Moved third 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 third-reading debate of Bill C-5, which will make important changes to the Criminal Code and the Controlled Drugs and Substances Act.

I’d like to begin by thanking the members of the Standing Senate Committee on Legal and Constitutional Affairs for their thoughtful and in-depth study over the course of nine meetings in five weeks. I also want to thank the support staff who made the committee’s work possible and the dozens of witnesses who appeared before and submitted briefs to the committee. Even though Bill C-5 is relatively short, it is very important, as evidenced by the level of interest of stakeholders and senators alike.

Its central objective is to bring us closer to having a criminal sentencing regime in which penalties are consistently well suited to the offender and the offence, rather than being a blunt instrument that lands with disproportionate force and frequency on Indigenous people, Black people and members of other marginalized communities.

The bill has three main elements.

First, it changes the way Canadian criminal law deals with simple drug possession, both by requiring police and prosecutors to prioritize alternatives to criminal charges and by having criminal records for drug possession automatically expire after two years.

Second, it removes restrictions imposed in 2007 and 2012 on the use of conditional sentence orders, which are non-custodial sentences that allow some offenders who do not pose a risk to public safety to remain in their communities, subject to conditions like house arrest or mandatory counselling, to mention but two.

Third, the bill repeals a number of mandatory minimum penalties including for all drug-related offences, certain firearms offences, offences related to the importation of weapons like brass knuckles or pepper spray and one offence involving contraband tobacco.

These measures will not solve all the problems of our criminal justice system; colleagues, no single piece of legislation could. But as witness after witness testified at committee, Bill C-5 is a meaningful step in the right direction.

In fact, practising criminal lawyers, including a representative of the Canadian Bar Association, urged us at committee to adopt this bill as soon as possible because there actually are cases currently in the system where the resolution is being delayed in the hope that Bill C-5 will pass soon.

In my previous address to the chamber, I went into detail about the content of the bill — and I’d be happy to do so again in response to your questions — but I’m going to focus my remarks today on the testimony that we heard at committee about the three main parts of the bill.

First, on the subject of diversion for drug possession.

With regard to alternatives to criminal charges for drug possession, there was strong support at committee from The John Howard Society. Its Executive Director, Catherine Latimer, noted the similarity between this aspect of Bill C-5 and a comparable section of the Youth Criminal Justice Act, which she said has been shown to “lead to fewer people coming into the criminal justice system for less serious offences.” According to Ms. Latimer, these provisions “allow for individuals with substance abuse issues to be referred to community programs where real assistance may be available.”

The John Howard Society, the Canadian Association of Chiefs of Police and the National Police Federation, which represents RCMP officers, all underscored the need to increase the resources available for treatment and diversion programs in Canada’s communities so that this section of Bill C-5 can reach its full potential. The committee report includes similar observations, which were suggested by Senator Dalphond and which I was pleased to support. As Senator Simons pointed out in the clause-by-clause study, and I quote: “We can’t divert people if there’s no place to send them.” The government agrees and that’s why it increased its support to send people to community justice centres, for example.

In his testimony, the minister gave the example of an agreement reached in British Columbia earlier this year between the federal government, the province and the BC First Nations Justice Council to support and expand Indigenous-led community justice programs. The government’s intention is to continue supporting these kinds of programs, in conjunction with provincial, territorial and Indigenous partners in British Columbia and across Canada.

The committee also heard from witnesses who argued that nothing short of full decriminalization of all drugs would constitute meaningful change. On this point, I would note that decriminalization of simple drug possession is going to happen in British Columbia early next year, due to an agreement between the province and the federal government. No doubt, we’re going to learn a lot from that experience, some of which may be applicable in other parts of the country or, in the future, at the federal level.

The key point is that this change in British Columbia has been preceded by extensive consultation, cooperation and planning, with the province fully on board. We’re not there right now in the rest of the country. But what we can do, immediately, is to direct police and prosecutors in every province and territory to avoid laying criminal charges for drug possession in most instances, and that’s what Bill C-5 proposes.

I know that some senators have raised concerns about the way police discretion is used, given the reality of systemic discrimination. Again, this is something that the committee emphasized through its observations. It’s a fair point, and that’s why the bill specifically envisions that records related to diversion, with personal identifiers removed, can be provided to researchers for the purpose of assessing and evaluating police use of discretion.

That work will be facilitated by the government’s recent investments in the collection of disaggregated data, particularly in the criminal justice space. The more we understand about how diversion options are used and whether diversion is happening more or less in certain parts of the country or with members of certain communities, the better equipped we will be to identify and address inequities.

Next, to conditional sentence orders.

With regard to the second part of the bill, which proposes to remove restrictions to conditional sentence orders, we heard enthusiastic testimony from a number of stakeholders. Criminal lawyer Michael Spratt gave this part of the bill “straight A’s.” Tony Paisana, speaking on behalf of the Canadian Bar Association, told the committee that this part of Bill C-5 would be “one of the most important reforms in the criminal law over the past decade, if not the most important.”

According to a written brief from the Native Women’s Association of Canada, the enhanced access to conditional sentences enabled by Bill C-5 “will immediately begin” decreasing Indigenous women’s over-incarceration rates.

Conditional sentences have existed in Canadian criminal law since they were introduced in the 1990s by Allan Rock, the then Minister of Justice. For sentences of less than two years, when a judge determines that there’s no threat to public safety, offenders can serve their sentence in the community, under certain conditions. Doing so may result in better rehabilitative outcomes since the offender can maintain employment, family and community support ties.

This is particularly important in remote and northern communities, where the closest prison may be hundreds or thousands of kilometres away. It is all the more important when there are children involved who could end up in the care of child protection services if their parent goes to prison.

Raphael Tachie, president of the Canadian Association of Black Lawyers, or CABL, pointed out that conditional sentences are essential tools for combatting recidivism as they can allow for offenders to maintain familial ties and employment and school commitments, while still being held accountable for their crime.

Colleagues, I’d like to take a moment to recognize the opinion expressed in committee, namely by Senator Boisvenu, that conditional sentences can enable dangerous offenders to stay at home or in their community. Honourable senators, I know that that opinion is based on a real concern for the safety of the community and particularly for victims of gender-based violence, and I thank Senator Boisvenu for raising this issue.

Like Senator Boisvenu and others, including Senator Dupuis, we reminded the committee that it’s important for women to have confidence in the criminal justice system so that they feel safe when they ask for help.

I also note that the Criminal Code only allows conditional sentences when there’s no safety risk. Bill C-5 doesn’t change that. What’s more, it’s important to keep in mind that many people who might benefit from broader access to conditional sentences are themselves victims of gender-based violence.

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.

Ultimately, colleagues, conditional sentences serve the interests of public safety. It is not a risk-free proposition to send people needlessly to prison. Cutting someone off from their family, friends, employment, education and social supports, and forcing their kids into foster care, can make homes and communities less stable, less safe and can perpetuate cycles of criminality.

Where it is possible and safe to hold people accountable for breaking the law without incarcerating them may not only be the more compassionate thing to do but the safer thing to do. That’s why this section of Bill C-5 is so important.

Finally, to the question of mandatory minimum penalties: As I said at the outset, the third part of the bill would repeal a number of mandatory minimum penalties, including all mandatory minimums for drug offences; certain offences involving non‑restricted firearms — essentially, hunting rifles; offences involving the trafficking of weapons other than firearms; and one offence related to contraband tobacco.

These types of provisions establish a minimum amount of prison time that sentencing judges must impose for a given offence. They restrict judges’ discretion, limiting their ability to take mitigating factors into consideration and to engage more meaningfully with sentencing guidelines, including the need to consider what are known as Gladue principles related to the particular circumstances of Indigenous offenders.

Most witnesses strongly supported the repeal of these mandatory minimums. Janani Shanmuganathan of the South Asian Bar Association of Toronto called it “an important step.” Criminal lawyer Michael Spratt called it “a very positive step . . . .” Sarah Niman, speaking for the Native Women’s Association of Canada, said that the repeal of these mandatory minimums “. . . empowers trial judges to meaningfully engage Gladue principles . . . .”

In other words, there was very little disagreement about whether repealing these provisions would be a good thing. The consensus was that, yes, it’s a very good thing. The question that came up was: Why does Bill C-5 repeal these mandatory minimums but not others? And should the bill go even further and repeal more, or even all, mandatory minimum penalties, perhaps even including the one for murder?

Colleagues, Canadian criminal law currently contains around 70 mandatory minimum provisions. Bill C-5 would repeal 20 of them.

At committee, the minister’s explanation was that, according to government data, the 20 mandatory minimums repealed by Bill C-5 are amongst those that are used most often and that apply disproportionately to Indigenous, Black and other marginalized people. Indeed, according to statistics from Correctional Service Canada, from 2010 to 2020, of all admissions to federal custody where the most serious charge carried a mandatory minimum penalty, over half were for 1 of those 20 offences covered by this bill. That includes 11,630 people who received a mandatory minimum for a drug offence, and, amongst them, over 1,600 Indigenous people and over 1,000 Black people.

That’s just federal custody. Sentences of less than two years are served in provincial and territorial institutions, which incarcerate more people than federal prisons, often with higher rates of overrepresentation.

As we heard from University of Ottawa criminologist Cheryl Webster, reliable numbers about provincial and territorial sentences are less readily available. Late in our study, though, we did get an estimate from Statistics Canada that the repealed mandatory minimum penalties in Bill C-5 could affect an average of 9,123 cases across Canada every year.

Ultimately, this is another area where we could benefit greatly from better data, including better disaggregated data. Again, I’m hopeful that the government’s recent investments in this area will make an impact. But what is clear is this: The repeal of mandatory minimums proposed by Bill C-5 could help a lot of people.

Finally, one of the proposals made at committee was something that is often called a “safety valve” or “structured discretion.” Basically, it’s the idea that the law should allow a sentencing judge to deviate from the mandatory minimum in a particular case if the judge determines that imposing it would be somehow unjust.

A number of witnesses recommended this, and an amendment to this effect was considered at committee. As I said at committee, I largely share the values that underpin this idea, and I think it was very important that committee members gave it due consideration before ultimately deciding not to proceed with that amendment. We had a thoughtful discussion at committee, and valid points were made both for and against this notion.

The government opposes this proposal for two main reasons.

First, credible stakeholders, including the Canadian Bar Association and the Criminal Lawyers’ Association, cautioned that this approach could have negative unintended consequences — namely, incentivizing the proliferation of mandatory minimums by shielding them from constitutional challenges.

Second, the government agreed with Raphael Tachie from the Canadian Association of Black Lawyers, who urged us to get Bill C-5 off the Order Paper and into real life as soon as possible. His advice to us was, “We can’t let the perfect be the enemy of the good.”

Colleagues, it certainly has been a long and challenging journey to get to this point — not just this past year and a half of Parliament dealing with Bill C-5 and its predecessor, Bill C-22, but the last decade, since many of the previous government’s so‑called “tough on crime” measures were first put in place. We’re so close to passing this bill and making a real difference in people’s lives. Better to bank the win than to toss politically challenging legislation back into the uncertainty of a minority House of Commons.

Again, I want to thank the members of the Standing Senate Committee on Legal and Constitutional Affairs for having seriously considered the content of this bill and making proposals to support its objectives, including by making formal observations in their report, and for having decided to move forward with Bill C-5 as is — not because it’s a panacea, but because it’s a significant step forward.

The time has come to take this important step.

In a letter to the committee, the Criminal Lawyers’ Association called Bill C-5 “an integral piece of legislation in justice reform” and urged us to “move Bill C-5 through the Senate as soon as possible.” In the view of the Canadian Bar Association, “It’s critical that this bill pass, and pass with haste.” The Canadian Association of Black Lawyers said, “. . . we encourage you to work expeditiously to pass this bill so we can start implementing on the ground.”

Even witnesses who wanted Bill C-5 to go much further acknowledged it capacity to make a difference. Emilie Coyle, the Executive Director of the Canadian Association of Elizabeth Fry Societies, called this legislation:

. . . a step toward the goal of seeking to reduce the crisis of structural racism, systemic discrimination and inequality in the justice system.

University of British Columbia law professor Debra Parkes said, “I absolutely agree that lives could be changed by this bill . . . .”

That is the critical point, colleagues. Those are real people who will be unnecessarily imprisoned or imprisoned for longer than is necessary if we don’t pass this legislation, and pass it soon.

By way of example, I’ll close with something we heard from Janani Shanmuganathan of the South Asian Bar Association of Toronto, whom I mentioned before. She notably argued one of the landmark cases related to mandatory minimums at the level of the Supreme Court of Canada. She told us about a client of hers, a 26-year-old man with an alcohol addiction but no criminal record who used a pellet gun from Canadian Tire to hold up a convenience store for $100 so he could buy some beer. He was caught and he confessed within hours.

Between the time of his arrest and the time of his sentencing, he turned his life around. He enrolled in university, started a meaningful relationship and not only began attending Alcoholics Anonymous but actually became an AA facilitator.

He arrives for sentencing. The sentencing judge expressed deep regret at having to impose a one-year mandatory minimum sentence, saying, “It’s heartbreaking to send this person to jail, but I have no choice.” According to Ms. Shanmuganathan, that unnecessary incarceration imposed significant psychological and financial consequences on her client. He suffered a mental breakdown while in jail.

That’s why she spoke passionately in favour of Bill C-5 at committee and urged us to pass it fast. She told our committee:

I have clients who are hanging on to this bill passing . . . . I have actual clients for whom this bill would change their lives.

Colleagues, the government is not proposing to pass Bill C-5 and then hang a “mission accomplished” banner on the criminal justice system. There remains a great deal of work to do to make our justice system more effective and more just. That will include legislation, investments and many other policy tools to address the underlying causes of criminality and the social alienation that plagues our society. But this bill, as it is, will do a lot of good. Colleagues, please, let’s turn it into law.

Thank you very much.

Senator Gold, I noticed that you mentioned pepper spray in the context of mandatory minimum sentences in your speech again, just like in your second-reading speech. After that speech, I asked you how many people in the last five years in Canada were convicted of that pepper spray offence who received the mandatory minimum sentence. I speculated, given the discretion of police prosecutors and courts, that the number would be next to zero. You replied that you didn’t know. I asked why you put it in your speech as an example if you didn’t know. You repeated that you didn’t know and said that I could ask officials at committee.

So I did. The Department of Justice Canada officials couldn’t give me an answer, either that day or via their written response later.

Again, I contend that the number of people who are convicted of a pepper spray offence that attracts a mandatory minimum sentence would be next to zero. Senator Gold, why do you continue to use that pepper spray mandatory minimum sentence example when you have nothing to back it up after weeks?

There are a lot of people who get charged, convicted and sentenced to the mandatory minimum for illegally importing a prohibited weapon. However — thank you for your question; I would like to answer it, please. The data we have doesn’t distinguish between various types of weapons, so we don’t know whether any of those instances involve pepper spray. You’re quite right.

The point, though, is a broader one. It’s that the offence of trafficking in a prohibited weapon could contain a broad range of behaviour and degrees of culpability, from organizing illicit shipments of switchblades to driving across the border with a can of pepper spray in your glove compartment. Not all of this behaviour merits the mandatory one-year jail term that the Criminal Code currently provides. Again, this allows judges in such circumstances, whatever the actual prohibited weapon might be, to consider the exercise of discretion when it is warranted, when public safety is not otherwise at issue.

Thank you for your question. I think in my third-reading speech, in which I referred to testimony, we had evidence before us that it would, in fact — though it doesn’t go all the way to eliminating all mandatory minimums — address a significant number — half of the cases — for which mandatory minimums were actually imposed.

We also heard testimony, to which I also referred, that this would have a significant impact on the overrepresentation of Indigenous women, Black people and other marginalized groups, who are caught up in the system.

Therefore, although it doesn’t go as far as many witnesses would want — and as far as you and many senators, perhaps, would want — it will make a real and tangible difference. In that regard, again — not to repeat the third-reading speech — this is a positive step forward, which you and many other witnesses acknowledged. It will make a real difference and will be a step toward addressing this overrepresentation.

I was at pains to mention, toward the end of my speech, that much more needs to be done to address the underlying causes. Much more needs to be done to provide the resources to communities to take full advantage of the repeal of these mandatory minimums and the creation of possibilities for diversion and for better integration and helping to rehabilitate those who don’t pose a risk to public safety. This will make a real difference. That’s what we heard at committee, and that’s why I support this bill.

The evidence and testimony at committee, in my respectful opinion, demonstrated that this bill would make a real difference, even if it didn’t go as far as others would want, and even if it — as no bill could — went so far as to eliminate systemic discrimination and racism in our system. In fact, there are so many social causes and determinants that are beyond the reach of any piece of legislation.

The government has made significant investments in providing and empowering Indigenous communities to take greater control of their justice processes, including policing but not limited to that, and working with communities to fund and support pilot projects in a number of areas.

The fundamental point — and let’s return to Bill C-5 — is that this bill addresses a real problem, provides a real solution, and I underline it’s not only with regard to mandatory minimums, but also with regard to the diversion away from drug offences. This is especially important for people to not be caught up in the justice system at an early age. Rarely does it do anybody any good to be caught up in the justice system, often provincial to start with, and removed from their families and their ability to maintain proper social ties.

This bill will make a difference. It’s a step in the right direction. It’s the product of a long-standing effort by this government, along with other parties in Parliament, to finally begin to reverse the failed policies of a previous government in the matter of criminal justice, and it’s worthy of our support.

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

Current statistics show that crime in Canada — that is, violent crimes against the person — is rampant and increased by 5% in 2021 and in recent years. The scourge of domestic violence, sexual assault, femicide, missing persons and human trafficking is only getting worse and we need urgent and immediate solutions. Lives depend on it and too many lives are being lost when they should be protected.

Unfortunately, instead of proposing legislative measures to fight these crimes, the Liberal government prefers to take a lax approach by proposing laws that will further lighten the sentences of the most dangerous criminals.

Let me give you a few examples to support my arguments. In 2018, the Auditor General’s report identified numerous flaws in Correctional Service Canada’s release and community supervision process, flaws that led to the death of a 22-year-old woman. I’m sure you remember Marylène Levesque, who was murdered, stabbed 30 times, by a repeat offender in 2020. Instead of addressing the problems identified by the Auditor General, Justin Trudeau’s government chose to introduce Bill C-5.

My second example is the many gun crimes that are wreaking havoc in cities like Toronto, Montreal and Vancouver. In recent months, several young people under the age of 18 have died in shootings involving illegal weapons. The year 2021 was the darkest year in decades in the city of Montreal. Instead of responding to the families of the victims and taking action to stop this wave of violence, the Liberal government prefers to introduce a bill that will eliminate 11 minimum sentences involving firearms.

Taking steps to obtain a firearm with the intent to commit a crime is an intentional and premeditated act. Minimizing the gravity of a criminal act committed with a firearm is dangerous. I’d like to read you a quote from Justice Harris:

A person with a gun in their hands has a god-like power over life and death. Virtually all that is necessary is to point at another person and to apply a few pounds of pressure on the trigger in order to end a human life. . . . The ease of killing with a gun . . . is an exigent danger to us all.

He added, “Such immense power with so little reason must be opposed with everything at our disposal.”

My third example relates to the fact that, for years now, Canada has been dealing with an urgent drug problem, one of the worst aspects of which is the increasing number of people addicted to fentanyl, an opioid that kills at least 20 Canadians every day. Instead of cracking down on drug dealers and implementing measures to help people overcome their addiction, the Liberal government has opted to eliminate all minimum sentences in the Controlled Drugs and Substances Act, including those associated with drug trafficking, exporting and production. Honourable senators, do you honestly believe that eliminating these minimum sentences will fix Canada’s opioid problem? The answer is obvious.

I’d just like to quote from a speech by my colleague, MP Larry Brock, who was a Crown prosecutor in Ontario for 18 years:

I invite members to think about that for a moment. This soft‑on-crime, ideologically driven Liberal government believes that those who traffic and produce fentanyl, the most deadly and lethal form of street drug, which is being sold to millions of addicts, is causing an opioid crisis, and results in daily overdoses and deaths, should not expect to receive a minimum period of incarceration. It is utterly shameful and dangerous.

Honourable senators, the part of this bill that concerns me the most is the increase in conditional sentences. The Minister of Justice wants to give judges the opportunity to use conditional sentencing for certain types of crimes by repealing paragraphs 742.1(e) and (f) of the Criminal Code. Nine of these offences are offences against the person including sexual assault, which has increased by 18% since 2021; criminal harassment, which increased by 10% in 2021; and human trafficking, which has increased by 44% since 2019. The most recent statistics indicate that 80% of men who assault women receive a conditional sentence and these crimes have been increasing for years.

This bill is dangerous for women. The government also wants to expand eligibility for conditional sentence orders to offenders who have been found guilty of crimes such as kidnapping, abduction of persons under 14, being unlawfully in a dwelling-house, causing bodily harm by criminal negligence and assault with a weapon or causing bodily harm. These are not small, trivial crimes. They are serious, disturbing crimes.

All of these crimes against the person are often committed in situations of domestic violence. As I’ve often said, the victims of this scourge, those who are killed, are most often women and children, and the numbers keep rising year after year.

In 2021, intimate partner violence increased by 3% for the fifth year in a row. One hundred and seventy-three women were murdered; 55% of those killings were the result of intimate partner violence. This scourge accounts for about 30% of crimes against the person since 2009. In Quebec, intimate partner violence increased by 28%; in New Brunswick, by 39%. Any move to expand conditional sentences for these crimes would pose a major risk to women who are victims of intimate partner and family violence because fewer victims of intimate partner violence and sexual assault would report these crimes. That is unacceptable, considering the fact that we regularly use the media to encourage them to report their attacker.

Lastly, expanding conditional sentencing would encourage people to reoffend. Bill C-5 would allow a significant number of criminals to serve their sentence at home. That puts victims at risk, particularly those from Indigenous communities, where everybody knows everybody and people live in close proximity.

According to data on conditional sentences from the early 2010s provided by the Syndicat des agents de la paix en services correctionnels du Québec, CSN, 44% of criminals who receive conditional sentences don’t comply with their conditions. I want to quote testimony in the House of Commons from Jennifer Dunn, Executive Director of the London Abused Women’s Centre, on April 29, 2022. Ms. Dunn is opposed to this part of the bill:

Women and girls are five times more likely than men to be victims of sexual assault, and sexual assault is a violent crime on the rise in Canada. With conditional sentencing, many women will be stuck in the community with the offender, which places them at even higher risk.

That’s why, honourable senators, I wish to propose an amendment to Bill C-5 that wouldn’t allow conditional sentences to extend to crimes against the person and crimes potentially committed in the context of spousal or domestic violence. While I was unable to convince the majority of my colleagues on the Standing Senate Committee on Legal and Constitutional Affairs to vote in favour of this amendment, I’m confident that this place will take another moment to reflect.

Colleagues, considering the statistics that are available and that show an increase in sexual assault and domestic violence, and given the strong social disapproval of such crimes, I believe it is dangerous and unfair to sentence a sexual abuser, kidnapper or stalker to house arrest rather than imprisonment. The Senate must be cautious and wise. However, if it were to accept the government’s intention to expand conditional sentences, it would have to look closely at the sentence conditions.

To conclude, honourable senators, this bill is dangerous for women, because the government has not included any conditions that a convicted person who receives a conditional sentence for domestic violence or sexual assault should be subject to, such as therapy. With Bill C-5, what the government is offering to women victims of domestic violence is an enhanced “810.” However, as we know, according to the University of Montreal study conducted in 2019, 50% of abusers don’t abide by the “810,” which is the order directing them to stay away from victims. What you’re offering victims today with Bill C-5 means they will continue to live in fear. Victims expect more from you.