Mr. Speaker, I am pleased to stand and speak to this bill.
As I was preparing my speech, I was thinking back to the 1990s, when I came to Ottawa as a legislative assistant. It was after the 1993 election. The winds of change had swept through this place. The Bloc Québécois was the official opposition and the Reform Party had a big presence, with around 50 members. I remember following question period, which was part of my job. I do not mean to be partisan, and this is not a partisan tone, but I remember that in question period member after member of the Reform Party would get up and ask questions about criminal justice. They would talk about specific cases and describe these cases in great detail. The message in every question was that one could not trust the courts. The questions were intended to impugn the courts and to make people believe that judges were not approaching issues with an objective framework but just injecting their own personal biases into the decisions they made. I think that is very dangerous.
I think we are heading in this direction more and more in our political culture. That is very unhealthy for our democracy. I am looking more toward the United States right now, where I think people are starting to view the courts as an extension of the political system. When people start doing that, they just lose faith in the constitutional democracy.
I read something in the paper the other day and I was just flabbergasted. The state legislature of Ohio passed a motion. It came down to party lines. It is a Republican-dominated state legislature. The Republicans voted for it and the Democrats voted against it. The motion was that Canada should be put on the watch-list of states that suppress religious freedom, ignoring the fact that we have a constitutional democracy and that we have courts that defend charter rights and so on. I think this is a very dangerous thing. It is a kind of new populist relativism and it is not healthy for democracy.
Let me get more specifically down to the bill.
There is unconscious bias in sentencing, for sure. This bias is embedded in the long-standing practices of sentencing. It is embedded in the system. For example, according to Canada's prison ombudsman, Ivan Zinger, whom I had the opportunity to meet when I was the public safety critic in opposition, indigenous women now account for half of the female population in federal penitentiaries, whereas only one out of every 20 women in Canada is indigenous. Similarly, recently the Auditor General found that Black and indigenous prisoners are more frequently placed in higher-security institutions at admission, compared to their white peers, and that they are not paroled as often as others when they first become eligible.
Personally, and this is not a partisan statement, I believe the Harper government's approach to sentencing reinforced and aggravated this bias. At the time when the Harper government was introducing tough-on-crime legislation, one after the other, to my knowledge those bills did not have to be accompanied by a charter statement the way they have to be today. That meant that the Harper government really pushed the limits on this issue. That is why so many of the bills that have been struck down by the courts were passed between 2006 and 2015. I am referring to a document from the Library of Parliament, a multiple-page document.
That said, sentencing has been used intentionally to suppress racialized groups, not to my knowledge in this country, but it can happen. Someone said before in the House that the same sentence applies to everybody regardless of creed, colour or whatever, but sentencing has been used to suppress particular groups.
I want to read a quote. As I said, I am not attributing anything to any Canadian politician I know, but it is interesting to see that it can be used deliberately. John Ehrlichman, counsel and assistant to Richard Nixon and a Watergate co-conspirator, is quoted as saying:
The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people.... We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.
Of course, that was a particular period of American history, one that was extremely divisive.
What about Bill C-5? It is not about being soft on crime. It is about having sentences that fit the crime and the circumstances. It is about law reform, a work in progress that draws on evolving and accumulated wisdom. It is about removing an approach to sentencing that has proven not only discriminatory but also costly and, in many cases, futile and ineffective.
It is costly because minimum sentences clog up the courts. There is no incentive to plead guilty. It is ineffective because they involve a greater use of prosecutorial discretion. For example, a research paper by Doob, Webster and Gartner, from the University of Toronto and the University of Ottawa, stated:
On 1 April 1995, a sentencing referendum (Measure 11) brought in by the voters in Oregon resulted in long mandatory minimum sentences.... [I]t was found that there was a decrease in the prosecution of Measure-11-eligible cases and an increase in the prosecution of “alternate” cases (typically lesser degrees of the same offences which did not attract the mandatory penalty). Trial rates for Measure-11-eligible offences also increased in the first two years after implementation, and then reverted to their former levels. But the nature of pleas changed: there was an increase in the number of cases in which the accused decided to plead to lesser included offences, and a decrease in pleas involving the original charge.
It is futile because a slew of Harper-era minimum sentences have been struck down by the courts, and I just referenced a document from the Library of Parliament a moment ago. There is something called “deterrence through sentencing”, and this is the policy that was adopted in the Harper years. Again, Doob, Webster and Gartner state:
At this point, we think it is fair to say that we know of no reputable criminologist who has looked carefully at the overall body of research literature on “deterrence through sentencing” who believes that crime rates will be reduced, through deterrence, by raising the severity of sentences handed down in criminal courts.
We need to realize that there is nothing objectively true about minimum sentences. They are not something handed down by Moses. Those who advocate for minimum sentences do so based on an accepted but false intuition whose appeal is a simple but misleading logic: The greater the penalty, the greater the deterrent. However, intuition is often wrong. This is why we invest in research and analysis.
Even without the benefit of science, there are some who possess uncanny insights at different times. John A. Macdonald, Canada's first Prime Minister, is quoted as saying, “Certainty of punishment, and more especially certainty that the sentence imposed by the judge will be carried out, is of more consequence in the prevention of crime than the severity of the sentence.”
Doob, Webster and Gartner said:
We suspect that what Macdonald meant by “the certainty that the sentence imposed by the judge will be carried out” is simply the certainty that there will be a criminal punishment. But whatever John A. Macdonald meant by that phrase, clearly he did not think that “severity” of sentences was very important. He was almost certainly correct in this.
They also said, regarding the assumption about minimum sentences, “An additional problem is that people really don’t have much of an idea about what the sentences are likely to be for ordinary crimes.... Most offenders do not meet the relevant 'thought' requirements—that is, believing they might be caught”.
There are a lot of misconceptions and a lot of policies in the last few years that have been based on a sort of intuition. We know that intuition can sometimes be correct, but sometimes it can be extremely misleading.
Bill C-5 is about reaffirming trust in our judicial system, and this is fundamental to a healthy constitutional democracy. I know that is something that everyone in this House desires. The Conservatives used to believe that our institutions needed to be respected because they evolved organically and contained the inherited wisdom of our forebears. Those values seem to be from a bygone Conservative era, long ago, before the party veered into hard-right politics.
