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Criminal Code—Controlled Drugs and Substances Act

Bill to Amend--Third Reading

November 17, 2022

Hon. Denise Batters [ - ]

Honourable senators, I rise today to speak in opposition to Bill C-5, the Trudeau government’s proposed legislation to repeal some mandatory minimum penalties and to offer conditional sentences for certain offences. This bill will not fulfill its intended purpose as established by the Trudeau government: to decrease Black and Indigenous overrepresentation in the prison system. Instead, this legislation will place victims of crime at risk — especially female victims of domestic abuse — by returning abusers through conditional sentences into the very communities where their victims live in fear. Bill C-5 is just one more example of the Trudeau government’s propensity for talk over action.

When Justice Minister Lametti appeared before our Senate Legal Affairs Committee, he presented Bill C-5 as a bill meant to address, as an example, “. . . an Indigenous mother who was caught in very low-level trafficking in order to put bread on the table.” The idea was, of course, that Bill C-5 would allow conditional sentencing for certain offences and remove mandatory minimum penalties from others so that judges would have more discretion at the lower end of sentencing in cases like these. However, just two weeks ago, the Supreme Court of Canada upheld the constitutionality of Parliament’s limitations on conditional sentencing from 2012 and found that while an offender’s personal circumstances should be taken into account, they do not reduce the severity of that offender’s crime.

It is unfortunate that the Senate Legal Committee didn’t have the opportunity to hear from more witnesses representing victims of crime during our study on this issue. We couldn’t even hear testimony from the Trudeau government’s new Federal Ombudsperson for Victims of Crime, Mr. Benjamin Roebuck. Even though Mr. Roebuck was appointed on October 24, he was not yet officially installed by the time we needed him to appear, so he was not made available to us. Given that the victims ombudperson position had sat vacant for more than one year, this situation speaks volumes about this Trudeau government’s utter lack of regard for victims of crime.

This fake feminist Trudeau government betrays Canadian women with this legislation. Its own Gender-based Analysis Plus of Bill C-5 is, frankly, a joke. The government’s analysis only mentions women in passing and doesn’t mention women who are the victims of intimate-partner violence at all or how this legislation will affect them.

We heard Senator Klyne’s speech in this chamber on Tuesday night, extolling the virtues of Gender-based Analysis Plus evaluations. He said they “ . . . enhance federal legislation’s value for women, including Indigenous women.” Well, the GBA Plus analysis for Bill C-5 certainly doesn’t. It only even mentions Indigenous women twice, saying that Indigenous women have triple the violent victimization rate of non-Indigenous women. Even at that, the analysis fails to mention violence against Indigenous women in the context of intimate partner violence. For example, we know that almost twice as many Indigenous women experience sexual and physical violence at the hands of an intimate partner or family member than non-Indigenous women do. We know that Indigenous women also more frequently suffer more severe forms of spousal abuse, including sexual abuse, abuse involving a weapon, beating and choking.

And yet, in Bill C-5, the Trudeau government is making conditional sentences available to offenders convicted of offences common in intimate-partner violence scenarios, including sexual assault, criminal harassment and being unlawfully in a dwelling house. If women — especially Indigenous women — are supposedly one of the motivations for this legislation, the Trudeau government’s gender-based analysis should examine how this legislation will actually impact that group. Unless, of course, they know it cannot be justified. I suspect that it is the case with Bill C-5.

Removing mandatory minimum sentences and making serious offences eligible for conditional sentences will only create more vulnerable female victims by returning abusers and criminals into the communities where their victims live and work. This bill is absolutely going in the wrong direction.

Conditional sentence orders are not infallible. Offenders can and often do breach these arrangements. In one study of conditional sentencing in B.C., researcher Dawn North found the overall breach rate of three communities was 37.6%.

Professor Isabel Grant of the University of British Columbia’s law school has published research showing that male intimate partners who criminally harass their female partners often find ways of getting around non-contact orders with their victims. She said:

. . . orders are often resorted to in criminal harassment cases, but they often fail to stop the harassment and can be counterproductive in some cases.

Perpetrators become quite skilled at learning how to manipulate the limits of the criminal justice system by finding ways to harass which do not violate the terms of the legislation.

It is noteworthy that Bill C-5 allows for a conditional sentence to be served as the penalty for a conviction of prison breach — ironically, serving house arrest for breaking out of prison. Does this inspire clear confidence that an offender will adhere to the restraints of their conditional sentence? No way. And the devastating result in cases of domestic violence is that the results could be catastrophic and even deadly.

London Abused Women’s Centre Executive Director Jennifer Dunn put it this way:

A conditional sentence does nothing to stop an offender from continuing to commit violence. Women need the courts to see this. Yes, there are strict conditions imposed when it comes to a conditional sentence, but that does not mean that they will be followed and a woman’s life could be at risk.

Victims of crime, particularly vulnerable female victims of domestic abuse, already live a life of fear. Bill C-5 would only make that worse, because it will dramatically increase the possibility that a woman’s abuser could be returned to her community, or even to her own neighbourhood.

Penny McVicar, Executive Director at Victim Services of Brant, told the House of Commons Justice Committee how women victimized by abuse live in constant fear:

I see too many victims who are now not reporting to police because of the fact that they feel like it’s a revolving door. They report to the police, the suspect is arrested, and then they’re back out on the streets before the victim even has time to get a good safety plan in place.

I write priority housing letters on an almost daily basis for victims trying to relocate, hoping to find someplace safe that they can live where their abuser won’t be able to find them. The shelters are overflowing because we don’t have enough shelter space for women trying to get away from violent offenders.

Removing mandatory minimum penalties from some serious offences and making conditional sentences available for others will further undermine victims’ — and Canadians’ — trust in the justice system. Bill C-5 will also make victims of intimate partner violence less likely to report abuse if it happens again.

Where Bill C-5 does affect women — especially Indigenous women — it only serves to impact them negatively. The Trudeau government has based this entire legislation on the ideological underpinning that it will reduce the overincarceration of Black and Indigenous offenders.

However, two of the only witnesses at the Senate Legal Committee who actually gave us statistical evidence — University of Ottawa Department of Criminology Professor Cheryl Webster and doctoral candidate Dawn North — testified the measures in Bill C-5 would barely touch overincarceration of indigenous offenders. Professor Webster said:

. . . Indigenous offenders generally — and especially Indigenous female offenders — are, relatively speaking, left behind. Specifically, the government’s own data from the Correctional Service of Canada suggests that a smaller proportion of Indigenous Canadians overall — and an even smaller proportion of Indigenous female Canadians — have the possibility of benefiting from this bill. . . .

Witness Dawn North agreed, stating:

. . . the populations targeted by Bill C-5 will not experience a proportionate benefit, in part due to concerns around their ability to comply with the onerous conditions of the typical conditional sentence, and partly because appropriate community supports are not consistently available. . . .

Ms. North also testified about the link between breach of conditional sentences and Indigenous offenders:

The research does suggest that even when conditional sentences were broadly available, Indigenous populations or offenders didn’t proportionately benefit from them. There were instances when they were benefiting, but it wasn’t in the same proportion as other offenders. There’s also data suggesting Indigenous offenders tend to have higher breach rates even when they are granted conditional sentences. This becomes, of course, a problem for overall incarceration rates when they’re imprisoned upon breach. . . .

Shockingly, several of the witnesses we heard from at committee opposed all mandatory minimum penalties on ideological grounds, without providing evidence to back up their assertions. Some witnesses wanted to eliminate mandatory minimum penalties completely, regardless of the severity of the crime.

Some witnesses and some senators in this chamber even advocated for the repeal of mandatory minimum penalties in the case of murder convictions as, again, we saw with Senator Clement’s amendment this week. Wisely, we voted not to implement that. It would have been a huge mistake, honourable senators.

Because of the influence of American news and American entertainment, a lot of people have the impression that our justice system is much harsher than it actually is. Canadian sentences are already much lower than U.S. sentences. Even the current sentences for murder in Canada do not compare to the heavy sentences we see in the United States.

In Canada, first-degree murder carries a sentence of life with a chance of parole in 25 years, and for second-degree murder the automatic sentence is life with a chance of parole in 10 years.

Another key difference between the Canadian and American systems is that of time actually served in jail. Many Canadian offenders are released after serving only one third of their sentences; because of statutory release, almost all are released from incarceration after serving two thirds of their sentences.

Mandatory minimum penalties offer certainty and predictability in sentencing. At a time when half of Canadians have expressed a lack of faith in the fairness of the criminal justice system, we need to give Canadians more confidence in the sentencing for serious crimes, not less.

We need to give victims of crime the security they need to rebuild their lives, free from fear of encountering their perpetrator who has been released into that victim’s community on a conditional sentence.

The Trudeau government has missed the mark on this legislation, as they so often do. They are so caught up in performative virtue signalling that they have completely missed the point.

Minister Lametti says his aim with this bill is to lower the overincarceration of Black and Indigenous offenders. However, the evidence shows Bill C-5 will do little for Black offenders and won’t do anything for Indigenous offenders.

This kind of behaviour is a pattern with this Trudeau government. I’ve seen it when I tried to get the government to keep the peremptory juror challenge process in Bill C-75.

Many defence lawyers told our Senate Legal Committee they used peremptory challenges to weed out potentially racist or biased jurors to assist their racialized defendants. Still, this government stubbornly insisted on removing it.

Similarly, in Bill C-46, the Trudeau government’s impaired driving bill, the government allowed the police to conduct random mandatory alcohol tests without any basis of reasonable suspicion. I opposed the measure and moved an amendment to remove the clause, given warnings that mandatory random testing could increase racial profiling by police. My amendment passed at the Senate Legal Committee and in the Senate. Still, the Liberal government forced it back in.

However, just last month, the Quebec Superior Court ruled that police motor vehicle stops without cause are, in fact, a violation of Charter rights.

When it comes to actually acting in the real and best interests of Black, Indigenous and racialized Canadians, this Trudeau government never misses an opportunity to miss an opportunity. The same can be said of its empty, fake feminist platitudes on issues that actually matter to women.

Time after time when this federal government has the chance to make a difference, they opt instead for the superficial solution that might sound good but is, at best, completely ineffective and, at worst, devastatingly harmful. Bill C-5 is a prime example.

This bill will do precious little to address the issue of Black overincarceration. It won’t even touch the issue of Indigenous overincarceration and, paradoxically, this bill could very well make it worse.

Bill C-5 puts at risk victims of crime, vulnerable victims of domestic violence — most of them women — and pulls them back into a web of danger. If you care about these issues, honourable senators — if you care about women, if you care about safety, if you care about actual justice — I implore you, please vote against this bill. Thank you.

The Hon. the Speaker pro tempore [ - ]

Honourable senators, before we move on, we had a vote at 6:11 p.m. There was an understanding not to see the clock. I didn’t ask the question. For procedural reasons, I am now asking: Do senators want to see the clock?

The Hon. the Speaker pro tempore [ - ]

Thank you. We shall resume debate.

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

In this speech, I will focus on two measures in the bill. The first is the increase in the number of offences that allow for community-based sentences to be imposed upon conviction. The second is the repeal of several minimum prison sentences, including for firearms and opioid trafficking offences.

Bill C‑5 encourages community-based sentencing. If it comes into force, it will allow judges to impose sentences that require people convicted of very serious offences to serve their sentences at home rather than in prison.

One of the things Bill C‑5 repeals is the rule set out in section 742.1(c) of the Criminal Code, the provision that prohibits the use of conditional sentences where the offence carries a maximum sentence of 14 years or more of imprisonment, but no minimum term of imprisonment.

Some examples of offences covered by 742.1(c) are aggravated assault of a peace officer, trafficking of fentanyl, sexual assault with intent to endanger the life of an individual 16 years of age or older provided that the assault is not committed with a firearm, arson of a property where the person knows that or is reckless with respect to whether the property is inhabited or occupied, and driving a vehicle in a manner that is dangerous to the public or causes death.

These offences are inherently very serious, so it is very concerning, from a public safety standpoint, that the government is willing to allow imprisonment to be served in the community in these cases.

Take the example of the offence of drug- or alcohol-impaired driving causing death, which is also covered by paragraph 742.1(c). The Supreme Court of Canada has emphasized the danger that this offence poses to society. In the 2015 decision in R. v. Lacasse, the court stated the following:

 . . . courts from various parts of the country have held that the objectives of deterrence and denunciation must be emphasized in order to convey society’s condemnation . . . .

In that same case, the court also noted the following:

While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence . . . .

In addition, the ruling states:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

I am concerned that by allowing imprisonment to be served in the community for such a serious offence as impaired driving causing death, Bill C‑5 sends the opposite message to the one that the Supreme Court has sent to courts across the country. The court’s message is that this type of offence must be accompanied by sentences that reflect the need to continue to denounce and strongly deter offences that takes numerous lives in Canada.

As I have explained, Bill C‑5 would allow for sentences of imprisonment to be served in the community for many other serious offences. I share the concern that Chief Inspector David Bertrand of the Montreal police service expressed before the Senate committee, and I quote:

Expanding eligibility for conditional sentences to a wider range of criminal offences may have a negative impact not only on public confidence in the justice system, but particularly on complainants and victims who want to co‑operate with the system. By reducing the likelihood of incarceration, the consequences of the offence are less apparent and may reduce a victim’s willingness to go through the process when making a complaint.

When we think that denunciation can sometimes prevent another crime from being committed, we must instead demonstrate to the public our real desire to ensure their safety and our willingness to punish the offender in a manner that takes into account the seriousness of their crime, especially when it comes to offences such as sexual assault and human trafficking, which have serious and permanent consequences for the victims.

For all these reasons, I disagree with the measure in Bill C‑5 that allows for imprisonment in the community for numerous serious Criminal Code offences. The purpose of this measure in Bill C‑5 was to ensure compliance with the Ontario Court of Appeal’s ruling in R. v. Sharma. Jonathan Rudin mentioned this to the Standing Committee on Justice and Human Rights while appearing as a representative of Aboriginal Legal Services:

As the legislative summary makes clear, a major impetus for the introduction of this bill was the case of Sharma.

However, this reason no longer holds true today, since this Court of Appeal ruling was just overturned by the Supreme Court of Canada, as mentioned earlier. In the decision handed down on November 4, the five majority judges ruled that two of the provisions prohibiting conditional sentences that Bill C‑5 proposes to repeal are constitutional. The first, to which I referred, is paragraph 742.1(c) of the Criminal Code, which deals with offences punishable by a maximum sentence of 14 years or more. The second is subparagraph 742.1(e)(ii), which prohibits community-based sentences for offences punishable by up to 10 years of imprisonment and involving the import, export, trafficking or production of certain drugs.

In its decision, the Supreme Court noted that both provisions had the same purpose. They were part of a set of conditional sentencing restrictions, which were created by the Safe Streets and Communities Act and would be repealed by Bill C‑5, that were intended to bring clarity and consistency to the sentencing regime.

The Supreme Court in Sharma found that the courts must defer to Parliament’s decision to prohibit community-based sentences for serious offences. I therefore don’t see any reason to justify the need to rescind this set of prohibitions involving community‑based sentences. In my view, removing these prohibitions definitely wouldn’t improve public safety.

These prohibitions have a clear purpose. Indeed, the Supreme Court stated, and I quote:

Their purpose is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences . . . .

That’s precisely what they do. Maximum sentences are reasonable indicators of the seriousness of an offence, and so it follows that the provisions in question don’t deprive people of their liberty in any circumstance that isn’t related to the intended purpose.

And yet, in a speech he gave on the eve of the Supreme Court handing down its decision, the Government Representative in the Senate said the following about the Sharma case, and I quote:

The Supreme Court of Canada is currently dealing with a case involving an Indigenous woman who helped her husband move drugs under duress, under threats to herself and her daughter. Under current legislation, that woman has to go to prison; she argued that the judge in this case should at least have the option to impose a conditional sentence and that’s exactly what Bill C‑5 would allow.

However, the Supreme Court ruling gives us another perspective, with which I agree. It found that the Court of Appeal collapsed the concept of seriousness of the offence into the concepts of circumstances of the offender and particulars of the crime. The Supreme Court believes that the offender in this case, and I quote:

 . . . committed a serious offence in importing cocaine — a reality undisturbed by her personal culpability or mitigating factors.

The majority of judges found the following:

We accept entirely that the circumstances which led Ms. Sharma to import drugs are tragic and that her moral culpability was thereby attenuated (which was reflected in a sentence of 18 months rather than the six years initially proposed by the Crown).

However, these facts do not make the importation of cocaine any less serious, especially given the quantity she was carrying, as the Supreme Court said.

The Supreme Court added that, while the crisis of Indigenous incarceration is undeniable, it was not demonstrated in Sharma:

 . . . that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non-Indigenous offenders.

I am not convinced that this evidence, which the Supreme Court found to be lacking, was produced in the consideration of Bill C-5.

In short, it is my view that the current regime of prohibiting community-based sentences, which is based on the severity of the maximum sentence for the offence, is a legitimate means for Parliament to ensure that offenders convicted of serious crimes do not serve their prison sentences at home.

I therefore do not support Bill C-5, which unnecessarily dismantles a regime of consistent prohibitions put in place to protect Canadians.

Let us now move on to the other measure in Bill C-5 that I would like to talk to you about, in other words the repeal of several minimum prison sentences, including for firearms offences.

I am against this and so are many Canadians, including several police forces. Take, for example, Pierre Brochet, president of the Association des directeurs de police du Québec and chief of the Laval police service.

He testified before the House of Commons standing committee and said the following:

In conclusion, all the police directors in Quebec want to maintain mandatory minimum sentences for firearms offences.

As I said in my speech at second reading, the Government of Quebec wrote a letter to the federal government on May 4, asking it to remove the repeal of minimum sentences for firearms offences from Bill C-5. This request is entirely justified given the urgent need to act in Quebec to address the devastation wrought by crimes involving illegal firearms.

In Dallaire v. R., a decision it handed down just recently, on October 21, the Quebec Court of Appeal clearly described this context, stating:

Canadian society strongly condemns the use of illegally owned firearms by criminals who use them illegally, dangerously and often fatally. Recent events in Quebec, such as in the Montreal, Montreal North, Longueuil, Laval and Rivière-des-Prairies areas, confirm this very real danger to peoples’ safety and to social peace. The illegal possession of firearms and their use for criminal purposes must be clearly denounced and severely discouraged by tougher penalties.

I share the concerns of Mr. Brian Sauvé, President of the National Police Federation, about Bill C-5 repealing minimum sentences for firearms. He made the following comments before the Senate committee, and I quote:

Bill C-5 strikes down some mandatory minimum penalties related to weapons trafficking and firearms offences. This is inconsistent with the expressed intent of the government to reduce firearms violence.

The legislation maintains mandatory minimum penalties for offences such as weapons trafficking, the production of automatic firearms and murder or manslaughter involving a firearm. However, tackling criminal activity requires strong measures against criminals that threaten vulnerable communities, especially criminal activity that funds and empowers gangs and organized crime. Bill C-5 unfortunately does not address these problems, notably when considering the increase of firearms offences in Canada.

In closing, I am opposed to the fact that Bill C-5 will diminish the severity of sentences for trafficking of opioids such as fentanyl. Bill C-5 would repeal mandatory minimum sentences for this offence and also authorize serving the sentence in the community.

In my view, allowing judges to hand out more lenient sentences will do nothing to expose and deter offenders from committing this dangerous offence. The tragic loss of human life caused by the scourge of opioids is described in the bill’s legislative summary, which states the following, and I quote:

Between January 2016 and June 2021, approximately 24,626 apparent opioid-toxicity deaths occurred in Canada, and from April to June 2021, there were approximately 19 deaths per day.

I therefore invite you to vote against this bill. Thank you.

The Hon. the Speaker pro tempore [ - ]

Are senators ready for the question?

The Hon. the Speaker pro tempore [ - ]

It was moved by the Honourable Senator Gold, seconded by the Honourable Senator Gagné, that the bill be read the third time.

Is it your pleasure, honourable senators, to adopt the motion?

The Hon. the Speaker pro tempore [ - ]

Those in favour of the motion will please say “yea.”

The Hon. the Speaker pro tempore [ - ]

Those opposed to the motion will please say “nay.”

The Hon. the Speaker pro tempore [ - ]

I believe the “yeas” have it.

The Hon. the Speaker pro tempore [ - ]

Do we have agreement on a 30-minute bell?

Call in the senators for a vote at 7:17 p.m.

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