Justice Committee on April 8th, 2022

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

I wonder if you can talk about the research you did to come up with this plan that you have in picking these particular sections for reducing mandatory minimums, and also, when you brought in victims who were associated with these offences, how the victims responded to your plans to remove penalties.

For example, I think about an abduction of a person like, say, my daughter, who's 14 years old, and about her being assaulted and held against her will. How happy would I be that the individual would qualify for a CSO and would be coming right back to that community?

[Andrew Di Manno]

The Department of Justice did conduct public opinion research. It initially showed that Canadians are supportive of MMPs at the outset, but once they're informed about the negative impacts on the criminal justice system, they overwhelmingly support an approach that's more nuanced and that's currently permitted under the law.

I don't want to purport to speak on behalf of all victims, because they're not a homogenous group; however, as part of the 2017 national justice survey conducted by the Department of Justice, most Canadians responded to a survey that they were not supportive of MMPs, with 91% indicating that Canada should give judges flexibility to impose sentences that are less than the MMP.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Yes, and you know, that's part of our committee's job. We'll be bringing in witnesses who have been victims. We'll hear first-hand exactly how they feel about removing some of these mandatory minimums.

I was, though, happy about one thing that the minister said, and that was that organized crime, gang activity, is not in this particular reduction of sentencing. Did I hear that correctly?

[Andrew Di Manno]

You are indeed correct. Many of the mandatory minimum penalties that will remain after Bill C-5 is adopted are five- and seven-year mandatory minimum penalties for offences in which a restricted or prohibited firearm is used, when the offences are in connection with organized crime. The mandatory minimum penalties that are targeted, let's say, for firearm offences in this bill are the ones in the “in any other case” category, which particularly relates to the use of firearms like long guns.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Morrison. Your time is up.

Next I will go to Madam Diab for six minutes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much, Mr. Chair.

Thank you very much to the witnesses for being here this afternoon. This is very important research—or meeting—that we are doing here. I look forward to all the presenters who will come forth.

In my time in Nova Scotia, when I was involved in the justice portfolio.... In Nova Scotia, we have a ridiculously high number in terms of overrepresentation in our correctional facilities of Black and indigenous Nova Scotians. I would say that overwhelmingly the research and the evidence are clear now, from the many people who have spoken on it since those years. There's clearly a problem in our system. Can you speak to me in relation to that?

What consultations informed the development of Bill C-5, specifically with groups representing racialized groups and indigenous people or provinces like Nova Scotia? What have you heard and can you tell me the impact that MMPs would have on that overrepresentation?

I look to whoever is able to answer that.

[Andrew Di Manno]

I can start by saying that there haven't been specific consultations on Bill C-5, but there were consultations done at the criminal justice system round tables in 2016, and the mandatory minimum penalties that are being targeted in this bill are the ones that are particularly associated with negative disproportionate impacts on indigenous people, Black Canadians and members of marginalized communities.

As the minister noted earlier, indigenous persons are overrepresented with respect to certain firearm-related offences, and the same goes for Black Canadians, who are overrepresented with respect to import/export offences. I can also say that there's one in five indigenous women who are serving a sentence for a serious drug offence or conspiracy to commit a serious drug offence, and that by repealing the mandatory minimum penalties in those cases, the government is restoring judicial discretion to impose fit sentences in all cases.

[Lena Metlege Diab, Liberal, Halifax West, NS]

I think part of the bill, and I'm not sure exactly where it is, would give more discretion to prosecutors and to police. Is that correct? Do you see that as a concern for marginalized communities, being in a system like that? Can you comment on that for me?

[Andrew Di Manno]

I can say that the reforms to the Controlled Drugs and Substances Act enact a declaration of principles for the first time in that federal legislation, and those principles are based on former a private member's bill, Bill C-236, which treated drug-related offences, the use of drugs or simple possession of drugs as a health and a social problem rather than a criminal one.

Where the police officer fails to exercise their discretion to divert at the first point of contact, Crown prosecutors have to apply the exact same principles. Those principles are also informed by the August 2020 guidelines of the director of public prosecutions, which tell us to focus on the more serious, drug-related offences, the ones that endanger public safety, and to redirect those cases that are less serious out of the criminal justice system at the first point of contact.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you for that.

We've heard and my experience tells me that conditional sentence orders allow offenders to remain embedded in their communities while serving their sentences when, of course, the offence and the crime are such that it's appropriate for them to do that. We know that community support is vital to the process of managing mental health and addiction challenges, which are extremely difficult to treat when people are incarcerated.

I know the minister talked about this, but I would like to know more about what the data shows regarding the difference in the outcomes here for offenders and the community.

To be frank with you, when I was justice minister and attorney general in Nova Scotia, we started the mental health court system. It takes the individual and gives them a wraparound service. In my time, we had a five-year anniversary, and the results that came out of that were that it was unbelievably helpful to the individual, to the community and to everyone involved.

I'm going to give you the time, whatever I have remaining, to elaborate a little on that.

[The Chair, Liberal, Randeep Sarai]

Unfortunately, Ms. Diab, you don't have time. You are a few seconds over. Hopefully the witness will be able to answer next.

I believe Mr. Fortin is having some power troubles, but if he reconnects, we'll give him his time afterwards.

I'm going to skip and go over to Mr. Garrison for six minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair, for keeping me on my toes.

I want to start by asking a question about the number of mandatory minimum penalties that will remain on the books after Bill C-5 passes, if you have that figure. My recollection was that there were probably around 73 or 75 existing mandatory minimums or something like that.

[Andrew Di Manno]

There are currently 67 offences in the Criminal Code that are punishable by a mandatory minimum penalty. Of those, 13 related to firearms will be repealed by this bill. One of them will be repealed in relation to a tobacco-related offence, so that would be 67 minus the 14 in the Criminal Code.

With respect to the Controlled Drugs and Substances Act, they will all be removed. There are currently six offences that are punishable by an MMP in the Controlled Drugs and Substances Act.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

“Never do math in public” is one of my rules, but that means about 40 mandatory minimums would remain.

[Lena Metlege Diab, Liberal, Halifax West, NS]

It's 47.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

It's 53.

[Some hon. members]

Oh, oh!

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

We have three or four numbers on the other side.

We have 47. Okay. How many of those are currently subject to appeals in the court system? You may not have that, I know. Our court system is quite decentralized, but I know that a lot of these are regularly challenged on constitutional grounds. Do we have any idea of how many of those cases are taking place now?

[Andrew Di Manno]

As of March 30, 2022, the Department of Justice was tracking 245 charter challenges to MMPs. This represents 35% of all charter challenges to the Criminal Code that are being tracked by the department.

There are 27 challenges to MMPs for firearm offences, seven at the appellate court level and 20 at the trial court level. There are also two challenges to MMPs for drug offences, including trafficking, import, export and production, and both of those are at the trial level. Of all cases that were tracked by Justice Canada in the last decade and where a decision was rendered, 69% of the charter challenges to MMPs for drug offences were successful, and almost half of the charter challenges to MMPs for firearm offences were successful, at 48%.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

The reason I ask these questions is that I'm one of those people who would like to see the court spend its time on the more serious violent crimes that really threaten communities. From what you're telling me now, if we pass Bill C-5, it will take a significant number of future challenges out of the court system completely.

[Andrew Di Manno]

Indeed. One of the trends we've seen over the last 10 years is that mandatory minimum penalties have, as the minister said, increased the number of successful charter challenges, reduced the number of guilty pleas, which often require victims to testify more often in certain cases, and increased the amount of imprisonment of shorter duration, sometimes at the expense of more effective and longer community-based sentences. By reviewing these mandatory minimum penalties, resources can be redirected towards measures that are more effective and will promote lowering recidivism rates.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you for that. I think it's an important point to remember when we're considering this that there are not only costs but savings from removing the mandatory minimums. We might get better outcomes for a cheaper price when it comes to the court system.

I want to switch and ask a question on a concern I have about increased discretion for the police in this bill in the absence of serious reform with regard to systemic racism in the police. I know the justice department is not responsible for that, but there are two provisions in the bill around which I'm concerned that in the absence of reform, there aren't safeguards to prevent systemic racism from continuing to operate.

The first of those is allowing police additional powers of discretion at the initial level of contact. My concern, as we've seen with too many police forces, is that discretion will benefit upper-middle-class white people who come in contact with the police, and not racialized and indigenous Canadians. The second has to do with record-keeping. Bill C-5 says that the police may keep records. Again, my concern in the absence of police reform is that those records will be kept on indigenous and racialized Canadians and will not be kept on others who come in contact with the police.

I wonder if the department has any comment on my concern about police discretion and record-keeping discretion in the absence of that serious police reform.

[Andrew Di Manno]

What I can say about record-keeping is that the purpose of the section is to allow police officers to keep records of warnings and referrals so as to avoid confusion and ensure consistent application of the provisions. These records are inadmissible per the bill. It's indicated that they're inadmissible for the purpose of proving prior offending behaviour in any court proceeding.

I can also say that the bill provides an overlapping system of checks and balances. Where the police officer fails to exercise their discretion at the first point of contact, lays the charges and refers the matter to the Crown, the Crown is obligated to follow the principles that are laid out in the Controlled Drugs and Substances Act, but also prosecutorial guidelines, which exist at the federal level and at the provincial level and essentially say that criminal charges should be kept for the most serious drug offences that endanger public safety.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Mr. Fortin is back.

Mr. Fortin, I'm glad you have your power back. Your round was skipped, and I'm going to give it back to you for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Mr. Di Manno, the minister explained that the main reason for this bill was to combat systemic racism and the overrepresentation of racialized people in our prisons, if I've understood correctly.

Can you tell me whether any research has been done into the reasons why the racialized people are overrepresented in our prisons?

Is it because they commit more criminal offences, which I would imagine is not the case? Is it because the police and the judges deal more harshly with them?

Is it because there aren't enough legal support services in these communities?

Are there other reasons?