Irwin Cotler

[Safe Streets and Communities Act, March 7th, 2012]

Mr. Speaker, after a serious look at this legislation, I am able to enumerate some seven constitutionally suspect provisions. I want to know to what extent the Minister of Justice did due diligence before he tabled the bill in the House and got constitutional advice which told him that all of the provisions in all of these nine pieces of legislation were valid. Would he table that information in the House?

[South Africa, March 6th, 2012]

Mr. Speaker, I recently returned from a very moving and memorable trip to South Africa, which included a reunion with the leaders of the anti-apartheid movement and lawyers for Mandela, and meetings with government, parliamentary and civil society leaders, at an important constitutional moment, the 100th anniversary of the ANC. I have tabled a motion to remove our presumptively inadmissible visa policy and the 15th anniversary of the inspiring South African constitution that has drawn on our Charter of Rights and Freedoms whose 30th anniversary we will soon be celebrating; and where we have been the beneficiaries of this symbiotic constitutional relationship, as when I introduced the national justice initiative against racism and hate as justice minister; and where South African initiatives in areas of women's rights, freedom of expression and hate speech have inspired our own.

I am sure all colleagues will join me in extending best wishes to the ANC and to South Africa on these milestone anniversaries.

[Iran, March 2nd, 2012]

Mr. Speaker, parliamentary elections are taking place in Iran in the shadow of a massive state-sanctioned assault on the human rights of the Iranian people, the imprisonment and silencing of all opposition in the run-up to the Iranian election, actions that are constitutive of crimes against humanity, including arrests, beatings, torture, detentions and the highest per capita rate of executions in the world.

We are witness also to the imprisonment of the entire Baha'i leadership; the imprisonment and silencing of more journalists, bloggers and filmmakers than any other country; the persistent and pervasive assaults on the women's rights movement; the criminalization of fundamental freedoms of religion, speech, association and assembly; and the shutting down of all independent civic and trade union organizations.

While the world is focusing on the threat posed by the Iranian nuclear weaponization program, we cannot abandon the people of Iran who are themselves the targets and victims of the Iranian regime's massive assault on human rights. We must champion their case and cause and let them know that the world is watching, that they are not alone and that we stand in solidarity with them.

[41st General Election, February 28th, 2012]

Mr. Speaker, I represent the riding of Mount Royal that was targeted with false and misleading ten percenters before the election, which the Speaker characterized as a breach of privilege. It was targeted again with these flyers along with false and misleading calls during the election. It was targeted with false and misleading calls about my impending resignation after the election, which was characterized as a reprehensible act.

This is not about the absence of evidence, but about the absence of responsibility. Will the government do the honourable and responsible thing and apologize for this pattern of reprehensible acts in my riding and against the integrity of the House?

[Iran, February 27th, 2012]

Mr. Speaker, I agree with my hon. colleague that Canada is deeply concerned. It has acted and taken a strong stand regarding, as the member put it, the Iranian nuclear activity. It has sought the sanction of individuals and entities regarding the financial complex and the like. However, my point is that we need to adopt a comprehensive and integrated approach.

One, Canada should not just sanction certain financial activities, but it should sanction the Central Bank of Iran, which is the nerve centre of the financial activity.

Two, Canada should not only sanction certain individuals and entities connected to the IRGC, but also sanction the IRGC as a whole by listing it as a terrorist entity. It has been called the world's deadliest terrorist organization. That would at the same time deter its Iranian nuclear weaponization program, undercut its terrorist activities and combat its human rights violations.

Finally, on the matter of the human rights violations, we have to expand the orbit of our sanctions not only with respect to the individuals and entities, but with respect to the entire approach that I mentioned earlier and make combatting those human rights violations a priority in our foreign policy.

[Iran, February 27th, 2012]

Mr. Speaker, I rise to follow up on a question that I first posed in the House last November respecting the Iranian fourfold threat: the nuclear threat, the threat of state sanctioned incitement to hate and genocide, the state sponsorship of international terrorism and massive domestic repression.

In particular, I asked whether the government would sanction the Central Bank of Iran, put the Iranian Revolutionary Guard Corps on the terrorist list and expand the orbit of sanctions against those entities and individuals engaged in the massive assault on human rights in Iran.

Since posing that question three months ago, the Iranian fourfold threat has not only escalated but intensified. In the matter of the nuclear weaponization program, the International Atomic Energy Agency has just reported a dramatic acceleration in the nuclear weaponization program. Indeed, it is reported that Iran has tripled its production capacity for a more purified type of fuel that is far closer to what is needed to make the core of a nuclear weapon. In a word, and on this threat, the report documents and details an elaborate and highly organized nuclear weaponization program designed to develop, produce, test and deliver a nuclear bomb.

In the matter of state sanctioned incitement to genocide, the Supreme Leader Khamenei, on February 4, publicly called for the annihilation of Israel, saying that it was cancerous tumour that must be cut out and will be cut out, while underpinning the genocidal threat with theological justification for the eradication of Israel in a matter of 9 to 12 minutes.

In the matter of the state sponsorship of international terrorism, in the last weeks alone we have witnessed terrorist threats and terrorist activities in such diverse places as Thailand, Georgia and India, the whole with Iranian footprints, following up on earlier terrorist threats and activities from Central Asia to Central America.

In the matter of massive domestic repression, we have witnessed yet again an escalation of human rights violations that are tantamount to crimes against humanity, including the highest per capita rate for executions in the world. I might add that in 2012 alone the rate is above the rate that it was in 2011, which itself was the highest rate. It has jailed more journalists than any other country in the world. It has engaged in the persistent and pervasive assault on women's rights. It targets ethnic and religious minorities, particularly the Baha'i and the ethnic Kurds. It criminalizes fundamental freedoms to speech, association and assembly. I could go on in that regard.

Accordingly, I called then, and reaffirm now with even greater urgency, the need for the government to undertake the following measures: First, sanction the Central Bank of Iran, the nerve centre of Iran's financing of the nuclear weaponization program and international terrorism; and second, list the IRGC as a terrorist organization. Simply put, the IRGC is at the epicentre of the fourfold Iranian threat and, in order to combat that threat, we need to list the IRGC as a terrorist entity.

When I put a question on the order paper on this point, the response noted that “the listing of an entity pursuant to the Criminal Code is a very public means of identifying a group or individual as being associated with terrorism”. Precisely, and that is the reason I sought it.

The answer then goes on to say that Canada's position was that “sanctions targeted at key IRGC entities and individuals were considered to be the most effective mechanism to disrupt IRGC involvement in nuclear proliferation activities”.

That response misses the point entirely. First, we are not talking only about sanctioning the nuclear threat. Second, we are not talking about a fragmented response but a comprehensive response to listing it as a terrorist entity.

[Criminal Code, February 27th, 2012]

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.

[Justice, February 15th, 2012]

Madam Speaker, my question was prompted by the fact that all of the available evidence, including that from the Department of Justice itself, shows that mandatory minimums are excessive, disproportionate, ineffective, costly and do nothing but increase prison populations. The question still stands. This week an Ontario Superior Court judge confirmed that mandatory minimums are a failed policy. Indeed the judge said in this case that they would be “fundamentally unfair, outrageous, abhorrent and intolerable”.

Moreover, the Minister of Justice has an obligation under the Department of Justice Act to ensure that legislation comports with the charter. I have heard nothing from the parliamentary secretary this evening that rebuts any of the preponderance of evidence, that says anything about the unconstitutionality of the legislation, or that addresses the question of costs, in that mandatory minimums will exceed the costs.

At the end of the day the question remains unanswered, and I can understand why. The preponderance of evidence is simply against the position of the government.

[Justice, February 15th, 2012]

Madam Speaker, when I posed my question last November, regarding the evidence to support mandatory minimum penalties, including whether the mandatory minimums were compatible with the charter, the parliamentary secretary replied also in an irrelevant fashion on the issue of costs. He concluded in a kind of customary, demagogic disclaimer that, “We support the victims, while they support the criminals”.

I trust that the answer this evening will address the question I raised and avoid demagoguery. I trust, also, that it will take into account what has changed since I put the question in November. Namely, that evidence-based testimony in different jurisdictions exists to the effect that mandatory minimums are excessive, unfair, ineffective, injurious constantly and do not have a deterrent effect. As well, I trust that it will take into account the Ontario Superior Court of Justice decision earlier this week that struck down a mandatory minimum sentence for violating the charter. I assume that the member opposite is well aware of the case.

I look forward to hearing how the government continues to justify insisting on such penalties in Bill C-10 in light of this ruling and in light of the preponderance of Canadian and international evidence on this matter.

I might add that yesterday evening, former Supreme Court Justice John Major himself supported the judgment. He lamented the prejudicial impact on judicial discretion by these mandatory minimums.

The Conservatives have advanced the notion that if one opposes mandatory minimum sentences, one is soft on crime. Admittedly, on its face, opposing mandatory minimums may appear counterintuitive.

However, this is not about being soft on crime. It is about being smart and effective on crime. In particular, the evidence demonstrates that mandatory minimums are a failed policy. Stacking our Criminal Code with such mandatory minimums would do nothing to reduce crime or improve public safety. Indeed, it would lead only to an increase in crime and may violate the charter, as we saw earlier this week.

Moreover, mandatory minimums do not in fact advance the goal that they purport to reap; namely, that of crime prevention and of deterrence.

As I noted in this House in debate on this topic in 2006 and since:

Indeed, the vast preponderance of studies in every jurisdiction have concluded that mandatory minimums are neither a deterrent nor are they effective.

However, we need not look beyond our own borders for proof that mandatory minimums do not work. Indeed, our own Department of Justice published a study in December 1990 which states:

The evidence shows that long periods served in prison increase the chance that the offender will offend again. In the end, public safety is diminished rather than increased if we “throw away the key”.

Indeed, the U.S. Sentencing Commission released a comprehensive 645 page report in November concluding that federal mandatory minimum sentences are often “excessively severe”, are “not narrowly tailored” to apply only to those offenders who warrant such punishment, and are “not applied consistently”.

The truth is, as the Canadian Bar Association and others have shown, mandatory minimum sentences have a disproportionate impact on those minority groups that already suffer from poverty, deprivation and disadvantage.

We have a situation where, for example, 34% of aboriginal women are in prison. That is a shocking fact. Mandatory minimums would not alleviate or address this problem; rather, they would exacerbate them. They would unduly limit judicial and prosecutorial discretion, and if more offenders plead not guilty, given such mandatory minimums, we would be likely to further strain our scarce judicial resources, something from which no one would benefit.

Moreover, as we have seen, inequitable, inconsistent and excessive mandatory minimums invite a spectrum of constitutional challenges that would further clog the courts and further take us down from principles of justice and fairness, while fostering disrespect of and lack of confidence in the criminal justice system.

I close by saying that, at the end of the day--

[Justice, February 14th, 2012]

Mr. Speaker, this year we celebrate the charter's 30th anniversary, a landmark occasion to demonstrate respect for the Constitution and the rights of all Canadians. Yet the government continues to enact and enhance mandatory minimum penalties even though, as an Ontario judge said yesterday, they may violate the charter's prohibition against cruel and unusual punishment.

In this 30th year of the charter, will the government respect the Canadian and international evidence that mandatory minimums are unfair, injurious, ineffective, unconstitutional and a failed criminal law policy?