THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, October 26, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:16 p.m. [ET] for clause-by-clause consideration of 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, senator from British Columbia and I have the honour of chairing this committee.
[Translation]
I would ask that the members of the committee who are present introduce themselves, beginning to my right.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Gold: Marc Gold from Quebec.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Downe: Percy Downe, senator from Charlottetown.
Senator Harder: Peter Harder, Ontario.
Senator Smith: Larry Smith, Quebec.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Cotter: Brent Cotter, Saskatchewan.
Senator Simons: Paula Simons, Alberta, also Treaty 6 territory.
Senator Pate: Kim Pate, from here on the shores of the Kitchissippi, the unceded and unsurrendered territory of the Algonquin Anishinaabeg.
The Chair: Honourable senators, today we conclude our study of Bill C-5, an act to amend the Criminal Code and the Controlled Drugs and Substances Act.
The committee held eight meetings on the topic with 45 witnesses who provided testimony and numerous other briefs. We would like to thank all witnesses for appearing and helping us through our deliberations.
Senators, we do have officials with us here today, and if there are any technical questions, I’m sure they will be more than willing to answer your questions.
Before we start asking and answering questions, senators, I would like to ask members and witnesses in the room to please refrain from leaning in too close to the microphone or to remove your earpiece when doing so. This will avoid any sound feedback that could negatively affect committee staff in the room.
Before we begin clause-by-clause consideration, I would like to remind senators of a number of points. If at any time a senator is not clear where we are in the process, please ask for clarification. I want to ensure that, at all times, we have the same understanding of where we are in the process.
As chair, I will do my utmost to ensure that all senators wishing to speak have an opportunity to do so. For this, however, I will depend upon your cooperation and ask all of you to consider other senators and keep remarks to the point and as brief as possible.
Finally, honourable senators, I wish to remind you that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which obviously provides unambiguous results. Senators are aware that any tied vote negates the motion in question.
Are there any questions? I don’t see any, so we will proceed.
Senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-5, an act to amend the Criminal Code and the Controlled Drugs and Substances Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Thank you, senators. Shall clause 1 carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Shall clause 2 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 3 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 4 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 5 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: I understand that Senator Pate has an addition now.
Senator Pate: Thank you very much. I move:
That Bill C-5 be amended on page 3 by adding the following after line 10:
“13.1 The Act is amended by adding the following after section 718.3:
718.4 (1) The court that sentences an accused may impose a sentence other than the prescribed minimum punishment for the offence if, after having considered the fundamental purpose and principles of sentencing as set out in sections 718 to 718.2, it is satisfied that doing so would be in the interest of justice.
(2) The court shall give reasons for imposing a sentence other than the prescribed minimum punishment for an offence and shall state those reasons in the record.”.
Of the witnesses who appeared before the committee, the overwhelming majority supported this amendment. They supported it for those mandatory minimum penalties that are not repealed. Rather than leave the hodgepodge and patchwork of mandatory minimum penalties that have been deemed unconstitutional, we impose the type of amendment that has been introduced in various other jurisdictions. I point specifically to the submissions of Dr. Julian Roberts and the wording as part of the recommendation he made based on the wording that exists within Britain.
I also point out that, in terms of the purpose of the act, it has been stated in the other place as well as here that one of the primary purposes of the act has been to repeal mandatory minimum penalties and reduce the overrepresentation of Indigenous and Black people in prison.
Again, we heard abundant evidence. Specifically, former Senator Sinclair, as well as the numerous lawyers and professors, talked about the fact that these provisions will not impact the over-incarceration of Indigenous people. Elspeth Kaiser-Derrick talked about the fact that, in her research, 77% of Indigenous women have pled guilty, many of whom after being charged with mandatory minimum penalties. The inducement to plead guilty was spoken about by a number of the criminal lawyers as well as the Canadian Bar Association.
We also have the Truth and Reconciliation Commission’s Call to Action 32, which calls specifically for this kind of provision as part of the background documentation as to why we have this bill before us. The Prime Minister has, on record at the United Nations, indicated that there’s support for reconciliation and for the implementation of all Calls to Action and the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls.
This bill clearly did not achieve that, and this amendment is aimed at assisting the bill in achieving the objective the government has named.
We also know that the fastest-growing prison population — not just overrepresented but mass incarceration, as Jonathan Rudin described it — are Indigenous women. They now account for 50% of the federal prison population, and upwards of 75 to 100% of the population in the provinces of Saskatchewan, Manitoba and the three northern territories. Even more horrifically, as the numbers are going up and as we see the demographics, 95 to 100% of the young women in custody are now Indigenous.
We’re seeing a trajectory that is unlikely to do anything but continue unabated.
When I entered this chamber almost six years ago, the numbers were that 32% of the women in federal custody were Indigenous; we’re now at 50%. At this rate, by next year, we could be as high as 55%. We need this amendment to try and push back the trajectory that is happening.
We also know the impact on those coming in. Although the stats that were provided by the Department of Justice indicate that the majority of the intake to federal custody are for drug offences, that accounts for a very small percentage of the overall jail population because they tend to be serving shorter sentences. That is the reason, as Professor Cheryl Webster pointed out, this bill will not achieve its stated objective of reducing the numbers of Indigenous and Black prisoners to the extent that has been characterized. There may be some reduction for Black men, Black women and Indigenous men, but there would be virtually no impact for Indigenous women, as was identified.
In terms of trying to assist the government to achieve its objective, we are putting this amendment forward. I want to remind the committee that, as we heard from Mr. Michael Spratt and others, the last time all of these provisions were looked at by the Supreme Court of Canada was in Bissonnette. Before that, in the Lloyd decision and others, there have been calls for this type of amendment to be put in place to allow judges the discretion to not impose mandatory minimum penalties, including the last time the Supreme Court of Canada looked at the life sentence for murder in 1990. At that time, there was the “Faint Hope Clause,” a 15-year review provision that existed, and the Supreme Court of Canada was clear at that time that the life sentence was saved by the fact that there was a “Faint Hope Clause” — a hope of release.
Marry that with the Bissonnette decision and the fact that the entitlement of individuals to be able to, at some point, expect to be able to be released into the community adds to the Lloyd decision in terms of the importance of ensuring that people have access to fair and just sentences. This provision is aimed at that.
One of the fatal oversights of Bill C-5 is that it doesn’t address the fact that the majority of women who are jailed for violent offences — there’s a presumption that this is being done in order to protect public safety. Yet, the majority of Indigenous women who are in prison are there for violent offences as a result of their reaction to violence first perpetrated against them. That doesn’t get recognized, but it does get used to push for plea bargains to non-mandatory minimum sentences. That is another reason for us to be looking at this kind of measure.
The fact that mandatory minimums create the false impression — we heard countless evidence of the false impression that it creates safety for the public. In fact, all the evidence shows the opposite.
As well, the Department of Justice, when they were canvassing on this issue, found that 90% of Canadians wanted to see this sort of change. They wanted to have mandatory minimum penalties addressed. Virtually everybody — particularly as was underscored most recently on September 30 — in the government from all political stripes talked about a commitment to reconciliation and the failure of this to do that.
As has been summarized by some —
The Chair: Senator Pate, may I ask you to wind up?
Senator Pate: I would summarize by saying that, unless we make this amendment, we are tacitly agreeing to continue to jail more Indigenous women and relegate their children to the care of the state — both of which are high-priority issues that the government has indicated they wish to act upon. We can assist them by passing this amendment.
Senator Gold: Thank you, senator, for proposing this amendment. I really do appreciate the spirit in which it’s been put forward and the thought that’s gone into it.
But the government does not support this amendment.
Let me give you my reasons. We certainly did hear from lots of witnesses who recommended something like this, but we also heard from credible witnesses who cautioned us against this approach, including the Canadian Bar Association, the Criminal Lawyers’ Association and Janani Shanmuganathan, the lawyer who argued the landmark Nur case before the Supreme Court of Canada.
In essence, the concern is that a safety valve could have significant negative unintended consequences. It would, in the words of Tony Paisana of the Canadian Bar Association, make mandatory minimums “. . . impervious to a Charter challenge . . .” and thereby give constitutional cover to a future government inclined to fill the Criminal Code with even more mandatory minimum sentences as we’ve seen in the past. Also remember what Oxford criminologist Julian Roberts told us about the way the safety valve operates in England and Wales. He said, “. . . Only a small number of cases actually get saved this way. . . .”
Anne-Marie McElroy from the Criminal Lawyers’ Association predicted, perhaps unsurprisingly, that a safety valve would be more likely to benefit people with means and with privilege. Relatedly, Ms. Shanmuganathan told us that a safety valve is “. . . only going to create further litigation around how we consider what “exceptional” means . . .” or given the wording of this amendment, what the interests of justice may mean. Of course, a defendant with money is much better positioned to engage in this kind of extensive litigation.
Colleagues, I acknowledge that one could make a similar criticism of the Charter challenge process, but if we essentially replace Charter litigation involving mandatory minimum sentences with litigation relating to a safety valve, I’m not sure that’s a real, tangible improvement. While a single successful Charter challenge can result in a provision being permanently struck down, saving future defendants from the need to litigate in those areas, the safety valve approach could condemn every defendant to have to litigate their own case.
On the subject of Charter challenges, this amendment could undercut challenges of mandatory minimum penalties that are currently before the courts. Bill C-5 does not repeal all mandatory minimum sentences because, to be frank, Canadian public opinion is simply not there. If our goal is to allow for more judicial discretion in sentencing, let’s not amend this bill in a way that risks obstructing ongoing efforts to that end.
Finally, if we’re going to do this, it would be incumbent upon us as a committee and as a Senate to take very careful care to craft this provision in a way that addresses or mitigates the possible unintended consequences that witnesses have warned us about. That would mean thoroughly analyzing the different international examples, and getting more expert input than we had about how particular legislative language is likely to be applied in the Canadian context.
We really only got that from one witness, credible though he was, Professor Roberts. He mainly focused on one example, England and Wales. In response to a question from our colleague Senator Simons, he told us not to get too hung up on the wording, which, respectfully, seems to me a somewhat casual approach to legislating. I’m not sure what kind of in-depth analysis we should and would require.
The fact is that our study of Bill C-5 just didn’t delve into the details of how a safety valve might best be constructed and, frankly, for good reason, colleagues. Our committee focused on the content of Bill C-5, which witness after witness after witness told us is a good bill and a significant step forward. Witnesses also told us that there remains much more work to be done to improve Canada’s criminal justice system. That is absolutely and undoubtedly true.
I submit that the solution is not to make an addition to the bill that we haven’t considered in detail and that we’re being warned against could have negative unintended consequences — and not by a fringe group, but by the Canadian Bar Association itself among others. To conclude, I really do appreciate the intent of the amendment. I share the values that underpin it, but the government simply cannot support it. Thank you.
Senator Batters: I would actually go a little further on this than Senator Gold just did, and I would note that this is not the safety valve for exceptional circumstances that was alluded to by witnesses like the escape clause in England and Wales. This amendment only requires that a judge be of the mind that not using the mandatory minimum would be in the interest of justice and provide written reasons for that sentence. There is no suggestion that the circumstance of the case must be exceptional or extreme in nature. And because Senator Pate referenced this specifically, this is actually the language in the section referred to by Julian Roberts regarding the U.K. Sentencing Act 2020. It uses the term “exceptional circumstances,” and Senator Pate’s does not.
In subsection 311(2) of the Sentencing Act 2020, it states:
The court must impose an appropriate custodial sentence for a term of at least the required minimum term unless the court is of the opinion that there are exceptional circumstances which—
(a) relate to the offence or to the offender, and
(b) justify not doing so.
In effect, Senator Pate’s amendment would render all mandatory minimum penalties set by Parliament meaningless, including murder, where for many years in Canada we’ve had a 10-year mandatory minimum sentence for second-degree murder and a 25-year mandatory minimum sentence for first-degree murder. While some witnesses were of the personal view that the government should abolish all mandatory minimum penalties, the Senate Legal Committee has only studied and considered the merits of the mandatory minimum penalties listed in Bill C-5, and we have had witnesses testify on the specific merits of each of those penalties raising points that we might not have considered. For example, law enforcement officials highlighted the importance of preserving the sentencing parameters, specifically in the case of firearms offences. Likewise, we would need to hear evidence for and against the efficacy of every other mandatory minimum penalty in the Criminal Code before considering such a sweeping proposal.
In my view, our committee has not heard even close to a broad enough scope of evidence in order to move forward with an amendment like this. As such, I cannot support this particular amendment.
[Translation]
Senator Boisvenu: I thank Senator Pate for her arguments. I have a few questions to ask before providing a general comment.
I understand that your amendment would include minimum sentences for all crimes, whether first-degree murder, violent sexual assault, terrorism or high treason. All crimes in the Criminal Code would be subject to the abolition of minimum sentences. Did I understand that correctly?
[English]
Senator Pate: It would not be subject to the abolition, it would be subject to the ability to use structured discretion of the sort that this committee recommended in the Delaying Justice Is Denying Justice report, as well as recommended by the Truth and Reconciliation Commission of Canada, the National Inquiry into Missing and Murdered Indigenous Women and Girls and every law reform and sentencing commission.
[Translation]
Senator Boisvenu: In that case, why not propose applying the Lloyd decision instead?
[English]
Senator Pate: I’m not certain I understand.
[Translation]
Senator Boisvenu: I believe the Supreme Court handed down Lloyd in 2016. You say that minimum sentences may apply only in exceptional cases. However, Lloyd already provides for granting that exception to judges, but that decision was never implemented in the Criminal Code. So, why not propose an amendment to apply Lloyd instead of extending the inability to impose a minimum sentence to all crimes, even first-degree crimes?
[English]
Senator Pate: That would be something, if you wanted to suggest an amendment to my amendment, that might be of interest, given what Senator Batters has said as well. But no, we are trying to look at the injustices and the profound injustices in particular for Indigenous women who have experienced violence and trauma in the past and may have responded with violence. As we heard from the London Abused Women’s Centre, the fact that the recommendation that no mandatory minimum apply to women was one of the recommendations they made, and recognizing that, in many cases, when women have become involved in some of those situations, they have first been victimized and then have been charged as a result of their subsequent involvement in offences.
[Translation]
Senator Boisvenu: Bill S-213 was referred to our committee. Basically, your amendment seeks to implement Bill S-213. Is that right?
[English]
Senator Pate: No, I think Bill S-213 goes further than this.
[Translation]
Senator Boisvenu: Really? Because it’s possible to go further than abolishing all minimum sentences? I thought that was already the extreme.
[English]
Senator Pate: I’d have to go back and look at Bill S-213 again, but it doesn’t abolish all of them. Again, it provides a mechanism and it has a series of clauses in terms of how to address that.
Senator Dalphond: I understand the principle behind the amendment, but my difficulty is this: When I joined the Senate four and a half years ago, I attended a committee meeting, and we were going to amend the Criminal Code with something that was roughly discussed and would have far-reaching consequences. I had to oppose it because I was surprised — as a new senator and a former judge — to realize how the Criminal Code was drafted on the corner of a table.
I am afraid today we are in the same situation, unfortunately. The idea is good perhaps for those who don’t believe in mandatory minimum penalties. I’m not going to debate that issue. This government, like previous governments, believes in mandatory minimum penalties. Even that government also believed that some have the impact of systemic discrimination and wanted to remove that. That’s fine; that’s a policy decision.
That being said, many things were said about the Supreme Court, so I will refer to two different judgments from the Supreme Court. I’ll start first with Bissonnette, the most recent judgment.
The Supreme Court unanimously — well, almost. I see there were two dissenting. The court said:
. . . Parliament has latitude to establish sentences whose severity expresses society’s condemnation of the offence committed, and while such sentences may in some circumstances have the effect of dooming offenders to die behind bars, they are not necessarily contrary to s. 12 of the Charter.
That’s the first point. When you add up 25 and 25 and 25 like in Bissonnette, the Supreme Court said it’s too much. But when you have a minimum — and the Supreme Court called 25 years as a minimum penalty — they said this is fine. It’s not a problem. It’s the cumulative effect of adding on top of 25 another 25 and another 25 that it becomes a cruel punishment, according to section 12.
The other judgment that has been referred to here is Lloyd. Chief Justice McLachlin this time won the day, where she wrote for the majority in Lloyd. From paragraph 35 of the judgment:
. . . If parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.
The Supreme Court is not saying mandatory minimum is bad. It says if you want to have it and you want to keep that system, draft properly.
Chief Justice McLachlin added:
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. Residual judicial discretion for exceptional cases is a technique widely used to avoid injustice and constitutional infirmity in other countries . . . It is for the legislature to determine the parameters of the residual judicial discretion. . . .
The Supreme Court recognizes there are two techniques to face here that can be used by Parliament, both constitutionally valid. One is to have mandatory minimum penalties, but if you do that, Parliament, be sure the net is cast properly because otherwise you will be in constitutional breach of section 12 of the Charter.
Another way to go is to have a safety valve for exceptional circumstances.
Fortunately, we received documents from Professor Roberts this morning that he promised to send at the last meeting. His first document is called “Draft Amendments.” I think my colleague Senator Pate asked him at the end of the previous meeting if he could send off a draft clause, and he agreed to do so.
He indicates there are three ways to draft it. One will be exceptional circumstances, which is the drafting in the U.K.; substantial and compelling circumstances, which is the drafting in some other countries; and contrary to the interests of justice. He ranked them. He said exceptional circumstances is the highest bar to meet for judges. The middle bar is substantial and compelling circumstances, but it’s very close to exceptional circumstances. It is being used in South Africa. Then he goes on to indicate that contrary to the interests of justice will be the lowest bar, and he does not recommend it. That’s in his document.
What we have before us is even lower than that. It doesn’t say, “contrary to the interests of justice.” It proposes to say, “is satisfied that doing so will be in the interests of justice.” This is a very wide discretion that is granted here. We’re not dealing with exceptional circumstances. We’re dealing with, more or less, all cases that judges will feel that the interests of justice is called for, something other than the mandatory minimum penalties.
To use the Supreme Court, I think this amendment is drafting the net of exceptions too broadly, and I cannot support it because, quite frankly, this is saying that judges can dispense with mandatory minimum penalties when they think it’s unfit. This is not what Justice McLachlin wrote. She opted for the exceptional circumstances.
Senator Pate: Since Justice McLachlin said that, there certainly has been — in Bissonnette, it opens up the whole issue of human dignity and the importance of that value.
I also want to come back to something — and thank you, Senator Gold, for your comments.
I would actually underscore what you said. The very same reasons you gave for not supporting this are the very same reasons that leaving it to people to have to bring their every constitutional challenge is unfair to many accused, particularly the targets of this bill in terms of Indigenous and Black people who are vastly overrepresented in the system and whose cases rarely end up before the Supreme Court of Canada, with respect.
I also want to point out that we have heard and the reality is there is a consideration now happening among the legal profession in light of Bissonnette around what changes need to happen. While we didn’t hear it from the witness who came, the person who is currently in the position of — the person from the Canadian Bar Association — the current person has actually undertaken a task to revisit the position of the Canadian Bar Association with respect to mandatory minimum penalties. While we don’t have the benefit of that today, they are revisiting the issue, and I have been contacted by a number of folks who want us to hold off on this until they get their position changed. Obviously, we can’t, but I think it’s vital and relevant information to put before given that so much emphasis has been put on the position of the Canadian Bar Association and the fact that their position is, at the very least, evolving as we speak.
Senator Clement: Senators, I have lost sleep over Bill C-5, but I didn’t just lose sleep. I did a lot of reading, a lot of learning and a lot of listening, and I spoke to colleagues who work in my home community who are on the ground. What I heard from all of these brilliant witnesses is that these mandatory minimum penalties don’t work. They don’t deter crime. They don’t make Canadians feel safer. I’m sensitive to Senator Gold’s comments about public opinion and about the political realities of trying to get something done. I’m very sensitive to that. But I also heard a witness say last week that we should be ambitious, and I think that this amendment that’s being proposed is appropriately ambitious in that it speaks to the reality that members of vulnerable communities are the ones who are being affected and that we have to put things into the hands of judges so they can look at particular circumstances.
I also heard the testimony from women, and from people who represent women, who may not always trust the justice system, for good reason, and who may not always trust judges. But not all judges are bad. We’re working on this system. There are many of us in this system that are trying to make it better.
Yes, there is a trust issue, but it doesn’t mean that there aren’t people working at it, that judges aren’t getting better at taking things into consideration, at understanding certain circumstances. So I prefer to err on the side of being appropriately ambitious by supporting this amendment. Thank you.
[Translation]
Senator Dupuis: Bill C-5 has given us the opportunity to hear from witnesses who do not trust the legal system and who are mistreated by the system — most of them women — from the moment the police become involved to the end of the sentencing process, appeals and last recourse.
As such, I don’t think the wording of this amendment addresses that concern. I don’t think it’s a matter of individuals; yes, there are good individuals, but should we say that there are good senators and bad senators? I don’t know. It’s not a matter of being a good judge or a bad judge; it’s a problem of systemic discrimination against women that’s deeply embedded in our justice system.
In my opinion, the amendment we’re looking at cannot address this concern that many groups have expressed to us, and not just during the study of Bill C-5. In the Legal Affairs Committee, we’re called on to examine a series of bills dealing with a small number of provisions and a small number of divisions. We’re unable to do an in-depth review of sentencing principles, for example, to reflect what Senator Pate said today and what many others have expressed before us. Thank you.
[English]
Senator Cotter: Briefly, there are three points from my perspective. First, I think this is a good bill, Bill C-5. I agree with nearly all of the sentiments and viewpoints expressed by Senator Pate and Senator Clement about the principles associated with this bill. I think many of us are sympathetic to that point of view, and I think the bill could be better. But I am worried that the exercise of our limited democratic legitimacy as senators could compromise the timely adoption of a good bill, and for that reason I’m not supporting the amendment. Thank you.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment? We will take a recorded vote.
Mark Palmer, Clerk of the Committee: Recorded vote on the amendment which is adding a new clause 13.1.
The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: No.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Downe?
Senator Downe: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: No.
Mr. Palmer: The Honourable Senator Gold?
Senator Gold: No.
Mr. Palmer: The Honourable Senator Harder?
Senator Harder: No.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Palmer: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Palmer: The Honourable Senator Smith?
Senator Smith: No.
Mr. Palmer: Yeas, 4, nays, 9.
The Chair: Honourable senators, the amendment is defeated.
We will now go on to clause 14. Shall clause 14 carry? Senator Boisvenu has an intervention.
[Translation]
Senator Boisvenu: I propose the following amendment:
That Bill C-5 be amended in clause 14, on page 3, by replacing lines 19 to 21 with the following:
“(iii) section 318 (advocating genocide);
(2) Section 742.1 is amended by adding “and” at the end of paragraph (d) and by replacing paragraphs (e) and (f) with the following:
(e) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
(i) section 221 (causing bodily harm by criminal negligence),
(ii) section 264 (criminal harassment),
(iii) section 267 (assault with a weapon or causing bodily harm),
(iv) section 270.01 (assaulting peace officer with weapon or causing bodily harm),
(v) section 271 (sexual assault),
(vi) section 279 (kidnapping),
(vii) section 279.02 (material benefit — trafficking),
(viii) section 281 (abduction of person under age of 14), and
(ix) section 349 (being unlawfully in a dwelling-house).”.
Colleagues, you’ll obviously understand that all these crimes are, in many cases, related to sexual violence, spousal violence and family violence.
My amendment seeks to remove offences related to crimes against the person from Bill C-5. I have often spoken about statistics on family violence in my speeches in the Senate. Those data are quite striking.
In Quebec, spousal violence has increased by 34% in recent years; in New Brunswick, the increase is 38%. So, this is a social component that has become a scourge. In fact, the Supreme Court and the courts of appeal, including the one in Quebec, have on several occasions asked the courts to be much tougher when it comes to crimes related to spousal violence, family violence and sexual violence, which involves women in almost 90% of cases.
Abolishing the possibility of conditional sentences, commonly known as soft sentences, for which the individual is ordered to serve the sentence at home, has another impact, in addition to devaluing the justice system in the eyes of victims.
I would remind you that a poll was conducted by Léger in Quebec a few weeks ago. The poll revealed that 52% of Quebecers do not trust the justice system. It’s clear to me that this step forward is in addition to the legislation passed in 2019 — Bill C-75 — which removed a host of criminal charges from the Criminal Code and replaced them with nominal charges.
This is a step forward, and it will further reinforce the feelings that victims have about the justice system in terms of credibility. In particular — and this is what worries me the most — it will further reduce a woman’s willingness to report her aggressor, knowing that he may serve his sentence close to where she lives.
We know that, in many communities, the criminal and the victim live on the same street, in the same village, in the same city. Knowing that their aggressor will not spend a single day in prison and will return home to serve his sentence will considerably weaken the willingness of women to report. We know that, right now, one in ten women report their aggressor, whether for spousal violence or sexual assault.
This is an element that, in my opinion, reduces the safety of women who report. We know that most homicides committed in Canada, particularly in Quebec, are not committed before an individual is tried, not after they were tried, but after the individual receives a peace bond instead of a trial.
So, this adds to the burden of ensuring the victim’s safety, which is already very difficult. When we look at the increase in crimes related to sexual violence and spousal violence, when we see the low rate of reporting by women for this type of crime, when we see that women have been calling on the government for years to ensure their safety…
This was seen recently in Quebec. The Quebec government adopted Bill 24, which will now require those who are released from a provincial prison — which is a minority of men — to wear an electronic bracelet. It’s also been seen elsewhere, when a Liberal member tabled Bill C-233, which is now before us. This bill would also allow the federal government to impose the wearing of electronic bracelets. It’s a tool that women have been seeking for decades to be better protected.
In my opinion, these clauses in Bill C-5 do the complete opposite of what women are asking for and go against the social trend, which is that the various courts have asked judges to be tougher on these criminals. That’s why I’m proposing this amendment.
For me, this amendment stems from of a very long period spent with victims of domestic violence. I’ve had the opportunity to say so several times in the Senate, when I introduced Bill S-205. I’ve worked with about a hundred women, all of whom went through the court process with a lot of fear of being abandoned by the system. In my opinion, softening the Criminal Code instead of making it tougher, as the courts are asking, for aggressors who assault women goes completely against the social agreement.
Everyone agrees that spousal violence and sexual violence are unacceptable and that we must be tough on aggressors. I think these clauses of Bill C-5 go against the will of the people and even the will of some courts. That’s why my amendment seeks to remove these assaults against women from Bill C-5. I repeat: This amendment is related to integral elements of spousal violence. When we talk about inflicting bodily harm, when we talk about sexual assaults, which are major components of spousal violence, when we talk about kidnappings, children who are abducted by —
The Chair: Senator Boisvenu, can you conclude now?
Senator Boisvenu: Yes, I’ll conclude.
I appeal to your sensitivity concerning family violence, spousal violence and sexual violence to maintain the status quo for crimes against the person in the Criminal Code in Bill C-5. Thank you.
[English]
Senator Batters: I support this amendment. While we all certainly support the goal of rehabilitation of offenders, what must remain paramount — especially in the cases of sexual assault, domestic violence and the other offences captured by this amendment — is the impact on the victim, especially when there is a threat to safety.
Jennifer Dunn from the London Abused Women’s Centre provided some context for this. She had many important quotes from her testimony, and she even quoted one of the abuse victims in her centre’s care:
. . . it seems as if we are focused on the men that have created the problem and are not listening to the women who are on the other side as victims.
She also provided examples of how, even under the current law, perpetrators of sexual violence against women are released and are sending text messages to women from outside the door of the women’s centre or they sit across the street in a lawn chair watching them when they have been prohibited from the woman’s property. She raised serious concerns with how much worse this will get when the offenders have the opportunity to serve their sentences in their communities, often in the same community as their victim. She described the victim constantly having to look over her shoulder and characterized the punishment for her as a “. . . lifetime sentence.”
The government has provided absolutely no rationale for extending conditional sentence eligibility to these very serious violent crimes. Minister Lametti has only stated in response to these concerns:
Serious crimes will still have serious consequences.
But as we know, and as Ms. Comtois from the Quebec Association of Centres for Assistance and the Fight Against Sexual Assault confirmed, there is no such thing as a non-serious sexual assault.
In my view, the committee heard no rationale for extending conditional sentence eligibility to these offences from witnesses or the minister, and given the harm this will likely cause victims of violence against women, I will vote yes to this amendment.
I want to quote a few other things that Jennifer Dunn had to say that day:
. . . While we do feel that Bill C-5 might be a good first step to the reintroduction of discretion in sentencing, we feel broadening the availability of conditional sentences is of some concern, especially when there are specific concerns around public safety.
She said:
It is already hard enough for a woman to come forward, and when she does, it takes years to get to the point of a conviction, if there ends up being one at all. This makes women feel as if the justice system isn’t taking them seriously. Just today, I was told by a woman we serve that if we have less protection in sentencing, we are less likely to report offences and this would be a real setback for us.
She went on to make a few more comments:
I said in the House of Commons, and I’ll say it again, we need to view this bill through the lens of male violence against women. There needs to be a focus on women, specifically marginalized women, how they will be impacted by this bill and not get the justice they deserve.
She said:
Women are not safe. We need systemic change to protect our women. Women deserve to live free from violence. The courts need to see that women are easily placed at more risk. . . .
Senators, I think it’s necessary to take real action here to protect women. Not by just posting a couple of tweets once or twice a year or giving a short speech in the Senate on an inquiry about domestic violence, but actually protect women who are in these dangerous and very vulnerable situations. Don’t let their abusers back into their communities so that these criminals can hurt or perhaps kill these women. Thank you.
Senator Simons: I have boundless respect for Senator Boisvenu’s passionate commitment to fighting domestic violence. We have a motion in front of the Senate right now looking into this very serious question. I have nothing but respect for Senator Batters’ concerns about women who are vulnerably placed.
My concern, though, is that this list is a perfect example of why conditional sentences can be useful in dealing with a spectrum of an offence. Criminal harassment sounds like a heinous offence, and at its extreme end, it absolutely is. But I think we can all imagine, especially in this political climate, cases where someone is charged with criminal harassment where a conditional sentence may be appropriate, such as being unlawfully in a dwelling-house. Now, if somebody is in a drug squat or if somebody has broken into a vacant house in the dead of winter to not freeze to death, that’s different from what you would call the most heinous of crimes. Assaulting a peace officer with a weapon — well, there’s a huge difference between shooting an officer, not fatally, and somebody who is overwrought at a protest hitting a peace officer with a placard, which is not something I would recommend, but again, it is a continuum within each of these offences.
Nowhere in Bill C-5 does it suggest that somebody convicted of this crime would automatically get a conditional sentence, merely that it would be part of a spectrum of options available to a judge. Causing bodily harm by criminal negligence, and even sexual assault — no sexual assault is a minor thing, but we all know from our experience in the world, whether we are lawyers, judges, journalists or just observers of the human condition, that there is a huge range in what is categorized under the umbrella of sexual assault.
Therefore, while I have deep respect for Senator Boisvenu’s intention, I cannot support this amendment.
Senator Gold: Thank you. I subscribe to everything my colleague Senator Simons just said including and especially the respect that I have both for the work of all senators, but notably Senator Boisvenu and for the care that we must take in cases of violence against women.
The truth is the vast majority of the testimony that we heard stressed the importance of giving judges more discretion to impose sentences that are appropriate for the circumstances of the offender and the offence. In fact, that’s the core purpose of this bill, and the government strongly opposes this amendment for that reason.
The government absolutely agrees that serious criminal behaviour should be met with serious sanctions. Under Bill C-5, most of the offences listed in this amendment will continue to result in a prison sentence almost all of the time. It simply allows a judge discretion to issue conditional sentences for those offences in rare and exceptional cases.
As Senator Simons points out, this is especially important when the description of the offence can cover a broad range of circumstances.
For that reason, the government’s view is that in the long run — and here I’m focusing on public safety because one of the things that needs to be said is that communities can be made safer when people who can safely remain in the community and are judged by a judge to be in that category are not needlessly incarcerated with all of the social impacts on themselves, their family and, indeed, on their community it entails. Therefore, the government cannot support this amendment.
[Translation]
Senator Dalphond: Paragraph 742.1(e) of the current Criminal Code sets forth a list of offences that, while not leading to a minimum sentence, are cases that are not eligible for release or a conditional sentence if convicted of that offence. The government is proposing to eliminate this list in paragraph 742.1(e). I understand that Senator Boisvenu is not really reintroducing the entire list, as he has removed some items and agrees with keeping them out, but he is adding some others and keeping some that were already there. I understand the idea.
I also understand the importance of making it clear to those listening to us and to the public that a conditional sentence order can be described in many ways, but it doesn’t mean that the person will be at home and doing what they want. It doesn’t mean that, instead of spending 6, 12 or 18 months in prison, they’ll spend 18 months watching television, visiting friends and having parties.
During my 12 years of practice in the court of appeal, 30% or 40% of my time was spent on criminal law. Sentence appeals were our bread and butter every day. I know that what we read in the papers doesn’t exactly reflect what the judges impose. However, they impose real conditions, such as curfews, having to wear a bracelet occasionally, answering the phone, having a separate line, and so on.
That said, I want to reassure people, especially victims, because I’m very sympathetic to the principles put forward by Senator Boisvenu. He’s absolutely right: 80% of victims of violence are women; the statistics show it. At the very least, 80% of victims who file a complaint with the police are women.
That said, it’s important to remember that section 742 of the Criminal Code, if some of its subsections are amended, is not being amended in its main provisions, which are in the introduction and in paragraphs (a), (b), (c) and (d).
I’ll summarize the 120-page ruling in Proulx in 2000. In that landmark decision on conditional sentences, the court stated this:
Section 742.1 . . . lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
It then continues as follows:
(2) the court must impose a term of imprisonment of less than two years;
That is not amended.
(3) the safety of the community would not be endangered by the offender serving the sentence in the community;
That is not amended.
(4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
I can tell you that legal adjudication is very structured, because several sections, beginning with section 718, govern what a judge does each time a sentence is handed down. The Supreme Court adds the following in reference to safety — because it’s important.
The requirement in s. 742 . . . that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence . . .
To assess the situation, the Supreme Court added the following:
Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence.
These are extremely exacting parameters that mean that if, for example, someone is accused of family violence and is perhaps on their second offence, that person must justify that they can be released since the Criminal Code was amended. If convicted following the trial, when a sentence is imposed, it’s clear that the judge will not be able to impose a conditional sentence. First, it may be a sentence of more than two years. Regardless, even if it’s less than two years, it would not be a conditional sentence.
I think we have to trust the interpretation and the law as it is now. A conditional sentence is not a piece of cake. The statistics that the witnesses shared with us show that the rate of breach of conditional sentences is low. That means people are complying with the conditions. Thank you.
[English]
Senator Batters: I wanted to make a few points dealing with how Senator Gold talked about these types of matters. I just wanted to draw everyone’s attention to exactly what we’re talking about here. Senator Boisvenu wants to have these particular offences not be allowed to have conditional sentences. That would include causing bodily harm by criminal negligence; criminal harassment; assault with a weapon or causing bodily harm; assaulting a peace officer with a weapon or causing bodily harm; sexual assault; kidnapping; material benefit trafficking; abduction of a person under the age of 14; and being unlawfully in a dwelling-house. All of those focus on very personal crimes that are generally associated with interpersonal violence or sexual violence.
I would actually be interested to hear from the government because we didn’t hear a lot of evidence from the government, as I pointed out, on the justification for having conditional sentences allowed for these types of offences.
Senator Gold, for sexual assault, for kidnapping, for human trafficking — let’s just focus on those three. What are the types of circumstances that you would think a conditional sentence would be appropriate?
Senator Gold: Thank you. It’s a fair question. The starting point that underlies this aspect of Bill C-5 is that, first of all — and I don’t want to repeat the analysis of Senator Dalphond — the Criminal Code already structures the decision making of the judge to make it clear that serious crimes will get serious penalties. Those are serious crimes and they conjure up images of serious crimes. Rare will be the circumstances, but it does allow for a judge, taking into account all the circumstances of the individual case, to make that judgment if, in fact, the severity would not justify a prison sentence of more than two years — remember, that’s one of the thresholds — then the judge can take into consideration all the individualized circumstances of the case, and, where appropriate and where public safety is not — which includes the safety of the victim or potential victim — at risk — if a judge is convinced it’s not at risk, not just might not be at risk — to make the judgment that, with the appropriate conditions applied, society is better served with the person in the community.
Again, I think there is a lot of research that demonstrates the negative impact on families and communities, and it’s intergenerational when people are incarcerated unnecessarily. I think that’s the rationale behind this, Senator Batters. Reasonable people can disagree, but that’s the policy choice of the government, and it’s well grounded both in the law and in the research.
Senator Batters: Senator Gold, mistakes happen. Sometimes the judge has not taken into consideration those necessary factors and someone then is given a conditional sentence on those types of matters.
For those most serious of cases, why not just take those out — sexual assault, kidnapping, human trafficking?
Senator Gold: Again, the government is of the view that even within those — I repeat, and Senator Simons I think put it well — the great majority of cases, they wouldn’t make the less than two-year threshold, much less qualify for this.
There may be circumstances, and it’s in those cases where the judgment of the government and the policy that is embedded in the bill before us is that judges can be trusted to do their best to ensure that public safety is not compromised.
Mistakes may happen, but our system of justice requiring proof beyond all reasonable doubt and presumption of innocence is built upon a faith that the system will do justice, both in terms of the appropriate penalty, where appropriate, but in this case to provide an alternative to incarceration, where appropriate.
[Translation]
Senator Boisvenu: Senator Gold, every day, judges issue “810s” to aggressors in lieu of a trial, with little doubt that the “810” was ordered to protect the victim. In almost every case of murdered women in Quebec, the court was certain that the victim was well protected, but the aggressor never complied with the conditions.
Senator Dalphond, the Université de Montréal and UQAM conducted a study on “810s”; in 50% of cases, the conditions are not respected. The Quebec correctional officers union conducted a similar study in the late 2000s on conditional sentences; 40% of criminals did not comply with their conditions. So, it’s not true that a conditional sentence, an “810,” is a guarantee beyond all doubt for the safety of the victim. On the contrary, the victim has the impression of being safe, but the aggressor ignores the conditions.
What we’re doing is sending a message. The important thing for me isn’t whether it’s removed or not, it’s the message being sent to women, who have been listened to by the Quebec government, because it took action. The federal government is starting to take action and quite a different message is being sent. That’s why I feel bad for women.
We’re doing the opposite of the whole social current we’ve been seeing for the last 10 years, with women who want to be safe when they report an aggressor. We’re just going to make them less safe, and we’re just going to tell them, “Don’t report it, because your safety’s in question.” That’s what we’re doing. Thank you.
Senator Dalphond: I’d like to comment. First, I must say that this is not about “810s,” about pre-trial release, appearance notices or saying that a case won’t be tried and that the offender will stay out of the system if a judge orders an “810.” We’re talking here only about sentences imposed following a trial that resulted in a conviction. The moment there’s a conviction, the accused becomes a convicted person and does not benefit from the presumption of innocence or any favourable sentencing presumption. They will receive the sentence they deserve. I understand that, for some victims, having the accused imprisoned for life would mean maximum safety. Maybe, but not every crime carries a life sentence.
That said, Quebec is conducting an interesting experiment. This is particularly for people sentenced to less than two years. These are all people eligible for the provincial correctional system. If the judge authorizes a conditional sentence, one condition that can be set is that the offender must wear an anti-approach bracelet. That would be a great improvement for victims. I hope it happens. That’s just the start; it’s a pilot project. I hope things move in that direction, like Spain and France are doing. What I would say to victims is that the system isn’t perfect but, as Senator Boisvenu said, we’re taking steps in the right direction.
Senator Boisvenu: Senator Dalphond, you agree with me that an “810” is ordered instead of a trial and that the accused acknowledges his wrongdoing, right? We know that he’s not complying with his conditions. So, a conditional sentence is basically an improved “810,” even if an offender is charged and receives a sentence. The problem is that the accused or those who are convicted in real life don’t comply with their conditions. That’s the problem. That’s what women are telling us; that’s why they don’t report, by the way. Thank you.
[English]
The Chair: Senators, do you want this amendment to carry?
Some Hon. Senators: Yes.
The Chair: Do you want a recorded vote?
Senator Batters: Yes.
Mr. Palmer: This is on the vote on the amendment of Senator Boisvenu.
The Honourable Senator Jaffer?
Senator Jaffer: No.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: No.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: No.
Mr. Palmer: The Honourable Senator Gold?
Senator Gold: No.
Mr. Palmer: The Honourable Senator Harder?
Senator Harder: No.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: No.
Mr. Palmer: The Honourable Senator Simons?
Senator Simons: No.
Mr. Palmer: The Honourable Senator Smith?
Senator Smith: Yes.
Mr. Palmer: Yes, 4; no, 9.
Mr. Palmer: The amendment is defeated.
The Chair: Shall clause 14 carry, senators?
An Hon. Senator: On division.
The Chair: Shall clause 15 carry?
Shall clause 16 carry?
An Hon. Senator: On division.
The Chair: Shall clause 17 carry?
An Hon. Senator: On division.
The Chair: Shall clause 18 carry?
An Hon. Senator: On division.
The Chair: Shall clause 19 carry?
An Hon. Senator: On division.
The Chair: Shall clause 20 carry?
An Hon. Senator: On division.
The Chair: Shall clause 21 carry?
Shall the title carry?
Shall the bill carry?
Senator Batters: On division.
The Chair: Honourable senators, does the committee wish to consider appending observations to the report? Senators, you have some observations sent to you. The first observation was sent to you by Senator Dalphond.
Senator Dalphond: You have the text of the observation, so I won’t read it. But I’ll summarize the gist of it. I think I was impressed by many of the witnesses, especially the last one, the RCMP officer who happens to be the president of the RCMP officers — more or less the union of the RCMP officers.
He said that in the system, in remote places in the provinces and Northwest Territories and elsewhere, the lack of health resources translate into charging people and using the judicial track instead of the health track — and that bill is based on diversions in matters of drugs and use of drugs and all these types of things, which are health problems first and foremost.
Unfortunately, I think all the witnesses who came here were supportive of that part of the bill. But the bill will achieve its goal only if the resources are there. That’s the spirit of the observations, to say to the government, “Please work with the provinces, work with the stakeholders to make sure that the resources are there to make sure that this track 2, the health track, is used and available.”
Senator Simons: I thank Senator Dalphond for his observation. I was going to draft something similar and then I saw his and I thought, “No, I can’t say anything better than that.” I think this is hugely important. We can’t divert people if there’s no place to send them.
[Translation]
Senator Dupuis: I have a question for Senator Dalphond.
Several witnesses referred to the problem as a public health problem.
Would you agree to add that element to the third line of your observation and to the last point on page 1, to the sixth point, on the second-last line? It’s much more than an individual health issue, and it’s grown into a public health issue. I feel it’s important to recognize that.
Senator Dalphond: So it would be in the first paragraph, at line 2, “ . . . a public health and social issue”? So it’s on the fourth line of the last bullet point?
Senator Dupuis: The fifth line, “ . . . substance use as a public health issue.”
Senator Dalphond: The word “public” would be added with a comma; perfect, I’m all for it if everyone else is.
I’d also like to say to Senator Simons that I really appreciate her comment and her thanks. I may have had the idea, but the recognition should go to Julian and Michaela, who are very helpful to the committee and who were the hand behind the thought.
I had to make very few changes to what they proposed.
Senator Boisvenu: I have a question, as I didn’t really follow what was happening.
There’s a sentence that says: “ . . . consider issuing a warning, diverting them to appropriate resources, or choosing to do nothing.”
We’re in the diversion measures, right? I believe it’s at the end.
Senator Dalphond: Yes, at the end of the first paragraph.
Senator Boisvenu: You say “or choosing to do nothing,” unless it’s not there anymore.
Senator Dalphond: No, it’s there, you’re right.
Senator Boisvenu: It’s as though you’re offering them two choices: either you divert these people with substance abuse problems to resources, or you do nothing.
I think it’s very detrimental to the police to include that in a text, right? I think the police need to act.
Senator Dalphond: In effect, they issue a warning, or they go the criminal route, or divert them to the health care system.
Maybe it could instead read: “ . . . issuing a warning or diverting them to appropriate resources” and strike out the words “or choosing to do nothing,” to avoid any ambiguity.
Senator Boisvenu: Yes, thank you.
Senator Dalphond: Excellent suggestion, thank you.
The last line of the first paragraph would read: “ . . . issuing a warning or diverting them to appropriate resources.”
Senator Dupuis: I have another question for Senator Dalphond on the third bullet point, on page 1.
Given that this refers to the police, there are also prosecutors in the legal system and the justice system in general. The third point refers to the discretion afforded to police and prosecutors by Bill C-5, saying it, “ . . . does not result in further entrenching systemic racism.”
I’d like to understand why the term “systemic discrimination” wouldn’t be used instead. “Systemic discrimination” refers to a legal concept that is very well established in law, while many people argue that the expression “systemic racism” is sociological concept that is not as well defined.
There’s a lot of controversy surrounding that term, while the other term is very clear. Discrimination is illegal, and I think that’s what we want. There are too many cases of racial profiling by the police, for example, that have been well established, to hesitate to call it what it is: It's discrimination.
Senator Dalphond: That’s a very good point. I believe the clarification that you suggest is appropriate.
So, it could read: “ . . . further entrenching systemic discrimination.” In French, it would be: “ . . . pour effet de renforcer la discrimination systémique.”
[English]
Senator Batters: On this point, I’m not sure why we do this. We have these lengthy, page-long observations. We just passed, on division, a very comprehensive, potentially very damaging government bill. Then to make ourselves feel better, we’re going to put out this page-long observation, which frankly says a lot of things that are already being done in the system and to varying degrees of success across the country. Saskatchewan has a pretty robust diversion measures program. I don’t know about other places as specifically as that.
I don’t know why we do this. To me, it’s kind of meaningless and I am not sure how this makes us feel better about passing lengthy bills. This is a government that has proven that on many occasions they have barely paid attention to legislative mandates where they’re supposed to review a piece of legislation within so many years. They can’t get that done. How are they going to pay attention to something like this?
Senator Dalphond: Two things. First, I admire Senator Batters for her commitment to that principle. I think I’ve been here for almost five years, and every report you say that we should go the old way and have brief observations or no observations. I understand that’s the way it used to be done here, and maybe that should be the way of the future, I don’t know. But that’s not the way I have been involved in the last four-and-a-half years.
The second thing is that nothing of what is said here is not what the witnesses have said. All those that were involved in B.C., the health systems, the RCMP people, all the police chiefs — all the witnesses have said, “Please don’t ask us to do all that work and not put out the resources that come with it.”
I think there is no harm to repeat it to the government. Will they listen? I leave it to you. I understand you’re skeptical. I’m hopeful they will listen.
The Chair: Senators, will Senator Dalphond’s observation carry?
An Hon. Senator: Recorded vote, chair.
The Clerk: Recorded vote to add the observation of Senator Dalphond to the bottom of our report.
The Honourable Senator Jaffer?
Senator Jaffer: Yes.
The Clerk: The Honourable Senator Batters?
Senator Batters: Yes.
The Clerk: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
The Clerk: The Honourable Senator Clement?
Senator Clement: Yes.
The Clerk: The Honourable Senator Cotter?
Senator Cotter: Yes.
The Clerk: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
The Clerk: The Honourable Senator Downe?
Senator Downe: Yes.
The Clerk: The Honourable Senator Dupuis?
Senator Dupuis: Yes.
The Clerk: The Honourable Senator Harder?
Senator Harder: Yes.
The Clerk: The Honourable Senator Pate?
Senator Pate: Yes.
The Clerk: The Honourable Senator Simons?
Senator Simons: Yes.
The Clerk: The Honourable Senator Gold?
Senator Gold: Yes.
The Clerk: Honourable Senator Smith?
Senator Smith: Yes.
Mr. Palmer: Yes, 13; no, 0.
The Chair: Honourable senators, I have some observations in front you and on reflection, Senator Batters reminds us all the time about short observations, so I’m not going to proceed with my observations. That’s the really important point. I should have known better.
Senators, is it agreed that I report the bill with observations to the Senate?
Hon. Senators: Agreed.
The Chair: Senators, in light of that, there will be no meeting tomorrow because we’ve completed what we were supposed to do.
We will do Bill S-210 next Wednesday. Thank you, senators.
(The committee adjourned.)