THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, September 21, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to examine Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Honourable senators, I am Mobina Jaffer, a senator from British Columbia, and I have the pleasure of chairing this committee.
[Translation]
Minister, I would like to take a few minutes to introduce the members of the committee who are participating in the meeting today: Senator Boisvenu, the deputy chair of the committee; Senator Batters; Senator Campbell; Senator Clement; Senator Cotter; Senator Dalphond; Senator Klyne; Senator Miville-Dechêne; Senator Pate; Senator Simons; Senator White.
[English]
Today, we also have Senator Gold, the Government Representative in the Senate, Senator Carignan and Senator LaBoucane-Benson. Welcome to all of you.
Senators, welcome back to this committee after the summer. I hope you have a restive summer. Today, we begin our study on Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.
Before we begin, I would like to remind senators that throughout our study, if you think you have to propose amendments once we get to clause-by-clause consideration, please consult with the law clerk’s office. Plans are still not set in stone, but clause-by-clause would likely take place at the end of October.
Today, we welcome the Minister of Justice and Attorney General, the Honourable David Lametti. He is joined by his officials: François Daigle, Deputy Minister of Justice and Deputy Attorney General of Canada; Matthew Taylor, General Counsel and Director; Matthias Villetorte, Senior Counsel and Team Lead; and Andrew Di Manno, Counsel.
The minister is here for an hour, and officials will kindly stay for a second hour. It is my respectful suggestion that you just focus on the questions you want to ask the minister in the first hour, and in the second hour, you will be able to question the officials. Honourable senators, you will each have four minutes to ask questions.
Minister, you have the floor. Thank you.
David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Honourable senators and Madam Chair, I’m pleased to be back, like you, after a good summer and pleased to be here to appear before you to speak to Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.
Bill C-5 was designed to restore balance to back criminal sentencing, while keeping Canadians safe, wherever they are. It’s about real community safety, where judges have the discretion to tell the difference between a hardened criminal and a first-time offender, and police won’t have to treat every person in possession of drugs as someone to be charged and prosecuted.
Under the previous government, so-called tough on crime policies swung our criminal justice system too far in one direction. A decade later, we are seeing the disastrous consequences of that discredited approach. Indigenous and racialized people and individuals with substance abuse or mental health issues have borne the brunt of harsh ineffective policies, and our communities are no safer. Look at our prisons, where Indigenous people and Black people are overrepresented at alarming rates. Look at our courts, where cases crawl along as many defendants choose to fight charges with MMPs, mandatory minimum penalties, while others challenge their constitutionality.
I know that this bill is a long time coming and that many of you would have liked to have seen changes sooner. Well, here we are. Bill C-5 will not solve every problem in the criminal justice system. If we are being honest, no bill could. I think that, regardless of your politics, we can all agree that the challenges in the criminal justice system are complex, and they are long entrenched. It is the place where many social issues come to a head. Bill C-5 is an important, pragmatic and progressive step towards a fairer and more effective system.
So what does Bill C-5 actually do? First, it repeals all minimum mandatory sentences for drug offences, 13 mandatory minimum sentences for firearms offences and one mandatory minimum sentence for a tobacco offence. It does not repeal the MMP s for offences that include the use of handguns, as well as those that are linked to organized crime. The MMPs we propose to repeal make up the majority of all admissions to federal custody for offences with a mandatory minimum penalty. Yes, it is true that C-5 eliminates only 20 of the 70-plus mandatory minimums in the code, but most people who get an MMP get one of the 20 that we are repealing. Eliminating these MMPs will have an impact.
Second, Bill C-5 allows for greater use of conditional sentence orders in appropriate cases so judges have the discretion to craft effective sentences that address the real causes of offending. This will mean that more low-end offenders who pose no risk to public safety could serve their time in the community under strict supervision. The consequences are more parents at home to raise their kids, and our child welfare system not obliged to take care of their kids if they are incarcerated; more people who can keep their jobs and feed their families without resorting to crime; and more access to alternatives, such as restorative justice programs.
To be clear, conditional sentences are not for everyone. If you are a threat to public safety or face a sentence of two years or more or you’re subject to a mandatory minimum longer than two years, you will not get one, and people who violate their conditional sentence orders may return to jail. I’m aware of the concerns that have been raised that this bill will allow serious offenders to remain on the streets. I want to assure you, honourable senators, and indeed all Canadians, that this is not the case. Serious crimes will still have serious consequences.
The third pillar of Bill C-5 is its amendments to the Controlled Drug and Substances Act, the CDSA. These would require police and prosecutors to consider issuing a warning, diverting individuals found in simple possession of drugs to appropriate resources or, indeed, doing nothing. This recognizes that substance abuse is primarily a health and social issue best addressed through prevention and treatment. For the first time, a declaration of principles consistent with the protection of public health and the maintenance of public safety would be enacted in the CDSA to guide police and prosecutors as they weigh whether or not to lay a charge or prosecute a case.
Honourable senators, for some, this bill goes too far. For others, it does not go far enough. I urge all of you to grasp the opportunity that this bill presents to take meaningful steps to address the very real and pressing challenges facing our system today.
Please also remember that it is just one measure amongst many others taken by our government. For example, Budget 2021 proposes almost $75 million over three years to improve access to justice for Indigenous peoples and support the development of an Indigenous justice strategy to address systemic discrimination and overrepresentation in the criminal justice system. This includes engaging with Indigenous communities and organizations in the development of legislation and initiatives to address systemic barriers to justice, which is an essential component of reconciliation. Our government is also reviving the Law Commission of Canada, which helps Canada’s legal system be more responsive to the complex legal challenges of the day, including how to eradicate systemic racism. To measure the success of Bill C-5 and other criminal justice measures, Budget 2021 also committed $6.7 million over five years and $1.4 million ongoing for the collection and use of disaggregated data.
As a Quebecer and a Member of Parliament for the Montreal area, I am particularly sensitive to the growing anxiety over gun control. Our government is conscious of that and is acting. We have moved deliberately to provide Canadians with some of the most significant gun control legislation in a generation. Bill C-21 includes a national freeze on the sale, purchase and transfer of handguns, new red-flag laws to help prevent intimate partner violence and the expansion of the definition of replica firearms.
[Translation]
Bill C-21 also increases maximum sentences from 10 to 14 years in prison for certain firearms offences, including trafficking and smuggling. In 2020, we banned assault weapons and will soon launch a mandatory buyback program to remove them from Canadian communities.
In 2016, we invested more than $900 million to combat gun violence and keep guns out of the hands of gangs and criminals. We have also cracked down on gun smuggling at our borders. In 2021, the Canada Border Services Agency seized more than 11,000 guns, more than double the number in 2020.
[English]
This government is not soft on crime. Still, not everyone supports this sensible, balanced approach to community safety. You, like all Canadians, have seen in recent months the heartbreaking impact that serious crime can have on victims and communities. We need to rebalance the system in a way that maintains public confidence. Through the bill you are studying, we can show Canadians that a fairer and smarter approach to crime will keep us all safer. I know that some of you want us to go further. I think it is important to be mindful of what our communities are saying. These reforms will work, but Canadians need to see it for themselves. When progress is visible, further reforms will come.
Senators, I look forward to answering your questions.
The Chair: Thank you, minister. Before I go to questions, I will comment on the appointment of Justice Michelle O’Bonsawin. The Senate Legal Committee unfortunately was not given the privilege of asking you questions, as the House of Commons was. I want to take this opportunity to thank you for making the bench more representative, more bilingually representative and more diverse. You have been very courageous in this, and I want to congratulate you for that.
I won’t ask any questions because we have lots of people here, and we’ll start with the sponsor, Senator Gold.
Senator Gold: Minister, we’re studying the bill at a time of significant concerns both about systemic racism in our criminal justice system and about crime in our communities. That’s true in our hometown where Montrealers both rally to support the Black Lives Matter movement while also expressing fears about gang violence. We have seen it elsewhere. For example, in San Francisco, they elected a district attorney in 2019 on a very progressive criminal justice agenda, but after a couple of years, there was a backlash that was so intense that he was defeated in the subsequent recall election, in fact. Can you share your thoughts on the challenge of pushing the envelope on criminal justice reform while ensuring that the changes that you’re introducing have enough public support to endure?
Mr. Lametti: Thank you, senator, and before I go any further, thank you for your work on this bill.
The two goals are reconcilable. We are trying to make the criminal justice system better, more efficient and more just. “More just” means attacking systemic racism at its root. We are doing it in this bill by giving flexibility at the lower end, if you will, of sentencing, where incarceration is not the best solution for either the individual or the community — or the victim, for that matter. It is a health problem, a mental health problem and a problem with social welfare that need to be attacked, and prison is not the way to do it. This is the conclusion by experts around the world, including in the United States, regarding alternative measures.
On the other hand, we need to attack gun contraband. We need to attack gun smuggling. We need to attack gangs and the proliferation of gangs. We are doing that. Bill C-21, which my colleague Marco Mendicino has put forward, is doing that, amongst the other measures that I cited. I think the two can go together. We’ll build trust moving forward, gathering data and moving at a pace that Canadians can accept.
Senator Gold: The bill applies to all Canadians who are subject to our system, but there is a particular need to address the over-incarceration and over-criminalization of Indigenous and Black Canadians. Can you give us an example or an overview of the consultations you’ve done on this bill with Indigenous and with Black community representatives and organizations? How much outreach have you done? What have you heard?
Mr. Lametti: We have done a great deal of outreach on both, both within my office and within the department, working with community leaders in both racialized communities, the Black community as well as Indigenous leadership, at a variety of different levels. I hear it on virtually all of the consultations I have done. For example, on UNDRIP, someone would chime in about minimum mandatory penalties and the negative impact that was having in the community, or the fact that you couldn’t have a conditional sentence order for an Indigenous mother who was caught in very low-level trafficking in order to put bread on the table. That’s the kind of social problem that needs to be attacked at its root, and we’re trying to do that here. Indigenous communities and Black communities let us know they want to be partners in moving forward, working with the police, working with the community justice centres, for example, in British Columbia that are particularly focused on Indigenous peoples, to create alternatives to sentencing at the level where people don’t pose a risk to public safety. All of it works together, and I have heard it loud and clear from these community leaders.
Senator Gold: Thank you.
[Translation]
Senator Carignan: Minister, I was looking at the exchange of letters from the Quebec ministers of Justice and Public Safety, letters that were sent to you on May 4, 2022. The ministers stated that they are very concerned about the abolition of minimum sentences for certain firearms offences. They find that the message contradicts the fact that we wanted to reduce firearm offences, particularly in southern Quebec, in your riding, by the way.
I also did a very quick search and was able to see that seven offences were committed with firearms in your own electoral district, LaSalle—Émard—Verdun. The Journal de Montréal reported that one of your citizens had said that this is not the wild west and that it is not 1840. We are in 2022. He said that we should not forget that children playing in the street could be affected and that citizens do not need to live with this fear on a daily basis.
Don’t you find it contradictory to abolish minimum sentences for gun crimes? Shouldn’t we instead respond to these citizens, to the ministers of Justice and Public Safety and the mayor of Montreal that minimum sentences must be maintained and that we must crack down on criminal acts of this nature?
Mr. Lametti: Thank you for the question, senator. First, there is no contradiction in the message. When a person does not pose a risk to society, judges are given some flexibility in terms of sentencing. We are fighting violent crime, handguns, assault weapons, street gangs and contraband. I am a Montreal MP, so I am aware of the risks involved. Even though the incident you mentioned took place in LaSalle, next to my riding, it makes no difference. It’s very important to me.
Senator Carignan: Is it affected by redistribution?
Mr. Lametti: For me, this is very important. It’s important to note that mandatory minimum sentences have not worked. They do not serve to reduce crime. The mandatory minimum sentence repeal will not apply to handguns, assault weapons and street gang firearms. It only applies to hunting weapons. It’s really a very narrow category. We have also increased penalties and resources to get to the root of the problem. We are working with the City of Montreal, the Quebec government and the other provinces to reduce these types of crimes, like the example you cited.
Senator Carignan: When you say that this is not for serious offences, are you aware that with Bill C-5, if a person takes a hostage without using a firearm, they are allowed to serve their prison sentence in society? In the case of trafficking carfentanil, a drug more dangerous than fentanyl, the sentence is served in society. When a sexual assault without a firearm is committed on a person over the age of 16 who has been injured, disfigured and whose life is in danger, the sentence may be served in the community. Don’t you think these are serious crimes?
Mr. Lametti: With all due respect, Senator, your basic presumption is wrong. You assume that the minimum will always be the penalty. Serious offences will be punished with severe penalties.
Senator Carignan: In that case, why are you abolishing them?
Mr. Lametti: We only want to give flexibility in cases where the safety of the general public is not at stake and a judge would have given a sentence of two years or less. So this does not apply in most cases. It gives some leeway for less serious offences or where public safety is not at risk. This provision worked well when it was introduced in 1996. It had a positive effect from the start. When the Conservative government removed the possibility of conditional sentence orders, there were bottlenecks in the justice system, and we are no safer today than we were in 1996.
Senator Boisvenu: Welcome, Minister. I will continue in the same vein as my colleague Senator Carignan.
When you appeared in the House of Commons, my colleague, MP Bob Moore, questioned you on the fact that you were going to reduce the penalties for sexual assault. According to Mr. Moore, you added a provision whereby people receive sentences of less than two years for serious sexual assaults. If memory serves, you said these situations did not exist.
Just last week in Gatineau, a man who raped a woman three times and drugged her was sentenced to two years less a day. He is therefore eligible for release after serving one-sixth of his sentence. These situations exist, Minister. Judges give sentences of less than two years for crimes involving serious sexual assaults.
How can you restore the confidence of victims of sexual assault and domestic violence when their assailant, rather than going to prison, serves his sentence at home, often in close proximity to the victim, without spending a single day in prison? How do you think you can restore victims’ confidence? Why do you think that only one tenth of women report their abuser? How do you expect to get all women to report their abusers if you treat sexual assault in such a trivial way?
Mr. Lametti: Thank you for the question. I don’t share your basic presumption. First, it should be noted that mandatory minimum sentences for sexual assault are not targeted per se. That’s important to note. As far as conditional sentences are concerned, this is a decision that a judge will make after hearing both parties, that is, after hearing the lawyers and the victims. So it’s very important in our system — and I’m very proud of our criminal justice system — to give that discretion when public safety is not at risk. Even for the examples you gave, there is no guarantee that the person will receive a conditional sentence.
Senator Boisvenu: Minister, I am talking about the victim. I am not talking about the criminal. I’m talking about a woman who has been raped and who goes to court, where the judge will hand down a “living room sentence.” Have you consulted with any sexual assault victims’ groups who agree with this provision?
Mr. Lametti: I would like to point out that this bill does not affect mandatory minimum sentences for sexual assault.
This must be emphasized. You must not give the impression that we have done that. That is not fair. As for consultation, yes, we have consulted with several agencies on this spectrum. We also listened to the victims and especially the crime victims’ ombudsman at the time. It is very complicated, but the principle is always that serious offences — sexual assaults, for example — will always be punished seriously. What is granted is discretion in some cases —
Senator Boisvenu: So they will have a minimum sentence of one year?
Mr. Lametti: I can’t say.
Senator Boisvenu: Why not? You wrote the bill.
Mr. Lametti: If, on the facts, the person does not pose a danger and the sentence does not apply, a conditional sentence order is possible, but it is always at the discretion of the judge after he or she has heard the parties and the victim in this case. You are exaggerating a possibility in order to criticize the flexibility that is part of the common law system in this country.
Senator Boisvenu: But you were the one who said —
The Chair: Senator Boisvenu —
Senator Boisvenu: — that for serious sexual assaults, the sentences are serious, right?
Mr. Lametti: That’s right.
The Chair: Senator Boisvenu, your time is up.
Senator Dalphond: Welcome back to the Senate once again, minister. On Monday, I read in The Lawyer’s Daily about a recent interview with Justice Michael Moldaver, who recently left the Supreme Court of Canada. He is concerned about the future of the justice system, which he describes as being complex, sometimes unnecessarily so, and especially burdened with many offences that do not deserve to be there. In particular, he suggests that many lesser offences, such as minor drug offences, petty theft and minor administration of justice offences, should be decriminalized or dealt with in a different way than through trial.
Minister, what do you think of former Justice Moldaver’s recommendations? How can Bill C-5 in part address the concerns of judges, including Justice Moldaver?
Mr. Lametti: Thanks for the question, senator. I truly believe that the bill fits very well with the framework that was given by former Justice Moldaver. It is about using the resources of the system for serious offences and not wasting them on less serious offences. I have read the interview carefully and I fully agree with these basic principles.
I should also add that Justice Moldaver was truly a great judge, if you will, in our Canadian criminal justice tradition. Moreover, no one will be able to accuse him of having been too soft on crime.
[English]
Senator Dalphond: Minister, I think an important part of Bill C-5 deals with conditional sentence orders. The bill proposes to restore the opportunity for judges to grant conditional sentence orders in many cases, except those where offenders pose a risk to public safety, as you just mentioned to Senator Boisvenu. Can you outline the impact that this could have on Indigenous Canadians?
Mr. Lametti: This, I believe, will have a capital impact. I believe it’s one of the most important aspects of the bill.
If the flexibility isn’t given to a judge to give a conditional sentence order, the possibility of a restorative justice program, the possibility of the community justice centres that we are supporting in British Columbia in collaboration with the government of British Columbia and Indigenous leadership in British Columbia to give 360-degree wraparound services to Indigenous Peoples instead of putting them in jail, all of those possibilities are thrown out the window.
Rather, you get the situation of an Indigenous woman who has an addiction, a problematic addiction, who sells a few prescription drugs on the side in order to keep bread on the table. She gets put into jail, minimum mandatory penalty, four years, and the province has to take her children into custody; hopefully, now the Indigenous community takes her children into custody. That gets nobody anywhere. If she had been able to stay in the community, keep her job, take care of her children, get the appropriate help that she needed for her problematic addiction, we are so much better off than incarcerating.
Again, there is a movement against incarceration at this level around the world, including the jurisdictions in the United States that inspired the so-called tough-on-crime policies of the Harper government. They’re changing. We need to change too.
[Translation]
Senator Miville-Dechêne: Good evening, minister. I am not a lawyer. I will appeal to your sense of pedagogy. Your department has said that the proposed amendments to Bill C-5 are an important step in the fight against racism and discrimination. But if the government believes that minimum sentences fuel systemic racism and discrimination, shouldn’t they all be eliminated? Or, on the contrary, if the government believes that minimum sentences are useful and effective in some cases, why associate them with racism? In other words, what are your criteria for identifying which minimum sentences fuel systemic racism and discrimination, and which are effective in ensuring safety and reducing recidivism?
Mr. Lametti: Thank you for that very good question.
Firstly, you have to admit that the statistics are not perfect, but the ones we had showed that the 20 mandatory minimum sentences plus one that we chose had a disproportionate impact on the overrepresentation of indigenous peoples and racialized people in the criminal justice system. So that was something right there. Secondly, as I said in my speech, 75% of the minimum sentences that are in the federal registries are for drug offences, and we are going to eliminate those minimum sentences. This will have a positive impact, I believe, on indigenous and racialized populations.
Of course, we also need to continue to collect data and make it clear to Canadians that the sky is not going to fall if we eliminate mandatory minimum sentences. It’s a step that’s designed to make it clear, with positive results, that we’re going to improve the situation.
Senator Miville-Dechêne: I have a brief sub-question. The fact remains that, for example, in gang crime, there is also the issue of the accused being racialized themselves. You’re splitting the difference, I understand that, but at the same time, there were also situations of systemic racism during the childhood of these young people who may end up in gangs. You can see why it is difficult to follow the logic of Bill C-5.
Mr. Lametti: To me, the logic is obvious in that, for firearms, we targeted hunting weapons. Handguns are linked to gangs and drug smuggling, and they are a threat to society today. At another stage, it will be possible to look at the situation after we have fought the gangs more effectively — I am thinking here of the city of Montreal — but for the moment we are at a stage that aims to show that mandatory minimum sentences do not work. We’re going to make that clear and then we’ll move on.
[English]
Senator Batters: Minister, maybe when you first introduced this bill, you might have thought you had Canadians on side with your approach in removing mandatory minimum sentences, but, minister, that is definitely no longer the case. We’re now in the middle of the Nova Scotia inquiry about the horrific Portapique murders, and my home province of Saskatchewan just this month experienced a terrible murder spree at James Smith Cree Nation in Weldon, where one of the murderers had been released after 59 criminal convictions, including very serious crimes. Maybe you should speak to the people who were terrorized this month in these rural Saskatchewan and Indigenous communities about your “real community safety” that you contend as your approach with this bill.
Minister, in 2015, Myles Sanderson was convicted of repeatedly stabbing his former father-in-law, Earl Burns, and former mother-in-law. He received a shockingly low sentence of two years less a day. And then this month at James Smith Cree Nation, Edward Burns was murdered and his wife so badly injured she could not even attend her husband’s funeral.
Minister, Canadians are no longer on side with your government’s soft-on-crime approach that’s epitomized in Bill C-5. Why won’t you consider the victims who will be so hurt by this approach and back down on pressing this bill?
Mr. Lametti: Thank you for the question, senator.
With respect, and certainly I send my condolences and all of my empathy to the victims of what happened in Saskatchewan as well as in Nova Scotia, but it is simply unfair to associate mandatory minimum penalties and removing mandatory minimum penalties and giving conditional sentence orders with the two situations that you have raised. In Saskatchewan, this was a case of a statutory release, a person who had served time, but it wasn’t a question of a mandatory minimum penalty, and the same thing with the situation in Nova Scotia. In fairness, those are serious crimes. They need to be dealt with. After the inquest is over and the parole board study is over in Saskatchewan, we’ll have a better sense of what went wrong there. We certainly were all horrified by it, and I share that horror, but the question of mandatory minimums is different, and the question of conditional sentence orders is different.
If we want to respect victims, mandatory minimum penalties have been one of the most significant contributing factors to the slowing down of the justice system in which a number of crimes get thrown out on Jordan orders. You can look at that statistically, and it is true. At certain points, 50% of all the Charter challenges in the criminal justice system, which really slow things down — gum up the works — are challenges to mandatory minimum penalties. Oftentimes they’re successful, oftentimes they get to the Court of Appeal and the Supreme Court of Canada, and where is the victim in all this? Waiting — as all this goes through the system. If we want to help victims, we need to have a criminal justice system that works more effectively and that gives us fairer results, because that’s fair to victims and certainly better for victims, and that’s something we’ve heard from victims.
I think this bill provides a better set of balances and allows us to focus on the real causes of what happened in Nova Scotia and in Saskatchewan without getting bogged down in the question of mandatory minimum penalties.
Senator Batters: Minister, when you compare the issue of mandatory minimum penalties to the issue in the United States, the sentences that we have in Canada are so much lower than in the U.S. It’s not even close. We also have statutory release, where if you have good behaviour in prison, you get out after a third of your sentence is complete. In almost all cases, you get out after two thirds of your already probably low sentence is complete. How can you compare the Canadian judicial system sentences to those of the U.S.?
Mr. Lametti: I’ll grant for the purposes of discussion that you have, perhaps, identified something with respect to sentences, although I’m not going to grant you that completely.
There are significant movements in the United States to have statutory review of all sentences because they are so long and because they are realizing that incarceration simply does not work. I have spoken with a number of experts in the United States. They would like to see the kind of parole system that we have here, but if they can’t have that, they would like a statutory review system, because incarceration increasingly is not working and is demonstrated to not work against recidivism or any of the other things we’re worried about in our system.
Again, let’s talk about mandatory minimum sentences. That’s what we’re talking about here. Serious crimes will always have serious consequences. We’re not talking about that with mandatory minimum, and the assumption that a judge will always give the mandatory minimum penalty or will automatically give the mandatory minimum penalty is, frankly, just simply wrong.
Senator Pate: Thank you, minister and the officials, for being here. Thank you for your work on this. It is a step very much in the right direction. Tempting as it is to get into all the data that has been raised by a number of folk, I’m going to restrain myself.
You talked about this as one measure. You have talked about the incredible research that has been done internationally about the overrepresentation of, in particular, certain groups. We know that the TRC calls to action and the Missing and Murdered Indigenous Women and Girls Calls for Justice called for the removal of mandatory minimum sentences. Also, section 718.2(e) is precluded from being applied to many Indigenous people and others as a result of mandatory minimum penalties.
You’ve indicated that Bill C-5 is aiming to address this issue and is one step in the right direction. Well, I wouldn’t disagree. I was going to say I don’t think most people would disagree, but we’ve already heard that’s not true. What next steps do you plan to keep us going in the right direction?
Mr. Lametti: Thank you, senator, for the question, and I certainly share the basic understanding and assumptions that you bring with that question.
In addition to the investments that we’re making, if we’re going to have conditional sentence orders, for example, and we’re going to give that flexibility back by reducing or eliminating certain mandatory minimum penalties, you need to have alternative programs, and we are beginning to fund that. I mentioned in the B.C. justice example the community justice centres in British Columbia developed by Indigenous leadership, supported by our government and the government of British Columbia to give an alternative to a prison sentence.
The law commission is a step in the right direction, helping us to have arm’s length research from the government that can bring together the best research in Canada and around the world. With respect to gathering and understanding the data, we’re investing in better data from sentencing and its disproportionate impact on racialized and Indigenous populations to then identify next steps. I think I’m open to using that data, to see where we go next, and in the meantime, I hope we will have convinced Canadians, again, as I said in French, that the sky hasn’t fallen, by what we’ve done.
Senator Pate: In particular, around mandatory minimum penalties, you’ve indicated that this is just a first step. What is the next step for mandatory minimum penalties?
Mr. Lametti: Can I answer by just saying let’s see what the data says? There are other infractions that exist in the Criminal Code. We need to work at some of the root causes — for example, the link between housing in the North and sexual infractions.
Senator Pate: Violence against women, and women convicted of murder.
Mr. Lametti: That’s right. One of my colleagues, Minister Ien, is working on a strategy for gender-based violence, amongst other things, and so let’s see where it goes.
Certainly, there are other parts of the Criminal Code that we would hopefully try to make more efficient. We have Justice Moldaver, as you’ve heard, come out and say we should be thinking about eliminating all kinds of low-end offences in order to dedicate the resources of the criminal justice system, its blunt tools, for more serious crime, and nobody can accuse Justice Moldaver of being soft on crime. He’s being smart on crime, and we’re trying to do that.
Can I leave your question with a commitment to be open to possibilities?
Senator Simons: Minister, I had the privilege of visiting the Edmonton Institution for Women last month in the company of Senator Pate, where I was shocked to learn, although I knew Indigenous women were overrepresented in the correctional system, that 70% of the residents of the Edmonton Institution for Women are Indigenous. Senator Pate and I also met with a number of women who expressed to us that they accepted guilty pleas to lesser offences because of the fear of being found guilty of a crime with a very strict mandatory minimum sentence.
I’m really concerned that this bill, which eliminates only a small percentage of those mandatory minimum sentences that have already been deemed unconstitutional by Canada’s courts, is not going to do nearly enough to reduce the over-representation of Indigenous women in facilities like the one in Edmonton. I’m wondering, can you share with me where your confidence comes from that the cherry-picked offences that you have chosen will actually have a substantive difference to the rates of incarceration of Indigenous peoples?
Mr. Lametti: Thank you, Senator Simons. It is good to see you again, and I certainly share that horror of seeing the rate of incarceration, particularly of Indigenous women.
As I said, 75% of the minimum mandatory penalties that lead to incarceration in a federal institution are these drug offences. Yes, it’s 21, but it’s 21 pretty important offences, and the drug offences are ones that touch those Indigenous women in particular. The Sharma case is paradigmatic in that regard: problematic addiction, a single mother, a person who needs to put bread on the table, an Indigenous woman sells some of her prescription medication on the side and gets caught. There are other permutations and combinations, but that person ends up with a minimum mandatory.
The other thing in your question that is critically important is the distortion that the existence of minimum mandatory penalties cause in the system.
Senator Simons: They compel people to confess for fear of a disproportionate sentence.
Mr. Lametti: That’s right. The plea bargaining that happens, the delays that happen because then there may be a Charter challenge as another strategy — it not only gums up the works, but it renders them much more unjust. Getting rid of them is a first step, I get it, but a first step in offences that really touch Indigenous, Black and marginalized Canadians.
I’m confident this will have a big impact, especially along with the possibility of conditional sentence orders. They are now back in the picture, and we can actually use sentences to help people, help society and help victims. I am pretty confident that we have targeted a good package of offences. As I have committed to Senator Pate, I would be open to looking at the data and moving forward.
Senator Simons: I’m just concerned because there are a good number of other ones that have already been deemed unconstitutional by courts across the country.
Mr. Lametti: Yes, but only one, and it has been included in this package, has been found unconstitutional by the Supreme Court, and that is the Nur case. In the others, there are conflicting decisions at both the level of superior and appellate courts. This is the clear one.
Senator Klyne: Welcome to the minister and the guests on the panel.
Minister Lametti, when you were speaking to Senator Batters, you mentioned getting at the causes of crime. In that regard, with specific reference to the overrepresented groups in correction centres, what alternative solutions were considered before landing on the amendments being made in Bill C-5 were proposed? Before you landed on that as being the breakthrough alternative solution, did you look at other solutions or alternatives around social issues, economic issues, systemic racism or racial bias in the justice system, or addressing the main motivators for gangs’ existence, which is drugs? My second question is connected to social issues and other economic issues where you end up with poverty. In regard to poverty, if you want to be specific to that, what other alternatives did you consider before landing on the two amendments of Bill C-5? What other actions will be taken by the federal government to combat the over-representation of Indigenous and Black people in Canada’s criminal justice system?
Mr. Lametti: Thank you, senator.
That’s a great question, but I would reframe it in the sense that this is only one measure, and I don’t claim that this is the breakthrough measure. I think it will have an important positive impact. It is a measure that was recommended by TRC. It has been recommended by Indigenous experts, by criminal law experts, by criminal justice experts, and by advocates in the Black community and other racialized communities. It is something that all of these experts agree needed to happen.
That being said, we’re working on a number of different initiatives across our government. I’m working as Minister of Justice on a number of different initiatives. I’m currently working with Indigenous leadership across Canada on the elaboration of an Indigenous justice strategy, which again tries to attack the problem of systemic racism and over-representation at its root. I’m doing the same thing with a Black justice strategy. That’s a few months behind the Indigenous justice strategy, but it is ongoing and that is working through.
We have invested in Gladue reports. One of the criticisms we got of Gladue reports is that they were inconsistent in terms of coverage and inconsistent in terms of quality, so we have invested in that try to get better Gladue reports so that sentencing judges have a better picture of the person who is in front of the court. The same thing is true now with the Black community. We have the Impact of Race and Culture Assessments project, which we have also invested in. It is a project in Nova Scotia, Ontario and Manitoba to do the same thing, like a Gladue report for Black and racialized communities.
We have a number of things going. I mentioned the law commission. My colleague, Marco Mendicino, in Public Safety has a number of initiatives, as well as the Minister for Women and Gender Equality and Youth, Marci Ien. Again, it’s a number of different things. There isn’t one solution. In all cases, we need to be in dialogue with the varieties of Indigenous leadership across Canada, Black leadership, leadership of racialized communities, police, provinces, victims — everyone has to be part of this dialogue. We are doing our best to bring everybody in.
[Translation]
Senator Clement: Hello, Minister. It is a pleasure to see you again. Thank you also to your colleagues for being with us.
[English]
I’ll start with the good stuff. Bill C-5 is a good step. I appreciate you saying Black and racialized and marginalized and making sure that you’re not lumping those groups together. The law commission revival is fantastic. We need to move forward with disaggregated data.
But I also hear you say in a very measured way that you want to build trust at a pace that Canadians can accept. Well, Black Canadians are at a completely different pace, a pace at which they are increasingly being overrepresented. Black Canadians have a whole different reality. The concern I have here is that there won’t be another opportunity to have this conversation. I just heard you say the Black justice strategy is a little bit behind. Black folks have been hearing that for a long time, and we’re waiting. I just want to convey the urgency here. If I have to hear how resilient Black communities have been, I’m going to weep because, yeah, we have been resilient, but it’s enough already. I think that conversations around systemic racism make everybody uncomfortable because we all should recognize that we have a part to play in that, but people don’t want to talk about that part.
What have you heard from Black Canadians? When you say the Black justice strategy is behind, what does that mean? How are we going to build trust with Black communities? We have been waiting.
Mr. Lametti: Thank you, senator, for the question.
I meant a couple of months behind. It’s going. The consultation process and the outreach has begun in a systematic way. I only meant that we have a number of things we have to do, including getting legislation through. It is there, and it’s always been a priority, so please rest assured that when I said a little behind, I meant a little and not much. We are working on that, and we are working in collaboration with the Black community leadership across Canada. If you poll them, you would find they are very happy with the measures I’m taking as Minister of Justice.
I have a substantive answer on minimum mandatory penalties, I share your concern about “the now” and having to act now. With respect to minimum mandatory penalties, the answer is the same as the response to Senator Simons. The 21 penalties that we have here — as best as we have statistics — will have a majorly positive impact for the Black community, for other racialized communities, as well as for the Indigenous communities. These are all minimum mandatories that had an exaggerated outcome with respect to those communities. This is a very positive step moving forward.
That being said, we’re walking and chewing gum at the same time. We have a number of different other programs working in conjunction. I mentioned the IRCAs, the Impact of Race and Culture Assessment project.
Senator Clement: That is great.
Mr. Lametti: We’re working with my colleague Marco Mendicino on policing. Again, there has to be more effective policing with respect to Black and racialized and Indigenous communities.
A number of things are happening. I’m confident that we’re moving the dial. I’m also doing my best to make our bench more representative so that Indigenous, Black and racialized communities see themselves. They will go to court and see a person in front of them who looks like them.
Senator Clement: We’re not there.
Mr. Lametti: We are not there yet, but we’re making progress. We’re making progress statistically, and I’m proud of those appointments. I’m proud of this bill. This bill is a positive step, and it is about “the now.” I think it will have a good impact.
Senator Cotter: Welcome back, Minister Lametti. I’m interested in the possibility of making this bill better now, so I have two questions.
First, you get to appoint a lot of judges. There is applause from chief justices and many others about the quality of the appointments. Senator Batters doesn’t think it’s enough, but the quality is said to be good. We repose a lot of authority in them. They get to decide, in most of these cases, guilt or innocence, but mandatory minimums constrain their ability to exercise judicial discretion in sentencing. In fact, that’s one of the arguments that your government has advanced for doing this. The question is, why don’t we go further if we have confidence in the judiciary? There is significant sentencing law that’s out there that guides those questions, and those decisions are appealable. Why don’t we do more here?
Mr. Lametti: Thank you, senator, for that question.
As I’ve just said, I’m proud of this bill, and I’m proud of the steps that it’s taken. The ensemble of minimum mandatories that we have chosen for this bill is effective for the purpose of helping to reduce the overrepresentation of Indigenous and Black people in the criminal justice system, marginalized communities and racialized communities.
After over a decade of the ideological “soft on crime” and “tough on crime” rhetoric — they are flip sides, one of the other — there is still a lot of misinformation out there. There are data gaps, a lacuna of data. Part of this process is to get better data so that we can go to Canadians down the road and say, “Look, we took out these 21 minimum mandatory penalties. We were still tough where we needed to be tough. Sentencing was still severe for serious crimes, but we have given flexibility in order that people who don’t pose a risk to society can get the help they need, get the social support they need and get a restorative justice program and community support.” We can go back with the data and say, “Let’s look at other offences.” The current bill represents, to be honest, the state of play. For that reason, I support it wholeheartedly, and I do hope that you will as well.
Senator Cotter: I have a small second question, or maybe not so small. You listened to the judges, including Justice Moldaver. The Supreme Court of Canada has examined potentially unconstitutional mandatory minimums. In the Supreme Court in Lloyd, Chief Justice McLachlin discussed and encouraged the consideration of a safety valve. Here is the language:
Another solution would be for Parliament to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment.
The Uniform Law Conference Criminal Law Section, the ULCC, is made up of prosecutors, defence counsel and academics. It was enthusiastic about that approach. It would maintain judicial discretion, it would address potentially unconstitutional cases and it seems to be supported across the criminal justice system.
Are you open to a safety valve that would include reasons that judges have to provide, so those decisions could be reviewed?
Mr. Lametti: I’m aware of the safety valve. For the record, I prefer to call it “structured discretion” because I think that is better, more indicative of the process that a judge goes through in order to make that determination. I considered that very carefully with — I can’t betray confidences, but let’s just say with my team and beyond.
In my view, that mechanism is simply not pragmatically possible right now. I’ll be honest with you; I do not think the other house will support it. That includes members of all political parties.
Senator Cotter: Thank you.
The Chair: I have a question of you. You are always very generous in giving us the gender-based analysis report. May we please ask you to provide that for us this time as well?
Mr. Lametti: I undertake to do that.
The Chair: The other thing, minister, is that one group doesn’t get talked about. I’m sure you do look into it. I get lots of communication from families and prisoners. That is the Muslim community. It’s sadly increasing in the prisons. I don’t want to keep you too long, so I don’t expect an answer from you now, but perhaps you should start considering that group. When I have gone to prisons with Senator Pate, a number of them, I am surprised how many Muslims are there. May I ask you to look into that? Perhaps you can provide us with an answer.
Third, you have talked a number of times about data and that there is data that you relied on to prepare this Bill C-5. May we please ask you to provide us with that data so we understand how you arrived at this? Is that possible, minister?
Mr. Lametti: That’s possible. The data is uneven, but I do think it is unequivocal.
The Chair: And you will provide it, right?
Mr. Lametti: Yes.
The Chair: And you will provide the gender-based analysis report as well?
Mr. Lametti: Yes, I have undertaken that.
The Chair: You will provide the question on Muslim prisoners?
Mr. Lametti: We have consulted leadership within that community. I know that I have personally consulted leaders within that community. There is, it is fair to say, general support. Again, going back to the question from Senator Klyne, there is general support, a general agreement, that this is the first step that ought to be taken in the larger quest.
The Chair: I was very reluctant to ask you this question because I don’t want to seem to my colleagues as saying, “Oh, me, too! Me, too!” Communities have different challenges. At the moment, the Senate Human Rights Committee has been going across the country hearing about Islamophobia and the challenges that are faced. Many times — this has nothing to do with mandatory minimums — women who complain are charged, instead of the person who assaulted them, in gendered Islamophobia. That’s not my point here. I’m saying that the community is being neglected, and I appreciate your attention.
Mr. Lametti: I’m aware.
The Chair: Thank you, minister. You have been generous with your time, and we appreciate your answers. We look forward to seeing you again.
Mr. Lametti: Thanks to all of you.
The Chair: Senators, we still have the officials at the table: Mr. Taylor, Mr. Villetorte and Mr. Di Manno. We will start again with the sponsor of the bill, Senator Gold.
Senator Gold: Welcome, and thank you for being here. I have two questions, and I’m going to put them both on the table as quickly as I can so that it gives you a chance to address both of them. They are both from a provincial point of view, if I can frame it that way.
At second reading debate in the Senate, it was argued that part 3 of the bill is mainly a cosmetic change because most drug charges are prosecuted federally. It was argued that federal prosecutors have already been following guidance since 2019 according to which criminal charges should be avoided for simple drug possession. Can you tell us if this is, in fact, the case, or if there are likely to be concrete effects were Bill C-5 to pass? For instance, my understanding is that drug charges in my province of Quebec are generally handled by provincial prosecutors, so that the 2019 federal guidance doesn’t currently apply to most drug possession cases in the province.
The second aspect of this speaks more to the incarceration. We work in the federal Parliament. We focus on federal incarceration. We are very well aware of the overrepresentation of Indigenous and Black Canadians in federal prisons. Much of the discussion in the second reading debate in the Senate focused on federal incarceration rates, which are important, and the minister has argued they will be positively impacted by this bill, as I believe as well. But there are more Canadians in provincial prisons than in federal ones, so how would Bill C-5 affect people who would otherwise be sentenced to mandatory minimum terms of provincial imprisonment? Thank you.
Matthew Taylor, General Counsel and Director, Department of Justice Canada: I’ll take the first one and then my colleague, Mr. Di Manno, can take the second.
You’re right. In Quebec and New Brunswick, provincial prosecutors do have carriage for drug prosecutions, so it will have an impact there where those prosecutions have been based on investigations by police forces other than the RCMP, so the city police in Montreal, the SQ; in New Brunswick, the municipal police. For sure, Bill C-5 will have an impact in respect of those cases. You’re certainly right on the other in terms of the federal guidelines that have been administered by the Director of Public Prosecutions.
Andrew Di Manno, Counsel, Department of Justice Canada: With respect to your second question, the reforms in this bill with respect to conditional sentences of imprisonment, which first require a judge to come to the conclusion that a sentence of less than two years is appropriate, will have a meaningful impact because removing mandatory minimum penalties, which is the first part of the bill, allows for judges’ greater consideration of community-based sentences. Rather than sending offenders to prison for shorter periods of incarceration, they will be able to consider in a greater number of cases alternatives that are served in the community and that will allow judges to impose strict punitive sanctions but also rehabilitative conditions that will address the root causes of offending.
Senator Gold: I know that data is incomplete, but do we have data about the overrepresentation of Indigenous, Black and other racialized and marginalized communities in the provincial systems? I know it’s devilishly hard sometimes to get the data from the provinces in many areas. Where are we in that?
Mr. Di Manno: So 89% of all guilty cases of an offence subject to an MMP — this includes CDSA, firearms and child-related sexual offences — received a custodial sentence nationwide, and of those cases, 56% received the provincial or territorial sentence of two years less a day.
Mr. Taylor: On the data collection, Senator Jaffer is right. The disaggregated data is a challenge to come by, especially in provincial and territorial contexts. The minister talked about the justice initiative and the funding that they are doing to get better data. Certainly, that’s one piece of the larger puzzle.
[Translation]
Senator Carignan: I would have liked to have asked the minister the question, but I was limited by time.
I’m going to paraphrase, but basically the minister told us in his testimony that minimum sentences are not effective. In another statement, he said that for sexual assault offences, we shouldn’t worry because we’re not removing minimum sentences, implying that they are effective for those offences.
Do you have any studies that show that minimum sentences are more effective for certain types of offences, such as sexual assaults, whereas they would not be effective for weapons, for example? What makes you differentiate the effectiveness of sentences for certain types of crime?
[English]
Mr. Di Manno: On the first part, the majority of the teachings that the Supreme Court of Canada has given us, both in Nur and Lloyd, seem to suggest that mandatory minimum penalties are constitutionally suspect or vulnerable to Charter challenges when they are applied to broad offences. When the offences are narrower in application, there are fewer circumstances where applying the minimum is going to result in a grossly disproportionate sentence. That would be the first part of my answer.
The second part is that mandatory minimum penalties have documented negative impacts on the criminal justice system. They make trials longer, they result in fewer guilty pleas and there is generally a lack of empirical justification.
[Translation]
Senator Carignan: I understand that. If there are any cases where you don’t want the trial to be lengthy and impact the victims, it’s sexual assault cases. We don’t want testimony and we don’t want damage to the victim.
Let me repeat my question: do you have any studies that show that minimum sentences are more effective for certain types of crimes, such as sexual assault, compared to gun crimes?
[English]
Mr. Taylor: If I can just adjust or augment what my colleague said, some of the information we have demonstrates that mandatory minimum penalties are very effective in denunciation. They send a very clear signal that Parliament’s view is that the penalty prescribed is the penalty that is appropriate in these cases. There is data — and we provided it to the House — that looks at the effectiveness of mandatory minimum penalties from a deterrence perspective, and we can share that with the committee here.
Senator Carignan: Please.
Mr. Taylor: I would also say I am aware — my colleagues can correct me — that in the impaired driving context, there is some data that demonstrates that mandatory sentencing, combined with a strong education campaign, has been effective in deterring impaired driving.
[Translation]
Senator Carignan: So, you’re going to provide us with that information, particularly with respect to sex crimes.
Senator Boisvenu: Thank you to our witnesses. In terms of spousal violence, the bill will further increase conditional sentences, criminal harassment, sexual assault, kidnapping, break and enter and assault. All of these crimes are intimately linked to spousal violence. There is a very strong intimate partner violence component. We know that 80% of people who have committed spousal abuse will never get a criminal charge; they will get an “810” instead. In addition, the majority of men do not comply with all the conditions set by the judge, including the condition to stay away from the victim.
When you look at the intent of the legislator in this case, it seems to be to minimize the penalties for the defence by using a suspended sentence to keep these people out of jail as much as possible. Can you table the consultations you have done with victims’ groups and federations of abused women with the committee? I’d like to see those consultations to see if there was unanimity among those consulted about this bill.
Mr. Matthias Villetorte, Senior Counsel and Team Lead, Department of Justice Canada: Thank you for the question. We can try to give a description of what has been done in terms of consultations, but I would like to add something. When we talk about conditional sentences, that does not necessarily mean that such a sentence will be imposed. There are criteria that will be assessed. As you know, for a prison sentence of less than two years, everything must be in line with the principles of sentencing. In this respect, I note that there are indeed sentencing principles that are taken into account and that specifically address cases of domestic violence.
In particular, there is a guideline asking the court to give precedence to the objectives of sentencing, denunciation and deterrence, but also to treat them as aggravating factors. So all of this is going to be part of the sentencing process, when you have to judge whether such sentences are commensurate or not in a given situation. I would say that the conditional sentence, if that is the conclusion of the court, comes with conditions. Those conditions may include not having contact with the victim.
Senator Boisvenu: I understand that, but my point is that we are further curtailing the severity of the Criminal Code by introducing these measures. Everyone agrees with that, and that’s what the defenders of the criminals are doing as cleverly as possible. We know that sentences are not harmonized in all courthouses. The judge has a certain amount of subjectivity when imposing a sentence. We talk about his values, the context, et cetera.
What is likely to happen is that, for the same crime committed, some will be sentenced and others will be sent home. This is what discredits justice when minimum sentences are eliminated. For the same crimes committed, there will be judges who will treat the cases differently — This is what discredits justice from the victims’ point of view. For minimum sentences, there is a background. We know that if a woman is sexually assaulted, the guy will get a year in prison. In some cases, some people will not be sent to prison and in others, yes. That’s what discredits justice.
Would it not have been appropriate to distinguish economic crimes from crimes against the person? Could we, in the first instance, act on economic crimes and not touch crimes against the person?
[English]
Mr. Di Manno: Some of the evidence that we have at our disposal, including some of the case law, shows that the current restrictions on conditional sentences of imprisonment have negative disproportionate impacts on Indigenous people, Black persons and members of marginalized communities. The restrictions that are currently in place are ones which label offences, and they prevent the ability of a judge to impose a CSO based on the maximum penalty, which is often the worst possible scenario that you can imagine.
This bill aims to promote sentencing policies that are fairer in the outcome, that restore judicial discretion and allow judges to consider it not in the cases that are more serious or in the cases where they first come to a conclusion that a sentence of less than two years is appropriate, having considered the purposes and principles of sentencing, which my colleague mentioned in the cases you have identified have the prevalence of denunciation and deterrence, and having maintained and ensured that public safety is maintained. One of the reasons these sentences are particularly effective is because then don’t only focus on punishment focus on rehabilitation.
[Translation]
Senator Boisvenu: That’s what they thought for the criminal who was released. He killed 12 people.
[English]
Senator Dalphond: Following up on what the minister said in answer to Senator Cotter. I go back to Lloyd. The Supreme Court, the majority under the pen of the Chief Justice of the time, Beverley McLachlin, said:
. . . mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable . . . .If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences.
She goes on to say that another solution would be for Parliament to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment. The department published in 2005 an interesting document about that option, amongst other options, and they noted what was done in many other jurisdictions.
Why has the department opted for the first option of making sure that the net is narrower rather than too wide and therefore not be subject to challenges instead of using judicial discretion? Is it because, at the end of the day, it’s a more efficient way to deal with it? Judicial discretion means appeals, maybe up to the Supreme Court in some cases. It also means that you must have a judicial system that is exempt of bias and systemic discrimination, because otherwise, if you trust the judge to do the thing but the judge is not exempt from bias without even knowing, you’re going to have discretion being granted to some people but less to some other type of people. Is that part of the reasoning behind selecting the first option instead of the second option?
Mr. Di Manno: Just to clarify something, the ultimate decision about the policy choice that was made in this bill was one that rests with the government and one that rests with Parliament.
With respect to the decision in Lloyd, the court commented that there were a couple of ways to address the constitutional problem with mandatory minimum penalties. One was to apply MMPs to only offences that are narrow in scope. The other one was to completely eliminate them.
When we look at the negative trends that are facing the criminal justice system, longer trials is one of them. The fact that members of these marginalized communities and Indigenous people bear the cost of having to appeal is another one. With respect to residual discretion clauses, it’s not a magical formula. There are considerations. For instance, what’s the threshold that would be used to depart from a mandatory minimum penalty? Those questions, as they work their way through the court system, cost money and time.
The policy choice that was made by the government in this bill to repeal them for these offences, which have known negative disproportionate impacts on Indigenous people, Black persons and members of marginalized communities, eliminates that possibility of litigation.
Senator Simons: Thank you very much, gentlemen. I have two separate questions.
Mr. Di Manno, you just said in response to Senator Carignan that mandatory minimum sentences lead to fewer people taking guilty pleas. It’s been my observation, in stories that I wrote when I was a journalist, that people often took a guilty plea for fear of a mandatory minimum sentence. They would take a plea to a lesser included offence. Do you have any numbers to prove either your theory or mine? Is there data that would back either of us up?
Mr. Di Manno: What you describe is true. Sometimes when prosecutors are faced with having to impose a mandatory minimum penalty and they see that the circumstances wouldn’t warrant that, they do sometimes suggest alternative pleas to other offences in order to avoid that mandatory minimum. It’s true that there are times when people accept a guilty plea to a lesser and included.
What I was speaking to was the trends that we were seeing, the negative trends in the criminal justice system. We have fact sheets — and we can provide them — that demonstrate that there’s been three overarching negative trends on the criminal justice system with the increased use of mandatory minimum penalties. The first one is longer trials, more complex trials, increases in Charter challenges and decreases in guilty pleas in some instances. When you’re faced with a mandatory minimum penalty, there isn’t much incentive to not fight the case. That often requires victims to testify more often and contributes to their re-victimization.
Senator Simons: I was more concerned about people who might have a legitimate line of defence deciding not to hazard taking the case to trial for fear of the potential consequences.
I had a second question. For a lot of people who are opposed to the elimination of mandatory minimum sentences, and I think especially for some women in feminist discourse, the concern has been that everybody can remember a trial in which a judge gave an extraordinarily lenient sentence to a sexual offender, whether that was an offence against a woman or a child. Mindful of the work that we did over the last couple years on the bill that had originally been Rona Ambrose’s bill on the House of Commons side, I wonder if you think there are strategies for judicial education that might give more public confidence that judges, if they were given the liberty to have this discretion, would use it appropriately. I say this with all due respect to my dear colleague, Senator Dalphond, but not all judges have done a good job with the freedom they have.
Mr. Taylor: It’s a complex and layered question, and I’ll try to take a stab at it.
I think you’re right, and I think Senator Boisvenu made the point well, that when the public sees sentences in serious cases that perhaps don’t reflect the seriousness of the situation, it does negatively impact confidence in that system. That is well documented in terms of other areas of sentencing and law reform that have taken place over the last 20 years, where restrictions have been put in place as a reaction to that legitimate public concern. It’s a point well made.
There are a few things I would say to the second part of your question. The first would be, as the minister said, there is always the ability to appeal an inappropriate, unjust or disproportionate sentence. Of course, federally, we don’t control those levers. Those are matters for the provincial prosecutors responsible for the administration of justice. That is an important safeguard built into a system that is predicated on the exercise of discretion at all levels — police officers, prosecutors and judges.
The last point I have is to your point about the judiciary. Education is critically important. I think the government has shown their fairly consistent support for that, including and in respect of new legislation proceeding through the House of Commons right now around intimate partner violence.
That’s probably not a complete answer, but I hope it gets to some of your points.
Senator Simons: Thank you very much.
The Chair: As a supplementary question, you obviously won’t keep the data, but are you aware that the chief judges and the Supreme Court justices are keeping data of which judges are taking this training? That’s the other thing. Those who are converted would take the training and those who are not will reluctantly. Do we have anything to show for that?
Mr. Taylor: I don’t know the answer to that question, Senator Jaffer. We can certainly take that back and look into it. Other than to say what you already know, which is that the judiciary is independent and responsible for its own development. But we’ll certainly take that back, and if we can provide you with any information, we will do so.
The Chair: Thank you, Mr. Taylor.
Senator Batters: My initial question I wanted to ask to the minister, but I guess he didn’t have time for a second round. Then I was going to address it on your panel to the Deputy Minister, but he also left, I guess. I had written it out to address it to him, and I’m not sure why he’s not here. I don’t know which of you is the senior person on this matter that could perhaps answer this, and I don’t know why that happened. Anyway, the minister earlier —
The Chair: Senator Batters, to be fair to the minister, we knew he was coming for an hour. He did not just leave like that. We know that our procedure was one hour the minister and then the officials. To put on the record that he just left would be inappropriate. We asked him to come for one hour.
Senator Batters: Yes. I said he was here for an hour. I didn’t know the Deputy Minister would be leaving. That’s not usual.
The Chair: That’s a fair comment, but the minister was only asked to come for an hour.
Senator Batters: That’s fine. I wanted to address this to the Deputy Minister.
The Chair: It is not appropriate for the Deputy Minister not to be here. Can you please convey the message from this committee that, in future, he needs to be here? We expected him to be here. Thank you.
Mr. Taylor: Sure. I suspect it was a misunderstanding. I’m sure that if he had known, he would have stayed.
The Chair: Every deputy stays.
Mr. Taylor: We’ll convey that.
Senator Batters: The minister had earlier referenced the Jordan court delay applications where criminal offenders can get their potentially serious criminal charges thrown out if their case takes too long to get to trial. After he said that, I looked to see what his current federal judicial vacancy number is, and it’s 91 right now, which is by far the highest that he’s ever had during his tenure as justice minister. That is one factor that is absolutely and solely within the control of the federal government, for the cabinet to appoint judges, and that is something that can significantly increase court delay. Why is that number so dramatically high?
Mr. Taylor: I don’t think I can answer that question. I know Minister Lametti did allude to the fact that he’s working on judicial appointments. To the extent of why there are delays and how fast things are going by comparison, I can’t answer that, but as with other questions, we can try to provide you with additional information.
Senator Batters: Thank you. The last time I asked Minister Lametti at committee about judicial vacancies, he used as one excuse that, well, we had a federal election last summer and he wasn’t able to make any during that. But this summer, we did not have a federal election, for a change, so he doesn’t have that reason. Yes, I would appreciate some information on that, and please get appointing people.
Another question I had goes back to Senator Gold when he, as sponsor of this bill, made a speech in the Senate at second reading on Monday, June 20, and referenced in his speech a one-year mandatory minimum sentence for a prohibited weapon, which he indicated in his speech could include pepper spray. I asked him about that, because I knew it would be very rare that a mandatory minimum sentence for pepper spray would actually be imposed in Canada. I said, come on, that probably wouldn’t happen.
. . . how many criminal convictions have there been in the last five years in Canada for pepper spray where the accused has received a one-year mandatory minimum sentence? I would guess that number might hover somewhere around zero.
Senator Gold answered that he didn’t know and said:
. . . these questions are best answered — you can ask them to me; everything is fair game — by the officials who have it.
So what is the answer? I’ve been waiting for a few months.
Mr. Taylor: We are the officials, and while I skate a little bit, I’ll let my colleague dig up the answer. I’ll say the one-year MMP that you’re focusing on, of course, applies to more than just caustics.
Senator Batters: Of course, but Senator Gold referenced specifically pepper spray, so that’s why I asked the question.
Mr. Taylor: We’ll dig up the answer and get back to you, if you give me one minute. We’ll get that, thank you.
Senator Batters: Minister Lametti has spoken about the need to treat drug addiction as a health care issue rather than a criminal justice issue. I agree that Canadians who are struggling with addiction should have access to treatment and not just prison, but this bill does nothing to address that. The mandatory minimums that this bill seeks to eradicate only target serious criminals who prey on those with addiction. The House justice committee heard from the chief of police of the Six Nations Police Service, Darren Montour. He told the committee there’s a drastic increase in violent crimes over the past few years mainly due to the infestation of illegal drugs within the community. He stated:
Outsiders are supplying the drugs. As a result, community members become addicts, resulting in an increase in violent crimes.
He continued, saying:
Regardless of race or ethnicity, there needs to be a deterrent in place for offenders to realize that the violence in our community and against others needs to stop before any further loss of life.
I was going to ask the deputy, but I’ll ask you: Do you not agree that this bill only extends leniency to those preying on and profiting from addiction, such as those struggling in Chief Montour’s community? If you disagree with that, then what provision in this legislation actually improves access to treatment?
Mr. Di Manno: One part of the reforms in this bill is to treat the simple possession of drugs as a health and social issue. We know that members of racialized communities do not use drugs at a rate higher than non-racialized ones, but they tend to be over policed and over charged for these. What the bill is trying to do in these instances is to get them out of the criminal justice system at the first point of contact.
How does it achieve that goal? For the first time, it enacts a principle of declarations in the Controlled Drugs and Substances Act, that, uniform across Canada, all police officers have to apply when considering what to do when they’re faced with a person in front of them who has lived or has living experiences with the harms of substance use. One of the things they can do is nothing. They can decide to issue a warning, or they can also refer that person to treatment when it’s appropriate. We know that the data suggests that one of the contributing causes to the ongoing opioid crisis is stigmatization, so we’re trying to get people who need help out of the criminal justice system at the first point of contact.
The bill also repeals all the mandatory minimum penalties in the Controlled Drugs and Substances Act. That in and of itself will allow judges in appropriate cases to give more conditional sentences of imprisonment, which will allow the sentence to be accompanied by rehabilitative conditions.
All those measures together do not displace the fundamental obligation of a sentencing court to impose a serious sentence when drug trafficking or any drug-related offence raises public safety concerns.
The last point I would make is that Crown prosecutors and police officers, with the principles that are enacted in this bill, will continue to be able to charge the simple possession of drugs when they come to the conclusion that public safety is engaged.
Senator Batters: Of course, drug treatment courts and the discretion of the police and prosecutors currently exist, so that if a particular offence is not appropriate or a sentence is not appropriate, they already do have the discretion in many ways to take other measures to actually help people instead of charge them or sentence them in such a way.
Mr. Di Manno: If you will permit me, you’ve mentioned drug treatment courts. Drug treatment courts are part of the Minister of Justice’s mandate letter, and they do provide a useful tool in the criminal justice system, particularly because we have to look at what stage we’re at in the criminal justice system.
The measures in Bill C-5 with respect to the Controlled Drugs and Substances Act often happen at the first point of contact, and we know that a person’s trajectory through the criminal justice system has an impact on recidivism rates. The more contact they have with the criminal justice system when they commit non-violent offences that require treatment more than a criminal response, they tend to reoffend. So drug treatment courts are one way to provide off-ramps at all stages of the criminal justice system.
The Chair: Senator Batters, you didn’t get an opportunity to ask the deputy minister a question, so if you send the question to the clerk, he will forward it for an answer.
Senator Pate: Thank you to all of you.
I did get the Statistics Canada report from 2017 that the minister was referring to. As you likely know, I’ve sought several times the data from the department, and it doesn’t shore up the assertion that this will substantially decrease the numbers of Indigenous and Black prisoners in our federal prison system. It may do that somewhat more in the provincial prison system, but it won’t achieve that objective.
In addition, you commented earlier that there is data that shows that mandatory minimum penalties for drunk driving were effective. In fact, I’d like to see that data, because all the data with which I’m familiar shows it was the public education and the check stops, the police powers to stop everybody, that changed it. In fact, that resulted in exception to the mandatory minimum penalty for those who could negotiate with the Crown to get treatment, which, of course, privileged certain people who had resources.
Also, you’ll be familiar that in 2017, at the same time as those stats were developed, 90% of Canadians urged that judges have discretion — the structured discretion that the minister spoke about — to not impose any mandatory minimum penalty. You’ll likely also be familiar with the recent data showing that half of the women serving federal sentences are Indigenous and that they also form almost half of those serving life sentences.
We also know from discussions with Crowns — I would be interested in what data you have to show this — that on the issue that Senator Simons raised of when a mandatory minimum penalty exists, part of the reason Justice Ratushny recommended that if prosecutors are going to accept a plea, they have to run the trial, particularly when it comes to murder and manslaughter, according to the plea they would accept, a guilty plea and a set sentence too.
The data that we are familiar with, some us who have been speaking to prosecutors and to defence counsel, is that in most cases where the defence gives notice that there is going to be a Charter challenge, the Crown withdraws the mandatory minimum and substitutes another charge. Have you kept that data and can you provide that to the committee?
Secondly, how do you see this impacting Indigenous women in particular, given the realities of who is in prison, for how long and the information I’ve just provided? If there is anything I’ve said about the data that you disagree with, I would be interested in getting that information as well. Thank you.
Mr. Taylor: Thank you, Senator Pate.
Where I would start is just to put on the record that we will share the various research briefs that you referenced. They are on the Justice Canada website. We have a May 2022 JustFacts publication on the impact of MMPs on Indigenous, Black and other racialized groups. We will certainly share that. Yes, there was an earlier version in 2017, and we have more recent ones. Mr. Di Manno talked about another study that looked at the impacts on the justice system with MMPs. We will share that. Senator Pate, you referenced the National Justice Survey, and there are two research briefs — one on conditional sentences and one on MMPs — that we will share.
I think the point you referenced in terms of what Mr. Di Manno and Senator Simons were saying is that they are both right. That’s my sense. I think the data that we have speaks to the offence with the MMP and the lack of incentive for the accused charged with that MMP to plead because they know that if they plead, they will be subject to the mandatory minimum penalty. I do not believe we have data — my colleagues can correct me if I’m wrong — that traces the scenario you have described where a Crown prosecutor substitutes a charge subject to an MMP with something that is not subject to an MMP. My gut tells me that’s not data we would be able to collect. It might be a question for Statistics Canada or the Canadian Centre for Justice Statistics.
I hope that answers your question.
Senator Pate: Just in terms of the mandatory minimum for murder, how many of the Indigenous women — I’m familiar, for instance, with a very recent case in Nunavut where right up until the time of final submissions, the Crown was still urging that the lawyer encourage her client to accept a guilty plea to manslaughter in exchange for a sentence. The woman was acquitted, and as Justice Ratushny pointed out, and as the Missing and Murdered Indigenous Women and Girls Inquiry and our own research have pointed out, that reality is very germane to the discussions we are having today.
Mr. Taylor: I certainly can’t speak to the specifics of that case. What I would say on that — I’m sure it’s not going to be a complete or satisfactory answer for you — is that we do know through Supreme Court jurisprudence and focus on Crown discretion and abuse of process that there may be some scenarios where core Crown discretion functions may constitute an abusive process. Of course, then that raises the spectre of the person impacted having to allege it and raise the evidence.
Mr. Di Manno: You have also asked the question of how Bill C-5 is going to have a meaningful impact on reducing Indigenous women in federal corrections. As a starting point, when restoring judicial discretion, it’s hard to predict how and what is going to happen. The bill aims to restore judicial discretion to impose fit and proportionate sentences in all cases. Serious crimes and serious offences will continue to attract serious penalties.
The data suggests that two thirds of Indigenous women are serving a sentence for a violent offence: homicide, major assault and robbery. Bill C-5 would help address their overrepresentation by repealing all of the MMPs in the CDSA offence. For instance, a 2020 annual report from the Corrections and Conditional Release Statistical Overview notes that one in five — 20% — of Indigenous women offenders are serving a sentence for a serious drug offence or conspiracy to commit a serious drug offence.
Senator Pate: I apologize for interrupting as you’re answering, but for how many of those is that the only offence? The research we got from the department shows there are many times when another mandatory minimum is also attached to that, particularly for Indigenous women. Add to that what research you followed up since the Youth Criminal Justice Act, because the YCJA, which is a marvellous step in the right direction, has paradoxically resulted in the youth in custody being 98% to 100% Indigenous women and girls in Saskatchewan, Manitoba and the North. That’s the data I am most interested in you trying to pull out.
Mr. Di Manno: We can definitely undertake to look into that for you.
The second point I was going to make in terms of the data — because you asked what data is available, and the data is not perfect — is that Bill C-5 also repeals the four-year mandatory minimum penalty for robbery with the use of a firearm. At this time, the same report I quoted earlier shows that 17% of all incarcerated Indigenous women are serving sentences for robbery. We have reported cases where Indigenous women are the getaway driver, for instance. Through the party liability rules, they are in corrections for those reasons.
The third thing I would point to in the data is removing the CSO restrictions. Preventing its imposition where an offence is prosecuted by indictment for the maximum terms of 14 years or life can potentially have a positive impact, considering that 12% of federally incarcerated women are serving sentences for major assault offences and 29% of federally incarcerated women are serving a sentence for a homicide offence.
I note that manslaughter with a firearm does carry a mandatory minimum penalty, but without a firearm, it’s an offence that is punishable by life. Removing that restriction may have a positive impact. What impact, we don’t know.
Senator Pate: I would urge to you look at the self-defence review where, in fact, it shows — and much of the research by people like Dr. Comack show — that most women have to use a weapon.
Senator Cotter: Aside from conveying our disappointment that the Deputy Minister left, you might also convey to him that you’re doing a great job in fielding questions we would have asked him.
My question is really at the complete other end of the spectrum from the dialogue about mandatory minimums for serious offences. I want to talk about the strategies around diversion and the like in relation to the Controlled Drugs and Substances Act. I want to actually speak to two provisions of Bill C-5 on this, but in the following context. When people get charged with a drug offence or any other offence, even if the charge is later withdrawn, it has a substantial negative impact on them. In fact, many of your own reports say that. That’s point number one. Point number two: Senator Gold, who is still here, blunted one dimension of my concern about the prosecution provision here by pointing out that it is still a useful message to provincial prosecutors.
But my biggest concern by far is that the language that applies to charges being laid by police officers is different than the standard that prosecutors have to apply. It is consciously different. Here is one of the impacts, which is highly relevant to Senator Clement’s concerns. In 2021, the Public Prosecution Service of Canada reported that 7,702 charges of simple possession were laid by the police, and prosecutors stayed or withdrew 6,200 of them, so 81% were withdrawn by prosecutors. If you want to know what clogs up the provincial court system, that is 6,000 charges that tumble along in the process before prosecutors withdraw them. That, quite frankly, is not acceptable. Let me go further. Those charges tend to be disproportionately laid against Black and Indigenous people. Reports regarding the Toronto Police Service make that crystal clear.
The problem is that police officers charge and then the prosecutors have to dispose. Your legislation allows the police officers off the hook on this. All they have to do is consider alternatives. Even if they fail to consider alternatives, it has no consequences in relation to the charge. I want to know from you why the obligation applied to prosecutors, which is pretty demanding, and good and helpful, is not the same standard to peace officers in this legislation.
Mr. Di Manno: My understanding is that these provisions are imported from the Youth Criminal Justice Act context and that they have been highly effective in that context.
I don’t think that the distinction in language between what we are asking the police officer or the prosecutor to do overtakes the general principle here. The principle here is that police officers are now going to have to apply their discretion in a way that is consistent with the declaration of principles that will be in the Controlled Drugs and Substances Act. The idea is that if they fail to exercise their discretion in the manner the bill asks of them, prosecutors will have the final responsibility, through their prosecutorial discretion, to keep it in check and to make sure those cases don’t go forward. If prosecutors consistently continue to not authorize charges, police officers’ conduct will adapt and they won’t consistently continue to send cases to prosecutors that they know will not ultimately get approved for charges.
Senator Cotter: In the three years of the data I have been describing — I only picked one year — there are still a hell of a lot of charges that police officers lay that are withdrawn. It doesn’t seem to have slowed the police down one iota; in fact, this data suggests that, proportionally, they are laying more charges that get withdrawn rather than fewer. It seems to me that if there is not much of a distinction between what we ask of police officers and prosecutors, we’d better write it the same — in fact, maybe an amendment to write it the same but actually help your goal and help people not get charged in the first place. Thanks.
[Translation]
Senator Miville-Dechêne: My question will be brief. The minister told us that, in terms of the 20 offences chosen for the abolition of mandatory minimum sentences, he had unequivocal but incomplete information on the overrepresentation of Black and Indigenous people.
That said, I am interested in sexual assault. I know that there is certainly an overrepresentation of minorities among sexual assault victims. However, on the perpetrator side, is there, for this particular offence, an overrepresentation of minorities, much like the offences for which you have removed the mandatory minimum sentences? I would like to have some figures.
Mr. Taylor: In the document I consulted on the Just Facts website, there is some data that explains the imposition of mandatory minimum sentences for certain groups.
[English]
I don’t know if it’s possible to pinpoint or extract the specific information. The data is related to sexual offences punishable by MMPs, and not all sexual offences are punishable by MMPs, so the data we currently have might not be as precise.
Senator Miville-Dechêne: What does the data say? Does it say, for example, that there is an overrepresentation of Indigenous people?
Maybe we can follow up. I’m asking this question because I am wondering why some infractions are not with minimal sentences now and others have escaped this. This is not a jurist question but more for a journalist question: Is it simply because of public opinion? Is it simply because it’s not acceptable — the government thought that it would not be acceptable — with certain infractions to just get rid of minimum sentences because of the backlash that would follow?
Mr. Taylor: I think Minister Lametti alluded to that in his remarks both here and when he appeared before the House committee around this being a kind of pragmatic, important step in the larger effort to reform the criminal justice system. I’ll leave it at that.
Just to pinpoint the data we have in front of us today, the 10-year period that this study is available covers 3,090 offenders admitted to federal custody for a child-related sexual offence. Certainly, the proportion of Indigenous offenders within that category has increased. We can provide that as well.
Senator Klyne: Purportedly, Bill C-5 is needed to address systemic racism or issues related to reducing sentencing policies. Also, one reason cited for removing MMPs is to maintain public safety. How will this first step of repealing mandatory minimums for certain offences and allowing greater use of conditional sentence orders result in a substantial reduction in overrepresentation of Indigenous and racialized offenders appearing before the courts?
Mr. Di Manno: Systemic racism can be a lot of things. It can be the exercise of a police officer’s discretion in an inappropriate fashion. It can be a sentencing policy —
Senator Klyne: We can skip that, so we don’t cover that part. I understand that, but my question is this: How is this first step of repealing MMPs and encouraging more use of the conditional sentencing orders going to reduce the overrepresentation of Indigenous and racialized offenders appearing before the courts?
Mr. Di Manno: The object of this bill is to repeal mandatory minimum penalties, which have a negative disproportionate impact on racialized offenders and members of marginalized communities in the sentencing process. So we’re at the stage of sentencing when we’re looking at the first part of the reforms in this bill. The second part of the reforms are really about reducing the over-reliance on incarceration, which we know can strengthen gang affiliations and can contribute to recidivism. The third part of the bill is probably the one that is at the first point of contact, where we know that racialized offenders are over-policed with respect to the simple possession of drugs. We also know that they don’t use controlled substances at a rate more than non-racialized offenders.
Senator Klyne: So this is lesser-crime-focused. The other ones are going to keep on coming, and they will be outside of the scope of this.
Mr. Di Manno: I’m not suggesting they are going to keep on coming. I’m suggesting that what this bill will do at the first point of contact is really, with respect to the CDSA reforms, keeping simple possession charges out of the criminal justice system and to promote health and social responses to those. That’s going to have a cumulative impact. It’s going to make room in the criminal justice system to concentrate on more serious matters.
With respect to the first part of the bill, we are really at the sentencing process. The government is trying to address sentencing policies that, on their face, appear to treat everyone equally but that have negative disproportionate impacts as a result.
Mr. Villetorte: If I may complement my colleague’s answer — and we will share this with the committee — we have JustFacts, which looks at four or five jurisdictions. The conclusion is always the same: The likelier you are to be diverted at an early stage in the criminal justice system, the lower the recidivism rate. Mandatory minimum penalties discourage that diversion, as do the restrictions to conditional sentences. By repealing MMPs but also allowing conditional sentences in appropriate circumstances, conditional sentences can be crafted with appropriate conditions that will actually avoid recontact with the criminal justice system. Therefore, in the second way that you were talking about, in the long term, we will see most probably a diminution of that. The decrease, at first, will probably be in those cases that should be diverted early on.
The Chair: Thank you to the witnesses. You have been very patient with our questions, and you have been very open in how you have answered them. We really appreciate all the work you have done for us. We look forward to seeing you again. Thank you so much.
(The committee adjourned.)