Good afternoon, Chair and honourable members. Thank you for inviting the Canadian Association of Black Lawyers to share our views on the bill.
My name is Raphael Tachie. I'm the president of the Canadian Association of Black Lawyers. I'm here with my colleague Jacqueline Beckles, the secretary of the association. I want to highlight that a lot of the comments I'm about to give have been the result of the impressive work of Ms. Beckles and our criminal justice reform committee. More importantly, they are a reflection of our lived experiences as Black people in Canada. When I hear about removing minimum mandatory sentences, the request to remove those is made by people who are further from the crimes. I'd like to highlight that many victims of crimes tend to be people from the same communities that are faced with overrepresenation in the criminal justice system.
We appreciate the opportunity to speak to you today. Our comments around Bill C-5 are really structured around three issues.
Generally our comments focus on the request that when considering criminal justice reform, we encourage the government to look at the status prior to sentencing. At the sentencing stage, the competing priorities need to be balanced, including community safety. There are significant strides that can be made much earlier, such as in diversion, which lead to the ultimate over-incarceration of members of the Black community in the criminal justice system.
Our comments are focused in three areas: mandatory minimum sentences, conditional sentence orders and evidence-based diversion.
With respect to mandatory minimums, Bill C-5 proposes to repeal a number of mandatory minimum sentences, especially the four-year mandatory minimums. While those are really laudable goals and we are encouraged by them, the five-year minimum sentences will remain where a restricted or prohibited firearm is used or where the offence is committed in connection with a criminal organization. This includes cases in which an offender is the subject of party liability, whether or not the weapon was in that particular offender's possession. As a result of that, the only avenue available to an offender in order to avoid a minimum sentence is that a prosecutor will act with their prosecutorial discretion and agree to resolve the charges by accepting a plea of a lesser offence. What this really means is that a Black person who is accused has to plead guilty in order to avail themselves of the opportunity to avoid a minimum sentence.
In order to address this possibility and in order to uphold judiciary discretion, CABL recommends eliminating all mandatory minimums for drug and weapons offences.
I heard Chief Arcand and the other panellists earlier speak about how mandatory minimum sentences restrict judges from imposing appropriate sentences on individuals and can prevent judges from really taking relevant factors, like systemic anti-Black racism, into consideration. Judges have been elevated to perform an essential function within the criminal justice system and they should be afforded the full discretion to perform that function, especially as we work really hard to make sure that the judiciary reflects the community in which they serve.
Mandatory minimum sentences often hamper real justice from being done. When they're included in legislation, the justification is usually that they are a deterrent, but much research has shown that these sentences do not often achieve that result and do not impact crime rates.
The second issue I would like to talk about is conditional sentencing orders. They are essential tools for combatting recidivism as they can allow for offenders to maintain familial ties, employment and school commitments. Chief Arcand spoke about being holistic in our approach. We agree entirely with that, and with the focus on keeping these ties really as a focus to promote the social determinants of justice, making sure that offenders have the ability to recover from what might be a one-time mistake. Removing the limit formerly found at paragraph 742.1(c) and expanding the application of conditional sentence orders are very good steps in the right direction.
However, we are mindful that, given the historical application of CSOs, it is important to reinforce that a CSO can be imposed where the court is satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.
Including and enforcing this language with respect to the bill will reduce the arbitrary limits on their use, such as requiring an offender to have an employment in order to be considered suitable for a CSO.