What concerns me is the complete absence of judicial discretion. What I see is a pattern, one might even say a transformative pattern, of Canadian criminal law in removing judicial discretion. We see it through mandatory minimums. We see it here through mandatory application of fines.

I wonder if my friend, having had the experience of being Canada’s justice minister, agrees that there is anything like a pattern occurring here in removing judicial discretion.

Irwin Cotler: Mr. Speaker, there is a pattern here: the imposition of mandatory minimums, which accompanies the removal of judicial discretion, increasingly suggesting a mistrust of the independence and integrity of the judiciary to be able to address these issues where they have the appreciation of the facts and circumstances in any particular case, where they can deal with the understanding of the offender, where they can address questions with respect to undue hardships and questions with regard to rehabilitation of the offender.

This leads me to the second concern. That is that the bill follows a pattern, again, of not addressing the complete spectrum of the criminal justice system, where that would include the whole importance of prevention, and not just the question of a punitive approach; where that would include the question of rehabilitation and reintegration of the offender, and again, not just a condemnatory approach; and where we would have, with respect to the process of dealing with these pieces of legislation—whether it be in the House or at committee, which is supposed to be the place to deal with this—the opportunity to propose amendments for the purpose of actually improving the bill as proposed by the government. However, they are summarily rejected, rather than being addressed, when their particular intention is to improve the very legislation brought forward by the government.

We have had situations where we have had a kind of bizarre anomaly where recommendations—and I was in that circumstance—that I made by way of amendment in committee were rejected in committee, only to be brought forward by the government afterwards on rethinking at report stage, and where the Speaker had to say at report stage that those things should have been addressed by committee, and therefore we had to go into the other place to correct this whole process and bring it back here to the House itself, when it could have been initially corrected at committee.

So the issue of process is inextricably bound up with the issue of substance.

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Seconded by Elizabeth May on September 20, 2012

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The Bill, which returns Tuesday to the House of Commons for debate at Report Stage, reflects strategies evidence has shown are not effective, and have been thoroughly discredited in every other jurisdiction in which they have been tried. And although C-10 will fundamentally alter the Canadian justice system, the government has refused to allow for meaningful debate in the House.

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“In addition to removing judges’ discretion in sentencing and costing Canadian tax-payers billions of dollars to build the new prisons required to house additional people, Bill C-10 will disproportionately target already marginalized communities, and create a less compassionate justice system. These are changes that have not been adequately debated in the House of Commons,” said May.

“The amendments that I am tabling today will go a long way towards softening the Bill’s harshest effects. This includes handing a measure of control back to our judges by creating sentencing safety valves, such as removing mandatory minimum sentences for small quantities of marijuana. I would also like to see a transparent, annual review of the changes, so that both legal experts and the general public can analyze the impacts of C-10 on Canadian society,” May continued.

“Now, more than ever, we must resist the rush to judgment and contempt; and to punishment and pain. Working together, with a collective vision, we should ensure that every man, woman and child in this country is fed, clothed, educated, housed, and able to live to their full potential, not throw away our values and tax dollars on new laws that will further victimize and criminalize the most marginalized, poor, racialized and vulnerable Canadians. Too many women and children are victimized, criminalized and imprisoned,” says Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies. “Jails are not the shelters battered women and abused children need. Canadians are telling us that they would rather see their hard-earned tax dollars spent on public housing, child care, pensions, health care, mental health services, public education, victims and other social services.”

“Judicial discretion has traditionally been a central pillar of our justice system. Judicial discretion allows sentences to reflect the particular circumstances of the offender, the offence, the community and the victims. The Criminal Lawyers’ Association is deeply troubled by the continued erosion of this discretion. Mandatory sentences, a one size fits all solution, inevitably results in unfairness,” said Michael Spratt, of the Criminal Lawyers’ Association. “The evidence shows mandatory minimum sentenced do little to prevent crime or make our communities safer. The Criminal Lawyers’ Association welcomes the amendments as proposed by Ms. May. These amendments eliminate many mandatory sentenced, allow Judges the discretion to impose justice and fair sentences, including conditional sentences. The proposed amendments reflect evidence as opposed to ideology.”

“I hope that the government’s unprecedented use of time-allocation to shut down debate won’t mean that our proposed changes to the Bill will not be discussed. This is going to be the last chance for Members of Parliament to speak for changes to the omnibus crime bill,” said May.

“We are going to do everything we can to draw attention to the fact that this legislation unjustly targets Canada’s most vulnerable communities, including First Nations and people suffering from mental illnesses. It strips away judicial discretion and removes our traditional emphasis on rehabilitation. These are basic principles of the Canadian justice system. The bill will cost the Canadian economy countless billions of taxpayers’ dollars for an approach that even Texas admits doesn’t work.”

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