Mr. Speaker, I rise to speak to Bill S-215, introduced by Senator Dyck and sponsored in this place by the hon. member for Winnipeg Centre.
The bill seeks to amend section 718.2 of the Criminal Code, whereby it would provide that where a judge would impose a sentence for certain violent offences, including murder and sexual assault, that the judge would be required to consider as an aggravating factor the fact that the victim was a Indian, Inuit or Métis woman.
The hon. member for Winnipeg Centre is a strong advocate in this place for indigenous peoples. There is no question that the rate of victimization among indigenous Canadians is disproportionate. That is particularly so with respect to indigenous women. Indeed, indigenous women are three times more like to be victimized than non-indigenous women.
There is no question that the intentions relating to the bill are good. However, good intentions do not always make good laws. It is on that basis that I regretfully will be unable to support Bill S-215.
There are three reasons why I believe the bill unfortunately falls short. First, it is partially redundant. Second, there are serious constitutional questions about whether it would run afoul of section 15 of the charter, which guarantees equality before the law without discrimination. Third, there are questions about whether it is inconsistent with the Gladue principle in sentencing, which is enshrined in section 718.2(e) of the Criminal Code.
With respect to the issue of partial redundancy, in the Criminal Code the fact that a victim is a woman who is indigenous is already considered to be an aggravating factor to the degree that the offence was committed on the basis that the individual victim was a female indigenous person. The key, though, is motive, the fact that it was motivated by prejudice or hate toward an individual on the basis of his or her gender or race.
That brings me to the second point, which is the question of whether the bill would violate section 15 of the charter, which guarantees that all Canadians are entitled to equal protection and equal benefit under the law without discrimination. What the bill would do with respect to the Criminal Code is quite novel from the standpoint of aggravating circumstances. It is novel because it would create a special class of victim, namely indigenous women.
As I mentioned, race and gender can be considered aggravating factors, but the basis upon which that would occur is if the offence were motivated because the victim was of a certain race or gender. Similarly, there are other aggravating circumstances that relate to the connection between the offender and the victim. For example, if the victim were vulnerable, and many indigenous women are vulnerable and in vulnerable circumstances, then that could be considered an aggravating factor.
In his speech, my friend from Winnipeg Centre alluded to the fact that there are aggravating circumstances in the Criminal Code with respect to service dogs and transit workers. Again, those aggravating factors arise from the fact that the individuals are performing certain duties, such as a transit worker who is attacked. Again, there is a connection between the offender and the victim based on the offence at hand.
By contrast, the bill would say that it would not matter whether the offence was motivated by the fact that the victim was an indigenous woman. Indeed, it would not even matter if the offender knew that the victim was an indigenous woman. Simply because the victim was an indigenous woman, it would constitute an aggravating factor. This is unique, it is novel and it does not exist in the Criminal Code. Many lawyers who appeared before the Senate legal and constitutional affairs committee flagged the constitutionality of the bill in respect of it running afoul of section 15 of the charter.
Finally, there is the issue of the Gladue sentencing principles, which provide that when imposing a sentence on an indigenous offender, the judge is to consider all reasonable alternatives to incarceration. We know that a disproportionate number of victims are indigenous women, but at the same time, there is, regretfully, an overrepresentation of primarily indigenous male offenders. In these cases, we have subsection 718.2(e) that says that a judge is to look at all reasonable alternatives to incarceration. At the same time, it would be treated as an aggravating factor that the victim was an indigenous woman. There would certainly be some litigation and some degree of uncertainty around sentencing. From the standpoint of backlogs and delays in our courts, which is a very real issue today, it would be problematic.
Therefore, while this bill is well intentioned, and while there is no question that indigenous women are disproportionately victimized in this country, and while there is no question that we as members of Parliament in this place have a duty to do what is necessary to bring about necessary changes to protect vulnerable persons, including indigenous women, this bill misses the mark for the aforementioned three reasons I enunciated.