Therefore, honourable senators, in amendment, I move:

That Bill C-75, as amended, be not now read a third time, but that it be further amended:

(a)in clause 104, on page 35, by deleting lines 4 to 12;

(b)in clause 105, on page 35, by deleting lines 13 to 25;

(c)in clause 109, on page 36, by deleting lines 23 to 31; and

(d)in clause 386, on page 182,

(i)by replacing line 11 with the following:

“5 This Act comes into force on the”, and

(ii)by deleting lines 18 and 19.

Wela’lioq. Thank you.

In amendment, it is moved by Senator Christmas, seconded by honourable Griffin that Bill C-75 be not now read a third time, but that it be amended — may I dispense?

Senator Boisvenu, do you wish to ask a question or take the floor?

I want to ask a question.

Senator Christmas, a couple of senators have asked permission to ask questions but your time has expired. Are you asking for five minutes to answer questions?

Yes, Your Honour.

Is leave granted, honourable senators?

Senator Christmas, first let me congratulate you on your speech and your amendment. Human trafficking is indeed a major problem in Quebec and in Indigenous communities.

Here’s my question. As you said, Bill C-75 calls for consecutive sentences. Consecutive sentencing is crucial to keeping under-age girls safe from the pimps who, in many cases, go back for them. Unfortunately, the government would have to issue an order to implement consecutive sentencing.

Bill C-452 was passed in 2015. Its terms were the same, including the coming-into-force order. That same order is part of Bill C-75. Do you agree that, if an order is required, this government will never bring consecutive sentencing into force?

Thank you, senator, for the question. I presented that particular argument that you had mentioned about Bill C-452 to our Standing Senate Committee on Legal and Constitutional Affairs along with the other three positions I brought forward on the Criminal Code offenses. It grieved me, senator, as I thought about my presentation today, that I felt I had to make a choice. I didn’t think the government would accept all of the amendments that we had proposed and so it grieved me to drop any reference or any amendment to C-452 on consecutive sentences for human traffickers. It doesn’t mean that I don’t think that’s an important issue. I believe that if a human trafficker only receives one sentence after trafficking multiple victims, it’s a serious injustice.

I fully support C-452. I wish it were brought into force but, given my dilemma today, I thought I would try to find the support of the Senate simply on the three Criminal Code amendments on which I spoke. Thank you, senator. I appreciate the question.

Senator Christmas, I listened to your speech, and as a former police officer, there was one thing that struck me. You said the police officers who investigate in your communities often racially stereotype victims. Can you tell us what you mean by police officers’ “racial stereotyping”?

Thank you, senator. I appreciate the question. I guess the one example that continues to haunt me is that of my fellow community member from the First Nation of Membertou, Donald Marshall, Jr. He was 16 at the time. He was at the site of a crime. When the investigating officers arrived at the crime, they immediately concluded that Donald Marshall, Jr. was the guilty party, even though there was no evidence to do so.

The inquiry that followed later determined that Junior — that’s what we called him — that Junior’s race, as a Mi’kmaq person, contributed to the investigating police officers thinking him guilty of murder which he did not commit.

Honourable senators, I know that’s an extreme case. I have also seen many reports and investigations that have similarly used the factor of race in judging whether someone is guilty of a crime. Obviously, that should not be in our criminal justice system. Unfortunately, the reality of the world is that although human beings try not to allow their prejudices and biases to influence them, even those in the criminal justice system — judges, Crown prosecutors and police officers, that was all evident in Junior Marshall’s case, it unfortunately happens. Unfortunately, it happens way too often.

I’m sorry, but the honourable senator’s time has expired. Is leave given for five more minutes for Senator Christmas to answer more questions?

Approval is not given.

I’m sure there were lots of people with lots of questions they wanted to ask. Thank you, Your Honour. I rise to speak against the amendment. I want to delineate why. I want to assure my brother. He and I have spoken about this. I totally understand the passion he feels and the concern he has about this.

The information that was provided to the committee has shown that none of the offences that are being hybridized are having any other maximum sentences reduced. The maximum sentence for all offenses, including the maximum offence available for human trafficking offences, remains unchanged when the offence is preceded with by way of indictment.

From time to time, Crown prosecutors have indicated — and this is as a result of discussions with the provinces — that they wish to have available to them the opportunity to proceed by way of summary conviction because statistics show that, even in cases of human trafficking and any of the other indictable offences which are being hybridized, some people are being sentenced to lesser periods of time than in provincial jail and less than the two years that is currently going to be provided by Bill C-75 in the amendments to the Criminal Code.

Often in those cases, the lesser players in a situation are being brought to justice because they are usually the first ones caught. In the case of human trafficking, we have experience in Winnipeg, Manitoba, for example — and in the Prairie provinces generally and probably on the West Coast. The data shows that when it comes to young Indigenous women being caught up in the human trafficking industry, young Indigenous men are often used as the first line of recruiting. The recruiters are the ones who bring the young women into the system and are sometimes young relatives, such as brothers or cousins, or young gang members. Their recruitment often consists of bringing them to parties where others — the bigger players in the system — then identify them to be dragged into a life of victimization.

Those young men who bring the girls to the parties or who drive them to their dates or who participate in a significantly lower way to this point in time are proceeded with by way of indictment because of their role in the proceeding. They can face not only a serious consequence, but they also face a more significant criminal record.

Crown prosecutors have often — and as a judge, I presided over proceedings in which Crown prosecutors have expressed regret that they had to proceed by way of indictment because they point out that the individual himself often — sometimes it’s even a young woman who is used to recruit other young women into the system. This person clearly did commit a human trafficking offence, and they regret having to proceed as they did, by way of indictment. These individuals are thus burdened by a significant criminal record, but there is no choice because the provision is treated as a serious one.

Crown prosecutors will now be given an opportunity to treat those lesser players by way of summary conviction. Crown prosecutors know the difference between utilizing a summary conviction procedure and an indictable procedure because generally the rule that they follow is when they have thought and concluded in their mind they are going to seek a sentence over and above what a summary conviction matter would provide, then they will proceed by way of indictment. But if they think the circumstances of the offence or the circumstances of the offender would justify a lesser sentence, now they will have the option to proceed by way of indictment with the amendments in Bill C-75, but they do not have that option at present in the way the current Criminal Code provides.

In addition to that, allow me to point out that the higher players are often members of gangs. Gangs are the exploiters. They are the ones who are running the human trafficking circles. The reality is, it’s hard to get to the top players in those systems unless the lower players are prepared to testify against them and talk about what they are doing. Sometimes, in order to offer some encouragement to the lower players to testify against those in the higher echelons of the gang, the Crown prosecutors would like to be able to offer them an opportunity to face a lesser sentence in exchange for their testimony. That’s a valid use of criminal procedure.

Right now, again, they have no choice other than to say, when you do plead guilty to this human trafficking offence, even though we’re proceeding by way of indictment, we will not seek a sentence higher than this particular amount. Nonetheless, the individual is burdened by an indictable conviction on his record. Rather, now, with this particular amendment, they will be burdened with a summary conviction offence, which is not treated as seriously when it comes to expungement of records and the review of criminal convictions.

In addition to that, the statistics show that very few people who are involved in lesser roles with regard to this particular offence receive sentences over two years. So this provision, this amendment, as it is with all of the hybridized offences, is intended to recognize that those who are now getting two years or less of a sentence will continue to get two years or less of a sentence but in a way that allows the courts to clear those cases faster.

We must remember that Bill C-75 is about reducing court delay. Bill C-75 was always intended to allow the courts, in response to the Senate’s report on court delays, to respond in a way that would allow cases to be cleared more quickly.

Right now, even the lesser players would be entitled to a preliminary hearing, with the exception of the amendment to Bill C-75. They would be entitled to a trial by jury, and that would mean that the system would be clogged up by those lesser cases. So these amendments are intended to allow the cases to clear more quickly, to be dealt with more quickly and for Crown prosecutors to be able to offer opportunities to those lower players.

I appreciate the messaging that has gone out there by those who are critical of the hybridization decision that the government has made has been to say that we are treating this like it’s a less serious matter. The reality is, the maximum sentences remain in place. The indictable procedure remains in place. However, those who the Crown decides are not as seriously involved in the offence as others will now give the Crown an opportunity to be dealt with in a less serious way and to be dealt with in a way that will not clog up the courts.

We know, for example, that provincial courts are currently dealing with preliminary inquiries. There was a concern that moving them into summary conviction matters would clog up the provincial court system, but the reality now is that we’re doing away with preliminary inquiries. Therefore, there will still be provincial court time available to deal with these cases.

I appreciate the concerns. I share them with you; I assure you of that. I am deeply concerned as well about the report from the Missing and Murdered Indigenous Women and Girls Inquiry, which points out that many of the victims are those who were caught up in the system. Those who are guilty and who are identified will continue to receive the maximum sentence available to the prosecutorial system. It’s those who are the lesser players in that system, the Crown prosecutors will now be able to deal with more effectively in a way that reduces the demands upon court time and allows those individuals, who are lesser players, to be able to move on with their lives in a way that does not burden them with as difficult a criminal record as they would otherwise have received.

Honourable senators, I encourage you to consider that when it comes time to vote with respect to this amendment, I think the provision of hybridizing offences is generally a good provision. I think we should maintain it. I think we should allow prosecutors to have that discretion. I think we should trust our prosecutors.

By taking it away from prosecutors, we are saying to them that we don’t trust them to make the decision so we will not allow them to make that decision, and that’s not right. We, in fact, need to allow prosecutors to be part of the system that makes decisions that allow for courts to clear their cases in a more effective manner. By taking this out of the hybridization process, this particular offence will contribute to court delay. Thank you.

Senator Boisvenu would like to ask a question. Senator Sinclair?

Certainly.

Senator Sinclair, I listened to the amendment Senator Christmas proposed earlier indicating that the main problem with Bill C-75 is that it’s based on a judicial perspective rather than the victim’s point of view. That is the crux of the problem with this bill.

In the case of Bill C-452 on human trafficking, which affects many people in your community, the federal government had four years to bring this legislation into effect, but it never passed the order. Bill C-75 contains the same order with the same terms as four years ago. Can we trust this government to implement any measures to combat human trafficking any time soon?

Thank you, senator, for the question. The reality is that this provision, I think, is going to be a greater benefit for victims than the previous provisions have been.

You yourself, senator, should be aware of the fact that one of the problems with the previous law is the fact that victims have had cases involving their particular perpetrator thrown out because of court delay. The purpose of the amendments contained in Bill C-75 is to reduce court delay. When victims are having their perpetrators freed because the courts say that the amount of time it has taken to bring their accused to court is taking too long, then that’s not fair to the victim either.

If you believe in victim rights, then you have to support these provisions because this is intended to address the issues raised by the Supreme Court of Canada’s decision in Jordan, and in other cases as well, in which they have said that when you take too long to get to court, the accused is entitled to have the case dismissed. With these provisions, we’re saying this is how we can get them to trial faster.

I do not have a problem believing in victims’ rights, as I helped ensure the passage of the Victims Bill of Rights. What I do have a problem with is believing your government, which in 2015 had Bill C-452 before it. This bill would become An Act to amend the Criminal Code (exploitation and trafficking in persons), and was supported by Prime Minister Trudeau. It took the government four years to implement Bill C-452, which could have protected the young girls of your community, senator.

Today, you are asking us to believe a government that is introducing a bill similar to Bill C-452, namely Bill C-75. How can we trust a government that took four years to take action when young girls in your community were being exploited?

Thank you for the question, senator. The reality is that the issue of court delay has been part of the court process and concern for well over 25 years. This is not a situation that suddenly arose in October of 2015.

For years now, and under previous governments as well, the courts have been expressing concern about the fact that courts are taking too long to clear cases. Years ago, in a case called Askov, and in subsequent decisions, the Supreme Court of Canada ruled that when a case takes too long to come to trial, the accused has the right to have the case dismissed.

Since then, despite what other governments have done, including the previous administration under Prime Minister Harper, those cases have not proceeded expeditiously. It was the Senate committee report that indicated ways for these particular provisions to be put into place that would allow for proceedings to be dealt with more expeditiously.

The government is merely responding to what this committee and what this Senate has called upon it to do. We should be proud of the fact that they are following our directions.

Are senators ready for the question?

Senator Anderson, do you have a question? I’m sorry, Senator Sinclair’s time has expired.

Senator Sinclair, are you asking for more time to answer a question?

I would ask for leave for more time, yes.

Is leave granted, honourable senators?

I’m from the Northwest Territories and I have worked with the Department of Justice for 17 years. In the Northwest Territories, what happens with the court system is that the court parties fly from Yellowknife into all the communities. They are on schedule every six to eight weeks. My opinion, based on my experience working within the criminal justice system, is that some of the delays are not due to the type of offence. Rather, they are due to the scheduling of the courts that are travelling into our communities and are further hampered by weather, flight delays, plane cancellations and other matters that come up..

Are you familiar with some of the delays that come into play that are not as a result of the type of charge, whether it’s hybrid, summary or indictable?

Thank you, senator, for the question. I am quite familiar, in fact, with the issue of travelling court parties and the delays that result from circuit courts. I wrote a complete report on this in 1991 and talked about the need for changes to be done to the way that provincial and territorial governments, in the case of the Northwest Territories, need to look at changing the way that courts utilize their resources in communities.

One of the recommendations we made was that they should utilize more local people in order to deal with matters rather than waiting for outside judges and prosecutors to come into the community to deal with the court case.

In Manitoba, for example, as a result of our report, hearing officers were appointed in many northern communities, and they had the authority to deal with summary conviction matters in order to clear the cases so that when the court party came in, they only dealt with more serious cases. Those more serious cases often ended up going to trial in a more urban place, often miles away from the community.

The reality is that circuit courts do contribute to court delay — there is no question of that — and provincial and territorial governments who are responsible for organizing the circuit court systems have to find the means by which they can enhance and improve the way circuit courts deliver justice in Northern Canada.

Senator Sinclair, thank you for clarifying some of the context around this issue. I think you have described the food chain of human trafficking from introducer to customer. I believe the view is shared by all senators that all of these are criminals and should be appropriately punished.

You have argued that by providing lesser sentences to the lesser players — the lower-hanging fruit, so to speak — you can eventually cut off the tree. That’s the hope.

I ask you whether the reverse would also not be true. If you pluck the low-hanging fruit and punish these people appropriately, then the industry may well die out.

Thank you. That’s a tempting conclusion to reach, but the reality is that doesn’t prove to be true. I know, for example, that in Manitoba’s Stony Mountain Institution, one of the serious problems that they have — as does any institution — is bringing drugs into the institution using mules, usually females. They carry the drugs into the institution, often in their body cavities. They get searched and are charged with trafficking as a result, even though they may be doing so under duress. They may be threatened, their children might be threatened and they, themselves, may be subject to abuse and direction from an outside source.

Judges decided early on in Manitoba that one way of stopping that from happening was to sentence those young women who were taking drugs into the institution to more serious sentences. By sending them to prison for a longer period of time than had been the case to that point, that would contribute to the stopping of the importation of drugs.

The reality is that didn’t happen at all. Drug trafficking in the institution, in fact, became much more sophisticated. Those who were in charge of the institution found, for a period of time, that drugs continued to flow into the institution. They didn’t know how it was happening, because now the women were not bringing them in, but some other means of importation was occurring.

Now, in fact, drugs are being imported into the institution using drones, these little flying objects that can drop small objects from the sky over the walls of an institution.

The reality is that the importation of drugs in that case was not reduced. The women who were being incarcerated for longer periods of time as a result of that approach were themselves being given sentences out of keeping with their role in the entire system, and their victimization was not factored into the court’s decision.

Are honourable senators ready for the question?

It was moved by Senator Christmas, seconded by Honourable Senator Griffin, that Bill C-75 be not now read a third time but that it be amended — may I dispense?

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

All those in favour of the motion in amendment will please say “yea.”

All those opposed will please say “nay.”

In my opinion, the “nays” have it.

I see two senators rising.

Do we have agreement on the bell?

The vote will take place at 4 p.m. Call in the senators.