Justice Committee on May 10th, 2022

[Sarah Dover, Lawyer, As an Individual]

Good afternoon. Thank you so much for inviting me to come to present.

It feels today a little bit like I've crawled up from the grit and grime of the front line of the criminal justice system and am now sitting in polite company and not quite sure what fork to use.

On any day in those frontline criminal courts, you are going to encounter a parade of people who suffer from mental health and addiction issues, poverty and racialization. So, great days for me as a lawyer might involve clever word algorithms about charter rights, or evidence law or mandatory minimum sentences. The more common experience, however, is a persistent pounding of institutional failure in the lives of vulnerable people: a homeless client in full psychosis discharged from jail, wearing an orange jumper and holding a bus ticket; a client found naked and unconscious in a park, rejected by a woman's shelter for a history of being behavioural; a client so sickened by his own actions and the prospect of a mandatory minimum sentence that our time together is spent just de-escalating his suicidal ideations; a pregnant client released from jail with nowhere to go, who asks me for a ride to her street daddy's house.

These terrible days are punctuated by truly awful days that define me as a lawyer and a person. Those are the days looking down on a client in a casket; sending someone's jail art to their mother following an overdose death; sitting with a client in jail who is having to make an end-of-life decision for their sick child; or eulogizing a client with their family, remembering their joy and their laughter, but only after they were murdered. They don't teach this stuff in law school: how to get heart punched and still be capable of finding words that sound sensible in polite company. So to see a person at sentencing only for what they did I truly believe is a type of violence. The story is never so simple as just the offence.

The issue is not just whether people's stories will matter in the face of a looming mandatory minimum sentence, because humans always live fully dimensional lives; the issue is whether the sentencing process itself will matter. You see, the way in which stories are told and unfold and are woven together makes the sentencing process meaningful for everyone and the legal system. Don't you see? Legal systems are stories that are shared out in the open so that societies can create, yes, public legal institutions, the rule of law, but more to create meaning from what has happened.

Transitional justice is an area in international law that includes truth commissions like the TRC, the inquiry into missing and murdered indigenous women and girls, RCAP—reports and commissions that have offered us truths, national-level stories, to move us forward from systemic racism. The awful things that have happened to children who have died or survived and the life stories and present-day-lived experiences that indigenous clients have shared with me, I remember even though I don't represent them in this forum. I remember pins in tongues, bullying in school and sport, grinding poverty, a lack of clean water, treaty and inherent rights ignored, land defenders arrested, homelessness, under-housing, racist policing, money for social programs diverted into litigation, the whole thing. To say that none of that should matter at sentencing or at any time leaves us with a story about our justice system, which is called “systemic racism”.

This bill endeavours to make improvements to the criminal justice system as a step in the right direction, but a very modest one. A stronger bill would be express UNDRIP compliance and indigenous self-determination. It would wholly implement the recommendations about mandatory minimum sentences that were issued by the TRC and the missing and murdered indigenous women's inquiry.

In closing, it has been the honour of my life to come into relationship, in some modest way, with the stories of the people and the communities I have worked with. I am grateful and humbled for the meaning they have brought to my life. I hope that you will make improvements to this bill to change the story of our justice system, how it treats vulnerable and marginalized peoples and how it shapes our relationship with indigenous peoples and nations.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Dover.

Next, I believe we have Mr. Russomanno from the Criminal Lawyers' Association.

[Leo Russomanno, Senior Defence Counsel, Criminal Lawyers' Association]

Hi, everyone. It's nice to be back here before the committee on behalf of the CLA. I also have some experience appearing before this committee when a lot of the mandatory minimum sentences in a previous government were introduced, as well as restrictions to the conditional sentence regime.

I've been a criminal defence lawyer in Ottawa, eastern Ontario and Quebec for the last 14 years. I have seen the impact, as a trial lawyer, of mandatory minimum sentences on a practical as well as on a human level; the limits to conditional sentences; and, broadly speaking, the disastrous effects of the war on drugs, which is one of the greatest policy failures of our time.

I have three broad points to make on behalf of the CLA about Bill C-5. I understand that Minister Lametti presented this bill as three broad areas of reform—number one, dealing with mandatory minimum sentences; number two, dealing with conditional sentences; and number three, dealing with prosecution for simple possession. CLA is broadly supportive of the first two measures, because in fact what they do is they restore judicial discretion in sentencing on an individual level.

On a fundamental level, we have faith in the justice system to get it right. We have faith in the process. We have faith in judges to be able to hear the evidence as part of the adversarial system where the Crown marshals its best arguments and evidence and the defence does the same. The judge decides. The judge gives reasons. That judge is held responsible or accountable for their reasons through the appeal process. Mandatory minimum sentences, as well as conditional sentences, limit this and create one size fits all, which often creates injustice and has broad negative impacts.

So in terms of the first two areas of reform, we're broadly supportive of this, because it restores judicial discretion and would call for the repeal of other mandatory minimum sentences. It's important to note that just because a mandatory minimum sentence isn't available, it does not mean that a person is going to automatically be sentenced to no jail. A primary example of this can be seen in the wake of the Supreme Court's decision in R. v. Nur, in which a mandatory minimum sentence for possession of a firearm in certain instances was struck down. It did not create this crisis in which all of a sudden people convicted of these offences were not getting jail sentences.

The second point I want to make is that as someone who is spending a lot of time in trial court, I can tell you that mandatory minimum sentences, as well as limits on conditional sentences, create delays in the justice system. They create delays because it makes people less likely to want to accept responsibility for what they have done and more likely to go to trial and consume valuable trial or court resources—and time, which is currently at a premium in our criminal justice system. We suffer from very significant delays in our criminal justice system. It impacts everyone, including victims of crime. Not having a conditional sentence available will often tip the scale in terms of whether a person decides to plead not guilty and have a trial, because they're going to lose their job if they're sentenced to jail.

It's important to note that the Crown and defence don't have to agree on whether or not a sentence of jail can be imposed. If a conditional sentence is available, an accused person can take a shot at it in terms of having their counsel argue as to why a conditional sentence should be imposed in this particular case. Part of what the court has to consider is whether or not a person is worthy of a less than two-year sentence—if it's two years or more, it's simply unavailable—and also whether or not if released on a conditional sentence they would be a risk to public safety.

Would they be able to follow those conditions? Can those conditions be enforced? If it can't be shown that they can, then a person will not receive a conditional sentence, but at least through the adversarial system an accused person can try to persuade the sentencing judge to give them a conditional sentence. That will lead to the resolution of more cases.

The last point with respect to simple possession is simply that the bill offers a great deal of discretion to police officers. It is my view that racialized and indigenous groups will not be benefiting from this, because they're already over-policed. This is not going to solve some of the problems that are seen in the war on drugs and with the over-incarceration of those groups.

I look forward to speaking to the members individually.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Now we turn to Mr. Yuen from the Federation of Asian Canadian Lawyers.

[Justin W. Yuen, Criminal Defence Lawyer, Federation of Asian Canadian Lawyers]

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.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Yuen.

We'll begin our first five-minute round with Mr. Morrison.

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

Thank you, Mr. Chair.

I'm going to try to get to everyone, but in my limited time, I'm going to start with Ms. Dover when I get to a question.

I just want to go over this. One of our last witnesses was the Six Nations chief. He was talking about the escalation in offences. We're talking about eliminating mandatory prison time for things like weapons trafficking, discharging firearm with intent, robbery and extortion, and adding to that eliminating mandatory prison time for drug dealers, trafficking and production of fentanyl, crystal meth and cocaine. The chief was saying that those are what's common now where he's policing and that to eliminate the mandatory prison time would actually have an adverse effect.

To add to that, we're talking about conditional sentencing where people could get conditional sentences for sexual assault, trafficking in persons, abduction of a person under 14 and assault causing bodily harm with a weapon. These people are put back into the community to live and now there's retaliation happening from the victims.

Sometimes it appears to some of the people we've talked to that the victims' rights are kind of being undermined a bit by trying to maybe help or do something more with the offenders. I think we really have to look at how we got to this point.

Ms. Dover, you really had a good story with the prison art. I've got quite a career in law enforcement, so I do understand that. When we look at how we can actually—forget this—talk about if there is some way that we could actually go back.... I think restorative justice is great for after the fact, but how do we get into, say, a crime reduction or prevention program, where we actually prevent crime from happening?

We did have one witness quite awhile ago who talked about a 15-year program that they were involved in. They started off with four-, five- and six-year-old children and worked all the way through to give them choices and to show them what was right and what was wrong. They had huge success. The problem with those crime prevention programs is they're long term and they're very expensive. I know you've also had some dealings with the indigenous peoples' court in Ontario, which could be expanded as well.

I wonder if you can maybe just comment a bit with your expertise and help us go further with a long-term solution that you might have in mind.

[Sarah Dover]

Thank you so much for your question. I appreciate it.

I want to say a couple of things. If you bring a plumber to your house and ask for input on a renovation, she's going to point to your pipes. I understand that the chief of police thinks about the types of solutions to underlying problems that might be available to criminal law. I respect Chief Montour, as well, as a member of the community and a leader of the community, but I want to tell you something. In a triple murder case from that community, two of the victims were former clients of mine. Two of the three significant charged people were former clients of mine. In sharing that earlier anecdote about eulogizing them and remembering their laughter, I was talking about one of the victims.

We have this idea that there are victims on one side and offenders on the other. There are not two camps of individuals, particularly for racialized people. They are one. There are road maps set out in the Royal Commission on Aboriginal Peoples, in the TRC and in missing and murdered women inquiry, where indigenous people have shared with us how to move forward from the history of colonization and racism to reforming criminal justice. We just need to listen and follow through.

A key thing they have said over and over again is that mandatory minimum sentences have to go because they are not the solution to the underlying problem. We cannot fix the fact that the Canadian criminal justice system has not earned the trust of indigenous people through mandatory minimum sentences.

If you really want to empower victims, put some teeth behind victims' rights legislation, so that the Crowns stop treating them like these are guidance. Give victims genuine participatory rights, as well as the ability to be involved in meaningful ways.

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

Okay.

[The Chair, Liberal, Randeep Sarai]

Thank you.

We'll go to our next round.

Madame Brière, you have five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

My question is for Ms. Dover.

In Gladue, the Supreme Court of Canada acknowledged the serious issue of the overrepresentation of indigenous peoples in Canadian prisons and asked judges to take into account unique systemic or background factors at sentencing.

If certain mandatory minimum sentences were abolished that impose a one-size-fits-all approach and conditional sentences were used more, do you think that would give judges the discretionary power to follow the recommendations in Gladue?

[Sarah Dover]

It's “yes but”. Yes, we should follow Gladue, but it is broadly misunderstood.

Gladue was the second case in time that formed a bridge between the Royal Commission on Aboriginal Peoples, the history of colonization and the breakdown of the relationship between Canada and indigenous people. It bridged that background then into criminal law to say, “How do we move forward constructively given the reality of systemic racism?” Gladue has become narrowed and is misunderstood as a clarion call for rehabilitation and restraint. It was really meant to create creative space for judges in different contexts to try to divine different ways so that the system is less racist.

Until we get to a point where we're able to openly, expressly challenge systemic racism, we will continue to fall back on familiar ways of doing things and familiar stereotypes in the way that we're thinking. We'll fail to actually reduce the number of people who are in the criminal justice system and to make sentences, in the context of Gladue, meaningful for indigenous people.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you for your response.

My next question is for Mr. Russomanno.

The Supreme Court explained that conditional sentencing is generally more effective than incarceration for achieving rehabilitation and reparation objectives for victims and the community, as well as for promoting the sense of responsibility in the offender.

Based on your experience, is that correct?

[Leo Russomanno]

Thank you for the question.

A conditional sentence has a very practical effect in the sense that, if you have an offender who is being sentenced, the conditional sentence has the ability to combine more rehabilitative components that enable a person, once they have finished their sentence, to actually not go back to a criminal lifestyle.

I mean, drug trafficking is an obvious one. Drug trafficking, when it's not motivated by addiction, is motivated by a desire for profit. When a person comes out of jail without any prospects for employment, it's a lot easier to fall back into that lifestyle, whereas a conditional sentence would allow a person to remain employed. It would allow a person to access better health care and better mental health counselling or other forms of counselling or other forms of rehabilitative programming that just wouldn't be available to them while they were incarcerated.

In that sense, a conditional sentence is infinitely better in terms of reintegrating someone into society and providing that they rehabilitate properly.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

My question is for Mr. Yuen.

You said that judges could improve the administration of the justice system by abolishing certain mandatory minimum sentences, as provided for in Bill C-5.

Do you think judges could impose more appropriate sentences based on the sociocultural context?

[Justin W. Yuen]

Yes. I certainly believe so. I believe judges often do take into consideration the full background of an offender. The alleviation of mandatory minimums opens up the door for judges to take every circumstance into consideration about the offender, their background, rehabilitation prospects and family or other individuals they care for as well.

Certainly, I do think so.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Next is Monsieur Fortin for five minutes.

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

Thank you, Mr. Chair.

Ms. Dover, what I understand from your testimony is that there is a resource problem in the community. You say that pregnant women come out of prison and don't know where to go sleep that night. You talk about cases where people are found guilty without their full background being considered to try to understand the root of the behaviour that should be corrected. You brought up a number of similar situations that make us think there is really a problem in terms of resources. I don't know whether that is the case, but that is my understanding.

You also mentioned that the victims and the accused sometimes live in the same community. You talked about a case where two of the accused and two of the victims were among your former clients. In such cases, people must learn to live together. My understanding is that the behaviour needs to be corrected.

In that regard, Ms. Dover, don't the victims need to feel that the justice system is meant to protect them? I understand there are exceptional circumstances where they will say a minimum sentence should not apply. We agree on that. However, generally speaking, would it not be better to keep minimum sentences for social peace, instead of abolishing them and letting the victims of those crimes have to face the same individuals overnight who, in principle, according to the current Criminal Code, should be in prison?

Shouldn't we think about ways to better protect victims?

[Sarah Dover]

Thank you, Mr. Fortin.

I could keep you all day with thoughts about victims.

What if we had a criminal justice system that responded to victims by saying, “That never should have happened to you”?

What if there were a measure of accountability when recidivism happened, and offenders who had been to jail and had been through this system had not been helped? They were still homeless. They still suffered from addiction. They never got the counselling they desperately wanted. What if there were some mechanism of accountability for them? What if victims genuinely had a voice within the system? What if they didn't have to have their voices moderated through Crown attorneys or victims services, and they had a role?

The idea that a victim wants a template number, like the ingredients on a bottle of barbecue sauce, that says, “For this offence, you get six months. That's what you're worth as a victim”.... Victims want to be integrated, so that their stories matter and so that there is a connection to the court in the way they are considered. The principles of sentencing have that as their idea.

There is no such thing as a conditional sentence that should be ordered where there are public safety grounds. Where victims are able to have a voice—a real voice, not a pretend voice, where we give them a number for an offence that happened to them—we make a justice system that is more meaningful not only for victims but for everybody.

I don't believe there's any such thing as a meaningful number for any victim.

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

In other words, abolishing all minimum sentences, as proposed in Bill C-5, could send the wrong message to victims. We have to be careful about that.

Witnesses we have heard from here have given us examples of cases where, in a perfect world, the individual should not have been imprisoned and should have rather received a conditional sentence. So exceptional circumstances could lead to departures from the rule.

Otherwise, generally speaking, abolishing mandatory minimum sentences would send the wrong message right now. That is my understanding.

Do you agree?

[Sarah Dover]

Think about sentences for aggravated assault, for example. These are circumstances where somebody beats the living tar out of somebody. It's not to the level of an attempted murder, but it's really bad. It's maiming and injuring. In that circumstance, we have a dialogue and stories within the justice system that ensure that there are jail responses to serious offences.

We do not need mandatory minimum sentences to respond effectively to the victims in that way.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Mr. Garrison, you have five minutes.

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

Thank you very much, Mr. Chair.

Thank you to the witnesses today. I really appreciate it.

Mr. Yuen, you mentioned something that has not been brought up before in these hearings, and that's the issue of deportation as a result of mandatory minimums. I'm wondering what you would say to people who say, “Well, they did the crime, so they should be deported.”

What happens to families? What happens when there's a deportation?

[Justin W. Yuen]

It depends on the circumstances. For example, before the arrival of mandatory minimums....

For example, take the production of marijuana with a mandatory minimum of six months. Oftentimes, new immigrants or people who come to the country without many resources will take the first housing opportunity they can get. Especially in the Asian community, we had elders who took up housing in overpopulated houses where there weren't sufficient rooms. Essentially, they were live-in tenants for the landlord to then go about the production of things they had nothing to do with. It was nothing that they knew about or were part of, but they were there so they were charged. The minimum is six months. That's deportation.

Then take into consideration perhaps the other people they care for. Let's say you have a young single mother who is facing deportation. They have to leave the country. What about their young child who is in the country? Maybe they are Canadian-born and maybe they are not. Do they leave the child with social services or with family members? Do they take the child with them?

Those are considerations that extend beyond the criminal sphere, so to speak, and into the livelihoods of the offender, those they take care of and those around them.