Justice Committee on April 26th, 2022

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Oftentimes we see that.

I thank you so much for your time and coming here to testify, and for the work you're doing to raise awareness.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Dhillon.

[Janani Shanmuganathan]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Now we'll go over to Mr. Fortin.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Good afternoon, Ms. Shanmuganathan.

I was very interested listening to what you had to say. You just said that the problem with mandatory minimum sentences is that racialized individuals are less likely to be able to afford a lawyer to defend themselves, so they may decide to plead guilty for financial reasons. That means they end up serving prison sentences they may not have received otherwise.

Am I to understand that the real problem these individuals face is funding for legal services?

Are you saying that these people shouldn't be sent to prison because they're less fortunate? If someone can afford a lawyer, they may be able to avoid incarceration.

Is that what you're saying?

[Janani Shanmuganathan]

This is not a resource problem. The danger of the incentive that mandatory minimum sentences create affects every accused person when they're engaging in a cost-benefit analysis of what to do: Do I take a matter to trial because I am not guilty of the offence, or do I just resolve the matter in some way so I don't risk having to go to jail for a mandatory period of time?

The problem becomes exacerbated among accused people who belong to certain communities, because members of those communities, as a result of issues with poverty, may not have adequate supports or resources or advice to make those types of decisions, so it is not uniquely a problem of resources; it is a problem that mandatory minimum sentences create for all accused, namely the incentive to plead guilty to a different offence.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

If I understand correctly, then, the answer is to make funding available for legal services so that all accused have access to counsel.

I'm still struggling to understand the impact of what you are suggesting: that mandatory minimum sentences shouldn't be imposed on racialized offenders. That logic seems somewhat questionable to me. You can argue either against mandatory minimum penalties or in favour of them, but the same rationale should apply to everyone. I take issue with the argument that racialized people are more likely to behave in a way that lands them before a judge. I don't think that's the reality.

Nevertheless, Ms. Shanmuganathan, would you agree with me that we should do away with some of the existing mandatory minimum sentences, while keeping others?

Do you think all mandatory minimum penalties should be eliminated, regardless of whether the offence is murder, armed robbery, assault or what have you?

[Janani Shanmuganathan]

I will just clarify my earlier submission. If I've led this committee to believe that I think mandatory minimum sentences should be abolished only for members of the racialized community, that is certainly not my submission. The submission is that mandatory minimum sentences should be repealed because they affect members of all communities and not just those among the racialized ones.

With respect to abolishing mandatory minimum sentences, my submission would be for Parliament to do whatever it can to introduce discretion into the hands of the judges—the judges who hear the background information about the offender and understand why a person committed the offence—and leave them with the responsibility of ensuring that the sentence they impose on that offender is proportionate to the offence and the offender. That is what is going to make our justice system a better place for everyone involved, and that includes the offender, the judge and the victim.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Do you mean for all offences? Should mandatory minimum penalties remain in place for some offences?

[Janani Shanmuganathan]

My submission—and this is just me based on my experience in the criminal justice system—is that what from we've seen from the literature that's developed on mandatory minimum sentences, as well as the decisions on these court cases, the judges don't need mandatory minimum sentences. If they feel that an offender needs to go to jail for a particular period of time, they can impose that sentence regardless of the existence of the mandatory minimum.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I agree with you, but as a lawmaker, I worry about the message it sends society when we get rid of mandatory minimum sentences. Like you, I believe that judges will impose sentences that are appropriate, with or without mandatory minimum penalties. We agree on that.

Nevertheless, doesn't eliminating all mandatory minimum sentences send the public a concerning message? Aren't we basically saying that certain offences aren't as serious as they should be?

[Janani Shanmuganathan]

The people we should be concerned about are the informed public. The message that it sends the informed public is that we trust trial judges to do their job. These are people who are qualified to be in the positions they hold. They're going to do their jobs appropriately, and if they feel that a person needs to go jail for a certain period of time, we can trust those trial judges to do their job.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Ms. Shanmuganathan.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Now we go to Mr. Garrison for six minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair, and I thank all of the witnesses for being with us today when we're dealing with such an important bill.

I want to start with Ms. Shanmuganathan and ask a question that backs up a step from her remarks on the impacts of mandatory minimums on the racialized community. When it comes to drug offences, I guess the point I've been pursuing is this: Why are we talking about mandatory minimums rather than actually removing personal possession of small amounts of drugs from the Criminal Code as a criminal offence? Wouldn't that have a larger effect on the racialized communities in Canada?

[Janani Shanmuganathan]

I think it would certainly have an impact, and I just wanted to sort of stay in my lane. We're talking about mandatory minimum sentences, but I certainly invite the committee to consider other options and ways of eliminating, or helping to alleviate, the overrepresentation problem. Nonetheless, at the bare minimum, removing mandatory minimum sentences would also have some effect.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you, Ms. Shanmuganathan.

I think you're technically correct about staying in your lane, but we're also talking about ways to attack systemic racism within the justice system, so I think we also have to keep our eye on that larger court of play when we're talking about this bill.

I want to turn to the Canadian Bar Association and talk about one of the things that was said as part of your presentation. I forgot which of the two of you said it, but you talked about mandatory minimums that “warehouse people until they can be released”.

My background is in criminal justice, and I know we have often seen short sentences of about one to two years resulting in no rehabilitation because of a lack of resources within the provincial and federal corrections systems. Was that what you were referring to in that very brief statement of yours?

[Jody Berkes]

Mr. Chair, if I could answer Mr. Garrison's question, mandatory minimum sentences are generally less than two years, which means that any offender who is sentenced to that period of time will spend it in a provincial jail. Conditional sentences must, by definition, be less than two years. In effect, some of these mandatory minimum sentences, which are passed by federal legislation, put a substantial burden on the provincial jail system. That system isn't able to deliver the kind of programming, number one, because they don't have the resources, and, number two, because people aren't in a place long enough to become entrenched in a program and see it through to its completion.

A much better alternative is to allow offenders—non-violent offenders, obviously—to serve their sentence in the community. They begin their sentence with a conditional sentence, which could include a period of house arrest, as well as treatment. Their sentence, because it would be less than two years, can be followed by a period of probation of up to three years. In effect, that person has the ability to receive five years of supervision and access to rehabilitative programming.

Eliminating these mandatory minimum sentences is a first step to seeing people receive better, longer and more involved treatment and emerge from the system rehabilitated, as opposed to being warehoused until they can be released.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Of course, the result of that is greater public safety.

When you talk about a burden on systems—I want to continue with you, Mr. Berkes—can you talk a bit about the problem we have with delays in the criminal justice system and the impact of the existence of mandatory minimums on those delays?

[Jody Berkes]

Mr. Chair, Mr. Garrison raises a very important issue. Normally speaking—and I've been doing this for over 20 years—I have clients who come to me all the time and say, “Look, you know what, I did it. I want to accept responsibility for my actions and I want to receive my sentence.” I facilitate that. The problem with mandatory minimum sentences is it disincentivizes early pleadings.

For someone who can receive an appropriate disposition that both the Crown and the defence agree upon, oftentimes it is non-incarceratory, so there is a large incentive to plead early on in the process. If there is a mandatory minimum involved, the cases languish in the process, pretrial motions are brought and a lot of resources are spent defending that in the effort to try to escape a conviction, because it would end up with a mandatory minimum.

If you remove these mandatory minimums and make alternative sentences available, people will generally resolve their matters early on in the process, freeing up valuable resources with respect to much more serious offences. Right now those serious offences have to wait in the background while resources are spent on these mandatory minimums. The problem is if things languish too long, the Jordan decision gets involved and matters are thrown out for delays.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

If we proceed with Bill C-5 as it's written, we could expect within a fairly short time a major impact on delays in dealing with more serious cases in the court system. Is that correct?

[Jody Berkes]

Any piece of legislation that encourages people to resolve their cases for just disposition will free up resources. Over time, we will see a faster justice system, which is beneficial to the accused, to victims and to the system in general.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Now we'll go to Mr. Morrison for five minutes.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Thank you, Chair.

Thank you to the witnesses for coming today.

Sometimes when we talk about offences and offenders, I don't think we ever forget the victims, but sometimes a victim's rights are not really at the forefront when it gets to sentencing.

I'm going to ask one question to either Eric or Steve. If you have spoken with victims, especially about Bill C-5, how will they feel if Bill C-5 repeals mandatory minimums for impaired driving causing death?