CCD Addresses Senators

(27 March 2000 — The following is a summary of a presentation made by Hugh Scher, Chairperson of CCD's Human Rights Committee, to the Senate Subcommittee to Update "Of Life and Death" of the Standing Committee on Social Affairs, Science, and Technology.)

People with disabilities continue to be excluded members of Canadian society. For example, we have a 60% to 70% unemployment rate. Exclusion from mainstream social life has led to a negative perception about people with disabilities. This context has tremendous impact on the lives of people with disabilities, particularly in the decisions made concerning the treatment of people with disabilities.

The purpose of our criminal law and sentencing process is to ensure stability, public safety, and equal treatment and benefit of the law to all Canadians. With respect to the crime of murder in this country, we have a history of mandatory minimum sentences, stemming from an even further history which held that murder in this country was punishable by capital punishment. Therefore, if you killed someone, your life would be taken. The compromise struck by Parliament was to remove capital punishment as a means of meting out justice and to replace that process with what was deemed to be a more civilized process of mandatory minimum sentences—in the case of first degree murder, a mandatory life imprisonment without parole for 25 years, and in second degree, mandatory life imprisonment without eligibility for parole for 10 years. That is the regime that continues to exist today.

The recommendation of the Senate was that there be a third category of murder carved out with respect to murders that are motivated by compassion or mercy. In CCD's view, it is inevitable that biases and negative perceptions will shape society's decisions in ways that put at risk people with disabilities and other vulnerable Canadians. If this Committee is interested in changing or adapting the mandatory minimum sentences in this country, I, and CCD, would urge very strongly against creating a separate category of murder which would, in effect, amount to a category of murder of vulnerable people.

When we look at murders that are motivated by compassion, the victims almost in every case are vulnerable people—people who are sick, people who are aged, people who have disability. If we are to craft a new crime of murder which is really the murder of vulnerable people, then I think we must be very careful about looking at the implications of that, particularly for the community of people with disabilities. We will all age and acquire disabilities with the aging process. We will all become subject to the kinds of biases and perceptions that I have discussed here today. It is our Council's recommendation that the murder provisions in place today remain as they are because we view them as the last protection for people with disabilities from serious abuse and violence.

I find it intriguing that two years ago I was here talking to a Senate Committee and to the Parliamentary Justice Committee about a new offense that was being added to the Criminal Code relating to the sexual touching of people with disabilities as a specific crime and how we and the Committee were concerned about the fact that people with disabilities are disproportionately victimized in these kinds of crimes. We acknowledge that disability is an aggravating factor that must be considered when we look at charging and sentencing someone of this kind of crime.

When we talk about murder, why do we not also look at disability as an aggravating factor? We are in this discussion looking at disability as a mitigating factor to justify the actions of a murderer and I am concerned that that is the effect, intended or otherwise, of creating a third category of murder, the murder of vulnerable people.

If the Committee were inclined to change mandatory minimum sentences, my recommendation would be that it not create a separate category of murder which would amount to the murder of vulnerable people, but that it apply the law equally to all Canadians and that it do away with mandatory minimum sentences. Therefore, all murderers would have applied to them the appropriate sentencing principles and would not be differentiated based on the nature of their crime and, more particularly in my view, the circumstances of their victim.

I am not recommending that approach. Our Council still believes the murder provision represents a last safeguard to protect people with disabilities from serious abuse and death. I am recommending that if the Committee is inclined to consider that approach, then it do so in a way that is applied equally to all Canadians and that does not single out people with disabilities and other vulnerable people and create a category of killing which justifies the actions of killers who kill people with disabilities by taking away the significant punitive and deterrent effects of the Criminal Code sentencing provisions. Do not deny the equal application and the benefit of the law to people with disabilities. To do so could potentially represent a significant violation of our Charter guarantees of equality under section 15 of the Charter of Rights and Freedoms.

Our concern in this area was prompted in large measure by a case that is well known to all of us here, and that is the murder of Tracy Latimer. That case reflects the reality of attempting to trivialize or marginalize the actions of a killer who decides to, in a premeditated, planned and deliberate way, take his daughter, put her in the cab of his truck, gas her to death, lie about it to the police, cover it up and allow his wife to come home and find the girl dead in her bed and suggest that she died in her sleep. If the law is not applied, all people with disabilities are put at risk in what is more than just a hypothetical or theoretical debate at this time. Years ago we spoke about how a slippery slope would be created and the flood gates would be opened if Robert Latimer were set free.

Without influencing anything that the Supreme Court may or may not do, the fact is that the court's and the public's reaction to Robert Latimer has set in motion already a series of actions that have ended up in the murder of children across this country. Whether it is Antoine Blais, an autistic child who was drowned by his mother in Quebec; Katie Lynn Baker who was starved to death by her mother in British Columbia; Ryan Wilkinson who was, in the same manner as Tracy, gassed to death by his mother in a murder-suicide in Hamilton, Ontario; or whether it is the many others that we know or do not yet know about or who have not yet happened; but, will, if we do not as a society and as a Parliament take steps to ensure that our most vulnerable are protected and afforded the equal benefit and protection of our law, including our criminal law.