Honourable colleagues, I rise to speak to Bill S-208, An Act to amend the Criminal Code (independence of the judiciary).

Among other important things, this bill would amend the Criminal Code to give the court discretion to vary the punishment to be imposed in respect of an offence for which the punishment or different degrees or kinds of punishment is prescribed.

I join many colleagues in supporting this bill. This matter was brought to us in this chamber in the last Parliament, and I’m happy to see Senator Pate continue the debate with the re-introduction of this bill. I would like to thank Senator Pate for her diligent work in this area and the wealth of information she has kindly provided to us over the course of the last two Parliaments.

We know that criminalization causes significant social harm to individuals and their families and, as the Law Reform Commission of Canada has pointed out, longer sentences with harsher penalties are not an effective means of preventing crime. In fact, the evidence suggests that individuals serving custodial sentences, which include time in prison, are more likely to repeat offend than those serving non-custodial sentences that mandate community-based options.

In Ontario alone, the rate of recidivism within two years of completing a prison sentence of six months or more was 35% between 2014 and 2015. While that rate has been consistently dropping over the last decade, community-based sentences with a focus on intervention and rehabilitation showed a recidivism rate of only 20% during that same year.

Mandatory minimum penalties, or MMPs, limit judges in their ability to be more lenient when sentencing in appropriate cases. They do not allow for community-based sentencing. If an individual is convicted, a mandatory minimum means time in prison that not only increases the social and mental risks of harms to the inmate but is more costly than alternative sentencing that focuses on rehabilitation.

According to Statistics Canada, in 2015-16, the federal government spent $4.6 billion on corrections and 70% of that went toward incarceration, showing that mandatory minimums not only constitute cruel and unusual punishment, as stated by the Supreme Court in R. v. Nur in 2013, they also create unnecessary expenses.

Bill S-208 would restore judicial discretion in sentencing on all crimes that have mandatory minimum penalties attached to them, of which there are more than 60.

I would like to elaborate on a couple of penalties I find particularly interesting, if not troubling.

Not long ago, there were mandatory minimum penalties applied to the possession of cannabis. In 2016, more than half of all drug offences — nearly 55,000 offences reported to police — were cannabis-related, and 81% of those cannabis offences were for possession, which resulted in approximately 23,000 cannabis-related charges being laid, with 76% of them being related to cannabis. The maximum penalty for simple possession on indictment is five years less a day.

These penalties continue for the possession of Schedule I drugs, including cocaine, heroin and methamphetamine. Just possession. Such actions could result in one to two years in prison.

I would like to remind senators that on average, it costs over $162,000 to incarcerate one prisoner per year. For women, this number is almost three and a half times higher. It is estimated this costs approximately $533,000 annually for one female inmate.

It is important to remember that we have an overrepresentation of racialized and Indigenous groups in prison already. In 2017-18, Indigenous youth made up almost half, 48%, of youth admissions to custody in the nine reporting jurisdictions, excluding Nova Scotia, Quebec, Alberta and Yukon, while representing 8% of the total Canadian youth population.

According to recent data from the Office of the Correctional Investigator, OCI, Indigenous women make up 42% of all women in federal prisons. We must consider these statistics and recognize that MMPs disproportionately affect Indigenous and racialized Canadians, resulting in more social harms and barriers for minority groups.

The threat of incarceration does not deter drug use or address the harms of addiction. Imposing mandatory jail time for possession of illicit drugs is not an effective method of deterrence. As Senator Pate has told us in the past, individuals with significant mental health issues are also among those who are disproportionately affected by MMPs. The recidivism rates I spoke about earlier rather suggest that a public health approach to the issue, including the use of alternative sentencing focusing on rehabilitation and not punishment, is a more effective means of helping the individual with their addiction and keeping them out of prison.

It goes the other way too. For crimes that have MMPs attached to them, prosecutors are encouraged to accept guilty pleas in order to avoid harsher penalties. Critics have stated that this results in individuals being convicted of offences that do not correspond to the offence actually committed. For example, some might plead guilty to manslaughter, even though the facts disclose that it was intentional. Judicial discretion would ensure that the sentence is appropriate to the crime and to the individual’s situation.

This is an issue that has received significant study and criticism. In fact, the Supreme Court of Canada in R. v. Nur has stated that:

Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes . . .

In R. v. Lloyd, the majority decision of the Supreme Court noted that:

. . . mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable.

Some penalties have already been struck down for being incompatible with the Charter, such as in R. v. Nur.

Honourable senators, Bill S-208 does not eliminate mandatory minimum penalties. Judges would still be able to impose the sentence required by the MMP — or even a harsher sentence — if they find that to be the appropriate course of action. Giving judges a discretion to impose a different sentence will, I believe, ensure that justice is being done and that the sentence corresponds to the crime.

I hope you will join me in supporting Bill S-208. I look forward to a fulsome study and more debate on the subject. Thank you.