrariness and Ms. Boivin's concerns about unfair results.
It's a very well-written judgment. I encourage members to read it if they have time. I will only read a couple of pages.
We must face up to five sentencing truths. First, it is notorious amongst judges, of whom there are now approximately 2,100 in this country at three court levels, that one of the most controversial subjects, both in theory and practical application, is sentencing. That takes us to the second truth. The proposition that if judges knew the facts of a given case, they would all agree, or substantially agree on the result, is simply not so. The third truth. Judges are not the only ones who know truths one and two, and thus judge shopping is alive and well in Canada–and fighting hard to stay that way. All lead inescapably to the fourth truth. Without reasonable uniformity of approach to sentencing amongst trial and appellate judges in Canada, many of the sentencing objectives and principles prescribed in the Code are not attainable. This makes the search for just sanctions at best a lottery, and at worst a myth. Pretending otherwise obscures the need for Canadian courts to do what Parliament has asked: minimize unjustified disparity in sentencing while maintaining flexibility. The final truth. If the courts do not act to vindicate the promises of the law, and public confidence diminishes, then Parliament will.
That is where we are. Public confidence in the criminal justice system has been weakened, if not shaken—I would suggest significantly so. There is considerable disparity in sentencing from jurisdiction to jurisdiction—and even within a province like Alberta, from region to region. That deficiency, with the disparity within sentencing and the public's lack of confidence in it, brings us to the need to give some guidance to the courts on appropriateness.
I would like to continue with just a couple of phrases more from the Chief Justice of Alberta, the Honourable Catherine A. Fraser. She said:
Such disparities undermine the public's trust that the criminal justice system, and the exercise of state power that it involves, will treat people fairly and equally. They also breed disrespect for the law.
With respect to the whole issue of minimum mandatory sentences and starting point sentencing, the court of appeal says, quoting Chief Justice Lane in two appeal courts in England and Wales, “We are not aiming at uniformity of sentence; that would be impossible. We are aiming at uniformity of approach.” And “This court has a duty to offer guidance in the form of a statement of typical cases and starting-points.”
In a recent judgment, Justice Fraser opines that there is a need for starting points or minimum mandatory sentences to prevent the very things that Mr. Harris talked about—arbitrariness, randomness. There has to be some consistency if the public is going to have confidence in the criminal justice system. Justice Fraser tells us:
Starting point sentencing does not fetter judicial discretion but ensures that its exercise is based on proper factors....
In summary, starting point sentencing accords with the proportionality principle. It is hostile to rigidity and actively embraces the aim of a proportional sentence fit for the offence and offender. The argument that it unreasonably confines “judicial discretion” is misplaced. Every process of reasoning must start somewhere and it needs acceptable standard reference points along the way. Starting point sentencing is not only loyal to Parliament’s will—and the governing proportionality principle it has mandated—but antithetical to randomness and arbitrariness, the polar opposite of judicial decision-making.
With respect to this whole issue of minimum mandatory sentences, I would submit that when you have a criminal justice system where the sentencing is so disparate as to be erratic and almost random, Parliament has a duty to act, to give some guidelines to the trial judges and the appellate judges on what the appropriate starting point is. It maintains flexibility, Mr. Harris, because a minimum mandatory sentence is much different from a mandatory sentence.
There are some mandatory sentences in the Criminal Code—the obvious one is first-degree murder. There is one sentence and one sentence only: life imprisonment without eligibility for parole for 25 years. But that is a rarity.
The amendments to the Controlled Drugs and Substances Act propose to create a starting point. Judges still have flexibility to go up from the starting point, but the starting point creates a standard that Parliament has determined is fitting for a sentence for that severity.
I am hoping that my friends on the opposite side of the table will accept that although they have well-articulated arguments in favour of their position, there are equally compelling arguments on the other side of the debate. We see a huge sentencing disparity from region to region in this country, which leads to the same results that they are arguing against—arbitrariness and injustice. We see cases where judges, for whatever reason, have passed sentences that cry out for guidance, for a starting point, while maintaining flexibility.
Thank you.