Justice Committee on May 3rd, 2022

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Kaiser-Derrick. Hopefully you'll be able to finish that off with one of the questions.

Next we have Mr. Maki, from the Council on Criminal Justice. You have five minutes.

[John Maki, Director, Task Force on Long Sentences, Council on Criminal Justice]

Thank you very much. I want to thank you all for inviting me to appear before the Standing Committee on Justice and Human Rights to present testimony on Bill C-5.

As you noted, I am the director of a task force on long sentences at the Council on Criminal Justice. The task force is a new initiative dedicated to assessing the impact of long sentences in the United States and making recommendations that advance safety and justice.

The Council on Criminal Justice is an independent non-partisan think tank. We're dedicated to advancing the understanding of criminal justice policy choices and building consensus that will enhance safety and justice. To be clear, the council itself does not take policy positions; instead it forms working groups, task forces and commissions to study and make recommendations.

As a task force, it's just begun its work. We have not yet come to the recommendation phase, so while I am unable to speak in support of Bill C-5, I can talk to you about the research findings around mandatory minimums. To be clear, most of these research findings come from the United States, but I'm not aware of anything outside the United States that would be inconsistent with them.

Let me summarize these research findings in very general terms, and then I'll unpack three aspects that I think are relevant to Bill C-5.

Mandatory minimums are often extremely popular, particularly in the United States, but there is almost no evidence that they deter criminal behaviour. There's also substantial evidence that they cause significant dysfunction in the courts and produce unwarranted disparities.

Let me talk quickly about three findings to consider.

First, “mandatory minimums” is really a misnomer. Mandatory minimums are not truly minimum. Michael Tonry, the international authority on sentencing, makes this argument. What he's getting at is that research findings are very clear that mandatory minimums lead justice system actors, from police to prosecutors and judges, to take actions to evade decisions that they believe would be unfair or unjust.

It's also clear that these kinds of decisions have disparate impacts on particular groups, including racial and ethnic minorities. This really points to one of the structural problems of mandatory minimums: They're based on the assumption that through mandate, you can make discretion go away. This is the assumption, but what research shows is that mandatory minimums actually take away discretion, which is transparent and reviewable, from judges. They invest it into actors and moments that usually lack transparency and are often unreviewable and therefore unaccountable.

This leads to all kinds of system dysfunction. Associated with this, we see an increase in dismissals at the early stages of trials but an increase in sentences for defendants who are convicted. Associated with this outcome, research shows that mandatory minimums increase courtroom work, lengths of trials and also court appeals.

A very common finding in this research is that mandatory minimums produce disparities. Research has consistently shown that mandatory minimums generate unwarranted disparities by region, by courtroom, and as the U.S. Sentencing Commission found, also by race.

Finally, research is pretty clear that mandatory minimums do not produce a meaningful crime reduction benefit. I want to be clear that no one really disputes the fact that criminal penalties in themselves certainly produce some deterrent effect, but research suggests that the certainty of apprehension is what's really important. Increasing severity is not how you get deterrence, and as minimums try to use severity to get to apprehension, they probably undermine one of the core drivers of crime reduction.

While there is some evidence, mainly from economists, that maybe there's a very marginal impact, the overwhelming body of empirical evidence suggests there's no meaningful public safety benefit that comes from mandatory minimums.

That's my brief overview of the findings.

Let me just conclude that I am very honoured to be before you and happy to answer any questions you have.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Maki.

I now go over to Mr. Cooper for six minutes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair, and thank you to the witnesses.

Ms. Kaiser-Derrick, in your testimony you rightly noted an overrepresentation of indigenous persons caught up in the criminal justice system. You also acknowledge that there's an overrepresentation of indigenous victims.

[Elspeth Kaiser-Derrick]

Absolutely, and that's at the core of my work.

I'm sorry. I rushed through my statement. My work examined the sentencing of indigenous women, and at the heart of my work was a feminist theory called the victimization-criminalization continuum, which recognizes the relationship between experiences of victimization and then the criminalization and ways they are interrelated. It's not a linear connection from one to the other, but there's an enmeshment there.

With regard to indigenous women whose sentencing decisions I reviewed in my own research, at the sentencing stage their experiences of victimization might appear before the judge in the form of a pre-sentence report, a Gladue report or counsel submissions. They're not life stories—they're written by institutional actors for institutional purposes—but they detail experiences of victimization that are all interconnected with colonization.

A central part of my own work is to try to define victimization broadly such that it encompasses harms caused by state institutions. For indigenous women, that occurs over time in their own individual lives, as well as collectively and intergenerationally. Victimization manifests along that continuum, including—and this is the part that is really important to me—harms caused by the criminal justice system. Those can be by the experience of being incarcerated or by experiences associated with the criminal justice system. Some women in my research had their children apprehended in ways related to their being criminalized. Others feared losing, or lost, their homes or employment when criminalized. The experience of victimization is at the centre of my concern.

I want to note that in a report that the Department of Justice issued in 2018, they said that indigenous women have lost confidence in system that fails to believe their experiences and that there was insufficient information about the specifically gendered experiences of women in the system, particularly in the context of entrenched oppression for indigenous women. They suggested that the government should require actors in the system, including judges, to consider underlying factors related to victimization and criminalization.

For the indigenous women sentenced within the criminal justice system, there's an interrelationship there with victimization—

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that. I wanted to give you a bit of time to carry on where you were unable to finish off.

When we look at Bill C-5, what we see is a rollback of a number of mandatory minimum jail sentences for some pretty serious offences. There's robbery with a firearm, for example, and weapons trafficking, extortion with a firearm and so on. Of all of the mandatory jail terms, it seems to be a strange way of addressing some of the issues that you have noted exist among indigenous Canadians, who are overrepresented both in the system and as victims. It's saying that the solution to that is to remove mandatory jail times for some very serious offences.

[Elspeth Kaiser-Derrick]

I think it's a very complex context, of course. The part of my statement that I really rushed in the beginning was that number 32 of the Truth and Reconciliation Commission of Canada's calls to action directs the federal government to amend the code to allow judges to depart from both mandatory minimums and restrictions on CSOs when reasons are provided.

I hear what you're saying, but at the same time, because the bill is framed as trying to ameliorate the indigenous overrepresentation in the system, my concern is that if Bill C-5 is not expanded to include that call to action by the Truth and Reconciliation Commission to allow judges to depart from mandatory minimums and restrictions on CSOs, the proposed amendments won't have the capacity to meaningfully address the scope of indigenous overrepresentation in the system because of some of the things that I mentioned about interrelationships between child welfare systems and—

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Kaiser-Derrick. I apologize.

Next we go to Ms. Diab for six minutes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much, Mr. Chair.

Welcome, witnesses, as we continue to study Bill C-5.

Ms. Kaiser-Derrick, I want to give you an opportunity to finish your thought, but I also want you to talk about conditional sentencing a little bit.

With the earlier panel, we talked about mandatory minimum sentences, but I'd like to turn at this time to conditional sentences and the provisions that would allow those of under two years to be served in the community.

Based on your work with indigenous women who have received conditional sentences, would you say that these sentences allowed the women to reintegrate into their communities while also preserving the safety of the communities? Also, based on your studies, what would you say to those who think conditional sentences are soft or light punishment?

[Elspeth Kaiser-Derrick]

My research did seek to highlight conditional sentence orders where possible, because, given legislative amendments, conditional sentences—and I'm sure you've already canvassed this in the previous session—were introduced with code amendments in 1996. Then in 2007 and 2012, there were incursions into judicial discretion for issuing conditional sentences. My work in part was examining how judges go through the Gladue analysis, which means looking at systemic and background factors of indigenous people before the courts and how those relate to the sanctions that are ordered.

In my research I was trying to look at how, through that Gladue framework, judges can look to alternatives to incarceration specifically for indigenous women before the courts, if there really aren't other options. In my research, there certainly were indigenous women who received conditional sentence orders and who, following the 2012 amendments, would no longer have been eligible for conditional sentences. Essentially, if a conditional sentence order is not available, then a judge would probably order a prison term instead, because a conditional sentence order most readily replaces a prison term of under two years, but some judges, in my research, also tried to construct probation orders that would approximate a conditional sentence order—

[Lena Metlege Diab, Liberal, Halifax West, NS]

Ms. Kaiser-Derrick, let me just ask another question. You continue to talk about the flexibility to have judges consider other options and consider innovative and more creative alternatives to prison and incarceration. Why should they do that? Why is that a good thing when somebody's committed a crime? Can you tell me?

[Elspeth Kaiser-Derrick]

Sure. As seen in my own work and other substantial bodies of work, the experience of incarceration has profoundly damaging effects. That can manifest itself in specific ways for indigenous people generally, and for indigenous women, the focus of my work, in ways that I sort of rushed through before.

There have been modes of colonial control over time, first with residential schools, then the child welfare system and now indigenous overincarceration in the criminal justice system broadly, and prisons specifically. The fracturing of indigenous families is a feature of each of those instalments and carries reverberating impacts on the lives of indigenous individuals, families, communities and—

[Lena Metlege Diab, Liberal, Halifax West, NS]

Would you agree that when somebody is incarcerated and in jail, at some point the expectation is that they're ultimately going to go back to the community? Talk to me about access for these indigenous women to have cultural counselling opportunities and how they are going to be integrated back into their community when they're simply in jail without the ability to have conditional sentences that can take into account their cultural backgrounds.

[Elspeth Kaiser-Derrick]

My belief—and it's consistent with what I uncovered in my own research—is that indigenous women need to be in their communities, in our communities, and that severing those bonds is just going to perpetuate the overincarceration and overrepresentation of indigenous people in the system. It's going to maintain this colonial construct. In terms of resources, I think that's a funding issue as well.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Kaiser-Derrick. Thank you, Ms. Diab.

Now we have Monsieur Fortin for six minutes.

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

Thank you, Mr. Chair.

I'd like to thank the witnesses who are here today.

I would like to address Ms. Kaiser-Derrick, because I want to let her continue what she was saying.

Ms. Kaiser-Derrick, I find your testimony interesting on the aspect relating to indigenous women, who are, if I understand correctly, overrepresented in our Canadian prisons. This is an important aspect of the subject.

While I am not an expert on the subject of crime in indigenous reserves, I understand that the concern must be substantially the same as outside the reserves, that is, that we have to find middle ground. We want to reassure the public, who are worried about the violent crimes being committed, and particularly about the rise in firearm crimes that we have seen in recent months and recent years. We have to reassure the public and show that we are concerned about this situation and that we are going to make efforts to propose solutions for solving it, while being aware that rehabilitating violent offenders, or accused persons, could, in some cases, involve a process other than incarceration.

I am concerned about this issue, so I say to myself that Bill C‑5 is about decriminalization. I'm going to talk only about firearms, if I may. There are other aspects, but that is the one that concerns me most. For example, we are going to decriminalize extortion using a firearm, armed robbery, and trafficking in firearms. These things worry many members of communities in Quebec, among others, including Montrealers, and I think it must also worry people in indigenous reserves.

Rather than simply decriminalize these aspects, could we not find middle-ground solutions, between mandatory minimum sentences and abolishing mandatory minimum sentences? For example, we could allow judges to depart from the obligation to impose a mandatory minimum sentence in certain cases.

Do you think this possibility could be valid and could it meet this need to blow hot and cold?

[Elspeth Kaiser-Derrick]

Thank you for that context and question. I'll say just a few things that popped to mind while you were speaking.

First, the Truth and Reconciliation Commission's call to action 32 that I mentioned earlier directs the federal government to amend the Criminal Code to allow judges to depart from both mandatory minimum sentences and restrictions on CSOs, with reasons. I think that would be a really valuable balance among some of the elements that you're describing, in the sense that it does place a lot of trust in judges. There can be public education associated with that in terms of helping to instill trust in judges in the broader community as well. With regard to that Truth and Reconciliation Commission call to action to expand the ambit of judicial discretion in cases where judges choose to apply it with reasons, the provision of reasons there would allow judges to engage with some of the issues that you're describing.

In specific reference to indigenous overincarceration, which is my primary concern in attending here today, there is one case in my work in which the judge noted that with regard to the method of analysis that was mandated by the Supreme Court of Canada in the Gladue decision and the sentencing framework that applies to the sentencing of indigenous people, performing that sentencing analysis will only have real meaning if in appropriate cases I, the judge, choose not to send someone to jail for a serious crime. Therefore—

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

Ms. Kaiser-Derrick, I'm sorry to interrupt you, but we really don't have much time.

I'd like to hear you say more on this point. Since the decision in R. v. Gladue, Gladue reports are supposed to be filed at the time of sentencing in criminal cases in indigenous reserves.

Has that not greatly improved the problem that existed before, in terms of the length of sentences?

If not, could you explain why that is the case? What is missing? Why are Gladue reports not sufficient?

[Elspeth Kaiser-Derrick]

I'm not sure whether I understood your question fully, so I'm sorry if this doesn't answer it.

I heard you ask at the end of your question why the Gladue report may not be sufficient. I don't know if you were referring to what I just mentioned about the Truth and Reconciliation Commission saying in its call to action that judges should be legislatively permitted to depart from mandatory minimums and CSO restrictions with the provision of reasons, but those are separate—

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

Does that solve the problem? Do we have to do more?

[The Chair, Liberal, Randeep Sarai]

I'm sorry. I'm going to have to let you answer those maybe in his next round. Thank you, Mr. Fortin.

We'll go to Mr. Garrison for six minutes.

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

Thank you very much, Mr. Chair. I thank Mr. Fortin for raising what I'd rather be talking about, and that's the decriminalization of personal possession of drugs. I'll just remind everyone that there's a separate process and that a private member's bill is working its way through the House in parallel.

I want to take a moment to let Mr. Maki know he hasn't been forgotten. I want to ask him a question about all the rage that was going on in the United States for mandatory minimums for a number of years. Some of those jurisdictions, I think including Texas, have really backed away from the mandatory minimums. I think there has been a move in quite a few states to start doing what we're considering here, which is eliminating mandatory minimums.

Can you say a bit about that experience in the U.S.?

[John Maki]

Yes, and no worries whatsoever; I'm happy just to listen.

I've not seen anything quite like Bill C‑5. There has been some reconsideration at the federal level and throughout the country on a general obsession with mandatory minimums, but in the United States, they're still pretty locked in to them.

That's how I would look at this, in somewhat even sympathetic terms. It's a great idea. If it worked, it would be really great. I think the experience in the United States shows it has real problems. Therefore, again, while we're tinkering—and recently in this current crime increase, I believe a lot of those discussions have really stalled—I'd be very interested to see how this plays out in your country.

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

In part of your presentation, you talked about there being no crime reduction benefit and no public safety benefit and increased expenses. That's based on the actual experience in a number of states. Is that correct?

[John Maki]

That's based on the research. The biggest disconnect between research and evaluation and policy is probably in mandatory minimums, at least in the criminal justice system. That research is pretty clear. It's often not super-clear, and many times findings are mixed, but in terms of what I told you in my testimony, there is a consistent finding in research over several decades. This is where policy-makers in the United States have generally not listened to the research.