Madam Speaker, I am pleased to participate in the debate on Bill C-299. Let me state at the outset, I realize that as soon as one opposes a mandatory minimum sentence one is regarded as being soft on crime or worse. That has occurred here in the House. However, it is my submission that the issue really is how can one be smart and effective on crime.
In that regard, mandatory minimums not only impugn the integrity of the legal process but they also are a failed criminal justice policy. Enhancing our Criminal Code with such mandatory minimums does nothing to reduce crime or improve public safety.
Moreover, the fact that this legislation is dealing with child kidnapping, a crime all of us abhor, is not a reason to suggest that a mandatory minimum that underlines it should be accepted without any form of reservation or critique. The abhorrence of the crime does not thereby validate the sentence.
Simply put, mandatory minimums do not advance the goal they purport to reach, that of crime prevention and of deterrence. This is not a personal conclusion. It is one that is anchored in studies the world over, from the United States, South Africa, from whence I have just come, which discussed and critiqued mandatory minimum sentences, New Zealand, and the like. That conclusion is found also in volumes of social science research and evidence.
Perhaps the strongest evidence against mandatory minimums comes from the United States where legal experts have increasingly critiqued their use. Indeed, just last week a coalition of American law enforcement officials, judges and prosecutors called upon the Senate of Canada to reconsider the mandatory minimum sentences in Bill C-10, concluding that such penalties “do not achieve their stated objectives”.
Indeed, the signatories of the letter expressed great confusion over the current government's emphasis on mandatory minimums, as these mandatory minimum sentences have been repealed in various jurisdictions of the United States for precisely the reason of being a failed criminal justice policy. Moreover, the letter itself bluntly states:
--we cannot understand why Canada's federal government and some provincial governments would embark down this road.
Lest it be thought that there is no Canadian evidence on the matter, our own justice department published a study in December 1990 called “A Framework for Sentencing, Corrections and Conditional Release, Directions for Reform”, which on page 9 states:
The evidence shows that long periods served in prison increase the chance that the offender will offend again. In the end, public security is diminished rather than increased if we “throw away the key”.
The truth is that mandatory minimum sentences also have a disproportionate impact on those minority groups that already suffer from poverty and deprivation and disadvantage. For example, we have a situation right now where 34% of aboriginal women are in prison, which is a shocking datum. Mandatory minimums would not alleviate let alone address this problem. Rather, they would exacerbate it.
As well, mandatory minimums prejudice the integrity of the legal and judicial process. They unduly limit judicial and prosecutorial discretion. We know that in some cases prosecutors will leverage or avoid mandatory minimum charges so that offenders will plead to a lesser offence, even if they are innocent of that offence.
Similarly, if more offenders plead not guilty given the particular mandatory minimums, we are likely to further strain our scarce judicial resources, something from which nobody benefits. The Canadian Bar Association has gone so far as to warn that if the courts become clogged with persons contesting the minimum, it may be that the right trial in a reasonable period of time would be infringed and criminals would thereby be set free.
Moreover, mandatory minimums may invite a spectrum of constitutional challenges that further backlog the courts and take us away from principles of justice and fairness. If they are gross and disproportionate, they may violate the charter.
The Ontario Court ruling in the Smickle case several weeks ago is proof on this point. The judge struck down a mandatory minimum in that case saying that its imposition would be, "fundamentally unfair, outrageous, abhorrent and intolerable".
For a government that touts itself as being so concerned with cost cutting, it is surprising that it would embark on a criminal justice plan that would have it defending multiple charter claims at great expense to Canadian taxpayers without enhancing the integrity of our system and without serving as a deterrent or being fair in its application.
Further, as the U.S. Sentencing Commission and the Canadian Sentencing Commission pointed out, inequitable and inconsistent sentencing policies, and this can and very often does result from mandatory minimums as all of the evidence shows us, may foster disrespect for and lack of confidence in the federal criminal justice system. This is another consideration that we should be addressing in the debate on the bill.
At the end of the day, as all of the evidence demonstrates, relying on mandatory minimums would likely result in a situation where we would find ourselves incarcerating more people for longer periods of time and thereby also aggravating the existing problem of prison overcrowding. This in itself may raise a question of constitutional concern with regard to the question of cruel and unusual punishment as it has in the United States. We may find a similar concern being raised here in Canada.
These laws have helped to fill prisons but without increasing public safety. With respect to the subject matter of this bill, someone intent on kidnapping a child is not going to be deterred by the fact that there is a mandatory minimum sentence on the books. Odds are the individual is not even aware of the penalty. Unless we think criminals are using Google to look up the potential consequence of an offence, there is no deterrent value here. The evidence has shown that not only is there no deterrent value, but mandatory minimums end up also being unfair, injurious, grossly disproportionate, and the like.
Lest anyone be confused, the Liberal Party has a strong historical advocacy policy with respect to the protection of children. I might add that the first bill I introduced as minister of justice was exactly that, an act to protect children and other vulnerable persons, to help children who are the most vulnerable in Canadian society.
This is not about whether we do or do not protect children. We all agree that we must protect children. We all agree that the kidnapping of children is an abhorrent crime. The issue is about how we can effectively prevent and combat such a heinous criminal offence.
We support concrete measures to make Canada's streets and communities safer, particularly when it comes to protecting our children, but we cannot support the imposition of mandatory minimum sentences which have been proven time and again to be ineffective, costly, unfair, injurious, prejudicial, disproportionate, and as all of the evidence has shown in all of the jurisdictions that I have cited, an utterly failed criminal justice policy.