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Criminal Code—Controlled Drugs and Substances Act

Bill to Amend--Second Reading--Debate Adjourned

June 20, 2022

Hon. Marc Gold (Government Representative in the Senate) [ + ]

Moved second reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

He said: Honourable senators, I rise to begin second reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

This bill will make significant improvements to the way we approach criminal sentencing in Canada. It won’t solve every problem, but it will help refocus our criminal justice system on rehabilitation, community well-being and genuine community safety. I’m proud to be the sponsor.

My office has already had discussions about this legislation with many honourable senators, and some of you have asked whether it will really achieve anything meaningful. Clearly, I think it will.

Let me begin by quoting some other credible voices on this point so that you don’t have to just take the government’s word for it.

The Canadian Bar Association says Bill C-5, “takes important steps towards reforming the Criminal Code to allow a more evidence-based, principled approach to sentencing proceedings.”

It predicts the bill:

. . . will lead to a fairer and more just sentencing regime, one that recognizes that criminal offences can be committed in various ways and that one size does not fit all, particularly when it comes to offenders from traditionally marginalized communities.

That’s the Canadian Bar Association.

A director of the South Asian Bar Association of Toronto told the Standing Committee on Justice and Human Rights in the other place that “we need legislation like Bill C-5” because it will “introduce discretion into the criminal justice system again.”

Senior legal counsel for the African Nova Scotian Justice Institute also testified in support, calling Bill C-5 “a necessary step towards justice.”

The Native Women’s Association of Canada calls Bill C-5 “a meaningful step towards reconciliation” and predicts that it will “immediately begin decreasing Indigenous women’s over-incarceration rates.”

In other words, this is an important and consequential bill that is highly valued by many relevant stakeholders. I look forward to sending this bill to committee for proper study. I hope that at the end of our deliberations we can turn the promise of this bill into lived reality for the many Canadians who will benefit from its provisions.

For many of us, criminal law is personal. There are senators in this chamber who have been directly affected by crime. Many of them have loved ones and acquaintances who were victims of crime and they have felt the anger, grief and vulnerability that can cause, as well as the determination to ensure that no one else goes through the same thing.

Many of us also know people who have been charged with crimes and are caught in the web of the justice system, a system that is not always fair. Our prisons are full of people who were subjected to a combination and some degree of poverty, abuse, mental illness, addiction, behaviour disorders and learning disabilities, often overlaid with the legacy of colonialism and racism, along with institutions that are designed to control, rather than support, these people and their communities.

I saw this situation many times when I was a member of the Parole Board of Canada. When you get to know people who are in this situation and you understand how much wasted potential is unnecessarily kept behind bars, it can, dare I say, it should make people want to change things. This bill will do that on two fronts: It addresses the concerns about victimization and overincarceration, and it contains several elements designed to improve the capacity of our criminal justice system to respond fairly and effectively when people break the law.

Bill C-5 reserves harsh penalties for serious criminal behaviour while recognizing that in some cases, the interests of justice and public safety are better served by flexible and creative approaches to sentencing or even by the absence of sentencing.

The part of Bill C-5 that has attracted the most attention is the repeal of a number of mandatory minimum sentences. Before I get to that, though, I’m going to discuss other aspects of the bill that will also have positive and significant impacts but have garnered fewer headlines.

The first is set out in that part of the bill that amends certain provisions of the Controlled Drugs and Substances Act. Bill C-5 would require police and prosecutors to consider alternatives to criminal charges for simple drug possession.

Essentially, this section of Bill C-5 largely incorporates the former private member’s bill, Bill C-236, which was sponsored by Member of Parliament Nathaniel Erskine-Smith in the last Parliament.

This approach is in line with the Canadian drugs and substances strategy, which is led by the Department of Health, rather than Justice or Public Safety. It is based on four pillars that include prevention, treatment and harm reduction, as well as enforcement. The idea is to treat problematic drug use primarily as a medical and social issue because, colleagues, that’s what it is.

This approach is also consistent with guidelines issued in 2020 by the Director of Public Prosecutions. Those guidelines instructed federal prosecutors to bring charges only for “the most serious manifestations” of drug possession offences, such as if a coach or a teacher consumes drugs when there are children in their care.

The approach is further informed by a 2020 report by the Canadian Association of Chiefs of Police which endorsed “alternatives to criminal sanctions for simple possession of illicit drugs” and said that diversion from the criminal justice system can have positive effects including “reducing recidivism, reducing ancillary crimes and improving health and safety outcomes. . . .”

It was long thought that a strong criminal justice approach to drug users and those involved in drug production and trafficking would result in a steady decrease in drug use, a significant reduction in the production of controlled drugs and a drug-free environment.

However, more than 50 years of the tough-on-drugs approach has not resulted in a significant reduction in the use or distribution of drugs. This approach was based in large part on the idea that problematic substance use was voluntary and that if those with a drug problem really wanted to, they could simply stop using drugs.

What research has shown is that there is a neurobiological basis for substance abuse and that it must be dealt with as a medical issue just like any other health issue. Consequently, attitudes toward drug use have evolved. Today, many health professionals, anti-drug organizations, members of law enforcement and Canadians are calling for a public health approach to drug use. This is clear from the way Canadians have reacted to the opioid crisis and the high number of deaths it has caused.

The proposed amendments to Bill C-5 include a set of principles that recognize the change in attitudes and encourage peace officers to remember that problematic substance use should be addressed primarily as a health and social issue when they use their discretion to decide whether or not to charge an individual possessing an illicit drug.

Under Bill C-5, rather than laying charges for drug possession, a peace officer shall — not may, but shall:

. . . consider whether it would be preferable . . . to take no further action, to warn the individual or, with the consent of the individual, to refer the individual to a program or to an agency or other service provider in the community that may assist the individual.

The bill stipulates that prosecutions for simple possession would only occur if the prosecutor is of the opinion that a warning, referral or other alternative measures would be inappropriate.

To guide police and prosecutors in determining what is appropriate and what is not, the bill sets out a series of principles. They’re in clause 20. I won’t read them all out. Essentially, they prioritize the health, dignity and human rights of people who use drugs as well as those of their families and communities, and recommend charges and prosecution only where public safety would otherwise be at risk.

As I mentioned, the approach to drug possession proposed by Bill C-5 is similar to the way the Public Prosecution Service of Canada has been operating for two years now, but now the bill will enshrine this approach in law and expand its application to police and provincial Crown attorneys.

In addition, the committee in the other place made three amendments regarding the Controlled Drugs and Substances Act. The first amendment sets out what kind of information can be kept in police records, how that information can be used and to whom the information can be disclosed. For example, it can be disclosed anonymously to researchers to be used in studies on the impact of these measures and whether diversion measures are more frequently used for members of a particular community. It’s important to note that this information cannot be used as part of legal proceedings.

The second amendment is particularly important. When a person is convicted of simple drug possession, their past and future convictions must be kept separate and apart from other records of convictions within two years after the sentence. This means that their criminal record will be suspended and they will not have to submit a request and pay and fees.

The same thing will happen to all existing records of simple drug possession in the two years after the implementation of the bill. This will enable individuals convicted of simple drug possession to continue living their lives. They can continue their schooling, explore employment opportunities or participate in their communities without being held back by a prior conviction of simple possession.

This addition provides the bill with a mechanism to reduce the stigma associated with simple possession convictions.

Finally, the last addition specifies that social workers, health professionals and service providers are not committing an offence when they come into possession of drugs in the course of their duties and intend to dispose of them lawfully within a reasonable period.

In practice, the goal of this whole section of Bill C-5 is to make prosecutions for drug possession an uncommon occurrence and to codify the idea that the role of police and prosecutors is not to catch addicts and lock them up, but to be part of a community infrastructure that supports everyone’s safety and well-being. This way, when police come across an 18-year-old kid with a small amount of cocaine, for example, instead of being stuck in the court system for a year and then being saddled for just two years with a criminal record — which means no one wants to hire them or rent them a place to stay, or generally having their youth ferment into estrangement, anger and despair — that kid will get a second chance. They will be more likely to go to a community treatment program, finish high school and start building a life. That’s better for the individual and for the safety of their community because healthy people living productive lives commit fewer crimes and create fewer victims.

Honourable senators, if this were the entirety of the bill it would be enough on its own to be worthy of our support, but, of course, there is more.

Bill C-5 also undoes restrictions imposed a decade ago on conditional sentence orders. When Minister Lametti met recently with the Indigenous senators working group, he expressed a particular enthusiasm for this part of the bill. A number of criminal justice stakeholders, even people who have made critiques of other parts of Bill C-5, have equally expressed enthusiasm in regard to this part of the bill. This is notably the part that the Native Women’s Association of Canada believes will immediately begin decreasing Indigenous women’s overincarceration rates.

Honourable senators, conditional sentence orders have existed in Canada since 1996. In cases where a judge determines that a sentence of less than two years is appropriate and that community safety would not be at risk, conditional sentence orders give judges the option of imposing a community-based sentence instead of incarceration. These types of sentences are accompanied by conditions set by the judge, such as house arrest, curfew or mandatory treatment programs. The alternative is often provincial or territorial jail, which is where sentences of less than two years are served in Canada. The benefit of a conditional sentence order is that people aren’t removed from their communities unnecessarily, with all the long-term consequences for them and their families that imprisonment entails.

A conditional sentence order would allow a mother to stay with her children rather than being sent to jail, which would keep her children out of the child welfare system. A CSO would allow someone to keep their job rather than having to struggle to earn a living when they get out of jail. In remote northern communities, a CSO means that a young person who commits a minor property crime does not have to be sent to jail in Iqaluit, Yellowknife or Whitehorse, hundreds or even thousands of kilometres away, when they could securely be held accountable for their acts and would certainly have better rehabilitation prospects in their home community.

Once they were given the option of imposing conditional sentences in the 1990s, courts started making use of them to a significant degree. In 2004-05, for example, nearly 19,000 conditional sentence orders were issued across Canada. That’s 19,000 people who would otherwise have been in provincial or territorial prison even though they posed no public safety risk.

In 2007 and again in 2012, a whole series of restrictions were placed on the use of conditional sentence orders. There was a long list of offences that became ineligible for them regardless of whether a judge thought a conditional sentence order was appropriate in the circumstances, and conditional sentence orders became unavailable for any offence where the maximum possible sentence was 14 years or more.

Colleagues, it’s worth pausing to fully understand that last part. Let’s take an example of an offence where the maximum possible sentence is 14 years, such as trafficking in stolen property worth more than $5,000. That offence can cover a wide range of behaviour, from a kingpin running a massive criminal enterprise to a man or a woman who drives across town with some jewellery in the trunk because their partner told them to do so. A judge might want to give that person a conditional sentence believing they pose no threat and don’t need to go to prison. However, under the 2012 changes, she’s barred from getting a conditional sentence because of the theoretical 14-year maximum. In other words, she has to go to jail simply because it’s possible to imagine different circumstances where a different person might deserve 14 years for the same broad category of behaviour. Colleagues, it doesn’t really make sense and it ruins lives.

By 2018-19, about 8,000 fewer conditional sentence orders were being issued annually compared to 15 years earlier. That’s 8,000 people per year sent unnecessarily to jail, and Elspeth Kaiser-Derrick, a researcher at the University of British Columbia, has found that Indigenous women have been particularly affected. She studied the cases of 44 Indigenous women who received conditional sentence orders. Her work shows that because of the restrictions imposed in 2007 and 2012, only 8 of those 44 women would be eligible to receive a conditional sentence order today.

There is currently a case before the Supreme Court of Canada involving a woman named Cheyenne Sharma, a 20-year-old mother from the Saugeen First Nation who transported cocaine for her boyfriend to avoid getting evicted along with her daughter.

Due to the 2012 restrictions, she is not eligible for a conditional sentence, a fact that the Ontario Court of Appeal has ruled violates her Charter rights. According to the court:

By restricting the availability of the conditional sentence, the impugned amendments —

— that is, the restrictions on CSOs —

— deprive the court an important means to redress systemic discrimination against Aboriginal people when considering an appropriate sanction. . . .

That’s what Bill C-5 would fix by reverting, more or less, to the way things were when the concept of conditional sentences was first introduced.

CSOs would remain unavailable for certain serious offences, like serious criminal organization offences, attempted murder, torture, terrorism and advocating genocide. As has always been the case, a CSO can’t be imposed where the law requires a prison sentence.

According to data on the impact of restrictions imposed between 2007 and 2012, we can expect to see more CSOs and fewer people in prison, especially Indigenous women who don’t really need to be there.

Honourable senators, it’s important to remember that, as the courts began to hand down more CSOs in the late 1990s and the 2000s, crime rates in Canada dropped. It makes perfect sense that, when people maintain ties to their community, are treated in accordance with the court-ordered conditions and are not pointlessly uprooted from their home, family and work, they are more likely to lead stable, law-abiding lives.

Importantly, colleagues, many people serve their first sentence in a provincial prison before ending up in federal custody. By preventing that initial provincial or territorial prison term, a CSO can be a circuit breaker that keeps people out of the federal system altogether.

Also, as I briefly mentioned earlier, CSOs can have a positive intergenerational impact. When a parent, say a single Indigenous mother, gets a CSO instead of a jail sentence, her children are more likely to stay in a stable family home instead of winding up in child welfare. That means those kids have better prospects, and we all have a better chance of interrupting the cycle of hand-me-down imprisonment promoted by a justice system too often at odds with social welfare.

In summary, Bill C-5 makes diversion the default response to drug possession and it removes obstacles to conditional sentences. On their own, these are significant measures that would make our justice system fairer and more effective, reduce disproportionate impacts on Indigenous and racialized communities and make us all safer.

As I said before, even if the bill stopped here, it would be worthy of support, but it goes further still: Bill C-5 also repeals 20 mandatory minimum penalties.

I will discuss which ones and why in a moment, but I will give a bit of background first. A mandatory minimum sets a sentencing floor. Where one exists, the judge can impose a higher sentence but not a lower one, regardless of the details of the case or the circumstances of the individual. Mandatory minimums have been part of criminal justice in Canada since the Criminal Code was created in 1892, ranging, at that time, from one month’s imprisonment for corruption in municipal affairs to five years for stopping the mail with intent to rob.

In the 130 years since, hundreds of mandatory minimums have been proposed, dozens have been enacted and some have been repealed. The justification for them has generally been that they make a statement about the type of criminal behaviour we find most egregious, that they guard against the occasional irrational judge who might be tempted to let someone off easy and that they deter potential offenders. That’s the justification.

In reality, though, there is no evidence that they work as a deterrent. We have an appeal system that guards against outlier judicial decisions, and most Canadians know what behaviour is egregious without being conversant in the sentencing provisions of the Criminal Code.

So there are real questions about the utility of mandatory minimums. It’s pretty clear, in fact, that they don’t make a statement. Moreover, it’s evident they exacerbate systemic racism and the overrepresentation of Indigenous people, Canadians of African descent and other historically marginalized groups.

Most of what we know about the overrepresentation of Indigenous and Black individuals and members of marginalized communities in the criminal justice system comes from national statistics collected by various governments and federal organizations. For example, we know that Black and Indigenous individuals are overrepresented among people charged with crimes.

According to data from Correctional Service Canada, Black and Indigenous individuals are overrepresented in federal institutions. In addition, between 2010 and 2020, Black people were 53% more likely and Indigenous people were 36% more likely to have been admitted to a federal penitentiary for an offence punishable by a mandatory minimum sentence.

Indigenous and racialized individuals are always significantly overrepresented in the criminal justice system, and mandatory minimums exacerbate the situation.

Mandatory minimums notably prevent courts from meaningfully applying Gladue principles meant to guide the sentencing of Indigenous people convicted of an offence. Those principles, established by the Supreme Court of Canada in R. v. Gladue in 1999 and reaffirmed in 2012, are based on subsection 718.2(e) of the Criminal Code sentencing guidelines:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

According to the Supreme Court, sentencing judges have “. . . a judicial duty to give the provision’s remedial purpose real force” by considering, amongst other things:

 . . . the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. . . .

Overall, we don’t do nearly a good enough job in Canada of making those principles a reality in every case. I am encouraged, however, that recent federal budgets have allocated new resources for Gladue sentencing reports as well as for similar initiatives that can apply to people from other communities that are overrepresented in our criminal justice system. But the over-reliance on mandatory minimum penalties has often meant that even when judges want to give Gladue principles real weight, their hands are tied.

Let’s be clear: Mandatory minimums are not the sole cause of the over-incarceration of Indigenous and Black people in Canada, but they are definitely part of the problem. Giving judges more discretion to deal justly and specifically with the person in front of them is definitely part of the solution.

Bill C-5 focuses mostly on drug-related mandatory minimums enacted in 2012 and firearms-related ones enacted in the 1990s and amended in 2008. Those represent the majority of all admissions to federal custody with a mandatory minimum. Colleagues, this is an important point to emphasize: It’s true that the bill only deals with 20 of the 70-odd mandatory minimums in our criminal statutes, but most people who get a mandatory minimum get one of these 20.

I will address the drug-related ones first. Bill C-5 eliminates all mandatory minimum penalties for drug offences. Let me say that again: If the bill passes, there will be no such thing as a mandatory minimum for a drug offence in Canada. This would be a huge development. Between 2007-08 and 2016-17, out of all admissions to federal custody for offences that currently have a mandatory minimum penalty, drug offences made up 75% of them.

The disproportionate impacts are staggering. Of everyone charged with exporting or importing drugs during that time, 42% were Black. With regard to Indigenous people, the numbers show a very disturbing trend. In 2012-13, only 1% of people charged with importing or exporting drugs were Indigenous. By 2016-17, that number had grown to 12.5%. That’s a 1,200% increase in the first five years after this mandatory minimum was enacted.

In other words, colleagues, in the last 10 years, thousands of people have been getting mandatory minimums for drug offences and they are disproportionately Black and Indigenous.

Bill C-5 is not designed to and won’t fix all the related problems, like the social determinants of crime and inequities in policing, but if we pass it, judges’ hands won’t be tied by mandatory minimum statutes in these cases. Instead, they will be able to consider the particular circumstances of the person before them and impose a sentence that makes sense for that individual with regard to public safety, rehabilitation and the realities of colonialism, racism and intergenerational trauma.

As a package, Bill C-5 represents a major shift in the way our criminal law deals with drugs. As I have outlined, it would obligate police and prosecutors to avoid bringing criminal charges for drug possession in most cases. When drug possession charges are laid, conviction records would automatically expire two years after the end of the sentence. All mandatory minimums for drug offences would be eliminated, and that means conditional sentences would be an option where appropriate and where consistent with public safety.

Once again, I will say what I have said before: If Bill C-5 stopped there, that would be enough to make it worthy of our support but, again, it goes further, which brings me to the repeal of mandatory minimums for a variety of firearms and weapons offences.

This is an area where Indigenous people are heavily overrepresented, and that overrepresentation has been getting worse. In 2007-08, 17.5% of people admitted to federal custody with a firearms-related mandatory minimum were Indigenous. By 2016-17, the number had grown to 40%.

I know that a great deal of concern has been expressed about this part of the bill, and that the offences related to firearms and weapons are undoubtedly serious. I will therefore review the mandatory minimum penalties that Bill C-5 would repeal, keeping in mind that even without a mandatory minimum, judges can and do impose harsh sentences when they deem such sentences are appropriate.

By way of clarification, our legislative regime distinguishes between a prohibited firearm, a restricted firearm and non‑restricted firearms, in addition to prohibited weapons, ammunition and devices. Prohibited firearms include short-barrelled handguns and those listed in the regulations.

Examples of restricted weapons include handguns that are not prohibited, short-barrelled rifles and centrefire semi-automatic rifles, as well as those prohibited by the regulations.

Lastly, non-restricted firearms include any firearm that is not prohibited or restricted. Most common long guns fall into this last category.

The bill would repeal mandatory minimums related to trafficking or importing and exporting prohibited or restricted weapons. To be clear, these provisions do not apply to the trafficking of firearms. Prohibited weapons under the Criminal Code are things like tear gas, crossbows and brass knuckles. Canadian judges currently have no choice but to impose a one‑year prison term on a first-time offender who brings, say, pepper spray into Canada. Now, there may be instances where that sentence is appropriate, but surely we’d want the judge to be able to consider the differences between, say, a black-market shipment of pepper spray for resale and someone who forgot they had a can in their glove compartment when they crossed the border.

Bill C-5 would also repeal several mandatory minimums involving possession of a firearm or prohibited weapon, device or ammunition. Now, one of these is already void because the Supreme Court of Canada struck it down in 2015 in R. v. Nur on the grounds that it was far too easy to come up with a hypothetical scenario where a three-year minimum for a first offence would be cruel and unusual.

For instance, it could apply to a licensed firearms owner who stores his firearm at his cottage even though his licence requires storage at his primary residence. Or in the case of possession of a firearm obtained by the commission of an offence, one could easily imagine a woman who finds herself in possession of a firearm stolen by her boyfriend and who might not deserve the year in prison that the law currently requires.

The bill would further repeal the mandatory minimum for use of a firearm or imitation firearm in the commission of another offence. As you might imagine, this charge is usually brought concurrently with the charge for whatever the other offence is, and it applies even if there is no bodily harm involved. But importantly, this provision does not apply to the use of a firearm in the commission of many serious offences like manslaughter, attempted murder, sexual assault or kidnapping, because those offences have dedicated provisions that apply when a firearm is used.

The bill would specifically repeal the mandatory minimums for use of a firearm in the commission of robbery or extortion, but only when there is no link to a criminal organization and where the firearm is not restricted — in other words, a hunting rifle — as opposed to an assault rifle or handgun. The idea here is that there are more likely to be mitigating factors in incidents where a troubled youth picks up the family’s hunting rifle as opposed to gang shootings.

Obviously, armed robbery in whatever circumstances is a very serious crime, and where the circumstances of the offence justify the imposition of a severe sentence, judges will impose it. But let me give an example of the kind of case where more judicial discretion would be warranted.

In 2016, in Hay River, Northwest Territories, a 21-year-old Mountain Dene man named Cameron Bernarde went into a convenience store carrying a rifle — a rifle with a rusted barrel and the bolt hanging open, meaning it could not fire. The clerk gave him $200 from the till although later the clerk told reporters he had “. . . never been robbed by such an incompetent person.” That makes sense. Cameron has fetal alcohol spectrum disorder, a history of sexual abuse and, according to the testimony of a psychologist, the developmental age of a 9-year-old.

Cameron pleaded guilty and was given the mandatory minimum sentence of four years in prison. His lawyer challenged that sentence as grossly disproportionate, arguing that it was unconstitutional. The constitutional challenge was unsuccessful, but even the judge who upheld the mandatory minimum in Cameron’s case said that without it she would probably have imposed three years rather than four. In other words, because of this mandatory minimum, a young Indigenous man with serious psychological difficulties got a whole extra year in jail beyond what the judge would otherwise have considered appropriate.

These are the kinds of human details that can be obscured and the kinds of injustices that can result when we rely simply on a shorthand like “armed robbery” to describe a range of behaviours and a range of contexts.

Bill C-5 equally repeals the mandatory minimums for recklessly discharging a firearm or discharging a firearm with intent. Again, this would only apply where there is no link to a criminal organization and where the firearm is not restricted.

Once again, these offences are obviously very serious and, again, where appropriate, a judge will impose the appropriate sentence. But again, let me give an example where the circumstances might warrant judicial discretion.

Cedric Ookowt is from an Inuit family in Baker Lake, Nunavut. His father has a history of alcohol abuse. In 2015, when he was 18 years old, a good friend of his committed suicide and Cedric started drinking heavily. A few months later, in 2016, Cedric was walking down the street intoxicated and another man, named Arnold, who had bullied him for years, attacked him, punched him in the face and tried to steal his bottle of alcohol. Cedric went home, got a rifle and, from a nearby hill, fired a shot into Arnold’s house, not knowing whether anyone was home. It turns out Arnold’s uncle was home, but thankfully he wasn’t injured.

The sentencing judge found that the mandatory minimum of four years was excessive. He noted that Cedric had already begun rehabilitation programs, including treatment for substance abuse at the Baffin Correctional Centre in Iqaluit.

The judge also cited the Supreme Court of Canada in Gladue and in a similar case, the 2012 Ipeelee decision, which stated the following:

 . . . courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

The judge set aside the mandatory minimum sentence and instead imposed a sentence of two years less a day. That meant that Cedric could stay in Iqaluit and continue his time in incarceration and his treatment there, in an Inuit environment. If the minimum sentence of four years had been imposed, Cedric would have been transferred to a federal penitentiary in the southern part of the country, because every sentence of two years or more is served at a federal institution.

The decision was then reversed on appeal, although Cedric had served his two-year sentence by then and the Court of Appeal chose not to send him back to prison for two more years. However, it is important to note that the Court of Appeal did not decide that it was appropriate to impose a sentence of four years. It simply stated that the mandatory minimum sentence was not excessive to the point of being considered unconstitutional. I note that this jurisprudence is subject to an application for leave to appeal to the Supreme Court of Canada, but the proceedings were delayed after the introduction of the latest version of the bill, which, as I mentioned, proposes to eliminate the minimum sentence being challenged.

It’s too early to know how the rest of Cedric’s life will turn out. The judge who heard the testimony and weighed the evidence thought that two years of treatment at a correctional centre in Nunavut was a better option in that case than four years of incarceration thousands of kilometres from Inuit community and culture. By repealing this mandatory minimum, we’re acknowledging that the judge is closer to the facts and the people involved than we are, and it should be their call to make.

Along with the repeal of one more mandatory minimum for selling contraband tobacco, that’s all of it. As senators will recall, a debate on this mandatory sentence for selling contraband tobacco in 2013 and 2014 raised particular concerns of targeting and criminalizing those who were poor and marginalized, such as First Nations people.

Colleagues, altogether Bill C-5 provides for diversion instead of incarceration for drug possession, fewer obstacles to conditional sentences, complete elimination of mandatory minimums for drug offences and more room for judicial discretion with regard to certain weapons and firearms offences.

As I noted earlier, this suite of measures is not a panacea, but it will help. It will help a great deal to take a bite out of systemic discrimination and make our communities safer, especially if it’s accompanied by resources for community programming and social supports. There have been some positive developments on this front, colleagues. Budget 2021 included $216 million over five years, with $43 million annually thereafter for youth diversion programming. There was also $75 million over three years for the development of an Indigenous Justice Strategy, including working with Indigenous peoples and organizations to address systemic barriers in the criminal justice system.

The 2020 Fall Economic Statement included $29 million to support and expand Community Justice Centres — funding that recently led to a tripartite agreement between the federal government, the B.C. government and the BC First Nations Justice Council to expand Community Justice Centres in that province.

There are also significant investments that seek to reveal gaps in the data on overrepresentation, including national data on police services and the courts, and data on offenders serving provincial or territorial sentences, which does not currently include Indigenous or ethnocultural identifiers.

Budget 2021 included several millions of dollars for Statistics Canada and Justice Canada to support the development of data collected through research to inform policy responses to the overrepresentation of Indigenous and racialized persons in the criminal justice system. In addition, the budget allocated more than $100 million over five years for a disaggregated data action plan to support the collection of new data on the experiences of Indigenous peoples and racialized groups in the criminal justice system. This includes a collaboration between the Canadian Association of Chiefs of Police and Statistics Canada, which will enable police to provide statistics on Indigenous and ethnocultural groups.

These investments are a good start. Clearly there is a need for continued investment at all levels of government and for continued hard work to turn numbers in budgets into concrete results on the ground, like the recent developments in British Columbia. I’m encouraged that we are finally heading in the right direction, and Bill C-5 is an important part of that.

Honourable senators, I know there are calls to go even further and, for instance, repeal all mandatory minimums or fully legalize all controlled substances. These are legitimate positions. Senators are free to advocate for them both during this debate and at committee, but I encourage honourable senators to recognize nonetheless that Bill C-5 is not some minor tweak. It’s not just nibbling around the edges. It’s a really big deal. It will genuinely help people. It will make our communities healthier and safer.

I want to point out that a last change was made to Bill C-5 in the other place, requiring Parliament, and thus both chambers, including ours, to undertake a full review of the provisions and functioning of this bill. This review will take place four years after its entry into force.

Honourable senators, I hope that we will be able to conduct a more thorough and detailed study of this bill as quickly as possible. Every month, hundreds of people are convicted across the country. This affects Indigenous women, who will go to prison instead of being given a conditional sentence to be served in their community, Indigenous children, who will consequently be placed in child protective services, Inuit youth in trouble, who are incarcerated thousands of kilometres from their homes, and many Black and Indigenous people, who will be sentenced fruitlessly to years of mandatory incarceration.

I’ll close with this: I know many Canadians have been waiting for a bill like this for a long time, and I truly am sympathetic to those who wish it did even more. But I’m also aware — as I’m sure you are too — that this is a difficult thing for a government to do. It’s very easy to impose harsher sentences and get tough on crime. It fits nicely on a bumper sticker. It works well in a fundraising email. But here the government is trying to do something hard — really hard — by repealing mandatory minimums and allowing for more flexibility and nuance in sentencing.

As it is, this bill has generated heated accusations of the government being soft on crime in the other place, and I’m sure we will hear some of that in this chamber too. It’s worth keeping in mind, however, where the country truly is after decades of arguing incorrectly that more jail time somehow makes us safer. Hopefully, that narrative has started to change and will change more. But, in my respectful opinion, colleagues, there is considerable merit in an approach that doesn’t start by shooting the moon — one that makes a real and tangible difference. In this regard, I’m optimistic that we can bring Canadians along on the journey to a better justice system rather than getting so far out ahead of the mainstream that we invite the pendulum to swing back.

When I began my remarks, I quoted the African Nova Scotian Justice Institute which calls Bill C-5 “a necessary step towards justice,” and the Native Women’s Association of Canada which calls it “a meaningful step towards reconciliation.”

I hope we can take this step together and soon. Honourable senators, I encourage you to support Bill C-5 in principle and to send it to committee for proper study. Thank you.

Hon. Mobina S. B. Jaffer [ + ]

Senator Gold, will you answer a question?

Senator Gold [ + ]

Of course.

Senator Jaffer [ + ]

Senator Gold, congratulations on an extremely well-thought-out and very difficult speech. Also, congratulations to the minister. As you said in your speech, it is not an easy thing to change politically and in all other ways. I compliment you and the minister. The minister has been very courageous in doing this.

But, senator, you know where I’m coming from and, of course, I support what you said, every single word you said. But to everything you say — that one size does not fit all, that we have to introduce discretion into the justice system, and, as you say, that this is difficult — yes, it’s difficult. I am saying to you not to shoot for the moon. I am saying to you that there are some cases to consider. In my calculation — and we will sort this out in committee — you said 20; I would have said 22, but that doesn’t matter.

The government is making mandatory minimum changes on 20. From what I’ve counted, there are around 73 mandatory minimums, and the judges have held at around 37. My figures may be wrong. I’m not sure — 37 mandatory minimums seem to be unconstitutional.

I say to you that there is now a mishmash out there, 20 and 37, and then there is 73. Would the government look at, in unusual and cruel circumstances, allowing the judge, on mandatory minimums, to have the discretion to not impose mandatory minimums?

Thank you, Senator Gold, once again for an excellent presentation.

Senator Gold [ + ]

Thank you, Senator Jaffer. Look, the government looked carefully at that issue and many others and came to the conclusion that it would address those offences which represent a significant majority — I think I mentioned 75% — of cases where people are actually incarcerated. And not only simply that but the types of offences — drug offences, notably, but also offences committed with long guns — that have a serious disproportionate impact on Indigenous individuals and racialized Canadians. It is clearly a major step that the government is taking to address a significant chunk of the problem.

These questions we will study, and I look forward to the study in committee. The government and the officials will have a chance to hear your questions and respond to them, but I think the short answer is that this is a major step and an overdue step in the right direction, a promise that was made during the campaign, as you know. The committee will do its job, as we always do, to make sure that the law is properly understood, and all questions are answered. The government is satisfied that the step that it’s taking now is a major step forward. It doesn’t preclude further steps in the future, but this is an important bill that deserves to be studied seriously, as we will, with your support, at second reading.

Hon. Denise Batters [ + ]

Senator Gold, in your speech you referenced a one-year mandatory minimum sentence for a prohibited weapon, which, you said, includes pepper spray. Senator Gold, come on. We both know that before that charge even gets to court, police and Crown prosecutors would lay criminal charges appropriately. Such a criminal charge would not probably even be laid if it were not appropriate. But since you used that example, how many criminal convictions have there been in the last five years in Canada for pepper spray where the accused has received a one-year mandatory minimum sentence? I would guess that number might hover somewhere around zero.

Senator Gold [ + ]

Thank you for the question. Again, these questions are best answered — you can ask them to me; everything is fair game — by the officials who have it.

I used the example to illustrate the point, senator, that in every circumstance, especially dealing with weapons as opposed to prohibited firearms, handguns and the like, there are possibly a range of circumstances.

The point to emphasize is that if circumstances like that arise, then we want judges to have the discretion to do the right thing. It’s true; you quite properly point out that police have discretion; prosecutors have discretion. It’s also true, painfully true, that this discretion is not always exercised in an equitable way in dealing with certain offenders, racialized offenders, Indigenous offenders.

What Bill C-5 does is to give to the judge — who is faced with a decision that has been made by police, by prosecutors, to lay a criminal charge in the case of a prohibited weapon — the discretion to tailor the sentence to the circumstances of the case. That is what judges should do, and I think that’s why Bill C-5 is worthy of our support.

Senator Batters [ + ]

Senator Gold, since you did reference that particular mandatory minimum being used for pepper spray in your speech, could you please get us that number and provide it to this chamber when you have it?

Senator Gold [ + ]

Well, I’ll certainly make inquiries. I will do that, but I really do want to underline the point that this is not a bill about pepper spray. This is a bill about judicial discretion to avoid injustice where circumstances and justice require that discretion be exercised and where the law simply does not allow the judge to have that discretion.

Hon. Kim Pate [ + ]

Thank you, Senator Gold. I share Senator Jaffer’s perspective. Thank you for a very well-crafted speech.

I’d like to ask you this, though. When I’ve met with members from the Department of Justice, the assertion that this will result in a significant decrease in the number of people in prison has not been borne out by the Department of Justice’s own research. In fact, they indicate that maybe, as you’ve indicated — and most of the examples you used were of provincial and territorial incarceration — there may be some decrease for Black and some Indigenous folks, but there won’t be a huge decrease at all, in fact, no significant decrease in the numbers of Indigenous and Black prisoners serving two years or more.

In addition, most of the changes that are talked about in the drug laws have already been achieved through health policy and negotiations between provinces and municipalities.

Finally, I’d like to ask you this. You mentioned the testimony of the Canadian Bar Association, the South Asian Bar Association, the African Nova Scotian Justice Institute, PhD candidate Elspeth Kaiser-Derrick, all of whom went on to recommend that the bill go much further. Wouldn’t you agree that, in fact, in most cases, the evidence, including from Aboriginal Legal Services, from the Canadian Association of Chiefs of Police and many other witnesses at the Justice and Human Rights Committee in the House of Commons, recommended not that we shoot for the stars but, in the interim, until other mandatory minimum penalties are repealed, that judges be permitted the structured discretion to not impose mandatory minimum penalties in exceptional circumstances?

Senator Gold [ + ]

Thank you for your question. The government’s position is that the research and the testimony do, in fact, support the proposition that if and when Bill C-5 is passed in this form, it will have a real impact on the overrepresentation of racialized Canadians and Indigenous Canadians who are subject to it.

It’s true that where circumstances are such that a serious prison term — that is to say, two years or more — is thought appropriate by a judge, it’s the federal system that receives the inmates. But it’s equally true, as I said in my speech, that it’s important to do things to break that all too familiar pattern of beginning in the provincial system and then, regrettably, escalating to the federal system.

We’ll study this in committee. I hope we will send it to committee for proper study, and all of these questions will, of course, be addressed. I have every confidence in the committee to address them as diligently as we do all of our work. Thank you for your question.

Senator Pate [ + ]

Senator Gold, would it be possible to provide that information? My last discussions with officials from the Department of Justice indicated that a full 34% of all Charter challenges they are dealing with have to do with mandatory minimum penalties, and they hope that this will have a significant impact but they cannot produce figures to shore up that hope. Would it be possible for you produce those figures for us, please?

Senator Gold [ + ]

Of course, I’ll certainly make the request. I’m sure the committee will make its request, and they will produce all the evidence, figures and research that they have.

The art of legislating is the art of dealing with the facts that one has and making a decision in public policy that is deemed to be in the best interests of moving the justice system — in this case the criminal justice system — forward in a more just, equitable and humane way.

Again, I have confidence in the process that we have embarked upon. I have confidence that the committee will have access to all the information upon which the government made its decision. I am hopeful that in the process of examining the legislation in second-reading debate, in committee and again in third-reading debate, when we’re back in the fall, that honourable senators will see the merits of this bill as being a major step forward, not perhaps the last step forward or the only step forward, but a major step forward in addressing an unjust situation in our criminal justice system.

Hon. Renée Dupuis [ + ]

Senator Gold, as the sponsor of the bill and the Government Representative in the Senate, could you provide information about the gender-based analysis plus that was done when the bill was drafted? The government requires such an analysis, and we know that a confidential document was submitted in the memorandum to cabinet. However, that is not what I am talking about; I am talking about the content of the analysis. I think that would help the committee do its work in reviewing this bill.

Senator Gold [ + ]

Thank you for your question. I will find out what is out there and what can be tabled. I encourage honourable senators to pursue this line of questioning before the committee. That said, I will still look into it.

Senator Dupuis [ + ]

Senator Gold, thank you for encouraging me to ask the question in committee. I have been doing that consistently for years in the Senate, and I am trying to find a more efficient way of obtaining the information that is often “missing,” as the Auditor General regularly laments in his annual report. I take note of your commitment to get the information, and I thank you.

Hon. Michèle Audette [ + ]

My questions for the Government Representative in the Senate are the following. Did the process of drafting and preparing this bill take into account the Gladue decision, the United Nations Declaration on the Rights of Indigenous Peoples, and all of the recommendations of the National Inquiry into Missing and Murdered Indigenous Women and Girls regarding the changes needed to reduce the very high percentage of Indigenous women and men in our federal institutions and prisons?

Also, can you confirm that there will be a mechanism to follow up on what the government is proposing, which will ensure that all this will be encouraging to the nations, to Indigenous women and men?

Senator Gold [ + ]

Thank you for the question. It’s clear that the bill was guided by the need to give judges the ability to appropriately apply the Gladue principles.

The bill is also clearly a response to the real and shameful problem of overrepresentation of Indigenous women and Canadians from marginalized communities in prisons.

At second reading, the objective is to present and debate the principles of the bill, and, if the Senate so desires, to support the bill. The next step would be to refer it to committee, which can then get to work, delve into the details, and call the minister and his officials to testify and answer more specific questions.

I encourage you to participate in the process. All senators have the right to attend and participate, even if they are not members of the committee. This is how we can adequately respond to your valid and legitimate questions.

Hon. Dan Christmas [ + ]

Thank you, Senator Gold, for your remarks. I appreciate the many examples of individuals who could benefit from the removal of mandatory minimums.

Senator Gold, my question is similar to other senators’. If these mandatory minimum sentences were removed, do we have any projections or studies as to what the anticipated reduction of federal incarceration rates will be for Indigenous people as a result of this bill?

Senator Gold [ + ]

Thank you for the question. I don’t know whether projections of that kind have been done, Senator Christmas. I do know, though, as I tried to set out in my remarks, that when the mandatory minimum sentences were added to additional offences, the rates of incarceration for Indigenous Canadians and members of other communities increased.

It is reasonable to expect — given the statistics that I cited — that there will be a diminution. Whether or not there are actual projections, I just don’t know. I would encourage that to be explored in committee, where whatever information that is available can be explored.

Senator Christmas [ + ]

Thank you, Senator Gold. I would very much be interested to see what studies and projections were done. I think that kind of data will be most useful.

I also appreciate the reintroduction of community service orders, and I believe the success of that amendment will depend upon a significant increase in support services that are offered to the communities. Quite often judges are so hesitant to refer individuals back to the communities because of the lack of services.

You mentioned some funding increases, but has Indigenous Services Canada been a part of this bill? Will they significantly increase the amount of support services that the communities will need to assist people on community service orders?

Senator Gold [ + ]

That’s a good question, and I don’t know specifically the degree or extent or involvement of Indigenous Services with the drafting of this bill. Again, I expect that answer will be easily available at committee.

You raise a larger point, and I raised it in my speech but it bears repeating. We’re dealing here with a situation when we’re focusing on the overrepresentation of Indigenous offenders and those from racialized communities. We are focusing on the criminal justice system, but there is a whole world and history that has led us to this place, and we know it. We, in the Senate, know it well. The Aboriginal Peoples Committee knows it well, and there has been work done on the United Nations Declaration on the Rights of Indigenous Peoples.

We also know, to your point and as I mentioned in passing, that the success of any of these measures depends upon a whole-of-society approach to address our history, and in some cases what is required clearly, as you pointed out quite correctly, is resources: it’s funding. It’s fine to have a diversion program if you are in downtown Toronto or Montreal, but if you are in a much more remote area where there are no resources, no treatment centres, no appropriate facilities, then it is a hollow promise. There have been investments. There need to continue to be investments at the federal, territorial and provincial levels, and within First Nations communities and others.

There are all kinds of ways to capture the idea to not let the best be the enemy of the good. In this case, we have a societal problem and a history that we are trying to tackle. It will take time and generations, perhaps, but every step in the right direction — and this is a step in the right direction in my humble opinion — is worth taking and celebrating. This should be done without fooling ourselves, however, that it is a panacea and without ignoring all the other supports — financial, social and others — that need to be put into place to make this a lived reality and make the improvements in the justice system tangible for Canadians.

Hon. Paula Simons [ + ]

Would the Government Representative in the Senate take one more question?

Senator Gold [ + ]

Sure, one more.

Senator Simons [ + ]

I wish I could say one last question, but I cannot make you that promise.

Senator Gold [ + ]

My hearing wasn’t so good. Of course.

Senator Simons [ + ]

Much like Senator Jaffer and Senator Pate, I think there is so much tremendous potential in this bill, and you have made an eloquent case for why this is an important and necessary first step.

However, will there be any kind of commitment from the government to use this as a beta case to see how well these changes work and to build upon that and consider a second tranche of charges? Once we have proof of concept, will there be any kind of expectation that the government will build upon this foundation to offer more judicial discretion for the next range of charges?

Senator Gold [ + ]

Thank you for the question. I don’t know, and certainly on behalf of the government I cannot make that commitment, but I will point to a few things. First of all, an amendment introduced in the other place that is now part of Bill C-5 does require a parliamentary review. That will be one way in which we in the Senate, because we play a role in this, can monitor the impact of the bill to determine what improvements might be made or an expansion, if that’s the direction that the evidence leads us to.

The other point is a more political one, and I made it in my remarks, which is that not unlike medical assistance in dying, not unlike the legalization of cannabis, in a democratic society, a government can and does lead. Sometimes courts lead, to be sure, but sometimes governments lead, as we did in the legalization of cannabis. I think the point was made by our colleague in another context that when the issue of legalizing cannabis was first introduced, I’m not sure this chamber was altogether on board. However, with time, study, discussion, sober and reasoned non-ideological — in the worst sense of ideology — discussion we brought ourselves to a point where we could and did take a major step, and Canadians are and have followed us.

Similarly, I think the government is of the view that it is doing the right thing now in terms of what Canada is ready for, and I believe that this government will always be open to continuing to try to improve the system. However, at this juncture, it’s the government’s view that this is an important and major contribution towards equity and fairness in our system. I don’t want us to get ahead of ourselves. I want to pass this and get it to committee. I want it to get out of committee and have third reading debate. And if it does pass third reading, which I hope it will, then there will be opportunities through the parliamentary review process and the political process to see what more can be done, if that is warranted.

Senator Pate [ + ]

Thank you, Senator Simons, for sparking another question from me. In discussions with the government, it was clear that the primary focus for this legislation was to address mandatory minimum penalties, which was in the 2015 election platform, as you know, as well as in the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls and the Calls to Action of the Truth and Reconciliation Commission. It has been clearly laid out that this is only a step forward, even though there is a patchwork of mandatory minimum penalties; and, unlike the medical assistance in dying, where our most recent debates were sparked by 1 lower court decision, we have more than 43 court decisions, and counting, that have struck down mandatory minimum penalties.

Would it be too far for me to go to say that it has been brought to my attention that this is likely the only opportunity and there are many people, both within the government and outside, who want to see us push on this piece of legislation to actually help it achieve the aim that the government has ascribed to it?

Senator Gold [ + ]

Senator Pate, I’m not sure I actually agree with, if I understood correctly, your question. There are clearly people who want this bill to go further. There are those who deplore that it is taking any steps whatsoever, and we will hear that debate both in committee and beyond.

There have been many challenges to many mandatory minimums, and the courts have upheld some and struck down others. Many are currently before the courts as well.

With respect, I don’t think that calling this a patchwork approach does justice to the thought that went into it. It focused on those 20 offences that represent the great majority — that’s the government’s understanding — of the impact of mandatory minimums on the lives of those who were subject to the criminal justice system and those I mentioned, notably drug and long gun offences, where the impact is disproportionately felt by members of the Indigenous and racialized communities.

Finally, I don’t think that we know that this is the last chance or the only chance. The legislative process is an iterative one in a democracy. This government has presented this major step forward. It is too much for some and too little for others. That doesn’t make it right just because it’s sort of like the story of Goldilocks and the Three Bears, but the government is of the view that it is a responsible and appropriate response to a real social problem and, if passed, will make a real difference.

Senator Pate [ + ]

Senator Gold, I think you know that if, in fact, that were true, the government would have produced that evidence. But the evidence they have produced was that 9 in 10 Canadians want to see an elimination of mandatory minimum penalties. Wouldn’t you agree that data has been clearly sought and received by the Department of Justice?

Senator Gold [ + ]

Senator Pate, I don’t think that in my speech and my defence of the principles of this bill did I rely upon the views of Canadians or public opinion. I’m talking about the number of offences for which the majority of persons are sentenced and committed by virtue of mandatory minimums. That was the data that I was referring to.

The government, like all democratic governments and certainly our democratically elected government, must and should be responsive to public opinion, but it also has a responsibility to do what it believes is the right thing in the circumstances. We do not pass laws by referendum but through the processes in which we are engaged now. Again, it’s the position of the government that the scope of this bill is supported by the evidence. It’s supported by the facts on the ground and, if passed, it will make a difference on the ground.

Senator Pate [ + ]

I apologize. I obviously didn’t articulate that very well, Senator Gold. What I was saying is that if that evidence existed to show that these mandatory minimum penalties would significantly impact the incarceration rates, that data would have been produced and would have been part of your speech. I don’t envy your position of having to defend that, but it would have been. There have been numerous questions and certainly there is an abundance of evidence that the data has not been produced. You have not been able to provide the actual numbers. Have I missed something?

Senator Gold [ + ]

I understand your question. I have presented to the best of my ability the reasons for which the government believes that this is an appropriate bill to be debated and, of course, passed. The government is relying upon the evidence of the kinds of offences for which mandatory minimum penalties are required under the current law, the consequences to Canadians who are subject to these mandatory minimums and the overrepresentation of those Canadians, whether Indigenous or other racialized communities, as a result. These questions and the questions about whether forecasts have been done as to what the possible impact will be, all that, as I said, I have answered. I don’t know whether forecasts were done in that regard, and that’s why I undertook and encouraged it to be a subject of study in committee.

It remains legitimate for a government to legislate based upon the state of knowledge and information that it has, what we call legislative facts. In that regard, the government has a set of legislative facts upon which it has relied, and Bill C-5 is a product of that. That’s why it has been supported in principle by organizations that represent those who are the most intimately affected by the mandatory minimum penalty provisions in the Criminal Code.

Hon. Claude Carignan (Acting Deputy Leader of the Opposition)

Honourable senators, I rise at second reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

Bill C-5 includes the following measures, which I will address in order in my speech. First, it increases the number of offences for which a judge may sentence an offender to a term of imprisonment to be served in the community. As the legislative summary for the bill states, and I quote:

A conditional sentence is one where an offender is sentenced to a term of imprisonment of less than two years, to be served in the community subject to particular conditions. . . .

Second, Bill C-5 repeals a number of minimum sentences of imprisonment. Third, it proposes diversion measures for simple possession offences involving drugs other than cannabis.

One of the objectives of Bill C-5 is to comply with the Ontario Court of Appeal ruling in R. v. Sharma. That ruling declared paragraph 742.1(c) of the Criminal Code unconstitutional. That paragraph prohibits the use of imprisonment in the community for offences punishable by a maximum term of imprisonment of 14 years or more. It also found subparagraph 742.1(e)(ii) to be unconstitutional. This subparagraph prohibits imprisonment in the community for indictable offences punishable by a maximum term of imprisonment of up to 10 years and involving the importation, exportation, trafficking or production of drugs.

However, Bill C-5 goes further than the findings in the Sharma case, because it also proposes to allow imprisonment in the community for a range of offences that involve the use of a weapon or result in bodily harm, including the offences of sexual assault and criminal harassment.

There is a disconnect, or even a failed approach, in Minister Lametti’s decision to introduce Bill C-5 to comply with a ruling that is currently being appealed before the Supreme Court by federal prosecutors from the Public Prosecution Service of Canada.

I would point out that this case has been under consideration before the Supreme Court of Canada since March 23, so the court should be handing down its ruling in the next few months.

Either Minister Lametti’s decision to introduce Bill C-5 was premature, given that the Supreme Court could have handed down a ruling during our study of the bill that would have struck down the appeal court’s declaration of unconstitutionality, or the federal prosecutors filed an unnecessary and no doubt costly appeal to the Supreme Court at Canadian taxpayers’ expense.

I want to note that the previous version of Bill C-5 was Bill C-22, which died on the Order Paper because of the last election. During the study of Bill C-22, federal prosecutors sent a letter to the Supreme Court of Canada on March 8, 2021, asking the court to postpone the appeal hearing. In that letter, the federal prosecutors promised to drop the appeal if Bill C-22 came into force, since they felt that this would render the appeal moot.

After the election was called, the federal prosecutors decided to pursue their appeal after all. However, I note that their arguments in appeal contradict the need for the measures proposed by Minister Lametti in Bill C-5 regarding community-based sentences. I will come back to this later.

I remind senators that this bill proposes to give judges the discretion to impose community-based sentences, meaning offenders serve their sentence at home rather than in prison. Those sentences would be allowed even for offences that are practically the most serious in the Criminal Code, those punishable by a maximum term of imprisonment of 14 years or more.

To convince you, I will cite a few examples of criminal acts that are inherently dangerous but for which Bill C-5 would allow community-based sentences: manslaughter without the use of a firearm; hostage taking without the use of a firearm; trafficking of fentanyl or certain firearms; sexual assault with intent to wound, disfigure or endanger the life of an individual 16 years of age or older, provided that the assault is not committed with a firearm; robbery with a firearm, unless committed for the benefit of a criminal organization. I am of the opinion that there is no logic in allowing community-based sentences for such serious offences that pose such a danger to the safety of Canadians.

My argument can be based on the federal prosecutor’s brief to the Supreme Court in their appeal proceedings of the Sharma decision, which I mentioned. Their brief provides a compelling review of excerpts from Hansard, supporting the idea that the government’s intention was always that community imprisonment be reserved for less serious Criminal Code offences. On this point, their brief quotes the following statement by former MP Robert Goguen, who spoke as parliamentary secretary to the Minister of Justice on September 21, 2011:

This government is addressing the concerns of Canadians who no longer want to see conditional sentences used for serious crimes, whether they are violent crimes or property crimes.

In their brief, the prosecutors could have also cited another statement made by Mr. Goguen on the same day, and I quote:

Conditional sentencing came into effect in 1996, when the government wanted, among other things, to reduce excessive use of incarceration for less serious crimes. I repeat: less serious crimes. . . .

However, in the years following the creation of this type of sentencing, there has been a complete lack of consistency when it comes to determining when conditional sentencing is appropriate.

At the time, many court decisions gave a conditional sentence for serious and violent crimes. This contributed to the public’s loss of faith in the justice system. Clearly, many people, and some provinces and territories, wondered whether the limits on conditional sentencing set out in the Criminal Code were sufficient.

The problem that Mr. Goguen described in 2011 is one that I believe will recur if Bill C-5 is passed. It is one of the major reasons I oppose this bill. By allowing the courts to sentence offenders who have committed an inherently serious and dangerous offence to serve their time at home instead of in a provincial jail, I am concerned that this bill will trivialize these crimes. I am concerned that it will be more difficult to protect the public from the people committing these offences and that, consequently, Canadians’ confidence in the criminal justice system will be undermined over the coming years.

I share the same concern about another important measure in the bill, namely repealing a series of minimum prison sentences. For example, it proposes to abolish several minimum sentences for the offences of using, importing and trafficking firearms. What a bad time for the federal government to propose these measures, which would reduce the severity of sentences imposed by judges at a time when there is a striking increase in gun‑related crime, particularly in Montreal. It is therefore not surprising that the Government of Quebec has officially expressed its serious concerns to Ministers Lametti and Mendicino regarding this bill.

Quebec’s ministers of justice and public safety wrote a letter to their federal counterparts on May 4, 2022, in which they asked the federal government to remove the repeal of minimum sentences for gun crimes from the bill:

Taken together, the amendments in Bill C-5 will impact Quebec’s responsibilities with respect to the administration of justice and policing matters on its territory. Repealing mandatory minimum sentences for certain gun-related offences could contradict initiatives that the Government of Quebec adopted recently to tackle gun violence. We believe that the approach in Bill C-5 also contradicts actions that your government has taken to combat this kind of violence. We note that the situation in Quebec is unprecedented. In Montreal, offences involving firearms and other weapons have increased markedly over the past year.

Clearly, the federal government’s actions must be consistent with provincial and territorial realities. Quebec is therefore requesting that the bill not repeal mandatory minimum sentences for the gun-related offences identified therein.

On another note, the bill proposes diversion measures for individuals who commit the offence of simple drug possession.

I recognize the importance of the spirit of the principles set out in the law to justify diversion measures. For example, the bill sets out the following principle:

(c) criminal sanctions imposed in respect of the possession of drugs for personal use can increase the stigma associated with drug use;

It also states:

(e) judicial resources are more appropriately used in relation to offences that pose a risk to public safety.

That said, I’m opposed to the rather vague nature of the existing wording in the bill regarding the application of the diversion measures. For instance, the bill states that:

A peace officer shall . . . consider whether it would be preferable . . . to refer the individual to a program or to an agency or other service provider in the community that may assist the individual.

What does “other service provider in the community that may assist the individual” mean, and what kind of assistance does that refer to? Does that mean a drug treatment centre offering several months of closed therapy? If so, how is a police officer who arrests a heavily drug-intoxicated person in the street at 3 a.m., in a remote region, supposed to find a therapy centre that is prepared to immediately assess the person and admit them for therapy, assuming the person agrees? If this is the kind of diversion measure that Bill C-5 is intended to allow, I can well imagine that it will be very difficult to enforce, particularly in remote communities that too often lack access to substance abuse prevention and treatment resources.

I’m also wondering whether the diversion measures proposed in Bill C-5 take precedence over the diversion measures that are currently allowed under the Youth Criminal Justice Act for those under 18. This question is worth asking, considering that the text of Bill C-5 does not provide for any incorporation by reference of the two acts.

As a final point, I am concerned that Bill C-5 does not require the provincial government to select and authorize the community or therapeutic organizations or the type of services that will be offered as diversion measures. In my view, the province’s agreement is essential in order to prevent the federal government from interfering in provincial jurisdictions in the areas of health care and social services under the guise of its jurisdiction over criminal law. The language used in the principles set out in Bill C-5 shows, in my view, that the diversion measures in the bill seek primarily to achieve objectives that promote health and not solely criminal law objectives.

For all these reasons, I urge you to vote against this bill. Thank you.

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