06 March 2012
I think I will probably be the last speaker.
I would like to start by saying that like many of us, and certainly
as was expressed by Senator Eggleton, I, too, enjoyed Senator Carignan's
historical exposé, if I can say that. However, as he was speaking, I
was reminded of a theory that is getting more and more credibility, and
that is when you cannot explain why it is Mr. Harper seems to be doing
something, you have to look and realize he is doing something that
either the Liberals did not do or is changing something that the
Liberals did. He is always reacting to the Liberals.
As Senator Carignan was speaking, I thought: There is the
breakthrough; just tell the Prime Minister that Liberals actually
supported mandatory minimums, and instantly this bill is done. Let us
get the blues right now; get them over there.
On a more serious note, I wanted to address the question that was a
heartfelt, powerful question asked by Senator Martin: What do you tell
these families that have suffered such tremendous pain and anguish at
the loss of their children as a result of this crime? What I would say
is you tell them the truth. You tell them the evidence. You do not tell
them something that will not work just to make them feel good for a
brief period of time.
In fact, the one thing we know above all else about this legislation
is that it will create more victims. What I believe absolutely in my
heart of hearts is that many young people, 18 years old with six
marijuana plants, will end up being incarcerated, and their lives will
literally be ruined.
What I also know for sure is you do not mitigate one tragedy by
creating other tragedies. There is a better way to do this. We can fix
this problem if we use the data, the understanding that we have gained
over the years, the experience elsewhere and make it work in a way that
helps the families that Senator Martin is talking about in a serious way
that is effective and will really and truly help their lives.
So much has been said, and I do not want to repeat it. I would like
to just emphasize a couple of things that maybe have not been emphasized
One of them is the question of victims. Clearly, a central theme in
the argument that is made by the government is that this bill will help
victims. I racked my brain to try to figure out how that is the case. It
is true. I noticed if the Conservatives say something over and over
again, you have to assume immediately that it is wrong. The less likely
it is true, the more likely it is they will hammer it and hammer it and
try to make it true. The fact is it will create more victims, not fewer
victims, because everything that we know about crime now and about
incarceration underlines that in its excess, if excessive and not done
properly, then it will create better criminals who will do more crime
and create more victims.
The second thing is it will actually create victims in victimless
crimes. That 18-year-old with six marijuana plants who is making a
mistake, as 18-year-olds perhaps do — does not have to sell it, does not
even have to give it away — will go to jail for a year: black and
white, fait accompli, no chance for any kind of consideration of
circumstances. That 18-year-old will likely become a victim, inhibited
in their ability to progress through their lives, to become doctors or
lawyers or police people or to have professional lives they might
otherwise have had, to contribute, if they were to get through that case
and have a second chance. They will very much more likely be better
criminals and their lives will in many respects possibly be ruined.
It will not help victims, thirdly, because there is no compensation
for victims in this bill. There are no programs for victims in this
bill. It will make more victims because there will be more crime, and it
will make victims of what really and truly are victimless crimes.
Finally, there is a real irony in the value of the principle of
victimhood that is embodied in this bill and in the government's
approach to the crime agenda. In recent weeks we have seen the Internet
snooping surveillance bill that the government is arguing will prevent
Internet predators — it will allow the catching of Internet predators —
thereby protecting young people and others who would otherwise be
victims. Let us say it does not. Let us say these young people do become
victims, some of them because they have been abused by predators. Ten
or fifteen years later when they act out criminally as a result of that,
there will be no ability to have any discretion or any consideration in
what to do with these victims because they acted out as a result of
what occurred to them, as horrible as it was.
Therefore, here we have a government that says it wants to protect
victims, but once they are victims — and they act in a way that would
follow from that, often — there is no compassion, no understanding, and
no discretion for an ability to deal with them in ways that people with
judgment and experience — namely judges — could apply to meet and
accommodate the specific circumstances of that young person, once a
victim and now victimized the second time.
I would also like to talk about a segment of very vulnerable people
who will particularly be disproportionately disadvantaged by this
legislation: That is the subset of women in this country. Senator
Eggleton made the point that this bill will really and truly harm
particularly vulnerable people.
There is evidence that this will inordinately and disproportionately
affect women for a number of reasons. One is that women often are not
involved in violent crimes and so there is much more leniency to deal
with them. However, much of that leniency will be gone. It is true,
also, of course, that Aboriginal women have special circumstances and
they will be particularly disadvantaged by this.
It is interesting to note that, as of August 2010, there were 512
federally-sentenced women incarcerated in federal facilities. In
addition, there were 567 women offenders under some form of community
release supervision — conditional sentencing. That number will be
reduced dramatically because conditional sentencing will be much less
available. Therefore, the incarceration of women will increase. In fact,
it has already increased; over the last 10 years, the number of women
admitted to federal jurisdictions and institutions has been up almost 40
However, what is very startling is that, over the last 10 years, the
number of Aboriginal women incarcerated at the federal level has gone up
by almost 90 per cent. This will accelerate as a result of this bill.
What is also very telling with respect to women is their particular
circumstances — women who offend and who are incarcerated. First of all,
77 per cent of women offenders have children; just over half have
indicated some kind of experience with children's aid. In 2010, 86 per
cent of women offenders reported histories of physical abuse; and 68 per
cent reported a history of sexual abuse at some point in their lives.
This has represented an increase of 19 and 15 per cent respectively over
the last 20 years. Approximately 45 per cent of women offenders report
having less than a high school education when they arrive in the penal
system; 70 per cent of the women in the federal penal system have
alcohol abuse issues; 78 per cent have drug abuse issues.
In addition to that, a recent study indicated that 29 per cent —
almost a third of the women offenders — when they arrived at a prison
institution had mental health problems; and 31 per cent in the system —
other than that 29 per cent — have had mental health problems at some
point in their lives leading up to that. In addition, just under half of
the women in the system at any given time report having engaged in
This underlines a series of very critical problems affecting this
segment of women who are clearly vulnerable to offending and ending up
in the system. None of the features of this bill will have anything to
do with fixing that problem. People, women in particular, with problems
like this — in this case in particular — will not, I am certain, and the
evidence suggests strongly, be particularly inspired not to offend
because of any kind of sentencing.
These problems are far deeper and need to be addressed. If you wanted
to fix this problem, you would fix the problems that face women who are
telling us, as they arrive in the system, that they have fundamental
problems that have led to this and are in many respects beyond their
control without some kind of help.
What is also very telling is that 80 per cent of incarcerated women
were there for poverty-related crimes; 39 per cent of them were there
because they failed to pay a fine. How will this be improved by
incarcerating them through mandatory minimum sentences and by taking all
discretion, or the better part of discretion, away from the judicial
system that could in fact be able to help them and help those who will
simply now increase their numbers?
It is interesting to note that many of them rely upon social
assistance, when you think about them being involved in poverty-related
crime. In Alberta, social assistance rates for a single-parent family
have ranged as low as 52 per cent of the poverty line. It is 27 per cent
below the poverty line, as well, in Newfoundland and Labrador.
These are the kinds of problems that need to be addressed, and they
not addressed in a bill like this that embodies simplistic solutions
that will not work for very complex problems.
Another feature of women in prisons is that 77 per cent of them have
children. There is growing evidence that incarcerated women may be there
with problems that would not make them the best mothers but, again,
that is a much stronger argument for assisting them with programs to
work on their problems that, one, would enhance their ability to be
better mothers and, two, would keep them out of the system. However, the
fact is that evidence is emerging that children of incarcerated mothers
are infinitely more likely to begin to offend themselves, to feel
alienated from society, and to have serious problems in their lives.
More women with children in prison simply means more children at
risk, which means more young adults involved in criminal behaviour, and
so the cycle continues.
I would finish by talking about one other thing, which is captured in
a couple of quotes. I think it is obvious that underlying this bill is a
sense of punishment, a sense of retribution. Intrinsic in that kind of
approach is judgment — being judgmental, and I do not mean that in a
good way — and of expressing some kind of anger or frustration. That, of
course, usually skews good judgment.
Trinda L. Ernst, President of the Canadian Bar Association, said:
"This bill emphasizes retribution above all else." Craig Jones,
Executive Director of The John Howard Society, said: "This is not a
crime agenda; it is a punishment agenda."
When I was studying and reading about this — and I will paraphrase
this badly — I was reminded of a story of Nelson Mandela, one of the
most elevated people on the planet. He got out of jail after 27 years of
being incarcerated and absolutely treated unfairly for the most evil of
conceivable reasons. He said by the time he got to the car, he had made
a determination. He had been locked up behind walls for 27 years and
would not allow anger and bitterness to keep him incarcerated for the
rest of his life, so he through that away.
What I am saying is that it is, in some sense, a question of
emphasis. Every major religion and culture has in it as one of its
central value tenets a sense of forgiveness and compassion. They do,
because it works and it reflects something in the human condition. It
says what we all know in our heart of hearts: Retribution does not help
the victim or the perpetrator, and retribution in no way enhances or
creates health and healing.
Nelson Mandela got it right. What did he do? He was instrumental in
creating the Truth and Reconciliation Commission, which was inspired in
its ability to create healing and to bring a society together. In fact,
we have had that model here in this country — or are making efforts to
do so — with the Aboriginal peoples and their problems. I think that
should not be lost upon us at all.
What I feel in my heart of hearts about this bill, among many other
things, is that it addresses an issue, yes, that needs to be addressed,
but it addresses it in exactly the wrong way. It will make it worse, it
will not make it better, and in the process of doing it, the way that it
addresses it will make all of us lesser. It will not elevate us. It
does not come from a place of compassion or forgiveness. It comes from
another place, and it is not becoming, and it will not make this country
or this society better. It will make it harsher, angrier and more
frustrated and, as said by one of my colleagues, we will be back here in
five or ten years and we will be fixing this, but think of the number
of lives that will be irreversibly damaged because of the mistakes that
will be made in 40 minutes when this bill is passed by this government.
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