OTTAWA — A Senate committee has passed amendments to the government’s massive criminal justice legislation, Bill C-75, including changes that would require judges to consider harsher sentences for domestic violence against Indigenous women.The changes are based in part on the recent testimony of Marion Buller, chief commissioner of the national inquiry into missing and murdered Indigenous women. The inquiry’s final report will be released next week, but the Senate amendments mean a version of some of Buller’s recommendations could become law before the scheduled fall election.The amendments still need to pass a vote in the full Senate chamber, and would then go to the House of Commons, which could reject them. The Senate generally defers to the elected Commons when there are disagreements over a bill.The Senate’s legal and constitutional affairs committee also passed an amendment to Bill C-75 that would bring back the option for preliminary inquiries for hundreds of criminal offences, reversing the government’s move to scrap them except for offences carrying a sentence of life imprisonment. Preliminary inquiries are court hearings to determine if there is enough evidence to move to trial. In Bill C-75, the government planned to remove most of them for two main reasons: to reduce court delays, and to prevent the “re-victimization” of requiring two rounds of testimony — particularly in sexual assault cases.Independent Sen. Pierre Dalphond, a former judge, passed an amendment to bring back the option of preliminary inquiries for most indictable offences as long as the judge ensures the impact on complainants is mitigated. A justice official warned the committee this would increase the number of offences permitting preliminary inquiries from 70 to 463, and potentially increase court delays. “This is not consistent with the objectives of the bill,” said Paulette Corriveau.In a statement, Justice Minister David Lametti’s office stood by the rationale for removing most preliminary inquiries, saying it was a request of provincial governments and would “free up court time and resources without impacting an accused’s Charter rights to a fair trial.”The statement said Lametti will carefully consider the amendments that emerge from the Senate, and that the final version of the bill will have benefitted from “a full discussion of all the relevant policy considerations and constitutional principles.”The committee’s amendments on domestic violence against Indigenous women will also require Lametti’s attention.This is an opportunity to do something right now
In anticipation of the national inquiry’s final report, Sen. Lillian Dyck, a Liberal who became the first female First Nations senator in 2005, proposed three amendments based on recommendations Buller made at a committee hearing earlier this month. The report is due June 3, but Dyck said it was important to amend the bill ahead of time, as there is little time left to make legislative changes before the fall election.“Who knows what the next government will be like?” Dyck said. “This is an opportunity to do something right now, in a matter of a few months.”She said she suspects the government will approve her amendments, since they’re based on Buller’s recommendations and the Liberals funded the national inquiry.“I predict that they will go because of the testimony of the chief commissioner,” she said. “Her testimony was so clear and so strong.”Two of Dyck’s amendments pave the way for stiffer punishments for perpetrators of domestic violence, particularly when the victim is an Indigenous woman.One requires judges to prioritize denunciation and deterrence during sentencing in such cases — as opposed to the rehabilitation of offenders — a requirement that currently exists for the abuse of minors and crimes against police officers and service dogs. “Denunciation and deterrence essentially means the judge has to assign a sentence that could be called harsher,” Dyck told the National Post in an interview.
Liberal senator Lillian Dyck proposed three amendments based on recommendations Marion Buller made.
The other requires sentencing judges to “consider the increased vulnerability” of female victims, especially Indigenous women, in domestic violence cases.Dyck’s third amendment broadens an existing requirement to consider domestic violence an aggravating factor in sentencing to include the abuse of family members, not just intimate partners. In her testimony, Buller said the commissioners had heard many stories about “inter-generational violence and violence between family members, all of whom live under the same roof.”Buller had recommended Indigenous women victims be considered an aggravating factor in all sentences, not just domestic violence cases. She also called for automatic first-degree murder charges for homicides of Indigenous women.Dyck said she confined her amendments to cases of domestic violence because other crimes against Indigenous women fell outside the scope of Bill C-75. However, the new legislation already takes a harder line on domestic violence, so Dyck was able to suggest changes to that part of the bill.She chose not to suggest that Indigenous women victims be considered an aggravating factor, as Buller had suggested, because a bill she tabled in 2015 that proposed a similar change was recently defeated in the House of Commons. “It’s a new concept and the idea that it should be an aggravating factor for an Aboriginal woman is a hard sell,” she said. “So the time wasn’t right.”You’re perpetuating the over-incarceration of Indigenous people
But Dyck feels her amendments will have a similar effect — stiffer sentences for people who abuse Indigenous women — without being quite so explicit.Recommending harsher punishments for those who commit violence against Indigenous women is controversial, in part because many of the offenders are Indigenous men — a group already over-represented in Canadian prisons. “You’re perpetuating the over-incarceration of Indigenous people,” Tony Paisana, a Vancouver-based defence lawyer, told the Post earlier this month.Canadian courts are already supposed to take offenders’ Indigenous identity into account during sentencing, according to what’s known as the Gladue principle, which can lead to lighter sentences in recognition of factors such as poverty and the legacy of residential schools. In the committee, senators raised questions about whether these new sentencing principles could negate the Gladue principle. Justice officials said judges must always balance a number of factors in sentencing, but one official did refer to the question as “a challenging issue and a paradox.”Dyck said the amendments are needed to counteract inherent bias in the criminal justice system that often sees lighter sentences handed down to those who commit crimes against Indigenous women.“Is it fair to Indigenous women that if the offender, let’s say her husband, who may be Aboriginal, has sexually assaulted or beaten her up, is it fair that he gets special consideration and she doesn’t?”• Email: email@example.com | Twitter: MauraForrest• Email: firstname.lastname@example.org | Twitter: btaplatt