THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, May 6, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 3:02 p.m. [ET] to examine Bill C-14, An Act to amend the Criminal Code, the Youth Criminal Justice Act and the National Defence Act (bail and sentencing).
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good afternoon, honourable senators. I declare open this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. My name is David Arnot. I’m a senator from Saskatchewan, and I chair this committee. I invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters, Saskatchewan, deputy chair.
Senator Housakos: Leo Housakos, Quebec.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
Senator Oudar: Manuelle Oudar from Quebec.
Senator Clement: Bernadette Clement from Ontario.
Senator Moncion: Lucie Moncion from Ontario.
[English]
Senator Pate: Kim Pate. Welcome, and I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
Senator Simons: Paula Simons, Alberta. I also come from Treaty 6 territory.
[Translation]
Senator Moreau: Pierre Moreau from the Laurentides division in Quebec.
Senator Dalphond: Pierre J. Dalphond from the De Lorimier division — the most beautiful — in Quebec.
[English]
Senator Dhillon: Baltej Dhillon, British Columbia.
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
The Chair: Thank you, senators. Honourable senators, we’re meeting to conduct clause-by-clause consideration of Bill C-14, An Act to amend the Criminal Code, the Youth Criminal Justice Act and the National Defence Act (bail and sentencing).
To assist us with our examination this afternoon, we’re joined by officials from the Department of Justice: Owen Ripley, Senior Assistant Deputy Minister, Policy Section; Joanna Wells, Acting Senior Counsel and Team Lead, Criminal Law Policy Section; Myriam Wills, Counsel, Criminal Law Policy Section; Samantha Reynolds, Legal Counsel, Youth Criminal Justice Division, Family Law and Youth Justice Section; and Lise-Anne Wheeler, Counsel, Youth Criminal Justice Division, Family Law and Youth Justice Sector.
Thank you all for joining us this afternoon and assisting us in our work.
Senators, since it’s been a while since we’ve conducted a clause-by-clause meeting, I would like to remind senators of a number of points. If, at any point, a senator is unclear where we are in the process, please ask for clarification so we can ensure a shared understanding. When more than one amendment is proposed to modify the same clause, they should be moved and considered in the order of the lines of the clause.
If a senator opposes an entire clause, the proper process is to vote against the clause standing as part of the bill rather than moving a motion to delete it.
Some amendments may affect other parts of the bill. Senators moving amendments should identify any related clauses to help ensure consistency in the committee’s decisions. Because no notice is required to move amendments, they may not have been reviewed in advance to identify related or conflicting proposals.
If members have questions or disagree with the process or proceedings, they may raise a point of order. As chair, I will hear the arguments, determine whether there’s been sufficient discussion and rule accordingly. Any ruling of the chair may be appealed to the committee by asking whether it shall be sustained.
Finally, I remind honourable senators that if there is any uncertainty about the result of a voice vote, they may request a recorded vote to obtain a clear result, whereas a tie vote defeats the motion.
Are there any questions before we proceed?
Senator Batters: I wonder if there are any extra copies from the clerk, just because we got these documents. I wondered if you had an extra copy of that road map document because that could help us make things move very quickly. We received that very shortly before we came to the chamber.
The Chair: Thank you. The clerk has that and will distribute it to all senators.
Are we ready to proceed? I see we are.
Colleagues, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-14, An Act to amend the Criminal Code, the Youth Criminal Justice Act and the National Defence Act (bail and sentencing)?
Hon. Senators: Agreed.
The Chair: Agreed. Colleagues, shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Colleagues, is it agreed that with leave that the remaining clauses be considered in groups of 10?
Hon. Senators: Agreed.
The Chair: Agreed. Colleagues, shall clauses 2 to 10 carry? Senator Simons?
Senator Simons: I think Senator Pate has an amendment.
Did you want to speak to clause 9 first?
Senator Pate: I don’t have an amendment.
Senator Simons: But you want to vote down clause 9, right?
Senator Pate: Yes. I would propose the committee vote against this clause, which requires judges to impose consecutive sentences in certain situations relating to motor vehicle theft involving violence or organized crime.
I do not wish to minimize the impacts of these acts on the lives of victims, but we must also be frank about the reality that rates of auto theft appear to be decreasing. Tools already exist in the Criminal Code relating to accountability for auto theft, and the government has not offered any evidentiary basis to suggest that harsher punishments have an impact on crime rates or will prevent harm.
As the Department of Justice research has long recognized, there is no clear evidence, despite decades of research and study, to suggest that harsher sentences are effective at deterring crime.
At committee, this point was emphasized by witnesses, including legal and criminology experts, such as Professor Chloé Leclerc — who asserted this is probably the most robust finding in all criminological research over the past several decades, that harsher sentences don’t lead to a reduction in crime — as well as Professor Debra Parkes, Nicole Myers, the Canadian Civil Liberties Association, the Native Women’s Association of Canada and former Department of Justice and Public Safety officials.
By contrast, there is ample evidence about the harms of mandatory consecutive sentences. The Barreau du Québec oppose these provisions as a threat to “fundamental principles of criminal law,” stating that:
Automatically imposing consecutive sentences could lead to excessive total sentences, without any possibility of adjustment to avoid patently unfair outcomes.
The Ontario Crown Attorney’s Office emphasized costs and burdens to court and prison systems paid for by Canadian tax dollars. The government’s own GBA Plus analysis acknowledged that provisions that promote more and longer sentences of incarceration may have negative impacts on Indigenous, Black and other marginalized communities — this despite the fact that through the Truth and Reconciliation Commission of Canada, or TRC, the MMIWG inquiry, the Indigenous Justice Strategy, the Black Justice Strategy and other commitments, the government is supposed to be working to eliminate overrepresentation of Indigenous Peoples and Black Canadians in the criminal legal system. Indeed, under the TRC, this goal was supposed to be achieved last year.
In the context of auto theft, the Indigenous Peoples and Black Canadians most likely to be jailed are young, impoverished men. As the Canadian Civil Liberties Association testified, marginalized youth are disproportionately exploited and recruited by organized crime operatives, including to steal cars. The government’s GBA Plus analysis acknowledged similar anecdotal evidence. Instead of disrupting organized crime networks and holding those profiting accountable, these consecutive sentences will further fill jails with those most vulnerable and easiest to catch.
The Chair: Senator, just one second. There’s confusion. Not everyone is clear about what you’re moving. You’re moving a motion to defeat —
Senator Pate: No. I’m speaking to why we should defeat the clause.
The Chair: This clause.
Senator Pate: Yes.
The Chair: But we don’t know the clause. We’re talking about clause 9. Is everybody on the same page — clause 9?
Please proceed.
Senator Pate: Thank you, and my apologies, Mr. Chair, for not being clear.
If the government is serious about preventing auto theft, it could be requiring automakers to install anti-theft devices in their vehicles — a measure this committee has heard about previously — and delivering supports for housing and mental health that at-risk youth need and that the minister has promised.
We risk creating a false sense of security. We risk telling Canadians we have done something to prevent crime when, in reality, government data is clear: These consecutive sentencing measures increase discrimination against Indigenous Peoples and Black Canadians, ignore alternative approaches that will more effectively enhance public safety and make Canadian taxpayers foot the bill for longer prison stays.
I urge that we vote against this clause.
The Chair: With respect to clause 9, then, there are three senators who wish to speak.
Senator Dalphond: I didn’t receive prior notice of that amendment. We don’t have an amendment before us, but I understand that she means we’re deleting lines 17 to 29.
This bill is about two things. It’s about changing and making it more difficult to get bail for some specified and well-identified categories of offenders as well as making sure that, at the time of sentence, when they are found guilty, that some specific and very limited categories of offenders will be serving consecutive sentences instead of concurrent sentences. These are the two main objectives of this bill and the two main policies of this bill.
What she is proposing is to say that we are removing one of the pillars of the bill. The minister invited amendments if they were going to improve the bill, but the government did not invite senators to remove pillars of the bill. That’s something else. This is running against the whole intent of the bill.
Clause 9, I must remind everybody, says, “Sentences to be served consecutively . . .” and targets only three categories of offences for which the accused has been found guilty.
That could be consecutive if it’s motor vehicle theft with violence, motor vehicle theft for a criminal organization or breaking and entering into a house with violence. These are three very limited offences of the most serious nature. They are either for the benefit of organized crime or related to the use of violence. “My house is my castle,” as we used to say. Maybe that is no longer the truth, but breaking and entering into a dwelling-house and using violence to steal a car — including breaking into a house and forcing the owners to give you the key — are serious offences, and the message that has been sent by the government and by the other parties in the House of Commons is that these types of offences deserve consecutive sentences.
That being said, for those who fear the worst is going to happen and the sky will fall, you have to remember two things. The principle of totality continues to apply, so the judge has to figure out that when he puts one sentence on top of another one — so breaking into the house and using violence would be two offences, part of the same set of events — if it means five years for one and three years for the other one, if it means eight years, then the judge must consider whether that is too much, considering the whole context of these offences. The principle of totality will still be applicable and will still guide judges at the end of the day.
Of course, the Charter continues to apply, and if the sentence were beyond reasonable according to the criteria of the Charter, that would be unconstitutional.
In conclusion, we’re trying here to remove one of the pillars of the bill, and we have to realize that these new sentencing principles are specific to a very specific type of offender and that the Supreme Court has ruled on many occasions that consecutive sentences are not per se unconstitutional.
Senator Batters: We heard some compelling testimony from, among others, Mr. Campbell from the Toronto Police Association, who spoke about break and enters in Toronto. He said:
When we’re talking in Toronto about break and enters, we’re talking violent home invasions, people with firearms kicking in people’s doors, stealing their car keys, they’ve shot and killed people in their own homes. . . .
This is the kind of thing we’re talking about that would provide the opportunity for a consecutive sentence. The Canadian public would expect that these kinds of things are already happening from frequently watching U.S. news and U.S. crime television shows. They would be shocked that these kinds of crimes are not already receiving consecutive sentences.
I also looked to the Saskatchewan justice minister. He was not able to attend our committee, so he filed a brief. In the “Sentencing” portion of his brief, he points out some parts he supports but says that it doesn’t go far enough. He begins the “Sentencing” part by saying:
Targeted sentencing reform is necessary to address serious and repeat violent offending, as well as the production of fentanyl and methamphetamine. Sentencing must hold offenders accountable, enhance public safety, and maintain public confidence in the administration of justice.
On that last point about maintaining public confidence, again, the Canadian public would expect offenders committing these types of serious crimes to already be subject to receiving consecutive sentences, not receiving a volume discount by having a concurrent sentence.
As the critic of this bill, in my second reading speech, I talked about the fact that I already didn’t feel like this bill had enough sentencing reform to call it, as the government does, the “Bail and Sentencing Reform Act.” To take out one of the few parts that actually provides for a sentencing enhancement would absolutely not be in keeping with what this bill is supposed to be trying to do.
Senator Dhillon: I want to build on what has already been shared. Much has been said, and I certainly hear the senator with respect to having compassion for those who have been overrepresented in our criminal justice system.
Having said that, as has already been said, this is the worst of the worst. When these offences take place and include violence, they need to be looked at on their own merit, which then draws upon that assessment. The commensurate sentence also needs to be reviewed on its own merit.
There is an erosion of trust among the public in the criminal justice system, as there is frustration in law enforcement when we keep hearing about the revolving door. This is a good attempt, I believe, to address that concern and restore some of the confidence that we’ve lost in the community and among the public.
To that end, I agree with what my colleagues have shared: that, in the very narrow circumstances that this particular legislation addresses those consecutive sentences, it is appropriate and necessary to address what Canadians are moving through today and are having to address on their own when the criminal justice system fails to protect them. I’ll conclude there.
Senator Pate: Thank you very much, colleagues.
I understand the impulse to want to do something that is seen as politically expedient in the moment, but the reality is that, for decades, we’ve seen these kinds of approaches result in more people in prison and no greater public safety.
I urge that we proceed to the vote. I will vote against this clause.
The Chair: If colleagues are ready for the vote, shall clause 9 carry?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: We’ll take a recorded vote.
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: Are we voting to delete the section?
Mr. Labrosse: Shall clause 9 carry?
Senator Dalphond: Yes.
Mr. Labrosse: The Honourable Senator Dhillon?
Senator Dhillon: Yes.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Labrosse: The Honourable Senator Moreau?
Senator Moreau: Yes.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: Yes.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Yes.
Mr. Labrosse: The Honourable Senator K. Wells?
Senator K. Wells: Yes.
Mr. Labrosse: Yeas, 9; nays, 5; abstentions, nil.
The Chair: The result is clause 9 carries.
Senator Batters: Because we started at clause 9, we haven’t done anything with clauses 2 through 8 yet, so we should have a decision on those.
The Chair: In terms of clauses 2 through 8, are the senators ready for the question?
Hon. Senators: Yes.
The Chair: Is it agreed that clauses 2 through 8 carry?
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 10 carry?
Senator Simons: I’m offering what I hope is a modest and friendly amendment to this clause. Let me start by reading the amendment. I move:
That Bill C-14 be amended in clause 10, on page 4, by replacing line 3 with the following:
“section 322 or 343, it shall consider as an aggravating”.
To translate that into English, what I am doing is removing section 430. Let me explain.
I support much of the intent of this clause. A number of us on this committee recently worked on a report from the Standing Senate Committee on Transport and Communications that looked at the vexing problem of copper wire theft in Canada. That committee agreed we needed higher sentences for people who sabotage critical infrastructure in this country, whether for profit or for political reasons, and that was the recommendation of our report. I know a number of you around this table agreed with the concession in that report.
Therefore, I think it is important that we consider that as an aggravating circumstance in cases where there is theft that has an influence on the functioning of critical infrastructure.
However, this list of sections included section 430, which is the provision governing mischief. Let me remind people who are not familiar with subsection 430(1) of the Criminal Code. It says:
Every one commits mischief who wilfully
(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
That is fine. But then we get to:
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
This is the conundrum of this section. Mischief is a very broad provision in the Criminal Code and often used for things that would be considered de minimis, not the sabotage of a pipeline or the stripping of copper wire off a telephone exchange. It could especially be used in circumstances where people are engaging in peaceful political protest that temporarily obstructs use of or access to critical infrastructure.
The amendment I’m proposing is very much in line with what was recommended by the Canadian Civil Liberties Association. Let me quote from them:
The Criminal Code defines essential infrastructure to include: transportation, information and communication technology, water and wastewater management, energy and utilities, health services, food supply and food services, government operations, financial, and any other infrastructure prescribed by regulations. This is not a closed list.
This new aggravating factor risks putting a chill on some forms of non-violent protest that may result in a criminal conviction. The offence of mischief, for example, includes any obstruction, interruption, or interference of the lawful use, enjoyment, or operation of property. Civil disobedience of this variety has been at the heart of many renowned civil rights movements such as the American civil rights movement.
Certainly, in our testimony, we heard from Jonathan Rudin, Special Projects Director of Aboriginal Legal Services, who argued that this aggravating circumstance could target Indigenous people who are trying to get governments to listen to their concerns over incursions on their lands. He said:
Blockades are never a first step, but for Indigenous people without access to other means, it can be the only step that leads to anyone listening to their valid concerns.
His cautions were echoed by Victoria Perrie, Vice President of the Indigenous Bar Association.
I’m going to suggest that we make a small and surgical amendment to maintain most of this clause and simply delete section 430 so that authentic, acceptable forms of protest protected by the Charter are not accidentally captured and the people who are arrested made subject to an aggravating circumstance in sentencing.
The Chair: Senator Batters, on debate.
Senator Batters: Thanks very much. I do not support this amendment. I looked up what section 430 — that is, mischief — is. It does apply to a broad range of offences, but offences that may be found to be de minimis, which are minimal types of situations, have the de minimis argument available as a defence for those who are accused or charged with them.
The very first trial I ran, as a very young lawyer, I used the de minimis defence successfully and had my client acquitted. It can be used.
But mischief also applies to very serious things, for example, with respect to the prosecutors who prosecuted some of the cases for the Emergencies Act offences. The offence that some of the people were being prosecuted for was mischief, and the Crown prosecutors were seeking a jail term of 10 years. So mischief can be very serious. It is a wide-ranging thing, but there are defences built in. Simply the fact it would be an aggravating factor is to be considered by the judge in that circumstance, but it may not apply in all instances.
The Chair: Thank you. Senator Dhillon.
Senator Dhillon: Senator Dalphond can go first.
Senator Dalphond: I will ask the officials to come to the table, please. They are already there — magic.
I would ask the officials to explain to members of the committee exactly what we intend by mischief and to explain the limited scope of that provision, specifically in what types of situations it could possibly apply.
Owen Ripley, Senior Assistant Deputy Minister, Policy Sector, Department of Justice Canada: Thanks for the question. There are a couple points I would highlight off the top. First, this aggravating factor is being proposed in part to recognize that what is currently happening in certain parts of the country: Certain offences are having a disproportionate impact on communities because of offences that are targeting critical infrastructure, like broadband, for example.
So this factor is being proposed to recognize that when that happens, the judge should consider that at the sentencing stage. I would highlight that the mischief offence has subsection (7), which is clear that mischief does not extend to when a person is in place for the mere purpose of obtaining or communicating information. That is a safeguard in the case of mischief to ensure that you can protest and communicate information. So if you fall within that subsection, you are not committing mischief. I will see if my colleague Joanna would like to elaborate any further in light of the question.
Joanna Wells, Acting Senior Counsel and Team Lead, Criminal Law Policy Section, Department of Justice Canada: Thank you. The only thing I would add would be a consideration that, by removing mischief from the proposal, one would remove not only the types of mischief that result from obstruction and interference but also damage and destruction, which very directly target the government’s objective of addressing criminal conduct toward essential infrastructure.
The Chair: Are there any other comments?
Senator Dalphond: Just to ensure that the provisions only apply in the case of offences related to essential infrastructure, which is a topic that we discussed in the chamber not long ago, when we debated the bill about the protection of infrastructure.
This bill will only apply if the Crown is able to prove that there was intent on the part of the offender to interfere with essential infrastructure. For example, if there is a tower for a telephone network that is located on a piece of land, and some people are preventing access to the tower to repair it and provide the signal, these people could be charged because they are preventing access to infrastructure. But if they are protesting in front of the land and let the truck go by and the operators through to fix the problems and ensure that the telecommunication network is no longer down, this is not an offence. Subsection (7) will then apply.
I understand the concern that was raised by some people, but a proper understanding of the provision should reassure them. Thank you.
Senator Dhillon: For the purpose of brevity, I agree with all that has been said, so I echo what has been shared.
Senator K. Wells: I have a question for the officials, if I may. Would critical infrastructure apply to places of worship, for example?
Ms. Wells: The bill proposes to adopt the definition of “essential infrastructure” that appears in the Criminal Code in section 52.1. I don’t believe it would deal with those situations, but they are protected otherwise, through the existing mischief to religious property offences, and they are proposed to be further protected in Bill C-9.
Senator K. Wells: Thank you.
Senator Dhillon: For the purpose of that, I can read out the list. It is:
(a) transportation infrastructure;
(b) information and communication technology infrastructure;
(c) water and wastewater management infrastructure;
(d) energy and utilities infrastructure;
(e) health services infrastructure;
(f) food supply and food services infrastructure;
(g) government operations infrastructure;
(h) financial infrastructure; and
(i) any other infrastructure prescribed by regulations.
The Chair: Okay.
Senator Pate: I would support this. In fact, I would go further and defeat this clause. I won’t repeat what I said about clause 9. However, fundamentally, again, we are being asked to amend and change the law in this area without the data having been provided, again, largely because of anecdotal and political reasons. So I would vote to either defeat or, in the alternative, support Senator Simons’s amendment.
The Chair: We’re just on her motion for amendment.
Senator Simons: I want to make it clear around the table: I’m not suggesting that if you commit mischief, you shouldn’t be arrested or you shouldn’t be sentenced. Just to be really clear, I’m not suggesting that we remove mischief as one of the reasons you can be arrested for damaging critical infrastructure. I am simply asking that we not have an aggravating circumstance attached to it because these are so often acts of political protest.
With respect to what Ms. Wells said about information, we’re not talking about information pickets here. We’re not even necessarily talking about a picket line. We’re talking about, for example, the blockade that took place on passenger rail lines and freight rail lines in response to the logging protests in British Columbia.
So the question becomes this: If somebody is engaging in political protest, should there automatically be aggravating circumstances attached to that if the purpose of the exercise was not theft or vandalism for the sake of vandalism?
Of course, the other clauses remain, 322 and 343, so aggravating sentencing factors would continue to apply to the theft and robbery of essential infrastructure. I just want to make clear the nuance of this.
The Chair: Thank you.
[Translation]
Senator Oudar: The officials will tell me if my understanding is correct.
In the series of sections 322, 343, 348, 351 and 354, Senator Simons is proposing to remove three of them in order to keep only section 322 or 343. Is that correct, Mr. Chair?
With respect to the series being removed, I’d like to make sure that it pertains only to infrastructure. In one of the sections being removed, I see the definition of “dwelling-house” in the Criminal Code.
For the benefit of the committee, does the text concern only infrastructure? If I understand correctly, we’re dealing with cross-references, which complicates matters for committee members. I’d like to make sure that the text doesn’t apply to dwelling-houses. In the definitions set out in the Criminal Code, which are broader in scope, dwelling-houses are included. Therefore, break and enters are as well. However, Senator Simons tells us that is not the case. I would like to make sure that we are all on the same page when it comes to definitions.
[English]
The Chair: Let’s just be clear because it is very important that we are all in the same place. Senator Oudar, were you speaking about subclause 334.1(1) on page 3?
[Translation]
Senator Oudar: Yes. I have some comments on the other amendment. However, when sections are removed, references that are in the Criminal Code are also removed. I’d like to make sure that we fully understand the effect of that deletion, and that the amendment pertains only to critical infrastructure and not, by extension, to dwelling-houses. I would yield the floor to the officials so they can clarify.
Mr. Ripley: If I understand correctly, Senator Simons’ amendment relates to subsection 334.1(2). You refer to subsection 334.1(1), but the amendment concerns subsection 334.1(2), which refers to sections 322, 343 and 430. The senator is proposing to remove the reference to section 430. Subsection 334.2(2) does not propose an amendment to subsection 334.1(1).
[English]
Senator Simons: We’re talking about railroad tracks, pipelines and power lines but also computer systems, so I guess this would apply if you stole all the government’s computers. However, this has nothing to do with personal homes. This has to do with public — even if it is privately owned — infrastructure, like power lines, for example. These are sites where environmental activists especially — Indigenous environmental activists or land defenders — might, for example, be protesting a pipeline across their traditional territories.
I just want to ensure that those people are not caught up in the same system that we wish to use to disincentivize things like copper wire theft or even political terrorist attacks on critical infrastructure, which, in the year 2026, sometimes seem more plausible than they ever have before. Obviously, if you are a political terrorist and you blow up a pipeline, that’s a different thing than being a land defender who is blocking access for construction workers.
The Chair: Are you okay with that, senator? Okay.
Senator Dhillon: I want to add a small comment. I would argue that when essential infrastructure is the subject of mischief, there is greater harm to Canadians and their livelihoods — and even their safety — than when wire is stolen. I think the comparison pales when we are talking about all of the things listed. That is exactly what this particular legislation is looking to address. I am not clear on the comparison to wire theft —
Senator Simons: No. The wire theft is very serious because if you take down communications networks, that’s a disaster. Senator Housakos, Senator Miville-Dechêne, Senator Clement and I all worked very hard on our copper wire theft report. It is a serious public safety concern. It is not, to use Senator Batters’s phrase, a de minimis offence at all, but that’s one of the reasons we advocated for higher sentences for people who commit these crimes.
Senator Dhillon: With terrorist activities, the line is very thin, I think, when the attack is on the infrastructure of the country. Whatever the original intent or purpose — whether it is peaceful protest, though it is no longer peaceful, clearly — when that line is crossed and legal protest turns into illegal activity, that is where these types of Criminal Code offences serve the public. They protect exactly those types of infrastructure that are there and to ensure that their livelihood, their daily life and their safety — all of the things that we take for granted as part of our daily life in Canada — are secure and protected.
I would respectfully disagree with where that line is crossed. There are a lot of provisions for peaceful protest and a lot of provisions for being able to speak about those things that are a concern, but there is a clear line. When that line is crossed, I think that’s exactly where Canadians expect that the law will step in and provide the protection that they deserve.
Senator Clement: I want to voice support for this proposed amendment. I want to go back to the testimony of Jonathan Rudin, from Aboriginal Legal Services, from an Indigenous land defender’s perspective.
He says:
We are concerned that this could target Indigenous people who are trying to get governments to listen to their concerns over incursions into their lands. Blockades are never a first step, but for Indigenous people without access to other means, it can be the only step that leads to anyone listening to their valid concerns.
So I feel that we are at a moment of reckoning in this country over building relationships with Indigenous Peoples and listening to people’s concerns. This is why I support this proposed amendment.
The Chair: Thank you.
Senator Batters: I had a question for Senator Simons on this because she has referred to that mischief — I could be misquoting her, but I’m pretty sure that she is intimating that political protest should not encompass a mischief type of offence, but I am wondering what she means by “political protest.” Would that have also included the trucker convoy on Wellington Street?
Senator Simons: I’m not saying that people should not be charged.
Senator Batters: I know. Because people were charged with mischief for that. Is that something that you consider to properly be a mischief charge, the trucker convoy on Wellington Street —
Senator Simons: Among other things, but this section would not apply because this is — you know, I suppose you could argue that Ottawa roads are critical infrastructure, but I don’t —
Senator Batters: Transportation infrastructure.
Senator Simons: But I don’t think that was —
Senator Batters: People were charged with mischief.
Senator Simons: Yes, but mischief does not just involve essential infrastructure. This clause does. This clause specifically talks about essential infrastructure. This clause was not in effect when the convoy was happening, so they could not have been charged for obstructing critical infrastructure because that charge did not exist. I think they should have been charged with mischief.
As you know, I felt strongly that Ottawa police did not respond in a timely fashion and in a way that could have minimized the eventual —
Senator Batters: What I am getting at is this: Do you consider Wellington Street to be transportation infrastructure as, apparently, this section applies to?
Senator Simons: That’s an interesting question. I don’t know the answer to that. I just want to be really clear because I feel as if there is a misunderstanding here.
I’m not suggesting that people should get a free pass for mischief charges. I am simply asking if that is something to which we want to attach an aggravating circumstance rider. People who commit acts of mischief and are convicted of such should be appropriately sentenced by the courts. I just don’t know that we need to make it an aggravating circumstance because it is easy to see that it might be misapplied.
Senator Batters, you spoke about a client that you got off. Not all clients are lucky enough to have counsel as skilled and dedicated as you are.
The Chair: I think we are all in agreement that this is about adding it on as an aggravated factor in sentencing.
I had you down to speak again.
Senator Simons: I think I’m good.
The Chair: Okay, thank you.
[Translation]
Senator Moreau: My knowledge of criminal law is a bit rusty. As I recall, an aggravating factor must be proven beyond a reasonable doubt. Is that correct?
Mr. Ripley: Yes, that’s correct.
Senator Moreau: However, if it becomes an aggravating factor, it will have to be proven beyond a reasonable doubt?
Mr. Ripley: Yes, that’s correct.
Senator Moreau: The senator indicated, for example, that a protest to prevent access to infrastructure — it could be a political protest — relates, in particular, to this claim by the First Nations.
I was the Minister of Energy and Natural Resources in Quebec. I can tell you that more than 50% of the energy produced in Quebec is generated on Indigenous lands under agreements with the communities.
For example, a tower collapses and hospitals are left without power. If I refuse access to restore power to a line serving a hospital or a safety-related infrastructure, in my opinion, that could constitute an aggravating factor that would need to be proven beyond a reasonable doubt. Am I correct?
Mr. Ripley: Yes, that’s correct. It will be a question of fact based on the circumstances. As you pointed out, the evidence must establish this beyond a reasonable doubt. That’s also a factor in sentencing. In each case, the judge must impose an appropriate and fair sentence, taking all the circumstances into account.
Senator Moreau: In the same situation, if I refuse access to a piece of land because I don’t want the trees on the land to be cut down, it could be difficult to prove that as an aggravating factor.
[English]
Senator Dalphond: I will say that aggravating factors are part of the sentencing process, as are mitigating factors, the Gladue principles and the restraint principle. It is an aggravating factor among a long list of aggravating factors. For those who are interested — and maybe it is bedtime reading — 718 and following, there are a few pages of interesting sentencing principles there, so we are not initiating a revolution here.
The example of Senator Simons is that a group would be preventing access to infrastructure that is essential — a power line, as Senator Moreau said — or access to a dam or a communications tower, even a military base. They are not only protesting; they are preventing access. If they block a road, you cannot cross it. If you push around and say, “Let us go,” and they resist, you could be charged with mischief. The Crown will have to prove beyond a reasonable doubt that they were intending to commit mischief and that they wanted to commit mischief against infrastructure. If they did not know that there was a telecommunications network or a tower there, they will not be found guilty.
Essentially, this is a very narrow aggravating factor in specific circumstances, and I move that we vote on it. Thank you.
The Chair: Senator Simons indicated she wanted to speak again.
Senator Simons: Allowing judicial discretion to make the punishment fit the crime should always be the objective. My concern is not that this would be an aggravating circumstance in the worst of all possible cases but in the ones that, as Senator Batters said, could be classified as de minimis. I worry about the chilling effect of that.
However, I think it is now time to put this to a vote. We have had a really good debate.
The Chair: Are there any further comments? Senators, are you ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I believe the nays have it. Therefore, the motion is defeated.
Shall clause 10 carry?
An Hon. Senator: On division.
The Chair: Clause 10 is carried, on division.
Senators, we will now move to the next category: clauses 11 to 20.
Shall clauses 11 to 20 be carried?
An Hon. Senator: On division.
The Chair: Which clause do you want to defeat first?
Senator Pate: I want to look at 11 and 14.
The Chair: Let’s deal with 11.
Senator Pate: Okay, thank you. I propose that the committee vote against this clause. We have already discussed, with respect to clause 9, consecutive sentences related to motor vehicle theft, in that the significant body of evidence referenced by numerous committee witnesses suggesting that harsher sentences, including this type of mandatory consecutive sentence, do not deter crime.
The consecutive sentences that Bill C-14 proposes to attach to extortion will not prevent this or other organized crime. Those most likely to be scooped up and imprisoned are those who are most marginalized and easiest to catch: disproportionately young, racialized men who are often exploited and recruited. This approach does not hold accountable those profiting and driving organized crime — disproportionately those who are wealthy, White and privileged, and who are able to use that privilege to recruit and hide behind others. If ever they are charged, they have the wealth to hire a phalanx of lawyers to help avoid criminal law consequences.
I know we all share the goal of preventing crime, responding meaningfully to the experiences of victims of crime and enhancing public safety. Bill C-14 risks setting us back in these goals and distracting from preventative approaches supported by evidence.
I urge that we vote against this clause.
The Chair: On debate?
Senator Batters: Could Senator Pate tell us what particular offences she is planning to have consecutive sentences taken out for?
Senator Pate: All of the sentences.
Senator Batters: Could you list them, please, because we do not all have the Criminal Code? I pulled out the only one in the committee room, and it is from 2021. We’d need to know that before we agree to pull out a bunch of consecutive sentence possibilities, which seems to be one of the few sentencing parts of this bill.
Senator Pate: I do not have it in front of me, but Senator Dalphond has indicated he does. Perhaps he could assist with this.
The Chair: Do the officials have it? Who wants to answer the question?
Ms. Wells: My Criminal Code is up to date.
Clause 11 proposes that sentences would be served consecutively if an offender were convicted of an extortion offence under section 346 of the Criminal Code and the arson offences that appear from sections 433 to 436, which include the offence of arson — I will not read the whole thing — but it is with disregard for human life. There is arson at 434, which is damage to property; 434.1 is arson to your own property; 435 is arson for a fraudulent purpose; and 436 is arson by negligence.
Those are the offences to which these consecutive provisions would apply.
The Chair: All right. We are on debate, and Senator Batters has the floor, so please carry on.
Senator Batters: As colleagues can hear, then, those are very serious charges that deal with those types of offences. Particularly, another point that I brought up in my second reading speech is that Bill C-14 did not go nearly as far on extortion as I was hoping it would, given that it has become a very significant factor, particularly in a place like British Columbia — as well as these types of arson charges.
So, what is being debated here? The government has put forward a provision under Bill C-14 that would provide that, if somebody were convicted of more than one of these types of offences, then their sentence would not just be a concurrent sentence, which would be served at the same time — and they basically get a volume discount — but, instead, they would have their sentences stacked on top of each other. That’s not for very many types of offences but for serious ones involving extortion, arson and so on.
As I was saying, the Canadian public expects to have these types of offences have serious consequences, not just minimal consequences.
Again, these are the types of things that were called for by, among others, the Saskatchewan justice minister, to say that these types of offences should be served with more serious consequences to maintain public confidence in the administration of justice. Deleting this would take out one of the few parts of this bill that actually has a significant sentencing portion.
Senator Dalphond: It is an amendment that has been required by all the provinces, especially B.C. In Quebec, we saw on television a video where a young man threw a Molotov cocktail into the window of a restaurant because they didn’t want to pay the price of peace. It was a residential three-storey building with apartments and people living upstairs. This is exactly the type of situation we tried to cover with this, where a person commits arson with disregard for human life. It’s not a garage; it’s not burning an outbuilding somewhere in an abandoned area. It’s really endangering the lives of other people. I think this is a very serious offence. Some senators don’t accept the principle of consecutive sentences. They believe this is wrong. We had witnesses that came and testified that the solution is to abolish all prisons. That’s fine; that’s their view. But we are not going to debate, I expect, each section to repeat the same arguments. The reality is that there’s a policy choice. There are people who believe in deterrence, and there are people who believe some people in society must unfortunately be put behind bars for a certain amount of time. If you don’t accept that premise, that’s fine, but we should not use every section of the bill to try to make the same arguments. Thank you.
The Chair: Anybody else?
Senator Pate: I’m sorry, but that’s an incredibly disrespectful perspective. There is abundant evidence that the more we provide harsher, longer penalties — this is from individuals who are concerned about public safety, myself included — the more we see those people being recruited and those who are behind such actions being protected. The fact that some folks don’t want to address this or feel that these kinds of performative acts will somehow assist us in creating greater public safety doesn’t warrant that kind of disrespectful discussion toward the rest of us who are posing these concerns. In fact, all of the evidence, when you look at who is in prison and what is happening, if those charges were resulting in reductions in crime, then let the provinces produce the data to show us that. They have failed to do so repeatedly. This is the third time we’re looking at this kind of legislation. Thank you, Mr. Chair, and I’m happy to proceed with the vote.
The Chair: Are there any further senators on debate?
Senator Batters: I have one further point on that. I understand the point that we don’t have as much data as we might like, but frankly, if that’s going to be a reason to knock out every specific part of this bill, then we’re not going to get anywhere today. The government has brought forward this bill, and to knock out major parts of it to say that we don’t have enough data — that argument continues to be made. I guess you could make it for each particular part of this bill, but I don’t think that’s the way to go about it.
The Chair: Senators, are you ready for the question? Shall clause 11 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I believe the yeas have it —
An Hon. Senator: Recorded vote?
The Chair: Recorded vote. The question is this: Shall clause 11 carry?
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: Yes, carried. But it’s confusing because they don’t move to delete but to oppose. But yes.
Mr. Labrosse: The Honourable Senator Dhillon?
Senator Dhillon: Yes.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Labrosse: The Honourable Senator Moreau?
Senator Moreau: Yes.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: Yes.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Yes.
Mr. Labrosse: The Honourable Senator K. Wells?
Senator K. Wells: Yes.
Mr. Labrosse: Yeas, 10; nays, 4; abstentions, nil.
The Chair: Clause 11 is carried. Colleagues, with respect to clauses 12 and 13, shall those two clauses carry?
An Hon. Senator: Carried on division.
The Chair: We’re now at clause 14. Senator Pate.
Senator Pate: Thank you. I propose this committee vote against this clause, which risks undermining the constitutionally protected principle of restraint with respect to bail. Despite zero evidence that this approach will prevent crime and clear evidence of resulting harms, including costly and burdensome litigation, decreased public safety and discrimination against those most marginalized. The Criminal Code already allows for pretrial detention based on concerns related to public safety, the second ground for detention the courts must consider.
What does this clause add? Witnesses, including the Barreau du Québec, identified the clause is part of a worrying trend: a succession of criminal law reforms that move forward, then backward on clearly established principles and that it undermines the scope of the principle of restraint, which the Supreme Court in Zora recognized has a constitutional dimension, according to the Barreau du Québec. The principle is undermined by the measure in this clause providing that release is not required in preventing the principle from applying to certain categories of the charges. The Barreau du Québec predicts constitutional litigation that will create normative instability and growing legal uncertainty, undermining confidence in the legal system and generating costs and delays. Other witnesses who opposed this clause at the committee included Aboriginal Legal Services, the Canadian Association of Black Lawyers, the Barbra Schlifer Commemorative Clinic, the Canadian Civil Liberties Association, the Criminal Lawyers’ Association and experts including Professor Debra Parkes and Nicole Myers.
Witnesses emphasized that, contrary to what this clause may imply, neither the existing legislation on the principle of restraint, enacted in 2019, nor recent Supreme Court jurisprudence, emphasizing the constitutional importance of restraint, have prevented people from being detained. Indeed, rates of people incarcerated while awaiting trial were already high and have increased. Today, upward of three in four people in Canada in provincial jails are on remand. In other words, despite Charter protections against incarceration without trial, the vast majority of those in provincial jails are experiencing just that. Black and Indigenous Peoples are overrepresented in particular in this context, as emphasized by witnesses, including the Canadian Association of Black Lawyers and the Criminal Lawyers’ Association. The principle of restraint is a tool for redressing discrimination through requirements in section 493.2 of the Criminal Code to consider circumstances of marginalized groups when exercising the principle.
What Bill C-14 proposes will prevent judges from applying that section, including with respect to charges related to auto theft, known to disproportionately affect Black and Indigenous youth recruited by organized crime.
This clause also applies to charges of murder and violence with a weapon that disproportionately affect Indigenous survivors of violence against women, who are too often left to react with force to defend themselves after all other systems failed to protect them.
While the government promised this increased incarceration of those most marginalized without trial is necessary for public safety, there’s been zero empirical evidence provided to support that claim. Indeed, as criminologist Nicole Myers testified, even short periods of time in detention make it more and not less likely that people will commit offences.
Her colleague Anthony Doob explained:
. . . what you find is that you have disrupted people’s lives unnecessarily and led to more crime. The criminal justice system doesn’t get blamed for that, though it should be. . . .
Other witnesses who pointed to evidence that these measures will make communities less, not more safe included legal and criminology experts Professor Chloé Leclerc, Professor Danardo Jones, Professor Debra Parkes and Professor Justin Piché; and those working both with people who have been criminalized and experienced violence, including the John Howard Society and the Barbra Schlifer Commemorative Clinic.
Canadians want to feel safe in their communities. We’ve heard from witnesses and in our discussions to date that we can invest in preventative measures to achieve that goal. However, what is proposed in Bill C-14 is a case of the emperor having no clothes. Let’s vote against this clause and focus on measures that will more meaningfully prevent crime and enhance public safety.
Senator Batters: At times, I feel like the bill’s sponsor here a bit. I mainly want to make the point that the principle of restraint is just clarified by this particular part of Bill C-14. The bill attempts to strengthen the bail system by clarifying what is known as the principle of restraint. It’s not getting rid of it. Frankly, that’s to the chagrin of my Conservative colleagues in the House of Commons. They actually tried to amend the bill to get rid of the principle of restraint, as we found that there are serious situations where this has resulted in criminals — people charged with very serious crimes — getting bail when they potentially shouldn’t be.
But what this provision is trying to do is clarify that the courts and justices of the peace have sometimes misapplied this principle. Inappropriate release has happened for some offenders, and some really serious crimes have taken place because of this.
So we want to make sure that the people who are in charge of making sure that the correct people are being kept in custody — whether that be a justice of the peace or a judge — know that the principle of restraint does not mean there’s an automatic presumption of release. This clarifies what happens here.
That’s all this is doing. I think Senator Pate would probably want to keep the principle of restraint in place.
Conservatives, on this measure, have found that this is potentially a very harmful situation in the justice system right now, but I think the government has tried to strike somewhat of a balance by clarifying it, hoping that will result in a number of measures that keep the appropriate people in jail. We are less convinced about that. But you have, again, the Saskatchewan justice minister saying they were pleased to see Bill C-14 address the principle of restraint, as it clarifies that release is not presumed. It also emphasizes the need to give primary consideration to public safety in the bail process where the charges are violent or relate to organized crime offences. But they are concerned that some of those amendments might go too far and undermine its effectiveness.
I think the government has tried to strike a balance here. I’ll certainly let the sponsor of the bill justify this provision. However, to simply get rid of this provision would potentially allow these situations to continue to occur, where there’s a misapplication of the principle of restraint and the wrong people getting out of custody, committing more offences and causing more harm to society.
[Translation]
Senator Miville-Dechêne: This is not a comment by a legal expert, but by a senator who participated in the study. The principle of restraint has not been set aside. Paragraph (a) states that the safety of the victims or witnesses of the offence must be taken into account. I, myself, am concerned about the safety of the victims. We heard from two very good witnesses. One was a mother, and one was a father. They had lost their child in a case involving release on bail. In one of the situations, there was sexual violence followed by murder.
However, it’s important that this balance between the rights of accused persons and those of victims is respected. This is all the more important given that we also heard that victims are not consulted or included in the release process at all. I know this is another issue, but it’s one that really pains me. We’re trying to build bridges in Quebec with the courts specialized in sexual violence, but at the very least, the safety of victims must be taken into account when an accused person is released on bail. That’s my view.
[English]
Senator Dalphond: I’ll ask the officials to explain and reassure some members of the committee about the principle of restraint and the intent of the drafters, to those who say that they remove the principle of restraint.
Mr. Ripley: Thank you, senator. So the government acknowledges the linkage to Supreme Court jurisprudence that has found in the common law the principle of restraint and has explained to parliamentarians throughout the process that even if it were removed, which was a suggestion by some parliamentarians, the principle of restraint would continue to reply.
What the government is seeking to do with this amendment is clarify and assist in its interpretation and application in a consistent manner throughout the country. In the development of the bill, the government had heard clearly that there are concerns about it being interpreted and applied in a consistent manner. It is seeking to do that and be clear, because this is one of the points that have come up: that it does not mandate release and that obviously a judge should detain somebody if, under the bail framework, there are concerns related to public safety.
So that is one of the key points that it makes clear in terms of the relationship with the tertiary grounds.
Senator Dalphond: I would like to add that I appreciate that Senator Batters — she left before I could congratulate or thank her for explaining what was clearly a debate in the House of Commons. The Conservative Party has proposed to remove the principle of restraint. This was hotly debated in the House of Commons. The House voted, and the majority of the Bloc, the Liberals and the NDP voted to reaffirm that the principle of restraint is maintained. This is an adjustment to the principle of restraint to say to the judges that, when they apply it, to take into consideration — as suggested by my colleague Senator Miville-Dechêne — the safety and the situation of the victims.
Senator Pate: Thank you to Senator Miville-Dechêne for raising those very real concerns. As we heard from the witnesses, including Crown prosecutors, the issue here is not so much wanting to keep people safe. It’s the stacking up of the number of cases that interferes with their ability to explore all of those issues, as well as the well known — and you and I know well — prejudices against treating violence against women seriously within our criminal legal system. Those aren’t issues that will be solved by this provision, so I wanted to be clear. I’m prepared to proceed to a vote.
The Chair: Any further senators on debate? No. Are senators ready for the question? Senators, shall clause 14 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I believe the yeas have it. Clause 14 carries, on division.
Senators, are clauses 15 through 20 carried?
Hon. Senators: Agreed.
The Chair: I declare those clauses carried.
Senators, shall clause 21 carry?
Some Hon. Senators: On division.
Some Hon. Senators: Agreed.
The Chair: Carried, on division. Shall clause 22 carry?
Some Hon. Senators: On division.
Some Hon. Senators: Agreed.
The Chair: Carried, on division.
Senators, shall clause 23 carry? There are three amendments from, first, Senator Prosper; second, Senator Pate; and third, Senator Clement. We’ll deal first with Senator Prosper —
Mr. Ripley: Chair, sorry to interrupt, but we just noticed a bit of an anomaly. There is also a clause 20.1. I just wanted to ensure you cover that.
The Chair: Thank you. Shall clause 20.1 carry?
Some Hon. Senators: On division.
Some Hon. Senators: Agreed.
The Chair: Carried, on division.
Now we’re on clause 23, and the first proposed amendment to that clause is by Senator Prosper.
Senator Prosper, can you explain the amendment and your arguments in favour of making that amendment?
Senator Prosper: In explaining, do you want me to read the amendment into the record?
The Chair: Yes.
Senator Prosper: I move:
That Bill C-14 be amended in clause 23, on page 8, by replacing line 8 with the following:
“day on which the release order is made unless the judge, justice or court is satisfied that no other suitable surety is available and that doing so is in the interests of justice.
(2.12) If a judge, justice or court names a person described in subsection (2.11) as a surety, the judge, justice or court shall include in the record a statement of the reasons for doing so.”.
Colleagues, we’ve heard compelling testimony from Ms. Friesen and Mr. Smith from Nunavut Legal Aid, who outlined some of the circumstances and conditions that exist with respect to the administration of justice and crime in the North, but I think that’s also representative within a number of marginalized communities across this country.
This warrants a unique approach of an allowance for judicial discretion to take hold here to limit the ability of a surety to be named by having an indictable offence within 10 years. I think it is quite harsh in its realities. We all know. We might have heard of individuals who might have been convicted of an indictable offence but, in the years subsequent to that, have made significant steps on the road to recovery. I think it’s important to not lose sight of that fact.
Within small, isolated communities, the availability of persons and the rates of crime can’t be compared to other areas across this country. I think that discretion is warranted by a judge. It seems to not be an onerous condition to place on a judge to allow them to consider that, there being no other suitable surety and stating the reasons why it’s in the interests of justice, and if they do name a surety, include that on the record and provide reasons for such. That’s why I move this amendment forward. Thank you.
Senator Batters: I do not support this amendment. I think it was something similar to what was attempted in the House of Commons committee — a similar amendment — which was defeated.
It would provide, basically, a major escape valve. What this Bill C-14 provision actually does most Canadians would consider very reasonable: to not allow somebody to act as a surety, which is basically a guarantor, for somebody who would be out on bail and who has been convicted of an indictable offence within the past 10 years — it is not forever, as one of our witnesses initially thought. She said, “What if someone did this 50 years ago?” But I pointed out that it’s actually limited to the past 10 years.
There is that limitation. It has to be an indictable offence conviction, not even all criminal offences. Most Canadians would probably be surprised to learn that condition isn’t already there and that somebody would be able to do this. Then it would allow a major escape valve to just have the satisfaction that “. . . no other suitable surety is available and that doing so is in the interests of justice.”
You could have people contending this in a significant number of circumstances. What we’re dealing with here doesn’t include people who are convicted of summary offences. It doesn’t include people who were convicted long ago. It’s already a very serious and high burden to show that they have been convicted of an indictable offence within the past 10 years. Allowing this type of escape valve would not be appropriate.
Again, to ensure there’s public confidence in the system, Canadians are going to expect that people — we already have a serious problem in this country with too many people getting out on bail. Canadians are shocked every time they turn on the news, hear about a serious crime and hear the person responsible was let out on bail.
The government has tried a little bit. It was a Conservative amendment that created this blanket prohibition for naming a surety who had been convicted of an indictable offence within the past 10 years. Canadians would expect that is already the case, and we should keep this as is and not allow this type of an escape valve. We need to ensure that people who should be in jail are in jail, in order to prevent them from potentially being charged with even more offences and undermining public confidence more than it has been. We need to make sure that this stays in place.
Senator Dalphond: Thank you, Senator Batters. Once more, you’re stealing my thunder, which I don’t mind.
It has to be clear here that those who would be ineligible to provide a surety are those who have been found guilty of an indictable offence — not just charged with one. You have to understand that. It’s a very limited group, people who have been found guilty of indictable offences.
Second, the bill’s main purpose is to strengthen public confidence in the judicial and legal systems as a whole and to allow somebody who has been convicted of an indictable offence — for example, robbing a bank — to be a surety for somebody who is charged with something, is awaiting bail and is on remand. That is not sending the right message, especially when you’re part of organized crime. You will have other people, and the sole person available might be somebody who is part of the network, by the way. This is not a measure that will create trust in the system.
Finally, it has to be understood that, during consultations, when the bill was tabled, Ontario made it clear that they wanted to reform the bail system and exclude this type of surety: people who have a criminal record.
The government position is to exclude criminal records as long as the person was convicted of an indictable offence. As rightly said by Senator Batters, someone convicted of a summary offence will not be prevented from acting as a surety.
So, it is limited to the most serious crimes. Thank you.
Senator Simons: I want to commend Senator Prosper for this amendment because it is a very reasonable and nuanced compromise. It does not eliminate the notion that nobody with a criminal record should be allowed to stand as a surety. It gives the judge the capacity to vary that only if it is in the interests of justice, and the judge must provide the reasons for doing so. This is not something that can be done without a lot of consideration and public scrutiny.
For those of us living in our world, the idea that you might not know somebody without a criminal record might seem preposterous. However, we have heard from witnesses from distant communities in Nunavut — small Indigenous communities — that, unfortunately, because of generations of colonialism, intergenerational trauma and over-policing, it is actually possible that, in your social circle, you may not find someone willing to stand surety for you who does not have a criminal record. Sitting here in Ottawa, it sounds like a ridiculous circumstance, but we have heard compelling testimony from people whose lived experience tells them that the result of this might be that somebody cannot be released on bail in their own community but might have to be shipped out thousands of kilometres from where they live because there is no one in the community who is able and willing to stand surety for them.
So, I think that this is a very reasonable amendment because it doesn’t undermine the general principle of the clause; it simply indicates that, in certain very unique circumstances, the judge could be asked to provide reasons why, in a very particular case, an exception needs to be made. We need to allow that elasticity because of the very different nature of this country, where communities are not the same.
Senator Batters: Senator Simons said that it may sound that this would be ridiculous in Ottawa. Actually, I think the Canadian public in Regina, Montreal, Vancouver and Toronto would also think it ridiculous that somebody convicted of an indictable offence would be able to act as a guarantor for somebody else — another person charged with a crime who is in jail.
I get the Toronto part from going back to the Toronto Police Association. We did not have that many witnesses comment on sureties, but Mr. Campbell of that association said some compelling things about it:
I have to comment on sureties. The surety system in Toronto is ineffective and the sureties don’t take it serious, period. They do not take it seriously.
I know we have different experiences, but that’s what’s happening in Toronto right now.
He went on to say:
Sureties are such a problem. I’ll be frank, the system is kind of a joke and sureties do not take it serious, period.
So he absolutely wanted this. The Toronto Police Association are dealing with very serious crimes. They are constantly dealing with this type of thing. That was very compelling evidence that I wanted to ensure I got on the record, because he provided us with these concrete examples as to why this provision is needed in Bill C-14.
Senator Clement: I found that panel to be one of the most compelling — having the Toronto folks and the folks from Nunavut at the same table and seeing the contrast. It really highlighted to me that there hasn’t been sufficient consultation with remote communities.
I’m not diminishing the problems that the Toronto folks were raising and that Senator Batters has just highlighted. I just feel like the Nunavut folks were just not being heard. I want to come back to Ms. Friesen, because her testimony was as follows:
In Nunavut, we don’t have any shelters outside of two or three communities. We don’t have damp shelters or electronic monitoring in the North. We don’t have bail supervision programs or even a John Howard Society office in our territory. So, whether it captures a few sureties or a lot of sureties, any sort of restriction on somebody’s liberty based upon a suitable surety legislated in this way is not in the best interests of Nunavut or the Nunavummiut.
She continued, saying:
Because of the low number of resources, or the lack of addressing of the housing issues or education, and because of how far away each community is, along with the needs of our clients to provide for their families and to hunt for their sureties, we would strongly oppose any sort of restriction on surety availability.
I’m voicing support for this proposed amendment.
Senator Pate: All I want to add to what Senators Prosper, Simons and Clement have said is that we also heard through the discussion about the number of remote Indigenous communities that are not in Nunavut where similar issues exist, like Pikangikum First Nation. Some of us have visited some of those communities where there are virtually no people without criminal records. It does currently result in the overuse of extensive far-from-home incarceration, and this will only exacerbate that.
So I thank Senator Prosper, and I will vote in favour of his amendment.
Senator Dalphond: You also have to understand that the bail orders are made on consent in the overwhelming number of cases. The witnesses have testified about that.
If we make clear the parameters before we enter into discussions about the terms of the bail orders — they are not necessarily providing a surety in all cases, but if you do provide one, it will be clear who is eligible to be a surety. So if we have this safety valve, it would mean we have to go back. We won’t be able to agree, which means we have to go before the justice of the peace and have an argument about someone having a criminal record — for example, that it was eight years ago, so maybe there should be an exemption.
We would have difficult complexities in the process. I think the message here from Parliament is a clear one: If you have a criminal record, you cannot be a surety for 10 years.
[Translation]
Senator Miville-Dechêne: I’d like to add something to this debate, which is, once again, non-legal.
We had the privilege of hearing from the people of Nunavut, a very articulate minority. They mentioned that, in their community, it’s very difficult to find sureties who don’t have a criminal record. Further south, in most major cities, there’s a problem with organized crime. As a result, legislation must be developed either for a minority or a majority. I admit that I find this issue challenging, and I don’t have a solution.
Senator Dalphond: Maybe the officials can shed some light on this.
There are also justice circles and a process. Representatives of the Legal Services Board of Nunavut told us that release decisions are broadly negotiated between the community, the judge and everyone. So is the imposition of a surety mandatory? I’m asking the officials whether a judge can release an accused without requiring a surety in certain cases.
[English]
Myriam Wills, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question.
Yes, the court can release an accused without a surety. It is not required that a surety always be imposed.
Senator Dalphond: Would there be room to adapt to the situation?
Ms. Wills: Yes.
Senator Dalphond: Thank you.
Senator Prosper: Thanks to all colleagues here for providing your comments for or against this particular amendment.
I don’t think this will operate as an escape valve. It ultimately gives a judge discretion to determine if a person is suitable to be a surety and also to indicate when it is in the interests of justice.
It is hard to compare larger urban areas with more marginalized communities, particularly in the North. We have heard of the lack of available services and the situation Indigenous Peoples ultimately find themselves in. I think it is important to just consider what that reality is. If you have a record within a 10-year period, what does that say to your ability to step forward and ensure that you can be a surety for an individual? We don’t know what their path is. What if they haven’t committed an indictable offence within the last nine years? Does that mean anything?
So, it places it within the context of a judge to have that discretion after looking at the facts, making their own determinations in that regard and providing the evidence as to why or why not.
On the complexities of the process, yes, it would be complex, Senator Dalphond. But does complexity warrant making a determination that is perhaps not in the interests of justice?
I wanted to add those components. I will leave it at that. Thank you.
Senator Dalphond: Just to conclude, I understand the concern of Senator Prosper, but am comforted by the fact that what the officials have responded to my question is that there remains discretion for the judge to not require a surety as a condition. Also, we have to remember that the Gladue principle will be guiding these judges in Nunavut, I’m sure, all the time.
Senator Prosper: Thank you, but we heard evidence that the reliance of the judiciary on Gladue principles has been quite limited. Even though it is there, we have heard testimony that it is very rarely relied upon. With respect to a surety being available, ultimately, without this particular amendment, this could provide further guidance for judges to use that discretion. I don’t see how that would go against it, but it would essentially guide and help judges to make that determination. Thank you.
The Chair: Are senators ready for the question?
Hon. Senators: Yes.
The Chair: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I think the nays have it.
Some Hon. Senators: Recorded vote.
The Chair: We will have a recorded vote. This is all senators in favour of the motion to amend.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Dhillon?
Senator Dhillon: No.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Abstention.
Mr. Labrosse: The Honourable Senator Moreau?
Senator Moreau: No.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: Yes.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Abstain.
Mr. Labrosse: The Honourable Senator K. Wells?
Senator K. Wells: Yes.
Mr. Labrosse: Yeas, 7; nays, 5; abstentions, 2.
The Chair: This amendment is carried.
We are still on the same page and clause. This is Senator Pate’s amendment on clause 23. It is on page 10 at line 27.
Senator Pate, would you like to explain or read the amendment and then commence the debate?
Senator Pate: I move:
That Bill C-14 be amended in clause 23,
(a) on page 10,
(i) by replacing lines 21 and 22 with the following:
“striking out “or” at the end of subparagraph (vii), by adding “or” at the end of subparagraph (viii) and by adding the following after subparagraph”,
(ii) by replacing lines 27 to 41 with the following:
“strangled the complainant;”;
(b) on page 11, by deleting lines 1 to 14.
This amendment proposes to remove from Bill C-14 most of the new reverse onuses created by the bill in response to concerns about such approaches raised by witnesses, including Aboriginal Legal Services; the Indigenous Bar Association; the Canadian Association of Black Lawyers; the Canadian Civil Liberties Association; former Department of Justice and Department of Public Safety officials; a former chair of the ministerial advisory panel on the implementation of correctional legislation; legal, human rights and criminology experts, including Professor Nicole Myers, Professor Danardo Jones, Professor Debra Parkes and Professor Justin Piché; and organizations working with survivors of violence against women, including the Barbra Schlifer Commemorative Clinic.
I will not repeat the extent of the evidence already discussed that harsher penalties for bail are not supported by empirical evidence. Witnesses emphasized that we are talking about reverse onuses. We are talking about normalizing incarceration without a trial. We are talking about weakening constitutional guarantees that protect us all, disproportionately jailing those most marginalized, with the fewest supports and resources, and releasing them worse off and with fewer options than they had before.
Specific reverse onuses introduced by Bill C-14 will further entrench discrimination in certain areas, in particular auto theft, extortion and organized crime. We have now discussed at length the reality that a focus on organized crime, including car thefts, will disproportionately criminalize young Indigenous and Black men recruited from impoverished communities. Other such offences include human trafficking, violence and weapons.
The Barbra Schlifer Commemorative Clinic, an organization supporting survivors of violence against women, notes how reverse onuses remove judicial discretion and ignore survivors’ lived realities, like the fact that what appears on paper as a violent offence with a weapon can mean in reality that a woman who picked up what was within reach, like a knife or a pen, to try to protect herself from a bigger and stronger abuser or the fact that a human trafficking charge can obscure how a woman was herself exploited and trafficked.
Once subjected to a reverse onus, it is those most marginalized who will struggle the most to make a case for release on bail.
Law professor Debra Parkes emphasized that under reverse onuses, it is virtually certain that women, particularly Indigenous and Black women, will be disproportionately denied bail.
She said:
Women are lower income as a group and less likely to have support. It tends to be women who are often supports for men on bail, and it generally does not go the other way around. . . .
Law professor Danardo Jones testified that the requirement to put together a release plan is “. . . where social inequalities become really apparent.”
He also said, “. . . certain communities — will not be able to put those plans together . . .” and people “ . . . who do not have deep pockets will not be successful at the bail stage.”
Colleagues will note that this amendment leaves in place the reverse onus related to strangulation. This approach acknowledges data highlighted by the London Abused Women’s Centre and others that non-fatal strangulation is a strong predictor of future lethal violence against women, making them 800% more likely to be killed by their partner in a subsequent assault. I want to highlight, however, the testimony of witnesses noting that criminal law responses to violence against women will not be effective if societies continue to be complacent about inequality and misogyny.
I want to close with the words of a victims’ organization, the Barbra Schlifer Commemorative Clinic. They say:
The punitive, carceral lens and approach to violence within this Bill fails to address the root causes and spectrum of gender-based violence, and focuses on punishing perpetrators over supporting survivors and ensuring cycles of violence are stopped.
Survivors of violence against women are pointing us to the evidence-based, wraparound supports that they urgently need to make communities safer for them and all of us. They are not what this bill will achieve.
The Chair: Thank you, Senator Pate.
Senator Dalphond: I’m going to say before Senator Batters that the main pillar of this reform is about bail. She said that sentencing is also an important pillar, but the main pillar is about bail.
Why we reverse the onus for specifically identified groups is because we have plenty of evidence from the provinces that came before the committee, including the Province of B.C. and the Province of Manitoba. Both ministers appeared to express their support. The leading police associations also appeared — the RCMP, the Canadian Police Association, the Ontario Provincial Police, Commissioner Carrique of the Canadian Association of Chiefs of Police and the Toronto Police Association — all said there is a real problem with the bail system in Canada. It is too easy, and we devote so many resources to arrest, bring people before a judge, get released on conditions, get arrested again, brought back again, and in the meantime, they continue to commit offences.
The government’s response was to say that we will reverse the onus to extend the list of reverse-onus provisions. What are we adding to the list? Well, we are adding assault or sexual assault involving choking. Senator Pate is ready to accept this because the London Abused Women’s Centre is supportive of it. I appreciate that. I am also supportive of it. They even referred to the speech I gave at second reading in support of that.
The second thing we are adding is trafficking in persons and human smuggling. We have reverse onus for those who are trafficking in drugs, and now we are proposing not to have it for those who are trafficking in persons. I think human trafficking is even more serious than drug trafficking. The reverse onus is fully justified. We know who is trafficking in persons and taking part in human smuggling. They are part of connected networks. They are not individuals on their own. Most of them are part of organized crime.
What else are we adding to the list? Violent auto theft and organized crime-related auto theft. We are saying that if you are charged with that and you are related to organized crime, you have a reverse onus. Next is extortions involving violence. It is not just extortions but extortions involving violence. That’s a very serious crime.
Convictions of violence for serious conduct previously, those who were convicted more than twice for indictable violent offences, will have the burden of saying, “This time I’m clean. I’m okay. Let me go.” I’m not saying that they can’t be clean and shouldn’t be released on bail. I’m just saying it is normal that the system asks you to show cause for your situation because you have been convicted twice for indictable offences.
Next is breaking and entering a dwelling-house. As I said before, my house is my castle. This is a very serious offence.
These are things that Senator Pate is proposing to remove. I must say that I don’t agree with her because they are very serious offences, some more serious than those that already have reverse onus. I certainly oppose this amendment. Adopting this amendment means that we are removing the main pillar from the bill, which is saying to the government and to the House of Commons, “We don’t agree with your policies. We prefer the testimony of Mr. Piché,” who was able to say that we shouldn’t have jails and there is overcrowding in jails. When I asked him if he knew how many beds are in Ontario jails, he couldn’t answer. When I asked how many beds were in Ontario jails 20 years ago, when the population was half the current population, Mr. Piché couldn’t answer that either. By the way, I’m still waiting for the answers that I asked for. Maybe he did not promise, but I asked him to provide them.
I understand that people are opposed to the reverse onus. The principle under the Charter is that it is the onus of the Crown, but the Supreme Court has agreed that the onus can be reversed and put on the accused in specific circumstances.
One of the cases the Supreme Court heard was about drug trafficking. I think it was former Justice Lamer — I may be wrong — who reversed my friend at the Court of Appeal. He came to the conclusion that, no, reverse onus was justifiable in that case under three circumstances: when there is risk to the community, when there is risk to the victim and where you are part of a network and there is a high risk you may escape and disappear before being back in court.
This is the list of people we are targeting. We are expanding the list, but we are still targeting the same people. Thank you.
Senator Batters: Thank you, Senator Dalphond, for listing a number of those parts that Bill C-14 would provide reverse onus for bail for but which Senator Pate’s amendment purports to remove. There were so many parts that there were a couple that you didn’t mention, so I wanted to draw our colleagues’ attention to them.
One of those is human trafficking of a person under the age of 18 that, under Bill C-14 currently, would be included as a reverse onus for bail. That would be taken out by Senator Pate’s amendment.
Also, because the first 14 lines of page 11 are included in the offences that would be taken out, that would also take out this part, which is quite shocking:
. . . an offence in the commission of which violence was allegedly used, threatened or attempted against a person with the use of a weapon, and the accused has been previously convicted, within five years of the day on which they were charged for that offence, of another offence in the commission of which violence was also used, threatened or attempted against any person with the use of a weapon, if the maximum term of imprisonment for each of those offences is 10 years or more. . . .
Those are really serious crimes, and they would all be taken out with this amendment, if it were passed.
As Senator Dalphond was saying, the reverse-onus parts are really the vast majority of the bail part of this bill. If you are going to knock out that major of a part of a bill, you may as well just defeat the bill because that’s the vast majority of what’s been provided here.
We heard from many witnesses who spoke in favour of Bill C-14’s reverse-onus provisions, such as Peter German, President and Executive Director of the International Centre for Criminal Law Reform. He said that:
With regard to reverse onus, the Supreme Court of Canada made it very clear that reverse onus is only to be used in very specific situations. . . .
He did indicate that there is a place for reverse onus, and it “. . . reflects realities faced by police and communities, where certain patterns of offending signal a higher likelihood of continued harm.”
Scott Gillingham, the Mayor of Winnipeg, said:
. . . the primary reason we need Bill C-14 is really related to the reverse onus provisions in the bill. Those are critical. . . .
Jennifer Dunn, Executive Director of the London Abused Women’s Centre, said:
With regard to reverse onus, I think that provides one extra tool for a judge to make a decision on bail, so I would agree that the reverse onus being added is an important measure.
Clayton Campbell, President of the Toronto Police Association, indicated support for the vast majority of this bill. He said:
. . . the creation of new reverse onuses for a number of offences, many of which have a direct impact on the criminal activity we are experiencing in Toronto. . . .
Brian Sauvé, President and Chief Executive Officer of the National Police Federation, said:
In particular, we support the amendments made in the House of Commons that expand reverse-onus provisions. These changes better reflect the realities our members face when dealing with individuals who have demonstrated a pattern of violence or non-compliance with court orders.
Niki Sharma, the B.C. Attorney General, said:
There are certain things we have brought forward that we see reflected in this bill, in particular when it comes to repeated and violent offenders. Reverse-onus bail in high-risk cases — it is important that our bail and sentencing systems focus around those individuals who have been proven to show the most harm to communities and that our Crown counsel are equipped with the Criminal Code helping to protect British Columbians from these individuals.
Saskatchewan’s Minister of Justice added in his brief that he provided:
Saskatchewan is pleased that amendments made to the bill at the House of Commons committee/report stage added a new, broader reverse onus category that went beyond the offences included in the original draft. It is also pleased that the reverse onus bail provisions were expanded to include offenders charged with a serious offence involving violence and the use of a weapon, who have, within the previous 10 years, been convicted of a serious offence involving violence and a use of a weapon.
That is very significant evidence we heard about reverse-onus provisions. They’re not perfect, but at the same time, these are things that are needed in the bill. If we knock all of that out, there’s really almost nothing left in this bill.
Senator Pate: Thank you, colleagues. Again, I would encourage people to express more respect for different positions. But the reality is that I provided the evidence that was presented. We heard even from officials that there is not disaggregated data to show who is actually being charged in these situations and who is facing — so in the absence of evidence, the fact that we would be introducing something, while again, it may be politically expedient in this moment, it is not certainly backed by evidence. So I’m prepared to proceed to the vote.
The Chair: Any other senators on debate? Are senators ready for the question? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
Hon. Senators: No.
The Chair: I believe the nos have it. Recorded vote? The question is: Are you in favour of this amendment or not?
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Dhillon?
Senator Dhillon: No.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Moreau?
Senator Moreau: No.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: No.
Mr. Labrosse: The Honourable Senator K. Wells?
Senator K. Wells: No.
Mr. Labrosse: Yeas, 5; nays, 9; abstentions, nil.
The Chair: This motion is defeated. We’ll now move to the next amendment, put forward by Senator Clement, in clause 23, page 11, line 22. Senator Clement, read the motion and engage in the debate.
Senator Clement: Good afternoon, colleagues.
I move:
That Bill C-14 be amended in clause 23, on page 11, by adding the following after line 22:
“(12) Section 515 of the Act is amended by adding the following after subsection (13.1):
(13.2) If the issue of the application of section 493.2 to the accused is not raised by the accused or any other party, the justice shall inquire on the record of proceedings whether that section applies to the accused.”.
I’m back with this one. In 2023, the Senate amended the last round of bail legislation, Bill C-48, An Act to amend the Criminal Code (bail reform), to strengthen the consideration of section 493.2 of the Criminal Code. That section of the Criminal Code requires a justice to give particular attention to the circumstances of Black, Indigenous and other vulnerable groups in pretrial detention, in part to address the overrepresentation of those groups in the criminal justice system and pretrial detention.
The wording was:
A justice who makes an order under this section shall include in the record of proceedings a statement that sets out both how they determined whether the accused is an accused referred to in section 493.2 and their determination. If the justice determines that the accused is an accused referred to in section 493.2, they shall also include a statement indicating how they considered their particular circumstances, as required under that section.
That amendment was passed at the Legal Affairs Committee by the Senate, and then accepted by the House, accepted by the minister. In fact, then-Minister of Justice Virani in the House of Commons said:
What the proposed amendment from the Senate would do is ensure the bail courts are fulfilling their obligations to consider these particular circumstances in every applicable case and recording that they have done so.
So at the time of that amendment, we had Professor Danardo Jones come to us in that Bill C-48 debate and say:
. . . any move to make our bail system more punitive without recognizing how the system that we currently have disproportionately impacts marginalized and racialized people is problematic. That is not striking a balance.
So the point of that amendment at that time was to try to get some balance.
Fast-forward to 2026. The CCLA appears before us, and they say that they’ve been monitoring that particular amendment and the results of that amendment. They say that the bail jurisprudence, since that enactment, just hasn’t had the uptake that they wanted. So, based on their review, it is evident that Parliament’s intent in enacting this provision has not been realized. Justices are not stating on the record whether they have considered if section 493.2 applies, not setting out the reasons for that determination.
CCLA located only three cases where that section was cited, notwithstanding it requires a statement on the record in every pretrial release decision. So it hasn’t had the response that was intended.
Professor Jones came back to speak to us in this round of debate. He issued a similar warning about the cost of overrepresentation.
So this amendment is additional language, which will ensure that the question gets asked in the courtroom. By having the justice ask, by requiring an inquiry on the record, it will make all parties alive to the importance of the relevance of those circumstances.
I want to quote from the Black Justice Strategy — you know that I always do that. The Black Justice Strategy, released in June 2024, has 114 recommendations. It has one that is right on point. Recommendation 45 says:
Add a section to s.515 of the Criminal Code that requires a judge or magistrate to consider the individual circumstances and background of every accused who applies for judicial interim release and to take those into account when imposing conditions of release.
Colleagues, I certainly thought that the last amendment was going to address that Black Justice Strategy recommendation, but it has not. I’m going to quote from some testimony, because I think that we’ve done a pretty good job here at the Legal Affairs Committee. We’ve had some compelling witnesses. We’ve had different aspects and sides of the issue, so I want to go back to some of their testimony.
Sabrina Shillingford from the Canadian Association of Black Lawyers said:
Beginning with the Black Justice Strategy, the strategy is key; it is fundamental. It is important to address anti-Black racism and systemic discrimination and make changes toward reducing the impacts of that in the criminal justice system. That can’t be overstated. . . .
I want to go now to the testimony of Lucie Léonard, Director of the Canadian Centre for Justice and Community Safety Statistics, Statistics Canada. She said:
Something that could be quite relevant in terms of the statistics that we have at Correctional Service Canada and that we can both confirm in terms of trends of increased incarceration. While it is generally in decline, the increase is there for Indigenous and Black women, in particular. Indigenous women, as has been mentioned, make up half of the federal custody population, despite representing 5% of the population. They are overrepresented in custody, which has increased every year since 2019 for Indigenous women. That proportion has more than doubled since the early 2000s and has continued to rise. Those are very sharp trends that are not going away. Devastatingly, yes, we can provide more details, but those are trends that have been there for the past two decades.
I want to talk about data collection and some of the gaps that we talked about around this committee table. I want to quote from an exchange between our deputy chair and Marnie Wallace, who was representing Statistics Canada. The question by the deputy chair to the official was:
I have a quick follow-up on that. Because you produce the national data on this and on crime and the administration of justice, when the government prepares a bill like Bill C-14, does the government consult Statistics Canada? Did the government consult Statistics Canada to get this kind of data to inform their policy choices that they made in this bill?
The exchange was as follows:
Ms. Wallace: We have been working very closely with colleagues at the Department of Justice Canada, as well as in the provinces and territories, on this issue of a lack of bail data for well over a year now. They are very well versed on what data we do and do not have. In this case, they are aware that we don’t have national bail data but have been working on advancing the collection of bail data across the country.
The Deputy Chair: Did they consult you?
Ms. Wallace: Yes, they are also aware that we simply don’t have the data at this point.
The Deputy Chair: You don’t have the specific data to be able to inform it?
Ms. Wallace: That’s right.
However, we did hear from Statistics Canada that they have a framework in place, that they are working on communicating with the provinces to get that information and that they may be a year out from getting better information.
It seems some of these gaps are being addressed. There is even a pilot project with one jurisdiction, which they mentioned.
In the meantime, we’re legislating while these gaps are being highlighted to us. With this amendment, by this requiring a justice to pose the question in a courtroom, we can hope that more information comes forward.
The CCLA publishes bail reports; they go into bail courts. The required inquiry by a justice may help court officials see patterns of barriers, may help flag particular issues in regions and create conversations that may be helpful.
This amendment is additive: It provides a further step so that we can push further to have the issue of a person’s circumstances and, if they’re from an overrepresented group, make sure it’s raised more clearly in a courtroom.
I would add that this bill, in general, adds clarification. When you look through it, there are subheadings called “clarification.” This is a bill where, for greater certainty and for greater clarification, we want you to look at this. So, I feel like this particular amendment fits into what we’re doing in this bill, which is to try to clarify.
I want to close out my comments by quoting directly from Shakir Rahim, who was representing the CCLA:
There are many cases where someone is vulnerable, but it’s not brought up by anyone in the courtroom, or the fact that they do belong to a vulnerable group that is overrepresented is not brought up, so we wanted to centre attention around that. But if you look at really any reported bail decision from Bill C-48 onward, you don’t see that kind of statement on the record. Whereas, for some of the other statements that are required, such as “I’ve taken into consideration the safety of the community” —
— those were respected. We want judges to talk about community safety, but we also want them to raise the issue of overrepresentation and people belonging to certain groups that have been impacted by that.
This amendment is endorsed by the Canadian Association of Black Lawyers, the John Howard Society, the Criminal Lawyers’ Association of Ontario, Anthony Doob, Nicole Myers and Legal Aid Nunavut.
I want to quote from David Cole, retired judge, Ontario Court of Justice:
But, again, what I come back to is the sheer volume of cases, how it numbs us as we go through dealing with hundreds of cases per year and how, unfortunately, there is a dreadful sameness to it that means that we perhaps — and I’m speaking candidly here — don’t pay as much individual attention as we should to individual circumstances . . .
Having a judge ask the question means that everybody in the courtroom becomes alive to that issue, especially lawyers, let’s say, who are starting out in their career and who might not have represented clients that are from overrepresented groups. When a judge says, for example, “Ms. Clement, you’re leading your witness,” you learn, because the judge is telling you something. “Ms. Clement, did you submit the requesting letter for the medical evidence you’ve just submitted?” You pay attention.
Say that a justice asks, “Have we checked to see if this person is from an overrepresented or vulnerable group?” Everybody in that courtroom is going to pay attention because that question is coming from the judge. Then it becomes part of the culture of the courtroom to ask that question and think about the circumstances so that it becomes a part of what we do.
This amendment pushes it further so that we hope to get the uptake that we hoped for in Bill C-48 that we didn’t see — we hope with this language, by having the justice pose the question and getting the inquiry on the record, that it actually has the impact that it has. While we legislate, we’re also paying attention to what the Canadian Black Justice Strategy is saying, what Black Canadians are saying and what overrepresented groups are saying and asking us to consider.
Thank you.
Senator Dalphond: Can I pose a question to Senator Clement? Would she accept a question?
Senator Clement: Of course.
Senator Dalphond: I carefully read your amendment:
If the issue of the application of section 493.2 to the accused is not raised by the accused or any other party, the justice shall inquire on the record of proceedings whether that section applies to the accused.
So you want the justice to have something recorded and not necessarily a judgment. Do you want that to apply when the Crown and the accused have come up with the bail order by consent?
Senator Clement: Yes, the inquiry should be made out loud and on the record so that every time there is an issue, the question is asked. It becomes part of what happens every time —
Senator Dalphond: What do you consider to be an issue? If there’s a consent order — they made the deal and come to the judge, and he says, “Would you make that deal binding by making an order? So I order you to comply with the order that was presented to me.” So you want the judge, before he orders the accused to comply, to say, “Sir, are you conscious that you’re possibly a member of that group that is targeted by 493.2?”
Senator Clement: I don’t think this amendment causes any issue in that sort of circumstance. That’s not what this contemplates.
Senator Dalphond: You know how it works. The judge would say, “Consent?” He signs; it’s done. He doesn’t ask questions. So now you want the judge to stop the process and to challenge the lawyers’ assessments, to say to the lawyer for the accused, “Do you know section 493.2? Did you consider it in making your deal with the Crown?”
I’m trying to understand —
Senator Clement: I don’t this amendment contemplates what you’re describing. It’s contemplating where we’re going into a hearing and starting to argue the situation.
Senator Dalphond: Okay, so that applies in only 5% or 10% of the cases, because most of the cases are done by consent — overwhelmingly.
So if that’s what you’re targeting, maybe the amendment is not necessarily drafted in such a way.
Anyway, I’m going to address the issue. It’s a revision of a previous draft, but what we are talking about here starts from a concern expressed by somebody for whom I have great respect, Mr. Rahim from the Canadian Civil Liberties Association. He said he could recall only three judgments referring specifically to section 493.2 of the Criminal Code. Of the three judgments, as a matter of fact, one of them is from the Superior Court, stating in appeal from the justice of the peace, because if you go in appeal, it goes to a Superior Court judge. So that’s motivated. The judge said that the justice of the peace did not consider those provisions. They returned the file to the justice of the peace to redo the job. So the Superior Court judges seem to be aware of 493.2 and apply it.
The fact that we don’t retrieve more decisions is a reflection of the process in the courtrooms, where these things are either done by consent or done by a decision made and recorded in the records. Did the judge refer to 493.2 in his decision in the record or not? You assume that he or she did not, but we have no data to affirm that. What you’re saying is we found only three reported cases.
I think the lack of data behind this amendment is, unfortunately, very apparent. We are saying there might be a problem; therefore, we’re going to amend the code, but we don’t know if there’s a problem. The drafting is concerning because that seems to mean that the judge will have to say, “Well, you have consent, but are you sure? What is the name of your client?” If they appear virtually, you have to guess their name or the colour of the skin and everything else, to say, “Maybe that section applies. I’m going to ask them if they applied or should it apply” in all cases. It’s not realistic compared to what is happening in the courtroom. Unfortunately, I share the view of the government. The government is opposed to the amendment. Bail courts or justices of the peace, who handle a high volume of things, are deemed to understand the law, but sometimes they make mistakes because some are not trained in law. However, there’s an assumption here. The records probably show they’re complying, and if they’re not, the Superior Court can intervene. Here, what you’re asking to add is a further step that will slow the process. It says, in a sense, “Even if you have an agreement, I’m going to challenge your agreement,” which is contrary to what the Supreme Court is teaching. Each time there’s an agreement between the Crown and the accused, the judge must be deferent. When you don’t agree, you have to ask many questions. Maybe Senator Arnot will confirm for me, but we’re teaching the Court of Appeal to the trial judge. If there’s an agreement, you better have good reasons not to follow it. Thank you.
Senator Batters: First, as I look at the new 2026 Criminal Code to make sure that I’m looking at this part correctly, this amendment would provide for what the existing section of the Criminal Code 493.2 is, which says right now:
In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
This is Part XVI, “Compelling Appearance of Accused Before a Justice and Interim Release.” It’s this entire part that this applies to. With respect to the discussion that was just taking place on what type of bail proceeding this would be, it seems to me that it probably takes into account all bail proceedings, not just ones that go to a hearing stage but also consent orders and that sort of thing as well. That second part of it is a very broad category, and note that, as well, it’s a mandatory thing, “. . . a peace officer, justice, or judge shall give particular attention to the circumstances . . .”
It also opens it up, if you’re asking a question, as Senator Clement’s amendment would provide, to say that if that issue is not raised, then the justice shall inquire on the record whether that section applies. By reading that — and I’m not sure that that’s what is being proposed, that would be read out — are you an:
accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
Many accused, even if they’re potentially not eligible — and I’m not sure if that provision has received any judicial interpretation to find out if it has specific limits — might think they are vulnerable. They might think they should be included in this and indicate that.
That could provide some definite confusion, especially because of the mandatory nature of it. We’re already entrusting those in charge of potentially releasing someone to give particular attention to this, so they are mandated to do that. I also had a question for Senator Clement on this. I’m wondering if anyone other than the CCLA provided evidence to our committee indicating that this is not actually happening right now in the courts. I take your point that certain witnesses had endorsed the amendment, but I’m wondering if there’s any other testimony from certain groups. I would, potentially, expect to hear from the Indigenous Bar Association or others to hear that this is not happening. Did we receive any other evidence from this committee from those groups that this is not happening in the courts?
Senator Clement: We did receive endorsement from groups saying that they agreed with the amendment. Sadly, the clearest data that we received was that there is overrepresentation of Black and Indigenous persons. Everything else is lacking. Everything else points to gaps in terms of the evidence that we heard. So it’s difficult to answer your question because there’s not much information, and there’s not been much uptake of this amendment that I thought would get us to respect for the Black Justice Strategy. It’s hard to answer your question. The only certain thing is we know is that there’s overrepresentation. This amendment, which is relatively modest, is one that is trying to get us to ask that question more systematically.
When I quoted Justice Cole, who talks about the numbness, if you walk into any prison in Ontario and see all the faces sitting in front of you, you have to wonder what happened. How did we get here? There are circumstances that get people to where they are, and this amendment is about making sure we say out loud in the courtroom, “There are circumstances here, or maybe not.” Let’s at least raise the issue. It’s not about insulting people who might not be a part of that group. It’s about making sure all the court officials and everybody who does the work of justice in this country raise that question systematically.
The Chair: I have a question that senators can maybe help me on. We know in the Gladue situation that it’s basically mandatory to ask questions, and we also know that the Gladue rule was not applied uniformly throughout Canada. But it was revisited, and it’s now being applied properly, probably; I will make that assumption. If this amendment of Senator Clement goes through, wouldn’t that be a data point, even if it was an agreement by consent? If the issue were addressed, wouldn’t you create a data point? That is one way to measure the effectiveness of the Black Justice Strategy. I’m not sure I see the downside to asking that question or asking the judge or the justice of the peace to create a record and add a data point, because we’re assuming, hopefully in the future, there are going to be a lot of data points created in order to have justice issues dealt with based on real data. I just ask that general question. If anybody can help me with that, that would be fine.
Senator Dalphond: I won’t be able to answer your question about that data, but I remember vividly what Ms. Pasquino of the Ontario Crown Attorneys’ Association said. I specifically asked her if 493.2 is used when negotiating with the accused.
Her answer was they “. . . are very aware . . .” of that provision. The sole evidence we have is the evidence from the Crown of the largest province that says they apply the provision. This is uncontradicted evidence.
Senator Simons: Thank you, Senator Batters, for reading out that section of the Criminal Code because it begs the question: How can you consider it if you don’t know what you are considering? I don’t know how a judge would do what the current Criminal Code requires them to do if they don’t have the information.
I also understand Senator Dalphond’s point that the whole point of our backed-up bail system is we want to make it more efficient and streamlined. But even in a case where the Crown and the counsel for the accused agree, I don’t think the judge necessarily asking the question slows anything down or suggests that they are not going to accept the agreement. It is just that they say, “Was all this taken into consideration?” They say, “Good.” They say, “Fine,” and off we go.
I think Senator Arnot makes an excellent point that it would be data, but I also think: I haven’t been a judge and Senator Arnot has. My question to you, sir, is this: How much friction would it apply to the system if the judge had to pro forma ask the question? Would it really slow things down that much?
The Chair: Do you want my professional opinion? I don’t think it would. I think it could be easily captured and they could move on. That’s my personal opinion, but that’s not evidence.
Senator Simons: One of the two of us has been a judge, and it is not me.
The Chair: Well, let’s carry on. We have Senator Clement.
Senator Clement: I was going to agree with you, Senator Arnot, that it could provide, maybe not a data point in the same way that Statistics Canada would provide a data point, but it would certainly provide some data. We know that the CCLA does publish bail reports, so they would be able to have access to information that would inform this whole process. The data issue is important.
I want to respond to Senator Dalphond’s issue about the person saying, “Yes, we are aware of the section.” That’s not enough, to say that we are aware. This amendment is about pushing us into action and into getting something on the record. So much of this work in legislating is about getting on the record. Sometimes, we succeed with an amendment; sometimes, we don’t. However, getting on the record is crucial if we’re going to keep legislating and trying to take into consideration people’s circumstances.
Senator Dhillon: I’m in a place of some confusion, so I will be asking questions.
To start off, I think we all acknowledge that there is shared agreement that data is not completely available to be consumed by us and to be used.
I also recognize and understand that there is a vulnerable population overrepresentation. I think there is an agreement there as well by the committee.
We are also looking to be precise and put in precision legislation to address some of the concerns that have been raised across the country. To that end, I think we’re trying to find a balance in all of that in looking for more data, to be more precise and to be better at how we approach the Courts Administration Service and the concerns of communities across the country.
Again, this is to both Senator Dalphond and Senator Clement, and maybe to the officials here as well. We did have some questions as to, first, if the drafting of this is a concern. If the issue is around the drafting, well, can that drafting be amended? Again, I know this will cause other questions and issues, but I am just putting it out there. In instances where there is already consent and those issues have already been discussed by defence and the Crown, then there is an assumption that 493.2 has already been addressed.
That is an assumption that’s made, and those are managed. So the amendments could read, “Unless there is an agreement between the parties,” or something along those lines. Then, we accept and assume that 493.2 is dealt with. I think the assumption that we’re working from here — if I am wrong, I will be corrected, I expect.
Certainly, I accept what Senator Batters is saying that it is already there. It is already part of the overall decision process, but we’re also carrying the concern that we’re missing data. We want to be a little bit more precise. We want to have, in about a year, three years or five years, a greater understanding of whether we were precise in our approach as we crafted this law.
To that end, what is the burden if there is an adjustment, and is this going to derail the intention and the spirit of this legislation if we were to include that as part of our thinking and consideration?
I have more questions than clarity, so maybe this is for the officials and anyone else who may have the ability to answer the question. Sorry if I have confused you all.
Mr. Ripley: Thank you, senator. I’ll maybe just a make a couple of points, and then my colleague Ms. Wills, our expert on bail, would be happy to dive into them.
I think the starting point is that section 493.2 applies. Again, Ms. Wills can speak to it, but it is clear that it is an error of law for a justice not to consider section 493.2 at the bail stage. That is the current state of the law. We heard Senator Clement speak to concerns that this may not be respected currently, but I think, from the government’s perspective, that is the starting point. The proposal by the senator would be, to some extent, reaffirming what is already required.
Over time, the justice system does have ways to correct justices that are not doing what they are supposed to. Again, my colleague would be happy to drill down on any of those points.
Ms. Wills: I would just say a couple things to the committee. The drafting of subsection 515(13.1), as you noted, states that bail courts must do two things. They must state, on the record, first, how they determined if the accused is captured under section 493.2; and, second, if they determine that the accused is captured, how they considered their particular circumstances.
Inevitably, in order to abide by the obligation under subsection 515(13.1), it will involve bail courts inquiring with the parties about whether section 493.2 applies. This committee heard from some witnesses who raised concerns about how bail courts are not routinely applying both of these sections. It is difficult to know why some bail courts are not fulfilling their obligations because most bail decisions are not reported. This was raised already as well.
However, there have been a handful of reported decisions that have addressed these sections. One in particular, which was raised by Senator Dalphond, is a recent Superior Court decision — a bail review — that said that it was an error of law for bail courts not to apply these sections. This effectively provides authority for the accused to seek a bail review under section 520 if the bail court does not apply both section 493.2 and subsection 515(13.1).
Senator Batters: Thanks very much for that. That was very helpful.
What I was going to say is I think that it is very likely that these matters are being considered, and, as you just told us, it is required that they be considered by the courts and other justices of the peace, et cetera, that are dealing with bail, but the data is not being collected.
The thing is that if we put this into a mandate that this data must be collected, who would do that and where would it go? Courts already have a lot of data points — “data points” — but there is no central repository where they send them. What is the purpose?
Here, they may already have a lot of this information, but there isn’t anywhere to send it. Therefore, I don’t think there is any great purpose to it.
There could potentially be an unintended consequence if we mandate the asking of the question. Having sat in bail courts — not for a while, but I used to all the time — these decisions are made extremely quickly, sometimes too quickly, but especially if they are a consent order situation. By slowing it down to ask if the accused belongs to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this part, the accused might say they need to speak to their lawyer about that, or that they need an adjournment because they need to figure out if they’re covered by this. Maybe some people will correctly assess that they are covered by that and need to consider that, but maybe some will be looking for a way to get out of jail and try to get covered by that.
The Chair: Thank you.
Senator Prosper: I want to recognize Senator Clement for bringing this proposed amendment forward, which I agree with. This substantive right exists. With respect to its use, I think you mentioned it was Mr. Cole, a former judge, who provided evidence on the record that there are so many cases and it gets numbing. I guess that was the upshot of his evidence in terms of discussing this and relying upon it. It is quite modest for a court to make an inquiry into a substantive right. The more it is done, the more it is reflective of what you mentioned and becomes a live issue; it becomes part of the culture of the court. You then have actual consideration of it. It is there for a reason.
So, I certainly support this amendment. People being aware of it is a lot different than them actually applying it.
The Chair: Any other comments on debate? If not, are senators ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion, in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: We will have a recorded vote. I could not tell.
So this is “yes” or “no” to Senator Clement’s recommended amendment.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Dhillon?
Senator Dhillon: No.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Labrosse: The Honourable Senator Moreau?
Senator Moreau: No.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: Abstention.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: No.
Mr. Labrosse: The Honourable Senator K. Wells?
Senator K. Wells: Yes.
Mr. Labrosse: Yeas, 7; nays, 6; abstentions, 1.
The Chair: Therefore, this amendment is carried.
Senators, shall clause 23, as amended, carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 24 to 30 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Senators, the clerk has indicated that Senator Pate has an amendment on clause 84, the last clause of the bill. It is in writing and will be distributed to the members.
There are more amendments; there is no shortage. That will be dealt with last.
Senators, shall clauses 31 to 37 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried, on division.
We’re at clause 38. Senator Pate, what do you propose?
Senator Pate: I propose that we vote against this clause, which requires priority considerations to denunciation and deterrence in sentencing in situations involving organized crime, repeat auto theft and repeat break and enters.
We have now discussed at length the fact that there is no evidence to suggest that longer and harsher prison sentences prevent crime. We have also discussed the evidence that the types of convictions singled out by this clause mean that young and impoverished Black and Indigenous men who have been recruited into organized crime are the ones who will be disproportionately targeted. We have discussed that this approach will exacerbate overrepresentation of those most marginalized in prisons in ways that will undermine instead of improve public safety. They will be at greater risk of victimization and criminalization through incarceration that cuts ties to existing housing, jobs and community supports. At the same time, while those most marginalized and easy to catch are targeted, networks of organized crime and their leaders will remain in place.
Mary Campbell, former director general, Corrections and Criminal Justice — in the department now known as Public Safety — was one of several witnesses to speak against this clause at committee. I want to read a quote that she provided about this clause in another setting.
Denunciation and deterrence, these two sentencing objectives are the most hollow of the 10 in the Criminal Code in terms of actually reducing crime. They were included in the 1996 sentencing objectives of section 718 because that reflected the thinking and the research of the 1980s and prior. They fell into near-complete disrepute thereafter and Justice solicitor general advisers looked at options to remove them from the code. This was felt to be impossible.
I urge you to join me in voting against this clause, which doubles down on outdated concepts that have been debunked by empirical evidence. It makes promises to Canadians of safer communities, which all evidence demonstrates it will fail to deliver on and, in fact, will create greater risk to public safety. I underscore that we have also heard at this committee about the reason those provisions are not in the Youth Criminal Justice Act, in part because of that evidence. Thank you.
Senator Dalphond: Much has been said already about the line. We are targeting here only three specific offences for accused persons that will have been found guilty. Guilty of what? Then we reach the point of sentencing.
Guilty of having a second or third subsequent offence related to motor vehicle theft with violence used. That’s not an accidental thing. It is the third time you are doing it, or maybe more. In that case, we are telling the courts, the judges, that when you impose a sentence, you should have in mind as a prime consideration is the objective of denunciation and deterrence. I do not see much harm in saying that.
The second thing is the offence of breaking and entering.
If a court imposes a sentence for a second or subsequent offence for breaking and entering, it shall give primary consideration to the objective of denunciation and deterrence. I think most Canadians will agree that for somebody who is entering their house, we should send a powerful message of deterrence. When the person is doing it for the third time or more, I think that should be taken into consideration.
The third one, which would be deleted, is offences for the benefit of a criminal organization. If a court imposes a sentence for an offence that is committed for the benefit of or at the direction of or in association with a criminal organization, it shall give primary consideration to the objective of denunciation and deterrence.
Again, I have difficulty believing that we are making a major mistake here by not directing the judges, in their long process of sentencing, to say that as part of that sentencing process, when you factor in all the issues, you should give primary consideration to the objectives of denunciation and deterrence.
Senator Batters: The main thing I want to say is this: It simply emphasizes to all concerned, including the courts, that these very important objectives of sentencing — those of denunciation and deterrence — be considered by the courts on these very serious crimes that Senator Dalphond was just outlining. Again, it is for situations where it is not just the first time that this person has been convicted and is receiving a sentence for these things but for the second or third time in two of the cases or for being involved with organized crime. The public in Canada would be shocked, frankly, if this type of provision were not adopted.
I also have a question for the officials: Could you tell us more about the importance of having these objectives of denunciation and deterrence be considered by the courts in sentencing?
Ms. Wells: I am happy to take that question. Thank you for posing it.
When a court is imposing a sentence, they consider many sentencing objectives, which are outlined in section 718. Among those are denunciation and deterrence; it also includes the objective of separating offenders from society, assisting in rehabilitation and promoting a sense of responsibility.
When Parliament signals that the court should prioritize denunciation and deterrence, it is a strong legislative signal that longer sentences should be imposed. It often signals that a prison sentence is the only appropriate sentence, but the Supreme Court has clarified, most recently in R. v. Friesen, that, despite a legislative signal that denunciation and deterrence should be prioritized, it does not preclude a sentencing judge from considering all other sentencing factors or other objectives in coming to a fit and proportionate sentence.
So, there is still discretion in the entire exercise.
Senator Batters: Thank you for pointing that out and also that, in considering legislation, it is an important factor in our criminal justice system that legislators send these signals where they feel, perhaps, that the balance has been off for a while. That is the exact sort of signal that Parliament is trying to send, and it is an appropriate signal for Parliament to send to the courts.
As such, I do not support this amendment because I think that, in these types of situations, where we have seen these repeat violent offenders with respect to motor vehicle theft with violence used or break and enter, which can often be a violent situation, as well as organized crime — these are serious offences in Canada for which the balance has seemed wrong for a while, so it is appropriate and important for Parliament to send that signal. Thank you.
The Chair: Are there any other comments? Are senators ready for the question?
Honourable senators, shall clause 38 carry?
Some Hon. Senators: Yes.
An Hon. Senator: On division.
The Chair: Clause 38 is carried, on division.
Shall clauses 39 and 40 be carried?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 41 and 42 be carried?
An Hon. Senator: On division.
The Chair: Carried, on division.
We’re at clause 43. Senator Simons, you have an amendment.
Senator Simons: I move:
That Bill C-14 be amended in clause 43, on page 23, by replacing lines 29 to 32 with the following:
“(c.2) the offence is not a primary offence, as defined in subsection 490.011(1), that is prosecuted by way of indictment and that involves a victim under the age of 18 years.”.
Let me explain. Clause 43 says that you cannot have a conditional sentence for a sexual crime against a minor, and that might seem like a reasonable thing. But this bar to conditional offences applies to sentences preceded by way of indictment where the sentence is of less than two years — in other words, to offences where the factors for sentencing have been found to be at the lower end of the scale.
Indictable offences could include conduct of lower seriousness. The minimum sentence set by Parliament on some of those offences is as low as a monetary fine or 19 days, and, in many cases, only one year of imprisonment. We are dealing with things at the lower end of the spectrum.
But that’s not really the concern; the concern is that this clause introduces a novel phrase to the Criminal Code. It says that these are crimes of a “. . . sexual nature . . .” or committed for a “. . . sexual purpose . . .” That language does not exist anywhere else in the Criminal Code, and several witnesses have suggested to us that such language could cause problems. As per the Criminal Lawyers Association submission:
This language is vague and will invite litigation about what constitutes an offence “of a sexual nature” or “for a sexual purpose”, and over what precisely “involves” means. . . . To the extent that Parliament is inclined to limit conditional sentences, it should be done through specific reference to specific offences to promote clarity and efficiency in the justice system.
Similarly, in committee, I asked one of our witnesses whether he thought that adding a list of specific sexual offences would make for greater clarity. Shakir Rahim of the CCLA said:
Yes, I think so. And I think there could be two benefits of that: The first, as you say, is drawing a spectrum in terms of the severity of the offence we are talking about. The second is avoiding unnecessary or protracted litigation about the meaning of the section.
Particularly, as well, there is likely case law that provides some definitional content about what is of a sexual purpose or nature, which would be helpful for the purpose of crafting a narrower provision as well.
I looked hard at this section, and, clearly, there is a challenge. If you use language like “of a sexual nature” or “committed for a sexual purpose,” which does not have an objective correlative in Canadian law, you raise the potential that somebody could be convicted of a thing that we would not normally consider a heinous sexual crime. I was reminded of the Senneville case that was recently wonder the Supreme Court in which Madam Justice Mary Morrow argued in her judgment that you have to think not of the worst possible case but the least possible case. The example she used was this:
. . . an 18-year-old receives on his cell phone, from his friend of the same age, a “sext” originally from the friend’s girlfriend, who is 17 years old. . . .
When I looked at this language, I wondered if it could include an 18-year-old peeping Tom who looks into the change room of high school girls. Could it include somebody who steals a pair of panties? Could it include situations where the defendant is 18 and the victim is 17, where the defendant obviously might be a legitimate candidate for a conditional sentence?
How do you solve this problem?
So this is what my team and I came up with. I put the emphasis on “my team.”
It turns out that in the Criminal Code, we already have an excellent list of sexual offences that are real sexual offences. They go with the sex offender registry scheme.
Our amendment gestures to the sex offender registry and says, “Here is the list of offences for which a conditional sentence ought not to apply.” I will not read them all, but they include sexual interference, invitation to sexual touching, bestiality, publication of an intimate image without consent, luring a child, the removal of a child from Canada, obtaining sexual services for consideration of a person under 18 years, et cetera.
This would basically put a footnote in the bill. Instead of using this vague and unproven language about sexual nature and sexual purpose, we would say, “Here is the list. These are all the things for which you’re not eligible for a conditional sentence.” We don’t have to add the whole list; we just put the number for where the list is found.
Senator Dalphond: I understand the concern of Senator Simons. It’s really about the expression “offence of a sexual nature.” For you, it is not a well-defined term.
May I invite the officials to comment on that? Because I think the Supreme Court has opined on that issue.
Ms. Wells: Thank you for the question.
Yes, you’re correct, Senator Dalphond.
It’s been a long time since the Supreme Court opined on that issue. But in 1987, in the case of R v. Chase, when the Supreme Court was faced with interpreting — at the time, it was the new offence of sexual assault. They provided a definition of “sexual nature,” and they indicated that was an objective test:
The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer”.
So it is a —
Senator Simons: That’s not a very objective measure.
Ms. Wells: It is the test that’s been used in the sexual assault context since the sexual assault offences were enacted in 1987.
If I may add, the intent of the current drafting in Bill C-14 is to ensure broad coverage of sexual offences that may not always be sexual in nature.
And in making reference to the primary designated offence in the Sex Offender Information Registration Act, or SOIRA, it necessarily excludes offences in the secondary offence, which may be committed for a sexual purpose or could also be done in situations where they are more sexual in nature, and specifically kidnapping, for example. Extortion can sometimes be done for a sexual purpose, but not always. That does not appear in the list of primary designated offences.
So the objective in Bill C-14 is to add clarity but in a qualitative way as opposed to a quantitative way to avoid some of the policy problems that arise with listing offences.
Senator Simons: Is there a similar definition for “sexual purpose”?
Ms. Wells: So “sexual purpose” would be any offence with the intent to facilitate an offence of a sexual nature.
Senator Simons: Can you reread the definitions —
Senator Dalphond: Thank you for answering my questions. I will complete my questions. Thank you.
To return, the government does not support this amendment; the government is of the view that replacing it with a closed list tied to subsection 490.011(1) risks, unintentionally, narrowing the scope and excluding serious harmful conduct.
Maintaining the current wording ensures consistency with existing jurisprudence and avoids creating gaps or unintended loopholes.
This approach also preserves judicial discretion and supports a more comprehensive and context-sensitive application for the conditional sentence order restrictions.
Thank you.
Senator Batters: Thank you, Ms. Wells, for that very good example that you just gave of a couple of very serious crimes that are not included in that primary offence list, kidnapping and extortion, which could be for a sexual purpose. That’s a very good reason why this amendment would not be appropriate: because it could exclude things that absolutely should be included.
But I also want to point out that the original provision in Bill C-14 provides that for this type of offence to not be allowed to have house arrest or a conditional sentence, it must be prosecuted by way of indictment. So these very minor types of offences would not be included in that because they wouldn’t be prosecuted by way of indictment.
There’s also the very important requirement regarding involving a victim under 18 years of age. These are serious things. That must also apply. For this reason, I think that the amendment doesn’t provide the necessary coverage for the types of offences that could be included, especially when we’re dealing with a social media age where those types of extortion and that sort of thing could absolutely be the type of offence that we would not want someone on house arrest for, sitting with their computer, committing more of these types of crimes. We would want to make sure that, if the offence were that serious and they were extorting people and received a conviction for that, they should potentially not be receiving house arrest. Thank you.
Senator Simons: May I impose on Ms. Wells to reread that definition and to answer some questions about it?
Ms. Wells: I’m happy to do both. Maybe it would be more helpful if I paraphrase.
I was reading from the headnote of the Supreme Court judgment to emphasize that type of language has been interpreted by the Supreme Court in the past. It’s the definition that is relied on in interpreting what conduct is sexual for the purposes of the criminal law.
They confirm that it’s an objective test. It relates to the character and quality of the underlying act, regardless of the intent of the person. It must be visible to the reasonable observer.
Senator Simons: It must be visible to the reasonable observer?
Ms. Wells: It’s an objective test meaning a reasonable person looking at this conduct would see that it’s a sexual conduct, as opposed to “must be observable by a third party.”
Senator Simons: Could you read the language one more time? I find that very perplexing.
Ms. Wells: From the headnote?
Senator Simons: Yes.
Ms. Wells: It reads:
The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer”.
Then they go on to say that you can take into account the part of the body that’s involved, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and all other circumstances surrounding it.
Senator Simons: So this is what concerns me: That particular case dealt with a physical sexual assault. It did not deal with all of the other kinds of crimes that we are talking about. Therefore, with the greatest of respect, I don’t think it stands up as a definition to be applied to all these other kinds of offences.
It is specifically related to an assault — as you say, to where the person was physically touched. That is not a test you can apply to some of the other things we’ve been talking about. I don’t know that that 1986 definition is fit for purpose in 2026.
I appreciate Senator Dalphond’s point that a list can be limiting. But that’s precisely the point that I’m concerned about: If the list is utterly open-ended, we could capture people who were clearly not intended by the original drafting nor, frankly, encompassed by that 1986 definition, which is predicated on an actual physical assault and parsing whether the assault was physical or sexual. That is not something that can be picked up from that particular circumstance and applied to a question such as: Does stealing a girl’s underwear constitute a crime for a sexual purpose?
I hope I’m making myself clear here: That definition is to delineate between a physical assault and a sexual assault. It is not reasonable to use that definition to understand whether a different kind of crime was committed for a sexual purpose or is of a sexual nature.
Mr. Ripley: I’m not sure if you’re looking for a reaction, Senator Simons, but if you are, there are a couple of observations I would make.
What the government is trying to do, again, is recognize — as my colleague highlighted — that there may be certain offences that are dual in nature, that could be committed in a way that is sexual in nature or non-sexual in nature.
The objective in this provision, again, recognizes that it deals with minors and children, who are a vulnerable population of our society, and — as was also highlighted — in the context where the Crown has decided to proceed by indictment, which means there is a gravity associated with the offence because they are choosing to go through a more burdensome process to bring forward that charge and make that case.
To summarize the government’s position on that, it is where that offence is being committed against that minor and where the sexual nature is clear and objective to a reasonable observer. To your point, that can be applied in a variety of circumstances, obviously in a physical assault type of context, but also, as was highlighted, in an extortion context; we could be dealing with a sextortion case, for example. That is why, from the government’s perspective, the qualitative approach is the better one.
Of course, there will be cases where the accused may take issue with that, and that will be worked out as it normally would.
Senator Simons: We’re talking about cases where this is a sentence of less than two years. We’re not talking about the most heinous examples. We’re specifically talking about cases of less than two years.
By indictment, you can certainly have a sentence of 90 days or six months or a year, so I don’t accept that just because we say that the Crown decided to proceed by indictment, it’s necessarily a heinous offence if the sentence is less than two years.
If the crime is a grave one, it will have a sentence of more than two years. If the crime is linked to something like — Ms. Wells used the example of kidnapping. If a child were kidnapped for a sexual purpose, the sentence would mount up. That would not be captured by a conditional sentence, and there would never be a conditional sentence for that.
So what we’re really talking about are the most minor crimes. To say that there can be no conditional sentences in the kinds of cases that I have posited as hypotheticals — is that not going to get you to the same situation that Madam Justice Moreau was attempting to address?
Mr. Ripley: Thank you, senator. It’s tricky. In this space, again, in a context where what we’re talking about is an offence committed against a minor, it’s challenging to characterize it as a minor crime versus not because, in this context, the impact can be significant.
Having said that, there is still discretion for a judge to determine at the end of the day what a fit and proportionate sentence is, acknowledging that conditional sentence orders are being taken off the table here. That can still be calibrated to whatever situation has arisen. However, the driver for this, again, recognizing that minors are involved and it’s of a sexual nature, the government is coming from a perspective where it is signalling that it is inappropriate in those circumstances to have conditional sentence orders available where it has gone by an indictment.
You’re going to have a Crown that is working through that, and they are going to be thinking about what this is going to end with from a sentencing perspective. That will be part of, obviously, what a Crown is thinking about when making the decision and asking, “Do I proceed by summary conviction, or do I want to proceed by indictment?”
Again, the driver is to communicate the gravity of this in those particular circumstances.
The Chair: Thank you.
Senator Dalphond: I’ll be brief because we’re not here to dispute what are subjective mens rea and objective mens rea offences, but this is a crime that is guided by objective criteria, like driving in a dangerous way is governed by the rule that it’s not the mens rea of the person but the objective criteria that somebody, who is a reasonable person, would believe that it has sufficient behaviour that justifies the mens rea.
Here not adding much but just excluding from conditional sentence those offences that are of the most serious nature. Currently, courts are not authorized to order a CSO for certain offences. The Supreme Court of Canada has ruled that this is valid.
What clause 43 is proposing is to make these CSOs unavailable for sexual offences where the Crown proceeds by indictment, which is a sign that it’s a serious offence. Otherwise, in its discretion, the Crown will — because they are hybrid — use the summary proceedings.
But we are talking about something that is of a serious gravity, at least for the prosecution. Or, as well as any offence prosecuted by way of indictment of a sexual nature, according to the Supreme Court and the judges, that is a term that is sufficiently defined, or committed for a sexual purpose that involves a victim under the age of 18.
These are very narrowly defined types of offences. For these, the message that Parliament will be sending is that if you have behaved this way and are found guilty of it, you will not receive a conditional sentence. Most likely, you’re going to end up in custody. If you look at the jurisprudence — the case law from the courts — you always end up in custody.
I can remember one judgment of the Court of Appeal of Quebec that was very clear. The courts of appeal are not tolerating these people not entering into custody. Some judges at the trial level are sometimes not getting the message, so now Parliament is making the message clear.
That’s the sole purpose, and I invite you to vote “no” on the proposed amendment.
The Chair: Senators, are you ready for the question?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
An Hon. Senator: Recorded vote.
The Chair: Recorded vote? This is in favour of the motion.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Dhillon?
Senator Dhillon: No.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Moreau?
Senator Moreau: No.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: No.
Mr. Labrosse: Yeas, 4; nays, 9; abstentions, nil.
The Chair: This amendment is defeated.
Senators, shall clause 43 carry?
An Hon. Senator: On division.
The Chair: Carried on division. Shall clauses 44 to 50 carry?
An Hon. Senator: On division.
The Chair: Carried on division. The next clause is 58.1. Senator Prosper has an amendment. So let’s go with clauses 51 to 58. Shall clauses 51 to 58 carry?
An Hon. Senator: On division.
The Chair: Carried on division. We’re now at 58.1. Senator Prosper.
Senator Batters: We’re supposed to finish at 6:30 p.m., correct?
The Chair: Yes.
Senator Batters: We’ve been going for three and a half hours; other people have to get to committees. Would it be a good idea if we stopped at this point rather than go into a brand new amendment? Given the length of other things, we’re probably not going to finish our discussion before we have to adjourn.
The Chair: Senators, is this a good time to adjourn for today?
Senator Dalphond: I don’t think we can finish tonight unless we extend for another two hours.
The Chair: Tomorrow, we’re meeting from 10:30 to 12:30, and I want to put on the table the concept of meeting for an additional hour. I think we really want to get this completed by tomorrow, and I’m not sure we’ll get it done in two hours. Do you have any comments, Senator Batters?
Senator Batters: I agree with that. However, I want to make it very clear that will back us up until the chamber starts. Many of us have important things to do, so this shouldn’t be taken as saying to drag everything out tomorrow. There are many, many observations. Frankly, a lot of the observations I just finished reading pages of are pretty similar to each other, and I encourage people who have observations to consider whether, now that they’ve seen their colleagues’ observations, they need to have page-long observations and whether they would limit them. That could save us some time tomorrow.
The Chair: In summary, we’re going to take an extra hour, but we all want to finish in 45 minutes tomorrow morning, if possible. Are there any questions from anybody? No?
Thank you, senators. Clause by clause will continue tomorrow.
(The committee adjourned.)