Senator Rosemary Moodie

Honourable senators, I rise to speak to Bill S-207, An Act to amend the Criminal Code (independence of the judiciary), a bill that amends the Criminal Code to give judges more discretion not to impose minimum sentences when they consider it just and reasonable.

First, I would like to begin by thanking my honourable colleague Senator Kim Pate for reintroducing this bill. This is one of the many ways she continues to fight for a Canada that is more just. We all owe her a debt of gratitude.

As I said before, this bill addresses the need to restore judicial discretion to our legal system after years of regressive reform. I support it because it addresses the human and social cost of imposing mandatory minimum sentences.

Colleagues, we have the results of decades of research available to us and the evidence is clear: Mandatory minimum sentences do not deter crime, they do not reduce recidivism rates and they do not make our communities any safer.

Colleagues, let us discuss and consider the evidence before us. We can recall that the Supreme Court of Canada, along with numerous judicial bodies, commissions, parliamentary committees and organizations, have all conducted and concluded that they do not deter crime.

As a Parliament, we studied this issue and reached the same conclusion. In my previous intervention, I mentioned the hours of documented evidence presented at parliamentary hearings that support this conclusion, along with earlier documentation by our Library of Parliament in 2007, all that identified the potential constitutional difficulties, lack of utility and negative impacts of these statements.

Our Department of Justice also has data that tells us that mandatory minimum sentences are ineffective. In 2016, the department commissioned a study on the impacts of minimum sentences. You will recall the review concluded that harsh penalties like mandatory minimum sentences are ineffective in deterring crime and noted that experienced practitioners and social science researchers all agree that mandatory penalties are a bad idea for many practical and policy reasons.

Honourable senators, Bill S-207 addresses a major concern in our judicial system. As currently set up, a judge has no ability to develop a fair sentence based on the individual’s specific circumstances. In our current system, judges are forced to impose minimum sentences. Our current system is blind to the implications of such a decision. Simply put, our judicial system is blind to the human, social and financial costs of imposing mandatory minimum sentences.

Let me once again focus on these costs. I begin by borrowing the words of the researcher Jessica Hardy. She notes:

Families can face numerous challenges that effect the family as a whole and each family member individually. Arguably, one of the most difficult challenges a family may face is when one family member is removed from the family either temporarily or permanently.

For a moment, let’s focus on children. The impact of incarcerated parents on dependent children is both profound and complex.

We already know that it is very difficult to find the exact numbers, as Canada has not been very good at collecting this data in the past, but a 2007 study by the Correctional Service Canada estimates that at least 4.6% of Canadian children, a number that approximates 350,000 children, are impacted by the incarceration of their parents.

What do these children undergo, you may ask?

Well, colleagues, you have heard me say before in this chamber that children of incarcerated parents face significant problems. They face psychological stress, economic hardship, exposure to criminal activity, anti-social behaviour and difficulties at school. Incarceration of a parent poses a threat to a child’s emotional, physical, educational and financial well-being.

Some of the well-recognized potential risks for children, especially those with a mother who has been incarcerated, include child criminal behaviour, cycles of intergenerational criminal behaviour and mental health issues such as depression, anxiety, post-traumatic stress disorder and childhood aggression.

There is a well-established body of evidence demonstrating that children exposed to multiple adverse childhood experiences through their early development have an increased risk of severe depression that leads into adulthood. In fact, the most common side effect seen when a parent is incarcerated is that of anti-social behaviour, including criminal activity and persistent dishonesty.

Some also believe that the exposure to incarceration of a parent can reduce a child’s resiliency and ability to cope with negative experiences later in life. We see increased drug use, low educational achievement, increased risk of school suspension and often expulsion.

Then, of course, there are restricted financial resources. The child is often exposed to precarious housing, including an increased risk of homelessness and food insecurity.

All segments of society do not share the burden of parental incarceration equally. The negative effects of parental incarceration on children are felt almost entirely by children from the most disadvantaged families: communities of colour, racialized communities being at increased risk and Indigenous communities also being at increased risk. These communities are overrepresented in our prison systems because of the impact of mandatory minimum sentences. For them, the risk is always increasing and the odds are always worsening.

If we consider the intersectionality of the effects of parental incarceration on families with other disadvantages, such as living in poverty, being a racial or ethnic minority or experiencing mental illness, we see an even greater impact of the overall risks and negative effects on family members.

There is another significant issue, an issue that has come sharply into focus in the past few months. I am referring to the systemic racism that is pervasive in our institutions. The bill before us, Bill S-207, would help address the systemic racism in our justice system.

Honourable senators may recall that the Parliamentary Black Caucus released a statement in the summer. One of the things the statement called for was the elimination of mandatory minimum sentences. This is because the practice perpetuates systemic racism. We need look no further than the data provided by Justice Canada. To begin with, Black and Indigenous offenders are overrepresented in admissions to federal custody.

According to data provided by Justice Canada, in 2017, 2.9% of the total Canadian population identified as Black, 4.3% as Indigenous and 16.2% as other visible minorities. Over a 10-year study period between the fiscal years 2007-08 to 2016-17, Indigenous offenders comprised 23% of the federal offender population at admission, while Blacks and other visible minorities comprised about 9% each.

Honourable senators, let us dig deeper into the statistics. Over the 10-year study period that Justice Canada considered, the department found that Black and other visible minority offenders are more likely to be admitted to federal custody for an offence punishable by a mandatory minimum penalty. Almost 39% of Black offenders were admitted with a conviction for an offence punishable by a mandatory minimum penalty. For other visible minorities, the rate was almost 48%. Not only are visible minorities overrepresented in federal custody, they are also more likely to be there under a mandatory minimum penalty.

I shudder to think of the effect this has on their families, and particularly on the children of these families. These numbers tell a story; a story that should deeply trouble us as a society. We have known about this for a long time, and should have acted upon it a long time ago.

With the information we have about the effects of mandatory minimum penalties, especially on children and on racial and ethnic minorities, can we conclude that justice is being done? Not at all, colleagues. Our justice system needs reform, and we need to give our judiciary the ability to exercise discretion in mandatory sentencing to address some of the challenges that the system faces.

Judicial discretion would allow for the consideration of the impact of incarceration on dependent children and other sectors of our society. Judicial discretion would allow for consideration to reduce or delay sentencing where appropriate and in situations when significant harm to others, such as dependent children, could result.

In my opinion, senators, this bill addresses a flaw in our current system that unjustly punishes children for their parents’ actions. This is a flaw that disproportionately affects racialized Canadians. This is a flaw, honourable senators, that continues to perpetuate systemic racism.

In conclusion, I would like to thank Senator Pate for her leadership and tireless work in this area. I would also encourage you, senators, to give serious consideration to the disproportionate impact of mandatory minimum sentences on children and youth in your communities as you consider how to vote on Bill S-207.