Justice Committee on May 3rd, 2022

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

Thanks very much, Mr. Maki.

I want to turn to Ms. Kaiser-Derrick on a question about Gladue.

Perhaps we passed over it too quickly, so I want to give you a chance to state the obvious to all of us: that mandatory minimums prevent the application of the Gladue principle and achieving more positive outcomes for indigenous people.

Is that really your experience?

[Elspeth Kaiser-Derrick]

Thank you for that comment.

First, I should say that I have not studied mandatory minimums, so it's outside the scope of my research.

I can still respond, in a way. What you're describing is absolutely what happens. Judges are required....

The Gladue framework derived from the Supreme Court of Canada decision that interpreted paragraph 718.2(e) of the Criminal Code, which is the provision that indicates judges must consider alternatives to incarceration, especially for indigenous persons. In that framework, judges are mandated to look to alternatives to incarceration, especially for indigenous persons. The Supreme Court of Canada's Gladue decision contextualized that within the context of the overincarceration of indigenous people specifically, and the need to respond to that. In the case of mandatory minimums and restrictions on CSOs, judges may and do go through that Gladue analysis. There is, however, no alternative except incarceration, because of mandatory minimums and restrictions on CSOs. In that sense, the Gladue analysis, even when performed, can't take effect. If it's not able to meaningfully impact which sanction is ordered, then of course the problem of indigenous overincarceration is perpetuated.

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

In one of your last answers, you talked about severing community bonds. There's this idea that the system treats everyone equally, so if indigenous women are sentenced to incarceration, it's the same as someone else being sentenced to incarceration. Regarding rural, remote and northern communities, can you talk about the additional impacts that take place?

[Elspeth Kaiser-Derrick]

Absolutely.

Your comments remind me of one case in particular in my work. One judge, for example, noted that.... For the indigenous woman being sentenced in that case, the judge examined the potential impact of an institutional sentence on her family, including her children, because she would be incarcerated far away from them. The judge decided that it would be an excruciating punishment for this indigenous woman, above and beyond that faced by any man sentenced to jail or by any sentenced woman who would be able to serve a prison term nearer to family. The judge—

[The Chair, Liberal, Randeep Sarai]

I'm sorry; your time is up, Ms. Kaiser-Derrick. Thank you, Mr. Garrison.

Next up, we have Mr. Morrison. For the next rounds, I'm going to shave off one minute to make them four-minute rounds, and the last two will be two minutes instead of two and a half, so we'll have about six minutes at the end to discuss some committee business.

It's over to you, Mr. Morrison, for four minutes.

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

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

I want to talk about the conditional sentencing. Ms. Kaiser-Derrick, I'll be asking you particularly about it.

I think there are a lot of Canadians who would be surprised that issues like sexual assault, kidnapping, trafficking in persons, abduction of a person under 14, assault causing bodily harm with a weapon, assaulting a police officer.... Causing bodily harm with a weapon—now, that was a real shock. To have some of the individuals given a CSO and go back right into the community or neighbourhood they came from...I'm not so sure that's a healthy environment.

I know you've done a lot of research on CSOs, but I'm really interested in your research on overrepresentation. It hasn't come up yet, but and I'm sure you're well aware of restorative justice.

We had a previous individual from Montreal, who brought up the fact that we need to have crime prevention, not necessarily reduction of crime by putting people in jail. Crime prevention and restorative justice go hand in hand, and I've worked a fair amount with restorative justice in the past.

It was interesting, too, that it was a 15-year project that Montreal did, on youth as young as five, to talk to them all the way through as they're growing up and to show them there's another way forward versus organized crime and gang activity.

I'm wondering if you can elaborate a bit on your success with restorative justice, especially with the overrepresentation of indigenous females, and how we could move forward without having to even talk about mandatory minimums or CSOs.

[Elspeth Kaiser-Derrick]

I haven't done direct work with rehabilitation myself.

I will say that in the cases that I studied, sometimes I noticed that judges would characterize prison as a source of treatment for rehabilitation needs of indigenous women. Other judges located these rehabilitative needs in the community. I think the former construction is problematic, as there is so much research to support that incarceration harms rather than rehabilitates.

In terms of indigenous women, something struck me when I was preparing to speak today. I was looking at the “Report of the Aboriginal Justice Inquiry” of Manitoba, which came out in 1991. It's a very extensive report, and that was over 30 years ago.

The commissioners write in that report that they were moved by the situation of indigenous women and noted that they “suffer double discrimination: as women and as [indigenous] people; as victims and as offenders.” When speaking with women in the system, the commissioners of this report write that they were “convinced by [the] arguments of [indigenous] women that a restoration of their traditional responsibility and position of equality in the family and community holds the key to resolving many of the problems [they] have identified.”

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

Would you agree, then, that restorative justice—I guess you're not familiar with that program—would probably be your first diversion, your first route to take when someone comes before you?

[Elspeth Kaiser-Derrick]

I absolutely would be supportive of restorative justice approaches, basically—

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

So we should put—

[Elspeth Kaiser-Derrick]

—anything that would keep indigenous women out of the system.

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

We should put more funding into those sorts of avenues, I guess.

[Elspeth Kaiser-Derrick]

I would certainly support that.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Morrison.

Next we will go to Ms. Dhillon for four minutes.

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

Thank you, Mr. Chair.

My first question is for Mr. Maki.

Could you please elaborate a little on the fact that you said mandatory minimum sentences are a misnomer? Could you explain to all of us what you meant by that? Thank you.

[John Maki]

Absolutely. I think it's the word “mandatory”. It sounds like it will automatically happen: Everyone who commits a crime under mandatory minimums will be mandated to serve a certain penalty. That's precisely what the decades of research on mandatory minimums shows does not happen. There are all kinds of evasions that occur in the system on a practice level, so mandatory minimums aren't actually mandatory. That's what I meant by that.

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

Can you give us examples of evasion, please?

[John Maki]

Sure. For a lot of these penalties, research has been done on the varying lengths of time, from long sentences to shorter sentences. At the arrest level, if police feel that the penalty will be unjust and they don't want to do it, they just don't make the arrest. If it comes into court, whoever's in charge of charging can move the charge around. At the trial level, you will see more dismissals or pleading to offences that don't have the mandatory minimum. You'll see it like that.

You also see it used to coerce plea deals in some cases. People who make it through the prosecution phase and into the conviction phase tend to have longer sentences.

Again, I think the thought behind mandatory minimums is that we can kind of get rid of the complication of the hard work of dealing with crime and just kind of make it clean. What the research shows consistently is that mandatory minimums actually make things more uncertain and less predictable; they breed distrust within the system itself, with the people who are dealing with it, and in that sense too, they tend to perpetuate the same sorts of problems that generate mandatory minimums. People in the public, law enforcement and public officials see sentences that don't seem to match the crime.

I think, insofar as I understand the conversation today, it's not an issue of whether these are the kinds of crimes that someone can be sent to prison for. That's not what's at issue. The issue is whether judges can have reviewable discretion to make different kinds of choices.

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

Thank you.

Something you just said just brought back to mind another point of yours. You spoke about racial and ethnic minorities experiencing more disparity when it comes to minimum sentencing. Can you talk about that as well, please?

Also, in your study, have you noticed that these mandatory minimum sentences are applied more to those people in financial difficulty, in cases where it's easier for them to just plead guilty? We've seen that happen; I practised as well, and I often saw these things.

If you could please talk about that, thank you.

[John Maki]

I think it's a pretty consistent finding in the research. Again, I think mandatory minimums are predicated on the idea of consistency and predictability, and it kind of breaks those mechanisms or at least challenges them in may ways. A pretty consistent finding is that there are lots of disparities by region and by courtroom, and also a higher concentration of people overrepresented.... In the United States, the U.S. sentencing commission found that African Americans were more likely to receive mandatory minimums.

I guess the way I would look at that isn't necessarily to accuse the system of being malign in some ways. I think it's the work of implicit bias, and that's also why you want to have reviewable discretion. You want to know how these kinds of decisions are being made so that you can fix them.

When you vest discretion in areas where you can't see that, where you don't have that kind of accountability, that is precisely what allows this kind of discretion to fester.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Dhillon, and Mr. Maki.

Next we have two short two-minute rounds, beginning with Mr. Fortin.

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

Thank you, Mr. Chair.

Mr. Maki, I'd like to know your opinion. I see that you have a law degree, but also a philosophy degree, and that your practice has you working with the public on the ground. Let's say, for a moment, that we assume that mandatory minimum sentences are bad.

So I ask myself a question. The message that Parliament sends to the public is of some importance. Don't you think there is reason to be concerned about this?

At present, there are a number of mandatory minimum sentences, including the ones about firearms. Earlier, my colleague, Mr. Morrison, listed a number of offences, including extortion and armed robbery. There is rising firearm violence more or less everywhere, particularly in Quebec, in the Montreal region, and the public is worried.

Should we not be making an effort to find a middle-ground solution while giving the courts some latitude? Should we not avoid giving the impression that we are somewhat indifferent, or somewhat uninterested, not about crimes, but about the public's concern about crimes?

As a middle-ground solution, we could, for certain more serious offences, allow judges to depart from the mandatory minimum sentence in exceptional circumstances.

Do you think that is a way of addressing the situation that is worth considering?

[John Maki]

I apologize. I only caught the last bit. I didn't realize there was translation, so I'm very sorry, but I think I got the gist of your question.

I hesitate to talk too much about the Canadian system, which I have read about but don't understand. I'm not an expert in it.

In the United States, I would say that the research really points to, at a legislative level, creating structures for discretion, the ability to depart downward and to have some “presumptive minimums”, which is a term that's often used.

That said, I think what you're talking about is the hard work that you all have as lawmakers. Your constituents ask you—

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Maki. I appreciate that. Thank you, Monsieur Fortin.

It's over to you, Mr. Garrison, for two minutes.

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

Thank you very much, Mr. Chair.

In the last two minutes I want to go back to Ms. Kaiser-Derrick.

We have had the Conservatives again talking about criminals and non-criminals today, and listing the terrible crimes that we're going to exempt from mandatory minimums.

My question is about the nature of the indigenous women who are involved in crime. What proportion would you say were the major perpetrators themselves? What proportion were crimes dictated by their circumstances? What proportion of them were influenced to engage in criminal activity?