Thank you. Good afternoon, everybody. Thank you to the standing committee for the invitation to present today. I'm a member of the advocacy and policy committee of the Federation of Asian Canadian Lawyers and I'm also a criminal defence lawyer.
Largely speaking, FACL is supportive of Bill C-5 and the removal of mandatory minimum sentences.
Repealing mandatory minimums will not make our communities more dangerous. It does not mean that the courts will be light on violence and dangerous offenders. Removing mandatory minimums will allow justice system participants to achieve reasonable and fair dispositions in an efficient manner. Regardless of whether mandatory minimums exist, sentencing precedents provide a tariff in which courts are guided towards sentences that previous offenders received under similar circumstances.
A criminal charge captures a snippet of an individual's life. The trial itself then scrutinizes and dissects that moment. The crime is often a culmination of inescapable social circumstances and desperation. When it comes to sentencing, we must recognize that the offenders are more than their criminal charge. Along with addressing the harms done to the community, sentencing principles must focus on the individual's circumstances, how and why they turned to a life of crime, what steps they have taken since being arrested, whether they can rehabilitate and whether they can become productive and pro-social members of the community.
I want to focus my time on how the removal of mandatory minimums can streamline matters through the system and how judges will be allowed to ensure proportionality between the sentence and the harm done.
I was counsel on a matter where my 18-year-old client was charged with robbery with a restricted firearm. He was arrested with the gun less than five minutes after he committed the robbery. My client was young. He did not have a criminal record. During his time released on bail, he had taken meaningful steps to find employment and became involved with his local community. He never breached his bail.
Knowing that his charge had a five-year mandatory minimum, there was no real benefit in entering an early plea. The matter eventually made its way into the superior court and a four-week judge and jury trial was scheduled. It became apparent that my client had great rehabilitative prospects, and that a sentence shorter than five years would be appropriate. Eventually my client pled guilty to a lesser, related firearm charge so as to avoid the five-year mandatory minimum.
That disposition required substantial creativity from me, the Crown and the judge to find a way around the mandatory minimum, and doing so required additional resources to fight the charges, which drained valuable public resources. Without mandatory minimums, certain matters can be resolved in a timely manner. That prevents the court having to block off lengthy trials and prelims. Ultimately, it can alleviate the pressures that the courts are facing, especially during the current COVID-19 backlog.
I'll turn to my second point regarding immigration. Serious criminality can result in mandatory deportation. A sentence over six months is considered serious criminality. For the benefit of the court's information, oftentimes an accused person will actually end up spending a longer period of time in custody than is actually ever formally recorded. For example, if all parties agree that a nine-month sentence is appropriate and the individual has already spent four months in custody, often the judges will be explicitly asked not to note down the pre-sentence custody and simply sentence the individual to a further five months, and in doing so keeping the formal sentence noted on the information under six months. Mandatory minimums prevent any such discussions.
Courts are asked to consider immigration consequences when determining a fit sentence. Asians will often fall under a wide range of status in Canada, from being a visitor to holding either a work or student visa to being a permanent resident. Being charged with a criminal offence can greatly affect their immigration status. Mandatory minimums increase resistance in both the criminal courts and the immigration system. Clients have to fight both.
An informed member of the community would want judges to be able to have fair and open-minded discussions to consider the greater impact on the individual, their immigration status in Canada, and how deportation can then affect the lived realities of any of the dependents who they possibly care for.
Bill C-5 is not about being soft on crime. Those deserving of a long jail sentence will continue to get serious custodial time.
In addition to addressing the over-incarceration of people of colour and aboriginal offenders, Bill C-5 is about giving judges the discretion to ensure that justice is served in a proportionate manner.
Thank you, everybody, for your time.