Therefore, honourable senators, in amendment, I move:

That Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, be not now read a third time, but that it be referred back to the Standing Senate Committee on Legal and Constitutional Affairs for further study.

Honourable senators, the Standing Senate Committee on Legal and Constitutional Affairs studied Bill C-5 at nine meetings over five weeks. It heard from more than 40 witnesses and received 13 briefs. We don’t need to refer it to a committee. This would result in useless delays at a time when legal experts are urging us to pass it as quickly as possible.

It is true that there’s been much litigation in recent years concerning the issues that Bill C-5 addresses, in particular conditional sentences and minimum mandatory sentences. Rulings have been handed down in some cases, such as the recent Sharma ruling. Others are ongoing.

This considerable jurisprudence provides us with relevant background information. However, Bill C-5 was never designed as a direct response to Sharma or any other case. The government didn’t present it as such in the House of Commons. I certainly didn’t present it that way when I spoke to it at second reading, and Minister Lametti didn’t present it that way when he appeared before the committee.

This bill was never a response to the Sharma case. It is simply a policy choice proposed by the government, and I’m urging senators to pass it expeditiously simply on the grounds that it’s good policy.

To be clear about the Sharma case, Cheyenne Sharma was a 20-year-old Indigenous mother who transported drugs for her boyfriend to avoid being evicted along with her young daughter. She ended up serving a 17-month sentence in custody because the law restricted her access to a conditional or community-based sentence.

As we heard from Senator Plett, in 2020, the Ontario Court of Appeal deemed that restriction unconstitutional, so for the past two years, people convicted of offences in Ontario have had greater access to conditional sentences.

Two weeks ago, as we know, the Supreme Court reversed the Ontario decision, finding — in a narrow 5-4 ruling — that the law restricting Ms. Sharma’s access to a conditional sentence was constitutionally acceptable after all. But that doesn’t mean that it was constitutionally necessary, or appropriate, and it certainly doesn’t mean that it was a good idea.

In fact, the court’s decision states, “Parliament has the exclusive authority to legislate in matters of sentencing policy.”

In other words, it’s up to us. In 2012, Parliament chose to restrict access to conditional sentences. Today, 10 years later, we can choose to expand it, and we should.

During the study in committee, many witnesses talked about the benefits of conditional sentencing for people like Cheyenne Sharma who don’t pose a risk to public safety. We heard witnesses say that conditional sentences are important because they give judges the discretion to impose appropriate sentences for Indigenous, Black and other marginalized offenders. We also heard that we’d be better off and safer if we held those who break the law accountable without needlessly separating them from their job, education, community and family.

That’s why, colleagues, in the hours and days since the Supreme Court’s decision, many legal experts and criminal law practitioners have pinned their hopes on the expeditious passage of Bill C-5. According to Queen’s University law professor Lisa Kerr, “. . . the passage of Bill C-5 has now become so important . . . .”

Ms. Kerr also stated:

Conditional sentences are crucial for bringing in Indigenous conceptions & methods of justice. We transfer our hope to Bill C-5 to open this door.

Theresa Donkor, a criminal lawyer with expertise in combating anti-Black racism, said, “We need Bill C-5 to pass more than ever now.”

Here’s the statement from the Criminal Lawyers’ Association:

Today’s [Supreme Court] decision in R. v. Sharma drives home the importance of Bill C-5. We call on [the Senate] to pass C-5 quickly so that judges once again have discretion to craft fit sentences that take into account experiences with #systemicracism.

The Canadian Bar Association’s Criminal Justice Section said it:

. . . urges the Senate to pass Bill C-5, and quickly, to restore judges’ discretion to impose a conditional sentence where appropriate.

Chris Rudnicki, a criminal lawyer who teaches at Toronto Metropolitan University, had this to say:

There is now an urgent need to pass C-5, which will accomplish what we were trying to do in Sharma and more. Let’s get it done!

Janani Shanmuganathan, a criminal lawyer we heard from at committee and a board member of the South Asian Bar Association of Toronto, said:

The result in Sharma is disappointing for many of us today but it only makes the passing of Bill C-5 all the more important.

Ms. Shanmuganathan concluded, “. . . please pass Bill C-5 and please pass it fast.”

Honourable senators, far from justifying further delay, the Supreme Court’s recent decision only increases the urgency that we should feel to pass this bill. We don’t need more study. We need to debate and vote — and turn Bill C-5 into law with all deliberate speed. Thank you, colleagues.

Senator Gold, you referenced the number of Legal Committee meetings that we had on Bill C-5. You actually attended several of them, as I recall.

After all of those Legal Committee meetings that we had on Bill C-5, the Supreme Court of Canada released a very significant ruling on a major component of Bill C-5: conditional sentences. It’s not something that we often have. I can’t recall another situation like this — in the nine years I’ve been in the Senate, and been on the Legal Committee — where we had a major ruling like this come out right after we’ve dealt with it at committee, and before we’ve had the opportunity to pass the bill.

This seems like the perfect opportunity where we could just have a few meetings, and, indeed, Senator Gold, for this bill — Minister Lametti used the exact factual scenario of Sharma as one of the reasons why he was bringing Bill C-5 forward when he tried to justify it to our committee.

Given that the government has said that the incidence of overincarceration of Black and Indigenous offenders is a major reason to bring this particular bill forward — you set forth a number of reasons here, but why wouldn’t you agree to just two, or three, meetings on this bill so we can actually make sure that our Legal Committee is doing the job, as we have been, in dealing with the constitutional aspects that the Supreme Court of Canada has so aptly set out?

Thank you for your question.

The Legal Committee did its job, and did its job in an exemplary fashion, but I repeat: This bill is not a response to Sharma. This bill is not a response to the Supreme Court saying, “You have to fix unconstitutional legislation.”

This legislation is, as was said by Senator Plett in a different context, an example of Parliament’s exclusive jurisdiction to set policy and pass legislation — dealing with criminal law in general, and sentencing in particular.

The Sharma case illustrates the problem that the lack of access to conditional sentences poses. The fact that a narrow majority of the Supreme Court, 5-4, upheld its constitutionality is not the same thing as saying that this law is wise, appropriate or fitting for the circumstances in which people accused of crimes find themselves.

It’s not a dereliction of our duty as senators to continue with our debate and our vote, and to pass this law expeditiously. That is what the majority of the witnesses, even those who wanted this bill to go further, asked us to do. Post-Sharma, they have doubled their exhortations for us to do that. We’re acting responsibly to pass this bill, to let it receive Royal Assent and to give effect to the reforms that the elected members of Parliament and we, in the Senate, have properly studied. Thank you.

Senator Gold, you said twice that this is not a response to Sharma. That’s because the Sharma ruling wasn’t released yet by the Supreme Court of Canada at the time that the government brought this legislation forward, and at the time that our Legal Committee was studying it.

Given that this bill has not yet passed — we’re nearing the end. However, it’s an optimal time for the Legal Committee to be able to take a couple of meetings and look at Bill C-5 with that context.

I also note, Senator Gold, that you have twice referred to the narrow 5-4 ruling of the Supreme Court of Canada. Are you questioning the Supreme Court’s ruling in this matter?

Senator Batters, I’ll make just two points: First, as I said, Bill C-5 is a policy choice by this government in the exercise of its plenary jurisdiction over criminal law. The Supreme Court, time and time again, has underlined the role of Parliament in setting sentencing principles and determining appropriate sentences — and that’s exactly what Bill C-5 is doing.

Senator Batters, you know, as everyone in this chamber knows, the respect that I have for the Supreme Court of Canada and its judgments. I underline the narrowness of the opinion because, in fact, it was a highly contested opinion in a court, the composition of which has changed. But regardless of whether I prefer the dissent to the majority, that is not the point here.

This was not a response to a finding of constitutionality or unconstitutionality, whether in Sharma or any other case. That was never the rationale for this law.

The rationale for this law was that the restrictions that were placed on conditional sentencing by the previous government have proven to be not only unsuccessful in deterring crime, and unsuccessful in reducing violence, but, in fact, have contributed to the overrepresentation of those people, whether Indigenous, Black, marginalized or anyone for whom a more fit sentence in the community would have been appropriate. That is why this is good policy, and that’s why we’ve done our job here.

The Legal Committee, under the able chairmanship of Senator Jaffer and all those who contributed to it, should be proud of the work that we did. We properly vetted this piece of legislation in the way in which it was presented and justified before the committee. There is no need to delay any further.

Thank you for your question, but allow me to answer it this way: Bill C-5 is an example of Parliament responding to decades of court jurisprudence underlying the exclusive jurisdiction and role of Parliament to legislate in these matters, and that’s what this bill is doing.

Thank you, again, for the question. I believe it would be unnecessary and ill-advised to send it back to committee for all the reasons that I expressed.

Are senators ready for the question?

I want to comment briefly on the amendment being debated.

I am against the amendment because of the wording. It was presented as a proposal to refer the matter to the Standing Senate Committee on Legal and Constitutional Affairs so it could study the impact of the Sharma decision.

However, I don’t know if you received it, but if you read the wording of the amendment carefully, you’ll see that it says we should refer Bill C-5 back to the Standing Senate Committee on Legal and Constitutional Affairs “for further study.”

If I’m reading this right and if I understand the language well enough, that means the committee can study whatever it wants under the guise of Bill C-5. I don’t think that’s a good idea because we could end up studying things that have nothing to do with Bill C-5.

We have studied this bill thoroughly. I have colleagues, some of whom spoke today and attended Standing Senate Committee on Legal and Constitutional Affairs meetings, who must remember being there and know we studied this bill thoroughly.

Finally, to be very clear — and this will be my last comment — the proposed amendment has nothing to do with what I proposed a few moments ago here today, namely, to give the committee a mandate to conduct an in-depth study on sentencing principles. Thank you.

Are honourable senators ready for the question?

In amendment, it was moved by the Honourable Senator Plett, seconded by the Honourable Senator Batters:

That Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, be not now read a third time, but that it be referred back to the Standing Senate Committee on Legal and Constitutional Affairs for further study.

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

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

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

In my opinion, the “nays” have it.

Do we have agreement on the bell?

Call in the senators for 6:11 p.m.