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Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women)

OTTAWA, Wednesday, December 7, 2016

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women), met this day at 4:15 p.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

The Chair:  Good afternoon and welcome, colleagues and invited guests.

Members, earlier this fall, the Senate referred to the committee Bill S‑215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women).

We are pleased today to have with us the sponsor of the bill, the Honourable Senator Dyck, to speak about her bill.  Also here to talk about the bill are, from the Federation of Sovereign Indigenous Nations, Heather Bear, Fourth Vice Chief.  We’re hoping at some point in the near future the representatives from the Native Women’s Association of Canada will also arrive.

Thank you for being here.  We’ll begin with a presentation from Senator Dyck and then we’ll move to Ms. Bear.

Hon. Senator Lillian Eva Dyck, sponsor of the bill:  Senators, Bill S‑215 is a direct response to the national tragedy of the more than 1,200 missing and murdered Aboriginal women and girls.  The intention of this bill is to ensure fairness in sentencing when an Aboriginal female person is a victim of assault or murder, and to increase their safety.  This is reflected in the first preambulatory clause in the bill:

Whereas the Canadian Charter of Rights and Freedoms guarantees to all individuals equality before and under the law and the right to the equal protection and equal benefit of the law without discrimination;

It is clear that Aboriginal women do not have the equal protection of the law.

Bill S‑215 is similar to the government Bill C‑16, An Act to amend the Canadian Human Rights Act and the Criminal Code, which was introduced in May 2016.  Bill C‑16 is meant to increase the safety of transgender persons.

Senators, both the Federation of Sovereign Saskatchewan Indian Nations and the Assembly of First Nations have passed resolutions in support of my bill, Bill S‑215.  I believe you have received copies of those.  In addition, I have a letter of support from Iskwewuk E‑wichitochik, a group of women in Saskatchewan who have been advocating on behalf of the families of missing and murdered Aboriginal women and girls since 2005.  I am most grateful to all of them for their support.

Senators, part of the sad legacy of colonization is that Aboriginal men have become over‑incarcerated.  At the same time, Aboriginal women have become over‑victimized.  Paragraph 718.2(e) of the Criminal Code was enacted in response to the over‑incarceration of Aboriginals, who at the time were mostly men.  Bill S‑215 is meant to address the over‑victimization of Aboriginal women.

I know this bill is novel because it focuses on Aboriginal female victims of violent crimes.  Up until now, lawyers and judges have only had to take into consideration paragraph 718.2(e), addressing those circumstances unique to Aboriginal offenders.

Aboriginal women have unique circumstances that make them prone to being over‑victimized in violent offences.  Aboriginal women, unfortunately, are perceived as a group about whom no one cares, and they are perceived as a group who are easy targets for sexual abuse and violence.

We know that Aboriginal females are three to four times more likely than other Canadian women to be murdered, sexually assaulted or made missing.  Aboriginal women are seven times more likely to be targeted by serial killers.  In June 2016, Stats Canada reported that for women, but not for men, simply being an Aboriginal was a significant risk factor for violence.

By including Aboriginal female identity as an aggravating circumstance for the violent offences of assault and murder, we can send a message to denounce such crimes, which may also act as a deterrence. Moreover, we can send a message that Aboriginal women and girls are as worthy of protection as taxi drivers, police officers and others whom we have protected in the Criminal Code in a similar manner.

Senators, I know there are questions about the interaction of Bill S‑215 with the Gladue provisions under section 718.2(e) of the Criminal Code.  First, let me state that Bill S‑215 will not increase the number of Aboriginal offenders because it would apply only to offenders who have been found guilty of assaulting or murdering an Aboriginal female person.

Second, the application of Bill S‑215 may increase the length of the sentence decided upon by the judge, but that depends on how it interacts in the judge’s assessment with a myriad of other aggravating and mitigating factors in any particular case.

Senators, one has to ask when it comes to examining a case in which there is an Aboriginal offender who has been found guilty of assaulting or murdering an Aboriginal female victim, why isn’t her Aboriginal background also taken into account.  She too is Aboriginal.

In my research, I have come across two recent court decisions which support the view that the Aboriginal identity of the female victim is a factor which ought to be considered during sentencing for violent offences.  In R. v. Peter 2014 in Nunavut, the judge noted in paragraph 108:

“…aboriginal men attacking and killing aboriginal women are no more entitled, in my view, to consideration than non‑aboriginal men are for attacking any woman.  Put another way, aboriginal women are entitled to protection just as much as any other woman, perhaps more due to their cultural circumstances.”

Similarly in R. v. Neashish 2016 in Quebec, the judge noted in paragraphs 134 and 135:

“While the Gladue report dealt at length with the accused’s Aboriginal origins, the court must not fail to consider the situation of the victims who are also Aboriginal.  They were affected by the same historical factors and years of upheaval and economic development experienced by the community.  In addition to being victimized by the accused, they are also victims of systemic discrimination.”

Senators, given the national crisis of missing and murdered Aboriginal women and girls, the well‑documented increased risk of Aboriginal women and girls to violence, it is time to give specific instruction to judges to consider Aboriginal female identity as an aggravating factor in cases of assault or murder.

Finally, I draw your attention again to the recent Stats Canada report on Aboriginal victimization.  This report confirmed something that many of us knew intuitively, that simply being Aboriginal for a woman is a risk factor for violence.  Bill S‑215 reflects the values that family members of the missing and murdered Aboriginal women and other Canadians believe in, that all women, regardless of racial identity, should be treated fairly in our justice system.

There are too many cases where this has not happened.  I mentioned a number of these in my second reading speech in the chamber.

In order to accomplish this goal of fairness in sentencing, specific consideration needs to be given to Aboriginal females by naming Aboriginal female identity as an aggravating factor in sentencing for the specific offences for which they are known to be preferential targets, assault and murder.

Lastly, senators, Canada is a signatory to the United Nations Declaration on the Rights of Indigenous Peoples.  Just as recently as yesterday, Prime Minister Justin Trudeau said that his government is working towards implementing the document.  Article 22.2 of the United Nations Declaration on the Rights of Indigenous Peoples states:

“States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.”

Honourable senators, I believe that Bill S‑215 works to achieve these goals of article 22.2 of the United Nations Declaration on the Rights of Indigenous Peoples.

The Chair:  Thank you.  Ms. Bear, the floor is yours.

Heather Bear, Fourth Vice Chief, Federation of Sovereign Indigenous Nations:  Thank you, senators.  Mr. Chair and honourable senators, I would like to thank you for the opportunity to present to you on behalf of the Federation of Sovereign Indigenous Nations and the Saskatchewan First Nations Women’s Commission.  The women’s commission is the recognized political voice of the advancement of First Nations women’s and children’s rights in Saskatchewan.  It is comprised of the women chiefs, tribal chiefs and FSIN senators in Saskatchewan and the FSIN represents 74 First Nations in Saskatchewan.

I am here to support Bill S‑215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women).

Earlier this year, on March 8, International Women’s Day, members of the FSIN executive met with Senator Lillian Dyck and learned about Bill S‑215.  A few weeks earlier, the FSIN brought family members together to prepare for the federal pre‑inquiry consultation leading to the national inquiry into missing and murdered Aboriginal women and girls.

At the family gathering, we learned from individuals who have faced terrible loss due to violent crimes committed against their mothers, daughters, sisters and relatives.  What we heard speaks to the fundamental underpinnings of Bill S‑215.

Indigenous peoples strongly believe that there are predators targeting indigenous women because they are indigenous and because, in Canadian society, the lives of indigenous women are valued less than other women.

In 2014, Amnesty International released a call to action for violence against indigenous women and girls in Canada, stating that there is clear evidence that some men seek out indigenous women as targets for attacks.  Acts of violence against indigenous women and girls may be motivated by racism or may be carried out in the expectation that society’s indifference to the welfare and safety of these women will allow the perpetrators to escape justice.

Examples of men targeting indigenous women in Saskatchewan include John Crawford, Clayton Eckler and Gordon Rogers.  Indigenous peoples are also concerned about the nature of charges laid and low sentences for violent crimes committed against indigenous women.

This past summer the Sakimay First Nation chief and council hosted a ceremony for the family members whose loved ones had been missing or murdered, including the family of the late Pamela Jean George.  Pamela was a 28‑year‑old mother of two from Sakimay.  She was sexually assaulted and beaten to death by Steven Kummerfield and Alex Ternowetski who were convicted by a jury for manslaughter and each sentenced to six and a half years in prison.  This sentence was a slap on the wrist as it fell far below the maximum sentence.

When an indigenous woman is the victim of assault, sexual assault or homicide, we must ensure perpetrators are punished within the fullest extent of the law.

At the family gathering we heard that legislative and policy changes are required at all levels to ensure Aboriginal women are recognized as valuable and to hold those responsible for the administration of justice accountable.

Indigenous peoples and organizations want assurance that the national inquiry into missing and murdered Aboriginal women and girls will result in action.  We also believe collectively that steps can and should be taken while the inquiry proceeds to affect change.  Family members encouraged us as leaders to invest energy in supporting Senator Lillian Dyck in her efforts to amend the Criminal Code through Bill S‑215.

We agree with Senator Dyck that this change will send a clear signal, that the lives of all women and girls are valued and precious, whether or not they are indigenous.

A legislative change of this nature would also demonstrate action taken by Canada on the United Nations Declaration on the Rights of Indigenous Peoples, article 22.2 directs state to take measures in conjunction with indigenous peoples to ensure that indigenous women and children enjoy full protection and guarantees against all forms of violence and discrimination.

Before closing, I would like to speak briefly about the relationship between the Criminal Code amendments proposed in Bill S‑215 and Gladue factors.  Some might argue that Bill S‑215 works against the Supreme Court of Canada’s directive in Gladue, but I believe it balances the rights and interests of indigenous women and men by ensuring that the courts take both into consideration.

When indigenous women are victims of crime and only Gladue considerations are taken into consideration in sentencing, the rights of indigenous women to the full protection of the law is dismissed.  Amending the Criminal Code through Bill S‑215 will help to ensure there is no bias against the victim and makes her case less serious in nature compared to any other female.

With the passage of Bill S‑215, when Gladue factors are taken into consideration by a court, the impacts on both the victim and the perpetrator will have to be considered equally.  We cannot expect anything less from the justice system.

Honourable senators, thank you for allowing me to present to you today.  I would like to close by emphasizing the wide‑ranging support Senator Lillian Dyck has garnered for Bill S‑215.  At the FSIN chiefs assembly in May 2016, the Saskatchewan First Nations Women’s Commission honoured Senator Lillian Dyck with a star blanket and acknowledged her leadership for sponsoring the bill.  The chiefs and assembly passed a resolution supporting the bill and the women’s commission then brought our resolution to the AFN in July 2016.

Senators, you have a country of chiefs who are behind this bill.  I want to thank you and ask you for your support as well.

The Chair:  Thank you.

Senators, we have been joined by two representatives from the Native Women’s Association of Canada: Francyne Joe, President; and Marilee Nowgesic, Special Advisor and Liaison.  Ms. Joe, I understand you have an opening statement.  The floor is yours.

Francyne Joe, President, Native Women’s Association of Canada (NWAC):  Good afternoon, Mr. Chairman, committee members, distinguished witnesses and guests.  I am interim President of the Native Women’s Association of Canada.  I am a proud member of the Shackan First Nation in Merritt, British Columbia.

While I worked many years for the Canada Border Services Agency, I am also experienced in First Nations human resource management, economic development, entrepreneurship and insurance, all in an effort to educate and encourage Aboriginal people to pursue their aspirations.

I am here today with Marilee Nowgesic, NWAC Special Advisor.

First, I would like to acknowledge the Algonquin nation on whose traditional territory we are meeting today.  I bring with me the voices of my ancestors, the concerns of Aboriginal women from across Canada and the hopes of our future leaders, our youth.

I would also like to take a moment to recognize the seventy‑fifth anniversary of Pearl Harbor.  Many Aboriginal veterans, such as my own Grand Chief Percy Joe, who is still with us today, also stood alongside their American colleagues on December 7 and in the battles that followed.  We especially recognize the Aboriginal women who served their country for the love of their communities and for Mother Earth.

Since 1974, the Native Women’s Association of Canada has served as the only national Aboriginal organization in Canada that represents the voices, the interests and the many concerns of Aboriginal women.  NWAC is made up of 12 provincial and territorial member associations from across Canada.  Each represents its own nation, and NWAC is the nation that represents them as a whole.  Our network of First Nations and Metis women includes both on‑ and off‑reserve communities as we recognize every indigenous woman’s right to self‑identity.  It is crucial that our gender‑specific perspectives are heard in all nation‑to‑nation discussions and that our input is heard.

The Native Women’s Association of Canada is honoured to address before this Senate committee the issue of sentencing for violent offences in the Criminal Code of Canada committed against Aboriginal women.  Working with you to develop this issue provides an opportunity to collaborate in the spirit of respect, cooperation and partnership, mandated by INAC.  We hope that a long‑standing deficit in adequate financial resources will not impact our ability to properly address the complex layers of the Criminal Code essential to properly supporting our point of view on this issue.

I would like to deliver three key messages on behalf of NWAC.

First is NWAC’s perspective from a grassroots level.  I need to position the following comments from the aspect of NWAC as a national leadership organization among the top five in Canada:  NWAC, AFN, ITK, MNC and CAP.  We have been uniquely positioned to consult with the indigenous women who are affected by violence at a community level.  It’s essential that you understand that their pain and disenfranchisement are felt throughout their communities.

In addition to this grassroots knowledge, we bring with us the knowledge gained from our work in addressing human rights, and the National Inquiry into Missing and Murdered Indigenous Women and Girls.

From a cultural perspective indigenous women cannot be separated from their environment.  From a sociological perspective, they cannot be separated from the impacts of colonization.  Systemic issues, policies and laws have reduced the stability of our environment.  They have degraded the practice of our spirituality and the expression of our inherent right to self‑determination.

We understand the need to address sentencing.  We want to ensure that the balance of sentencing takes into consideration both the offenders and the victim.

Our second key message is that indigenous women need to be a leader in these discussions.  This two‑part process as described by the Government of Canada is to be in “reconciliation with indigenous peoples through a renewed nation‑to‑nation relationship based on recognition of rights, respect, cooperation and partnership.”  The Government of Canada is obligated to address the issues surrounding sentencing for the violent crimes against Aboriginal women.

The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment recommends tougher penalties for perpetrators.  They have cited a failure to effectively investigate, prosecute, convict and punish perpetrators with appropriate penalties to perpetuate continued violence against women.  This recommendation may be found in the report from the Committee Against Torture, page 6, “violence against women.”  Furthermore, the committee regrets the statement by the delegation and that the state bears responsibility, and its officials should be considered as authors, complicit or otherwise responsible under the convention.

NWAC is the organization that has the expertise on indigenous women and gender‑specific perspectives.

Third, in addressing systemic issues, the Native Women’s Association of Canada recommends addressing systemic racism through community engagement and education so that when women report violent crimes, they do not face additional barriers.  We need to address the immediate measures being required as supported by the overwhelming evidence in the cases of missing and murdered Aboriginal women and girls.  These are the grievous crimes that amount to torture and other cruel, inhuman or degrading treatment or punishment.

NWAC is pursuing these systemic issues as part of an effort to open the floor to discussing the impact those issues have had on our indigenous women.  This includes the right to self‑determination and the right to create our own personal sense of identity, as I said before.  We are a nation.  The lack of belonging and recognition when women who report violence return home to their communities and when they are not believed, they are further marginalized by their own people, in addition to facing systemic racism.  This leads to a sense of being victimized again when the crimes they have been subjected to are reported.

The Native Women’s Association of Canada would like to see the full implementation of Article 33 of the United Nations Declaration on the Rights of Indigenous Peoples:

Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.

As a national Aboriginal women’s organization that has spent 10 years being undermined, ignored and having our funding cut by 60 per cent by the federal government, NWAC is in the process of actively rebuilding our capacity to substantively respond and coordinate a national response within short timelines.  Our current rebuilding status needs to be factored into the engagement processes at this time and should not be used as a way to undermine our participation in these key discussions and decisions.

While we are currently working on addressing the procedures and processes that will drive the missing and murdered Aboriginal women and girls national inquiry, we are the lead organization for indigenous women to bring their issues, concerns and sometimes missing voices to effectively address these inequities.

The Native Women’s Association of Canada will work with all levels within the Government of Canada to address the sentencing for violent offences in the Criminal Code of Canada committed against Aboriginal women.  Thank you for your time.

The Chair:  Thank you all.  We’ll now move to questions, beginning with the committee’s deputy chair.

Senator Baker:  Thank you, witnesses, for your very excellent presentations.

Senator Dyck, I’ve observed over the years, has been working a long time on this legislation and has finally managed to get it to this committee for committee consideration.  I want to first of all congratulate you, Senator Dyck, for your very hard work over the years in getting this legislation forward.

I have one basic question, first of all.  This bill covers a considerable number of sections of the Criminal Code. The first section in which you wish to have the court consider it an aggravating circumstance – that is, the fact that the victim of the offence is a female person who is Indian, Inuit or Metis ‑‑ covers the sections on murder.  That’s at 235, 236 and 239.  That would cover manslaughter and attempted murder.  Then you go on to refer to sections 264 to 273.  These are the assault sections.  It goes from common assault right up to aggravated sexual assault.  You’ve covered all of those very serious violent offences sections of the Criminal Code.

My question to you is this ‑‑ and you almost answered it in your opening statement ‑‑ you know that the persons who disagree with this bill or who have questions about this bill will say, “Doesn’t this offer, in certain circumstances, a conflict with the sentencing provisions of the Criminal Code, 718.2 (e), which says:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances … should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

That is what you referred to as the Gladue principles or the Gladue case.

How do you respond to those who will say this will offer a conflict in the Criminal Code, in the actual sentencing provisions, which would be in conflict with the provisions of all those other violent sections as to the victim of the offence?

Senator Dyck:  I don’t see it as a conflict.  All three of us talked about it as being a balance.  I think 718.2(e) was a good amendment to the Criminal Code because it addressed the over-incarceration of Aboriginal offenders and the unique circumstance that occurs where sometimes Aboriginals end up in courts due to circumstances such as attendance at residential schools, poverty and so on.  At the same time, when the victim is an Aboriginal woman, she may have also suffered under those same kinds of circumstances and not only are they similar but they are also different because there is a gender dimension to it as well, which has not really ever been talked about in the literature.  It has never been studied in terms of the gender implications when you’re an Aboriginal person.  What does that to do to sentencing?  When the victim is an Aboriginal female and the offender is an Aboriginal offender or a Caucasian offender, it’s a largely untouched area that needs to be talked about.  By introducing this bill, I think we will start to talk about it because that woman in that situation has been placed there often times because society has viewed her as less than other women.

At the University of Saskatchewan, there is a professor in the Department of Psychology who has looked at the attitudes of university students towards Aboriginal men and women.  When she looked at their attitudes towards Aboriginal men it came up as “dangerous and aggressive.”  For women it was “sexually easy and available” or else “spiritually pure” — two very different attitudes.

That attitude of the women being sexually available and sort of morally loose makes them targets.  If you live in a society that’s racist, then you’re also seen as being less valuable so that people think they can attack you and get away with it.  If you look at some of the historic cases that Vice Chief Bear brought up, for example, we do see cases where that happens.  I’m not saying it happens every time but, unfortunately, when there is an Aboriginal victim, depending on the judge, depending on the jurors, sometimes they don’t see her having equal value than if she were a Caucasian woman.  I think this introduces it back into the system, where you have to look at that carefully to make sure you don’t bring an unconscious bias.

Senator McIntyre:  Thank you to all the witnesses.  As noted by Senator Baker, over the years, Senator Dyck has been working hard to bring this bill forward.  Obviously, the bill deserves our serious consideration.

That said, I agree with you, Senator Dyck, that there are no aggravating circumstances currently in the code for cases involving Aboriginal female victims.  However, judges can consider any aggravating factors not expressly contained in the code.  I’m referring specifically to section 718 of that code.

I bring this up because in your second reading speech before the Senate, you stated that section 718.2(a)(i) is not sufficient for responding to violence against Aboriginal women because it requires establishing the element of hate, which may be difficult to prove.  Section 718, however, also allows a judge to consider bias and prejudice based on race and sex.

In your view, how does section 718.2(a)(i) differ from and how is it similar to the criteria proposed in your bill?  How do you think judges might apply and use the sections of your bill differently during sentencing?

Senator Dyck:  The first section, proposed paragraph (a), includes sex and race.  However, if you have an Aboriginal female it isn’t specifically mentioned under that paragraph.  When you combine gender and race, you end up with something where that person is really in a different category.  I was trying to argue that for an Aboriginal female, neither the sex nor the race component would be enough and race is race.  It doesn’t say “Aboriginal.”  We are very aware that the Aboriginal identity is already represented in 718.2(e). Furthermore, “Aboriginal” is mentioned in the Constitution and in the Charter, so we know that Aboriginal identity is something that carries with it a specific need to be looked at.

Including in my bill, including “Aboriginal female identity” under paragraph (e) makes it specific to look at all those sections of the Criminal Code that Senator Baker talked ability because we know that’s what’s happening to Aboriginal women.  They’re being assaulted, murdered and sexually assaulted.  The top part is much more general and could cover a number of different offences, whereas this is more specific.  It is where we have documented evidence that Aboriginal women are more vulnerable to those specific offences.  I think it’s a much more narrow approach.  We had discussed the possibility of including it under paragraph (a), but I don’t think that is as specific or the research doesn’t document that as well as it does under including it under Criminal Code sections 235 and the assault and assault and murder sections.  I hope that answered your question.

Senator Sinclair:  Under the current provisions of the Criminal Code, in order to establish either race or gender as an aggravating factor requires some proof or presentation of evidence before the sentencing judge.  Is it your intention with this provision to preclude that from happening so that simply the fact of the gender and race of the individual would be automatically considered?

Senator Dyck:  Yes.  It will be automatically considered that if the person is an Aboriginal female, it should be taken into account.

Senator Sinclair:  The other question I had for you is a thornier question for me.  The issue of transgendered individuals has been raised in the Senate and in Parliament.

What do you feel this provision might do with regard to the transgender community and, in particular, those who identify as female and are born male or vice versa.

Senator Dyck:  With respect to this bill?

Senator Sinclair:  Yes.  How would this bill impact, do you think, if the victim of an offence is a transgender person? Have you thought that through?

Senator Dyck:  Yes. They’re under different subsections, so the transgender bill is under section A of the Criminal Code, which is, I believe, more directed to hate‑based crime. It sometimes can be more difficult to prove hate.  I do know that there has been a study by a Masters student who looked at hate‑based crimes against Aboriginal people, and she said there is very little.  The data in the literature is very vague, and so her conclusion was ‑‑ this was a Masters of Law thesis ‑‑ that there should be a specific provision for Aboriginal females but that putting it under hate probably would be difficult because it’s so very difficult to prove hate. So there should be some other way of protecting Aboriginal women.

The Chair:  Does one of the other witnesses want to respond to that?

Marilee Nowgesic, Special Advisor and Liaison, Native Women’s Association of Canada (NWAC):   We had the opportunity to look into it, just a peripheral view, because this has become a matter of discussion at the community level. You were born male; in your adult years or sometime during your lifetime, you became female. It also causes a complex layer of considerations for registration, membership, membership codes and so on.  When we thought of applying it to here, we looked at all of those issues.  It’s just a matter of determining how that is to be identified. It will be discovered after the crime has been committed, at the point of an investigation, looking into the details of the crime, at the point of an examination by officers or medical officials, but it’s not something that is readily identifiable.  It is more, as Senator Dyck mentioned, going to be based on a hate crime.

Senator Sinclair:  Therefore, your assumption is that it would require proof of hate.

Ms. Nowgesic:  Yes.

Senator Sinclair:  Thank you.

Senator Batters:  Senator Dyck, your bill seeks to add a new section, 239.1, of the Criminal Code which would say:  “When a court imposes a sentence for an offence referred to in section 235, 236 or 239, it shall consider as an aggravating circumstance the fact that victim of the offence is female person, who is Indian, Inuit or Metis.” Then there is a similar second section.

Senator Dyck, how is Indian, Inuit or Metis defined?  Is it necessary that a female who is Indian, Inuit or Metis have a certain percentage of Indian, Inuit or Metis ancestry?

Senator Dyck:  We put that in because, in law, there is a legal definition of Aboriginal, but it would be self-identification. You self-identify as First Nation, Metis or Inuit.

Senator Batters:  Okay, if they self-identify, somebody who is of 10 per cent Indian, Inuit or Metis ancestry would be sufficient to fall within this particular bill?

Senator Dyck:  As long as they self-identify.  What you’re getting at, I think, is that, sometimes, you could have a person who is, let’s say, 1 per cent Aboriginal. Then, is that person really Aboriginal?  Often, when the victim is picked by somebody, they know that person to some extent. During the conversation, when they get to know that person, they would find out. They would have a conversation: “Where are you from? I’m from the Sakimay First Nation. Where are you from?  I am from the Cumberland House Metis community.”

If they were 1 per cent, they probably would not look Aboriginal. Out West anyway, we do look different. If you look in the paper, often, when they are looking for an Aboriginal offender, they say, “Aboriginal offender, five foot six, 280 pounds.”

Senator Batters:  Do you think that the definitions that you referred to should be included in this legislation or not?

Senator Dyck:  Which definitions?

Senator Batters:  The definitions that you referred to in law.

Senator Dyck:  I think it is included. I don’t have the bill in front of me.

Senator Batters:  It is not in the bill.

Senator Dyck:  It is mentioned somewhere. It says that the victim of the offence is a female person who is Indian, Inuit or Metis.

Senator Batters:  Right, but not further defined than that.  You’re saying that self-identification is sufficient.

Senator Dyck:  Yes.

Senator Batters:  How do you see this legislation impacting a situation where the perpetrator of such a crime is unaware of the victim’s Aboriginal ancestry?

Senator Dyck:  I think the judge would have to take that into consideration. As I said, I think that, in most circumstances, there is a conversation.  I think most the data indicates that, when a female Aboriginal person is assaulted or murdered, it’s not usually a stranger.  It’s usually somebody who knows you, so they would know whether or not you’re Aboriginal. I think the fact that the statistics show such a high rate of over-victimization makes it quite clear, I think, that the offenders are actually specifically targeting that group.  In fact, I will share a quick story.

Senator Batters:  Actually, I just have a second question, and we have limited time. I’m sorry.

Senator Dyck:  Okay, go ahead.

Senator Batters:  You introduced this bill in the Senate, Senator Dyck, almost exactly a year ago, and I’m sure that you’ve spoken to your colleagues in the House of Commons and in the Liberal government’s cabinet during that year‑long period.  I’m wondering if you could please tell us whether Justice Minister Wilson‑Raybould and the Liberal government will support this bill if it passes the Senate.

Senator Dyck:  I have talked to them.  They have not indicated that they will support it.

Senator Batters:  Okay. What have they said to you about it?

Senator Dyck:  They’re concerned about the Gladue principle, the interaction with it.  They’re more concerned with protecting the offender.  They haven’t seen the argument for protecting the female.

Senator Plett:  Thank you to the witnesses. I want to echo Senator Baker’s comments, Senator Dyck, and applaud you for the tenacity that you have shown in bringing this legislation forward and getting it into the committee.

I really wanted to stay away from doing any comparison of this bill to Bill C‑16 because I don’t think there is any comparison. I hope your bill does more what it intends to do than Bill C‑16 does what it supposedly intends to do because I don’t think it does.

In reference to what you have been saying about the transgender, I hear that you are saying that the transgender community is covered under the hate crime/hate speech section of the Criminal Code. However, under Bill C‑16, a transgender woman is considered a woman in the eyes of the law.

So, in your view, would a transgender Aboriginal woman not qualify in this particular instance?

Senator Dyck:  Not qualify as?

Senator Plett:  The transgender woman is already considered in the eyes of law, under Bill C‑16, in a hate crime.

Senator Dyck:  Which is under review; it hasn’t been passed.

Senator Plett:  Fair enough.  So will one contradict the other?

Senator Dyck:  It will make for a very interesting determination if you have a transgender Aboriginal. Is the person female or male? Honestly, I don’t know.  It’s a very complicated situation.

Senator Plett:  In your opinion, would a gender‑fluid Aboriginal person, if that person identified as a female at the time of the assault ‑‑ because, in answer to Senator Batters’s question, you say we can self‑identify — do you believe that that person should qualify under this legislation?

Senator Dyck:  If the person was Aboriginal and they, at the time, said they were a female.

Senator Plett:  At what time, before or after?

Senator Dyck:  At the time when they were assaulted or murdered.

Senator Plett:  But they are gender fluid, so they go back and forth one day to the next.

Senator Dyck:  It would be what they had indicated to the person, the perpetrator, the offender.

Senator Plett:  If they wanted to make it a hate crime, they could say, “I identify as a woman,” and, if they didn’t care that much, they could identify as a man.

Senator Dyck:  It makes for an interesting comparison, for sure.

Senator Joyal:  I’m sure you have had the opportunity to reflect upon the impact of your bill on the Charter of Rights and Freedoms.  As I see it, and I might be wrong ‑‑ I have not checked all the sections of the Criminal Code ‑‑ but it would be one of those rare occasions in the code whereby the distinction of sexes would be attached to an element of consideration in terms of sentencing or in terms of factual elements to determine the sentence.

As you know, the Gladue principle enshrined in 718.2 doesn’t distinguish between male and female.  In this case, the fact that the person who is the victim of the crime is a female has to be considered, and the fact, for instance, that the victim would be a male would not have to be considered; it would be referred to in the general section of 718 on the basis of race and not sex, of course, because the sex distinction would have been covered by your bill.

Have you measured the impact of this distinction on the basis of the Charter, the equality of sexes, and how do you answer that argument?

Senator Dyck:  I think the answer lies in subsection 15(2).  Because Aboriginal females are obviously targeted for violent crimes, subsection 15(2) says that although every individual is supposed to be equal before and under the law, under (2) it says:

Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

I think it would fit under that because we know, because we have this national crisis of missing and murdered Aboriginal women and girls, that we have a problem related to being an Aboriginal female.  So I would think that under subsection 15(2), we can then enact a law because of that specific disadvantage that is now shown by all the evidence from various groups, such as the Native Women’s Association of Canada and the RCMP.

Senator Joyal:  I don’t doubt that.  You know my stand on this issue; as you know, I am on the record about this.  I’m just trying to look into the impact of the implementation of the bill.  A counterargument could be made to prevent its implementation and its constitutionality.  That’s why I raised that issue, because the arguments can be made that Aboriginal men are also victims at a much higher rate than non‑Aboriginal men in terms of being victims of murder, crimes, assault and everything else.  We know the records in prisons are full of that.

That’s why I’m trying to understand the nuance that you put legally ‑‑ to be sure that it would survive an argument based on the Charter and to be sure that the bill will run into the judicial system without being challenged constitutionally ‑‑ too obviously.

I’m trying to understand if the systemic element that is in the Gladue principle, which is a recognition of a special condition of Aboriginal people.  If we could extend that element of systemic recognition to a very specific group within the Aboriginal people ‑‑ being women ‑‑ that’s more or less a step‑by‑step evolution of the principle of the facts of recognizing systemic discrimination in the system.

The Chair:  Do you have a question, Senator Joyal?

Senator Joyal:  Do you understand my reasoning in relation to that?

Senator Dyck:  Yes.

Senator Joyal:  I’m not trying to write a decision here, but how would you address that type of argument?

Senator Dyck:  One of the court decisions that I read out in my presentation said that Aboriginal women were systemically discriminated against.  I tried to argue that through the legacy of colonialism, the types of things that have happened to Aboriginal women are different than they are for men.  The provisions, then, are not exactly the same, so there should be a specific provision for the women.

Also, I brought up the Statistics Canada report that says that although Aboriginal men are also over‑victimized, assaulted and murdered, they definitely showed that if you took out the other risk factors, it was still the Aboriginal women ‑‑ just simply being an Aboriginal for a woman was a risk factor for violence but it was not for men.  That makes it clear there’s a difference.

Senator White:  Senator Dyck, as you know, I’ve worked in Aboriginal communities for almost 20 years as a police officer.  I’ve seen the Ed Hornes of the world who abuse hundreds of children.  Is there a reason we haven’t included in your bill here Aboriginal women and children overall, since I would argue they are victimized at a much higher rate as well?

Senator Dyck:  It says female identity.  It doesn’t specify age.

Senator White:  I’m just saying children overall ‑‑ not female but both.  The vast majority of victims of sexual abuse that I saw were males, actually.

Senator Dyck:  I think it would include children because there’s no specification on age.

Senator White:  But only female children.  But I’m saying both boys and girls.

Senator Dyck:  Yes, you’re right.

Senator White:  Have you given consideration to both genders?

Senator Dyck:  That’s another category, yes.  Again, I think what we would need there is the evidence and the statistics to show that.

Senator White:  So you would welcome an amendment?  Is that what you’re saying?

Senator Dyck:  No.  Maybe it’s because I’m a scientist; I always think you have of the data and the statistics to show there’s a problem.

Senator White:  We’re in a political system.  We need no data.  I’m kidding.

Senator Dyck:  I’m not adverse to amendments.  I think any bill can be improved.

Senator White:  Thanks for that, senator.

Have you met with the Canadian Bar Association and run this legislation past them?  I would love to see them support at some point a bill that actually came to the Senate.

Senator Dyck:  No, I haven’t met with them.  I think we had them as a suggested witness but they may not have been available.

(French follows ‑‑ Sen. Dagenais: Je veux d’abord que vous . . . .)

(après anglais – Sén. Dyck : …they may not have been available.)

Le sénateur Dagenais : Je veux d’abord que vous preniez note que je suis de ceux qui ont souvent dénoncé le manque de sévérité des sentences, principalement dans les cas de crimes violents à l’endroit des femmes. Cependant, j’ai un questionnement de fond sur ce projet de loi. Dans notre société, les politiciens parlent beaucoup d’inclusion des communautés plutôt que de leur isolement.

Avez‑vous pensé qu’en donnant aux juges un tel pouvoir, vous lancez du même coup un message aux agresseurs de femmes qu’ils auraient peut‑être une sentence moins sévère s’ils agressaient une adolescente ou une femme blanche asiatique ou noire qui vit ici au Canada? Comme citoyen, ou encore si j’étais un membre de la famille d’une victime, je serais un peu révolté que l’agresseur bénéficie d’une sentence moins sévère en raison de la discrimination que va engendrer le projet de loi. J’aimerais vous entendre à ce sujet.

(anglais suit – Sen. Dyck: That’s an interesting question.)

(Following French ‑‑ Sen. Dagenais ‑‑ . . . vous entendre à ce sujet.)

Senator Dyck:  That’s an interesting question.  Again, it comes back to ‑‑ because the data show that very vast over‑representation of Aboriginal women as victims, it may also be the same with Black women.  I’m not sure.  It does create a category specific for Aboriginal women, that’s true.  I’m not sure whether that would push an offender to then select someone else that ‑‑ likely it’s a male ‑‑ he thinks he might get away with it. That is, if he’s in a community where there are a lot of Black women, but I suspect that we might see a similar phenomenon in communities where it’s mostly Black women versus mostly Aboriginal women.  In those communities, it’s highly likely that the Black women are targeted for violent offences as well.

Senator Pate:  Thank you very much, Senator Dyck, and all of you for appearing.  Thank you also for all the work you’ve all done to address violence against women and to try to raise awareness of the issues of the under‑protection but over‑policing of indigenous women as well.

Senator Dyck, I wonder if that weren’t the situation whether you would have brought forth this bill.  That is, if it wasn’t the case of the hyper responsibility of women for their own victimization and the exposure of the racism and misogyny of policing practices in terms of protecting Aboriginal women, prosecutorial practices, as well as the lack of adequate defences sometimes for indigenous women, would you have brought forward this bill in the way you did?  Have you considered the impact of women-on-women violence?

Although Senator White is gone, I’d like to add that the child abuse provisions in the Code would cover the areas he has concerns about.

Senator Dyck:  I’m not sure if I understand your question. Was it whether my bill addresses the other things in the criminal justice system such as policing?

Senator Pate:  Sorry, no.  I’ve made it confusing because I was putting it in a context.

If we weren’t in a situation where we had such a clear reality that indigenous women, in particular, are more likely to be victimized and less likely to be taken seriously for their victimization, would you have brought forth this bill?

Senator Dyck:  Well, I don’t think there would have been a need.  We have this pressing need because of all the data we have now originating with NWAC and confirmed by the RCMP that we do have a national crisis where Aboriginal women are targeted for the violent offences and sexual assaults and murder.  There wouldn’t have been a need to put this in, much like there wouldn’t have been a need to put in the Gladue principles if we hadn’t had an over‑incarceration of Aboriginal offenders.  It’s responding to a societal need.

Senator Pate:  I don’t know if you or anybody else wants to respond, but one of the concerns that some of us have is how this will apply, particularly when we’re talking about women who have already been criminalized, in particular indigenous women, who are more likely to be criminalized.  I think in particular of the women who are already in prison and who are criminalized all the time for behaviour in the prison.  Are they more likely to be criminalized under this provision?

Senator Dyck:  Aboriginals in prison?

Senator Pate:  Or any Aboriginal women who are charged with assaulting other Aboriginal women.

Senator Dyck:  No.  This is looking at the victim and I think what you’re talking about is looking at an offender.

Senator Sinclair:  An Aboriginal woman on an Aboriginal woman.

Senator Dyck:  Oh, woman on woman.  That would be covered under paragraph (a), I believe.

The Chair:  I have two senators who would like to ask second‑round questions, but I’m afraid we’ve run out of time.

Witnesses, I want to thank you for being here and for contributing to our consideration of this legislation.

For the second hour, we have with us to talk about Bill S‑215, from the Canadian Council of Criminal Defence Lawyers, William Trudell, Chair; from Edelson Clifford D’Angelo Friedman LLP, Solomon Friedman, criminal defence lawyer and partner; and from Adler Bytensky Prutschi Shikhman LLP, Edward Prutschi, Partner with the firm.  Thank you for coming here.

I understand, Mr. Friedman, you will lead off with an opening statement.  Then we’ll move to Mr. Prutschi and finally Mr. Trudell.

Solomon Friedman, criminal defence lawyer and partner, Edelson Clifford D’Angelo Friedman LLP:  Good afternoon, Mr. Chair, Mr. Deputy Chair, honourable senators.  Thank you for inviting me to address you today on the subject of Bill S‑215.  First, I echo the sentiments of the distinguished witnesses who have preceded me this afternoon.  The disproportionate victimization of Aboriginal women is a stain on Canadian society in general and on our legal system specifically.

It is a complex problem that has its roots in Canada’s ongoing legacies of colonialism, institutionalized racism and systemic discrimination.  For Aboriginal men and women, the results have been nothing short of lethal.  It is shameful, and it stands to this day as a blemish on our national character.

Seen in that light, Bill S‑215 is surely a well‑intentioned attempt to recognize the victimization of Aboriginal women and to protect them from this recurring violence.  Senator Dyck should be applauded for attempting to address what appears to many to be an intractable and confounding problem.  But, as any criminal lawyer can tell you, good intentions are insufficient to make good law, and Bill S‑215 is not, in my respectful view, good law.  I say that for four general reasons.

Before turning to those reasons, I offer the following observation.  It is well‑established as a matter of both statistical analysis and judicial notice that the over‑representation of Aboriginal people as victims of crimes is also inextricably linked to the flipside of the coin, the over‑representation of Aboriginal people in the justice system generally.

That point was made clearly in the recent report by the Department of Justice, which found: “Perpetrators of violence against Aboriginal people are most often other members of the Aboriginal community such as spouses, relatives, or friends of the victim, and as such, victimization among Aboriginal people in Canada is often regarded as a mirror image of Aboriginal offending.”

These numbers must be put in their historical and cultural context.  As the Truth and Reconciliation Commission put it, “Violence and criminal offending are not inherent in Aboriginal people.  They result from very specific experiences that Aboriginal people have endured, including the intergenerational legacy of residential schools.”

Indeed, many studies highlight that acts of violence are often committed by individuals for whom violence has become normalized, having themselves been victimized, particularly in childhood.

For this reason, the Supreme Court of Canada has directed judges to take judicial notice for such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and, of course, higher levels of incarceration for Aboriginal peoples.

This disproportionate representation is particularly evident when the violent crime in question is homicide.  In 2014, the overall rate of Aboriginal persons accused of homicide in Canada was 10 times higher than the rate for non‑Aboriginal accused persons.

In that same period, the rate of Aboriginal females accused of homicide was 23 times higher than the rate of non‑Aboriginal female accused.

With that background, the inherent problems with this proposed legislation become apparent.

First, I am concerned that, via its adverse and disproportionate impact on Aboriginal offenders, Bill S‑215 may be contrary to the guarantee of equality enshrined in section 15 of the Charter of Rights and Freedoms.

Second, Bill S‑215 may effectively run counter to the principles enshrined in section 718.2(e) of the Criminal Code and articulated by the Supreme Court of Canada in decisions such as Gladue and Ipeelee.

Third, Bill S‑215 is unnecessary, as the vulnerable nature of victims, both by individual and class characteristics, is already well‑recognized as an aggravating feature on sentencing in both the Criminal Code and the common law.

Fourth, given the minimal deterring effect of sentencing consequences on violent offenders, this legislation is likely to have no more than a marginal effect, if any, on the commission of violent offences against Aboriginal women.

I conclude with this final thought.  Experience has taught us that the criminal law is an unfit instrument for symbolic actions and social policy.  The criminal law is a blunt tool, more akin to a sledgehammer than a scalpel.  Nowhere is this more evident than in the law of sentencing, which requires judges to craft fit sentences upon a detailed examination of the offence, the individual offender and the specific social context that brings that offender before the court.  Judges are well suited to that task; parliamentarians are much less so.

I’m happy to expand on any of these points in response to your questions.  Thank you very much for your kind attention.

Edward Prutschi, Partner, Adler Bytensky Prutschi Shikhman LLP:  Thank you, Mr. Chair and honourable senators.  It’s always difficult to go second, and I’m sure that, for Mr. Trudel, it will be even more difficult to go third. But he’ll do great.  I almost wholeheartedly agree with everything that Mr. Friedman said, so, rather than giving you a prepared statement, I want to save as much time as possible for questions and answers because I think that’s the nub of getting to ‑‑ and I agree with Mr. Freidman ‑‑ where the problems with a well‑intentioned bill lie.

However, I am going to address just a couple of key issues. Everyone has already spoken to the Gladue question.  It is very apparent to me. My title on the invitation here is “Partner.”  Just so you know who I am, I’m a criminal defence lawyer. That’s what I do each and every day.  I know that Mr. Friedman and Mr. Trudell do the same.  For those of us who spend day in and day out in the criminal courts, arguing not only Aboriginal cases but all of these kinds of cases, we see where the application is headed.  I’ll tell you where my concern is.

It’s taken us a tremendous amount of time to see Gladue actually given some measure of functionality, if I can put it that way, where it’s actually moving the needle when it comes to Aboriginal offenders and the sentences that they are being given.  We know this because the Gladue case dates back some 13 years. It’s a 1999 case, and it was only in 2012 that the Supreme Court of Canada released Ipeelee and basically told all of us in the justice system, “What have you been doing for the last 13 years?  You didn’t listen to what Gladue was intended to be,” and reiterated the importance of that.

My concern is that, with a bill like this ‑‑ and again I give tremendous credit to Senator Dyck for bringing it to this point ‑‑ the introduction of Bill S‑215 is an invitation to those judges who wish to use whatever other measures they can find in the Criminal Code in order to send a tough‑on‑crime message to Aboriginal offenders.  That’s ultimately what’s going to happen in most of the circumstances. We all know and recognize the statistics.  The reality is that, I think, disproportionately, this kind of bill is going to apply to Aboriginal male offenders rather than anyone else.  I think we have to recognize that and be aware of it.  It’s a dangerous exercise, and it’s not clear to me how judges are going to deal with two conflicting bills that say aggravate on the part of the complainant, the victim, and mitigate on the part of the accused.  That’s going to create some potentially unintended consequences.

I did have the pleasure and the usefulness of reading Senator Dyck’s second reading comments in the Senate as well.  There are a couple of examples that were given there,  service dogs and transit workers in particular.  I thought it was a very interesting and clever argument.  The legal mind in me thought, “Wow, that’s not something that I had considered at the time.”

I went back and read those questions because, I must confess, I haven’t defended too many people charged with injuring service dogs.  It doesn’t come up all that often, at least not in my practice.  When you look at those sections, the language of those particular sort of unique sections speaks to, in the service dog case, for example, an animal while it is aiding a law enforcement officer in carrying out that officer’s duties.  In the example of a transit officer, it is, at the time of the commission of the offence, a public transit operator engaged in the performance of his or her duty.  Those are significant and important distinctions because this bill, to the best of my knowledge, would be the first time that we create a special class of victim, a special victim status, if I can put it that way, that is permanent, full time.  It’s not based on what an Aboriginal woman is doing at a given moment.  It’s not even based on ‑‑ and I think this is a constitutional and legal problem ‑‑ whether the offender knew that the person he or she was victimizing was an Aboriginal person.  It’s simply based on the fact that the victim herself is Aboriginal.  We’ve already spoken to what 718.1 and 2 deal with. You already have options within the Criminal Code that indicate that, if this is an offence that is targeting an Aboriginal woman because she is either a) a woman, b) Aboriginal, presumably (c) both, those are already dramatically aggravating factors that are listed in section 718.  They operate independently of 718.2(e), the Gladue factors.

So there’s a certain level of statutory overkill that comes with this. In particular, we see that because the application is included that this bill also targets section 269.  That’s murder.  The mandatory minimum offence for murder in Canada is life imprisonment.  The impact, at best, is going to be on parole issues for persons convicted of second degree murder, potentially, parole eligibility issues.  A fairly marginal scenario on that.

I think I’ve touched on all of the things.  One other point I’m going to make before turning it over to Mr. Trudell, as to the test cases that Senator Dyck referred to in her second reading speech, there were two women who were referenced specifically, two specific cases.  In one of those circumstances, we’re speaking of Cindy Gladue, not the same Gladue, of course, from the Gladue case.  There was a scenario where it was a jury trial and the accused was found not guilty. It’s important to state that this bill has no impact on somebody who is found not guilty.  You can have concerns about how the justice system arises.  I’m happy to speak to you on another occasion about those, but, when it comes to the question of a person found not guilty, it’s not relevant. It’s only when they’re convicted.

The second circumstance deals with the tragic case of Helen Betty Osborne ‑‑

The Chair:  Mr. Prutschi, in keeping for your desire for questions, I’ll have to ask you to wrap up.

Mr. Prutschi:  My point is that, even in the second circumstance, it wouldn’t have helped those two women, unfortunately.

William Trudell, Chair, Canadian Council of Criminal Defence Lawyers:  I don’t take long.  Thank you very much, honourable senators, for the invitation on behalf of the Canadian Council of Criminal Defence Lawyers.  I haven’t seen you for so long.  It’s nice to be here again.

First of all, what struck me is the incredible time that we are living in, where we are really paying attention to some of the struggles of First Nations in our community.  Although it’s not really relevant, I watched last night the honouring of Gord Downie, and it struck me that we have reached an important time in our society in Canada.

Senator Dyck’s bill to increase this discussion and open up different points of view is important, but my respectful submission, and I echo my friends, is that criminal legislation is a completely different factor.

We’ve moved also into an age of restorative justice.  If I look at some of the recommendations from Senator Sinclair’s Truth and Reconciliation Commission, we’re talking about principles of restorative justice.  If I look at the preamble of Bill S‑215, it says:

Whereas the Canadian Charter of Rights and Freedoms guarantees to all individuals equality before and under the law and the right to the equal protection and equal benefit of the law without discrimination;

Unfortunately, this bill ranks victims, and makes one victim not as equal as another.

Second, Aboriginal women have been for many decades and are still far more likely than non‑Aboriginal women to go missing or be victims of murder or other violent crimes.  I was thinking about whether this bill is premature, because the inquiry into missing and murdered women will talk about this.  Maybe when that inquiry finishes, we’ll be more informed as to whether this type of legislation fills a need.  Right now, in my respectful submission, following my friends, we don’t need the bill.

In the principles of sentencing, evidence of the offence was motivated by bias, prejudice, hate; based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar ‑‑ it’s already an aggravating circumstance.  Quite frankly, it’s not needed.

I wanted to leave you with this:  The Canadian Council of Criminal Defence Lawyers is a council.  Where there is no organization in a particular province, there are representatives.  In the Northwest Territories, in the Yukon and Nunavut, in the last week when I reached out to our representatives there, they were so concerned about this bill as it affects the Gladue and Ipeelee principles and what they see on daily basis in the North.  If you look at the community that this bill may have an effect on, the word that was used was “disastrous.”  I’m happy to answer any questions I can.

The Chair:  We will begin with deputy chair.

Senator Baker:  All three of you witnesses are very well known in case law.  You’re performing extremely well as criminal defence lawyers.

You’ve compared the wording of this particular bill to the wording of existing provisions in the code, in saying it’s already covered and that it would be in conflict with the Gladue principles.

There is a considerable difference I see in the wording of this bill and the wording of paragraph 718.2(a), the paragraph that deals with the mitigating and aggravating circumstances.  That provision deals with circumstances that shall either increase or decrease sentencing, depending upon whether it’s an aggravating circumstance or a mitigating circumstance.  In other words, the provision in the code says the sentence shall be increased or shall be reduced.  That’s quite different than this bill that says a judge “shall consider in sentencing,” not “shall increase the sentence” and not “shall decrease the sentence,” but “shall consider as an aggravating factor.”  There is a considerable difference in the wording.

As you say, Mr. Friedman, you’re an experienced litigator.  You’re saying it’s not going to have that much effect.  Why would you call it bad law if it’s not going to have that much of an effect?

But my main question is that this bill is worded in a way to try to address a serious problem we have in Canada, which is presently being studied, as you note.  So the bill is so worded as to provide a direction to consider ‑‑ not to increase or decrease ‑‑ but to consider as an aggravating factor.

You can’t compare that to a section that says it must be increased or decreased, aggravating or mitigating.  That’s my general question to you.  Any comments?

Mr. Friedman:  When I said it won’t have much effect, I meant it would have no beneficial effect in terms of deterring offenders from committing offences against Aboriginal women.

The research on the benefits or lack thereof in terms of sentencing provisions is fairly clear cut and the benefits, if any, are extremely slim.

With respect to the issue of aggravating features on sentencing, I look forward to the day when I meet the Crown attorney who is willing to agree that an aggravating feature should not increase the sentence on an offender.  Considerations are aggravating, meaning that they call out for a harsher punishment.  That doesn’t mean automatic imprisonment, but it means that you have lost some benefit and you will be subject to stricter sanctions.

However, I think we have to look beyond the hate or prejudice provisions.  If we look at 718 itself, we are told, first, that we have to denounce the conduct and examine the harm done to the victim and the community.  I noted with interest the cases cited by Senator Dyck.  Courts are already taking into account the vulnerable nature of victims as individuals and classes.  That exists in the common law.

Specifically, I will conclude by saying that 718 says that these are aggravating features that are “not limited to the following.”  In other words, courts are entitled to take into consideration anything about the offence that they consider to be aggravating.  The fact that the victim is vulnerable is absolutely one of those features and is recognized commonly in the case law.

Senator Baker:  But it’s quite different from 718 in that 718 says a sentence shall be increased or decreased depending on whether it’s an aggravating or mitigating circumstance.  You obviously agree that’s what’s there.

Mr. Friedman:  I agree that’s what the wording is, but the only meaning that aggravating factor on sentence can possibly hold is that the penalty ought to be ‑‑

Senator Baker:  Even though it says “consider.”

Mr. Friedman:  Yes, the judge will consider it.  How does that reasoning process play itself out?  The judge considers it and weighs it.  That aggravating factor might not be enough to tilt the balance toward a heavier penalty, but there’s no question it goes on that side of the balance; namely, the balance that leans toward a heavier penalty.

Senator McIntyre:  My question is one of clarification on the issue of interpretation.  The code uses the word “Aboriginal;” it does not use the words “Indian,” “Inuit” or “Metis.”  The bill refers to the words “Indian,” “Inuit” or “Metis.”

Would the fact that the bill refers to “Indian,” “Inuit” or “Metis” create problems, because these words are not recognized in the code and there’s no definition within the code.  Therefore, would there be a problem of interpretation?

Mr. Trudell:  I circled that because I didn’t know what that definition meant.  I’m not in a position to give the proper definition that includes those people that Senator Dyck wants to protect here.  There are others who are more qualified.  That certainly was very unclear to me.

Recently, I was speaking to Jonathan Rudin about being involved in a panel and I used the wrong phrase.  I think I either used “Aboriginal” and he said it should be “indigenous” or I used “indigenous” and he said it should be “Aboriginal.”

So the legislation has to be clear. I was concerned when I read it, senator, that I didn’t understand what it meant.

Mr. Prutschi:  I spoke to Jonathan about this very thing.  Jonathan Rudin is the Director of Aboriginal Legal Services in Ontario.  He expressed some concerns to me about the bill as well prior to my coming in.

My suspicion is that in the Criminal Code as currently constituted ‑‑ not the way the bill reads ‑‑ the term “Aboriginal” is used intentionally as a more broad‑based term to allow for the kind of thing that Senator Dyck speaks of, which is self-identification, self-declaration.

It’s one thing to allow self-identification in a Gladue case.  So that senators understand how that works, when that happens, in most communities there is somebody from Aboriginal Legal Services who gets involved, meets directly with the client face to face, spends an extraordinary amount of time delving into their specific Aboriginal/indigenous background, and then communicates back what their history is.  Then a judge has the opportunity to read the report that is generated and use all of those factors in crafting the appropriate sentence.

In a scenario where we create a class of victims based on self-identification, I don’t believe the Criminal Code can permit that.  Constitutionally, the fact that a victim ‑‑ either ex post facto if they’re a homicide victim or at some point in the course of a sexual assault, for example ‑‑ self declares as Aboriginal, it doesn’t matter.  What matters is the offender.  From a legal perspective, did the offender know they were Aboriginal, if the bill passes?  You will get into issues of proof because, as we discussed, not everyone is obviously Aboriginal and people make those kinds of mistakes either wittingly or unwittingly.

Senator McIntyre:  Could a defence lawyer argue that the accused did not know that the victim was Aboriginal?

Mr. Prutschi:  Defence lawyers argue anything.  That’s what we do.  Defence lawyers will absolutely argue that.  I would argue that and I’m sure Mr. Friedman would and so would Mr. Trudell.

(French follows ‑‑ Senator Dagenais:  Monsieur Friedman, vous étiez…).

(après anglais – Mr. Prtuschi : …and I’m sure Mr. Friedman would and so would Mr. Trudell.)

Le sénateur Dagenais : Monsieur Friedman, vous étiez ici, plus tôt, lorsque le sénateur Baker a posé une question à la sénatrice Dyck sur le conflit qui pourrait exister avec cette loi, face aux dispositions actuelles du Code criminel, qui suggère aux juges une sentence autre que l’emprisonnement lorsque l’accusé est un Autochtone. Un jour, il se peut, pour un crime violent envers une femme autochtone, que l’accusé soit d’origine autochtone. Sur le plan légal, pour un tribunal, à quoi s’appliquera la prépondérance? Est‑ce que ce sera à l’origine de l’accusé ou l’origine de la victime?

(anglais suit – Mr. Friedman: That’s a helpful question…)

(Following French ‑‑ Senator Dagenais cont’g ‑‑ de la victime?)

Mr. Friedman:  That’s a helpful question.  It identifies that we really have two sides of the same cycle.  That is, it is the over incarceration of Aboriginal peoples that is a prime contributor to the overrepresentation of Aboriginal people as offenders.  And instead of doing what Gladue does, which is to try the cut that off at the at the pass by saying, “If we divert as many people as we can from jails, then we’d end alienation from community, isolation from family and heritage and all the factors that contribute to increased offending, and then maybe we’ll stem that tide.” Here, however, we will feed right back into that loop by saying “because the victim is an Aboriginal woman” ‑‑ and we know what the statistics tell us ‑‑ then we further perpetuate a cycle of violence which will only further increase incarceration and offending.  In my view, it will serve to make Aboriginal women less safe because all it does is get that cycle going again of over incarceration and overrepresentation in the justice system.

Mr. Trudell:  Paragraph 40 of the Truth and Reconciliation report in relation to justice ‑‑ Senator Sinclair I hope I read this correctly ‑‑ states:

  1. We call on all levels of government, in collaboration with Aboriginal people, to create adequately funded and accessible Aboriginal‑specific victim programs and services with appropriate evaluation mechanisms.

That’s really where the energy has to go right now.  For a judge facing this in the North, what is open to the judge to do to address the restorative justice?  If it’s imprisonment, then that person is going to be separated from their family and go a long way away because of where the detention centres are.  This is part of the discussion we’re having here, in my respectful submission.

Senator Batters:  Thank you very much, all of you, for being here today.  I want to start with Mr. Friedman.

You needed to significantly shorten your opening statement time to meet the time deadline that we gave you so I wanted to give you more opportunity to let us know about your section 15 Charter analysis of this bill and why you think this bill runs the risk of being unconstitutional on those grounds.

Mr. Friedman:  We’re all well aware that section 15 guarantees all Canadians the right to the equal protection and equal benefit of the law without discrimination.  This Charter protection doesn’t simply end at laws that are obviously discriminatory.  In other words, the law makes an obvious distinction on its face between multiple classes of people.  It covers also “adverse impact” or “adverse effect discrimination.” That is, where the law appears to be facially neutral but, because of information we know and can be led by evidence ‑‑ and the statistics that I referred to are more than adequate to demonstrate that correlation ‑‑ one group is singled out because of their class characteristics for disparate treatment.  That is a constitutional problem.

Now, could this survive scrutiny under section 1 of the Charter?  Possibly; there would need to be an evidentiary record.  One thing that would need to be demonstrated on that analysis, for example, is that this would have a beneficial impact on the safety of Aboriginal women.  My view is that if the mandatory minimum sentencing taught us anything, it’s that where we start to move into the territory of either disproportionate or grossly disproportionate sentencing, we can rarely justify the benefits of those increased sentences.  There is no doubt that, given the causal link between overrepresentation as victims and as offenders, in my view this would certainly constitute a challenge, an arguable case for adverse impact discrimination under section 15.

Senator Batters:  Mr. Prutschi, you ran out of time before you had a chance to discuss the Osborne case so I wanted to give you a chance to let us know about that.

Mr. Prutschi:  I appreciate that, senator.  One of the two women who Senator Dyck referred to in her second reading was, as you indicated, Helen Betty Osborne.  This was a circumstance in which a 19‑year old was brutally murdered.  The RCMP were looking for suspects and believed there were four suspects.  Ultimately, three people were charged.  One of those people never was prosecuted because it was deemed that their evidence was integral to the prosecution of the other two.  Police and prosecutors made the decision that they needed those witnesses; they were offered immunity.  One was acquitted.  As I indicated before in the other Gladue case, on acquittal, this bill will have no bearing on someone who is found not guilty.  It will only have bearing on them if they are sentenced.  The other was convicted of murder.  In my view this bill will have little to no bearing. I think the only place it could have bearing would be in a second degree murder scenario when it comes to parole ineligibility.

There are only two case studies, but when we look at the case studies Senator Dyck passionately put forward, it would have made no difference to those two women, sadly.

Senator White:  Thank you very much, Mr. Chair, and thanks to the witnesses for being here.  Actually, it’s good to hear a different perspective than what we heard.

Almost 35 per cent of the women in federal incarceration in Canada are Aboriginal women.  Probably an equal percentage of them are in jail for violent crime in relation to Aboriginal women or children.

Do you also raise the same concern around the fact that those who we’re talking about today that we’re trying to protect we’re going to punish more at a higher level as a result?

Mr. Prutschi:  It’s a smaller number than with the male population ‑‑ that’s true in both Aboriginal and non‑Aboriginal populations.  However, when you’re looking at impact on Aboriginal women as offenders, it cannot help but have a negative impact in that regard.  That deals with Aboriginal women who are offending against other Aboriginal women, including children who are female.  A lot of these will be spousal scenarios.  It includes same‑sex spouse situations as well.  It’s something to consider, even though I think it will be a smaller proportion of the population that’s impacted.

Senator White:  Mr. Friedman, I think you said “good law.”  How would you make good law?  Everyone understands what’s trying to be accomplished here.

Would you suggest there is a way to correct this to make it accomplish what we’re looking for, which is to try to reduce the recidivism rates among Aboriginal female victims?

Mr. Friedman:  That’s the obvious question.  I know that’s what we’re all here to do.  Obviously, that’s what Senator Dyck is here to do.

The trouble with using the criminal law as an instrument for policy-making, it’s an attractive option, it costs nothing on its face.  No money has to be spent; no budget accounted for.  You just pass the law and you hope that it will have the effect that you wish.  This type of problem requires attention and resources.  It requires resources on the front end.

Just this morning I spoke to our local Aboriginal case law worker.  I was discussing my remarks with her and I asked her for her perspective.  What she said was, we need the resources on the education side, on the violence prevention side, on integrating our domestic violence strategies in terms of education and diversion away from simple punishment and incarceration; but counsellors cost money, programs cost money, restorative justice costs money.  So I urge this committee to avoid the easy lure of the quick fix.  The Criminal Code is rarely a quick fix.  This is a difficult and complex problem.  It will require difficult and complex solutions.

Simply going to the very end of the justice system, when everything has failed, at sentencing, that’s the end of the line, and saying we tack a little more on, that will solve the problem; in my respectful view, with the greatest of respect to Senator Dyck’s efforts, and they are tremendous efforts, that will not address the core cause of the problem.

Mr. Trudell:  Senator White, I like to say to all my clients that defending a case is like performing an operation for a doctor.  You get the X-rays.  We’re at a stage where X-rays are coming in with an inquiry that is going to take place, so legislation at this particular time may prove to be not needed or irrelevant once the full picture comes in.  There are all kinds of help downstream in the deep end of the river but not much help upstream, and that’s where the help needs to go.  That woman who is in custody, an Aboriginal woman, was probably a victim of violence, probably a victim of assault, and the child that you’re also concerned about is going to be exposed to the same thing.  So it’s a cultural thing, especially troubling in the North.

Senator White:  Thank you.

Senator Sinclair:  The easy criticisms are very clear, I think, and you’ve made them all.  But there seems to me to be a tough issue that we’re not addressing and I want to know if you have a solution for that. It seems to be the genesis of Senator Dyck’s thoughts with regard to the preparation of this bill, and that is, and if you read the material that has been filed this evening with the committee, there is an emphasis or at least a focus upon the issue of the victimization of indigenous women by serial killers in this country, that indigenous women are more likely to be victimized by serial killers than any other group in this country.

The reference in the sentencing provisions of the Criminal Code that have been highlighted emphasizes the importance and the issue of the conflict between the indigenous person as a victim and indigenous person as an offender.  My question to you is, if the bill is not an acceptable answer to the victimization of indigenous women, what do you think the answer is to dealing with the very difficult and I think we would agree is a very pressing problem of indigenous women who are being victimized by serial killers in this country at a disproportionately high rate?

Mr. Friedman:  First, I would say it’s possible you thought, Senator Sinclair, that by being in this body you’d be done with having defence lawyers miss the obvious point.  Unfortunately, that’s probably never the case.

If we’re dealing with a serial killer, we’re dealing with somebody who has disregarded the mandatory minimum sentence for murder in this country.  There is no way that an aggravating feature on sentence could possibly deter that person.  What we need to do, if we look at the work that has been done on missing and murdered indigenous women and girls in this country, we talk about how are these complaints at the missing stage addressed by local police forces?  How are they addressed by the outside community?  How are they taken up?  Those are the real question to ask.  How are concerns validated?  How are people brushed off, which, no question, contributes to the victimization and the dehumanization of Aboriginal women and girls.

But to address it at the sentencing stage, in my submission is far, far too late.  This is a question of resources.  It’s a question of education for the police and the justice system.  It’s not an issue that needs to be raised at sentence.  By sentence, the problem is long since committed.

Mr. Trudell:  Senator Sinclair, there is an issue here and it’s important and Senator Dyck has mentioned it and you have focused on it, but as has already been mentioned, the criminal justice system is not the way to solve this.  We’ve been talking and dealing in silos for so many years, so the very fact that this discussion is taking place, just like the discussion has taken place about mental illness — 10 years ago we would never talk about it.

In my respectful submission, we started here, and for you to say what’s the answer, with respect, what are we going to do, we don’t know yet, but we’ve started to talk about it here in the Senate, which 10 years ago would not have been discussed. I think this is part of a process that was contributed to and maybe even started by your commission, but to jump in with criminal legislation to denounce something misses the point.  It looks like we’ve done something but we haven’t done really anything.  I don’t know that we’ve missed the point.  I don’t think that there is a final point yet.  This is an evolving and important discussion and I would hate to see legislation jumped in as a Band‑Aid because that’s not going to solve anything.

Mr. Prutschi:  Senator, I could give you at least something in response to what is clearly the most difficult question in the room.  I will say, having defended a number of people accused of murders, and even some convicted of murders, they don’t read the Criminal Code either before or after they commit their offences, so nothing we write in the Criminal Code is going to impact them.

So when you ask, what can we do to address the serial killer who is preying on Aboriginal women, I suspect, and I think the statistics will bear this out, it’s about Aboriginal women being an easy mark for these kinds of people.  If we want to address that, it’s about taking the steps that we as a society need to take to make them less of an easy mark.  Some of them are being preyed on doubtless because they are Aboriginal, but let’s use the example of sex workers and Robert Pickton.  Sex workers are notoriously victimized by those serial killers. They’re a very small number of people, but those people are looking for someone easy, defenceless, whom police are not keeping an eye on, who are not living in suburban communities.  They’re living at the margins, frankly, and the more that we can do to take Aboriginal women away from the “easy mark,” the less likely a person who is already prone to being a serial killer — who is not going to be deterred by what we write in the Criminal Code but who will find that their victim is empowered, that their victim is not left alone and left aside, that’s going to make them safer than anything I could ever write in law.

Senator Pate:  Picking up on that last question, as I hear you say some of this I’m reminded of some of the discussions back when marital rape was being brought in, the role of law in signalling a refusal to allow discriminatory treatment of, in particular, women, and in this case, indigenous women, to countenance any further.  That from my perspective seems to be very clearly, as I think others have said and you have said as well, the purpose that Senator Dyck has introduced this legislation.  It’s not lost on me that Jamie Gladue did not have the benefit of some of these provisions.

We know the facts, if you look at the Supreme Court of Canada, based on the system protecting itself, I would suggest, suggests that that was a sentencing decision when in fact if you actually look at what happened in the preliminary inquiry, the violence that she was experiencing was not taken seriously.  The rape of her sister was characterized as an affair and she was characterized as a jealous wife as opposed to a woman who was defending herself and potentially defending someone else.

I want to urge you to go further on the question that Senator Sinclair asked.  Would you do that now when part of the role of law is to signal the standards that we expect in terms of behaviour?

Mr. Trudell:  Well, I come back to the question you asked earlier to the previous panel.  We’re talking about legislation here and you asked about impact.  You asked Senator Dyck, had she considered the impact of this bill.  I think we’re all saying that the impact of this bill has not been thought out.

We, as defence counsel here to help, feel that this piece of legislation doesn’t address the issue that you’re concerned about because the impact will be different; it will put judges in a terrible situation and it will run afoul of Gladue.

The point of it is, I think, there’s a message that you are suggesting and Senator Sinclair is suggesting and Senator Dyck is suggesting that needs to get out there.  My point is the message is getting out there incrementally and will certainly be developed in the forthcoming commission.

So I would suggest that in a year from now, when the commission is starting to report or whenever, then you may be better informed about how to deal with the point that Senator Dyck has raised.  I think a piece of legislation now does not solve the issue that we’re trying to solve because the impact of that legislation is negative.

Mr. Prutschi:  I can’t deny, senator, that signalling has some value.  Maybe in my comments I sort of sloughed over that and didn’t give the bill the credit of at least sending that signal.

What I would say is I think there are far more efficient and effective ways to signal than by crafting a criminal law piece of legislation.  If government wants to signal, signal to your Crown attorneys, judges and police chiefs, all of whom the government has an extraordinary amount of control over in terms of who’s appointed, what they’re educated in and what they have passed down to their subsidiaries.  Those are the people who will protect these women.  They will protect these women far better than any piece of legislation that somebody in DOJ can come up with, with all due credit to my colleagues at the Department of Justice.

Mr. Friedman:  I would only add that we are at the ground level as criminal defence lawyers, so the ideas and the principles enunciated in bodies such as this ultimately fall into our laps to deal with.

When I was reading this bill, I thought of a case that I completed some time ago in which my client, an Inuit woman, was charged with assaulting and causing significant bodily harm to another Aboriginal woman.  Through the efforts of our Gladue process in Ottawa and the supports in place for her, we were able to achieve the result of her not having a criminal conviction for what otherwise was a fairly serious assault, given that she herself was a survivor of the residential school system.

Now, imagine what would have happened had this law been in place.  The judge would have had to, at least in some meaningful way, address what is called out to be an aggravating feature on sentence.  How would that have served the ends of this woman who herself had been brutalized and marginalized by our political system?  The answer is, it would have been a difficult conundrum.

I cannot underplay the impact of this legislation on Aboriginal women, specifically institutionalized Aboriginal women who are confined with other often many — and obviously disproportionately — Aboriginal women.  Those offences will haunt them and perpetuate this cycle of victimization and offending.

We see it from the ground level.  I know I’m concerned and my colleagues are as well.

Senator Joyal:  Thank you.  The bill makes a distinction based on sex.  It establishes a special system for Aboriginal women.  On the basis of section 15, one could argue that it is discriminatory.

Do you think it could be saved by section 1 on the basis of the fact that Gladue already recognized the systemic condition under which Aboriginal people find themselves in Canada at this stage, that in fact the bill could survive a Charter challenge on that basis?

Mr. Friedman:  Bill, did you want to take that?  I’m happy to, if you’d like.

Mr. Trudell:  I find the question as complex as the argument that would be made.  It’s a very thoughtful question, Senator Joyal, but oh my God, I think this is so difficult to find an answer to, a challenge that hopefully is not necessary.

I defer to my younger colleagues on this, but I’m very concerned about the ramifications even of the question.

Mr. Friedman:  What I would do is compare this piece of legislation with the other aggravating features in the code.  What you’ll notice is very important that for every other aggravating feature, what’s at issue is the relationship between the offender and the victim.  For example, was the offender the spouse, married or common law?  Was the offender in a position of trust or authority?  That is what is in and of itself aggravating, that the accused person, now the offender, for whom much better is expected, particularly of someone who is inherently vulnerable, due to that relationship has exploited that relationship and committed an offence.

This is completely different.  This establishes a class distinction based on nothing more than the identity of the victim.  That stands alone in the Criminal Code.  You add another layer to it.  What stands alone is that it would disproportionately affect an already vulnerable population that is in fact protected under section 718.

So this would be a thorny challenge, and I doubt its ability to be saved under section 1, particularly given the fact that the government would bear the burden of demonstrating that this has not just a rational connection but actual beneficial effect on what is being targeted here, which is the vulnerability and victimization of Aboriginal women.

Would an aggravating feature on sentence really do that?  It doesn’t do much in any other cases; why would one expect it to do anything in this circumstance?

Mr. Prutschi:  Senator, we’ve already heard one comment about signalling.  What signalling would it send?  I think the only way you can make a plausible argument for a section 1 save of this kind of argument in the face of section 15, the equality provisions, is to say that Aboriginal women as a class of people have to be labelled as a class that requires special protection.  While the statistics to some extent bear out the reality of that, the saying of that ‑‑ it’s difficult for me to say this as a White male, but you’re asking me so I’m going to say it ‑‑ I would be concerned about what that signals to the entire population of Aboriginal women, which is we have designated you, a group in need of protection, so much so that we save an otherwise unequal law.  I don’t know whether that’s a short‑term solution or what that means in the longer term when the state sanctions that kind of commentary, if a court even allows it to get that far.

The Chair:  We have time for a brief second round.  Senator Baker, did you have a question?

Senator Baker:  Yes, Mr. Chair.  Denunciation.  It’s a principle of sentencing in criminal law that does two things.  It sends a message to society, and it also, as the Court of Appeal of Ontario once said many years ago, sends a message to an offender that he dare not reoffend.  Denunciation, an increase in sentencing.  That’s exactly what this bill does, in assault right up to sexual assault and aggravated sexual assault.

Those two factors on denunciation, we see it practically every day in our courts in certain circumstances that really mirror the speech of the mover of this motion for this bill in matters of assault that keep reappearing in our courts for specific individuals.  Doesn’t that really negate your entire argument as to the effect that such a measure would have?

Mr. Trudell:  Your Honour, could I make some submissions in relation to what you have just said before you sentence my client to jail?

Denunciation is served a number of ways. Denunciation is served by the charge itself in many cases, but then the issue is you’re just not denouncing a crime; you’ve got an individual in front of you.  Let me tell you about that individual.  That individual is a victim of violence.  That individual has no home.  That individual is vulnerable.  That individual didn’t have the opportunities that you and I have, and that individual has nothing to look forward to, or didn’t.

However, since the crime, that individual has gone to rehabilitation, has dealt with their mental health issue, has dealt with their drinking problem and has now got someone who’s prepared to hire them.

So I ask you, in these circumstances, the crime has to be denounced, but this accused in front of you now ought not to be denounced, and there is more to the criminal justice system than the sentence that you were thinking about imposing two minutes ago.

Mr. Prutschi:  I’ve sat in the back of a lot of courts and heard Bill give that speech.  I’m not sure there’s much to add other than to say I’ve yet to see a case in which a judge doesn’t at some point say, “What do I do about denunciation?”  You don’t need unique sections of the Criminal Code to convince judges that denunciation is a factor in sentencing.  It’s already a fundamental table‑leg pillar of the criminal justice system.

Bear in mind that this bill covers offences from murder down to uttering threats, so there will obviously be a significant difference in how much denunciation we need to do.  In a murder, the judges always denounce, but it’s kind of pointless because the person is getting a life sentence anyway.  In uttering threats, I don’t know how much denunciation is really called for before you’ve gone overboard.  There is that questionable area in between when you’re dealing with assault, sexual assault and aggravated assault.  Of course, as you move up that spectrum, the denunciation grows, but you don’t need this bill to do that.  Every judge I’ve ever stood in front of has done it all on their own, and I try to do what Bill does and mitigate that to some extent.

Mr. Trudell:  Senator Baker, could I just say, you’ve got an accused who is going to be aware in a situation like that and be accountable for the damage they have caused to that victim.  These submissions are not going to be made in a vacuum because there’s going to be a victim impact statement.

So what you are going to be looking for is does this accused person understand the impact of what they did here?  If they don’t and there’s nothing left ‑‑ they do not get it, they don’t care, they’ve done nothing ‑‑ then denunciation may be the only message.  But on the ground, our job is to help this accused understand the impact of the crime that they’ve done, and then the judge has the discretion to decide what they should do here.

The Chair:  Senator Sinclair, final question.

Senator Sinclair:  Mr. Friedman, I was just curious about your Charter argument, only because there are other provisions in the Criminal Code in which courts are called upon, not simply allowed, but called upon to take into account things like gender, race and sexual orientation when it comes to sentencing an individual.  Those provisions appear to be able to withstand Charter scrutiny, so I wonder why you think this is different.

Mr. Friedman:  There are two reasons why I think it’s different.

Senator Sinclair:  Incidentally, they’re not necessarily in the nature of a relationship between the offender and the victim.

Mr. Friedman:  I agree.  There are two reasons why I think this is different.  Number one, those characteristics, generally speaking, form part of the offence.  So if we’re talking about race, sexual orientation and gender, the Criminal Code asks whether the offence was motivated by hate, prejudice or bias.  That is completely absent from this bill.

The second side is that none of those offences — whether it’s the hate crimes, offences against children, offences against a spouse, offences against service dogs, police officers or transit operators — are disproportionately committed by a specific class of offenders.

In this case, when it comes to offences against Aboriginal women, we don’t need to rely on common sense.  The statistical reality is there and it’s there in spades.  Those offences are disproportionately committed by Aboriginal offenders.

So in my respectful view, it takes you out of that notion of simply denouncing or deterring offences against classes of people because before you even get out of the gate, you’ve already identified a class of offenders who by their very nature are more likely to be captured by this provision.  To me, that opens the door to a section 15 challenge.

Senator Baker:  Section 15 only deals with the enumerated provisions within section 15.

Mr. Friedman:  There’s no question that Aboriginal persons are captured under section 15.  It deals with discrimination.  Those enumerated grounds are obviously open to be expanded upon in that they are not closed categories under section 15.  They are enumerated and enumerated only.  Any analogous grounds can be advanced under section 15, and the case law is replete with incidents where Aboriginal identity is captured under section 15.

The Chair:  Gentlemen, thank you all for your helpful contributions.  It is much appreciated.

Members, before we adjourn, there’s a recommendation from steering that we not meet next week.  The chamber is going to be very busy with a number of votes.  Does anyone have a problem with that?  Okay.  We will not meet next week.  There will be no meetings next week.

(The committee adjourned.)