Bill C-22 (Historical)

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act

This enactment amends the Criminal Code and the Controlled Drugs and Substances Act to, among other things, repeal certain mandatory minimum penalties, allow for a greater use of conditional sentences and establish diversion measures for simple drug possession offences.

Criminal Code

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, I would start my answer by simply suggesting we are talking today about Bill C-22, not about climate change, so let us stick to the topic. In the context of discretion of judges, judges are professional. They have great training and they have great abilities. As a new member of Parliament I clearly understand it to be part of my responsibility to make legislative decisions, to set laws and to set guidelines for judges and for the criminal justice system. I believe this is not a partisan issue. Many of the minimums that would be eliminated by the government were in fact introduced by previous Liberal governments. It is our job, in my understanding, as legislators and members of Parliament to, in fact, have input into these matters.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Mr. Speaker, let us talk about our job as legislators.

I encourage all of my colleagues on both sides to talk to outreach workers and organizations. Pierre Laporte is an outreach worker for L'Écluse des Laurentides who is helping us understand the consequences of the crimes that may be committed by people who are suffering.

What is so wrong about trying to understand what these people went through before they committed these crimes? This is about taking a different approach to better understand the causes. I would like to hear my colleague's thoughts on this and to hear him explain how he can be against this bill.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, fundamentally I do not disagree with my colleague. As I deal with many of the people in northern Saskatchewan, I understand there are many underlying issues and there are many issues that are foundational to the challenges faced in these communities. For example, one of my chiefs begged me one day to help him teach the people of his community to be good parents. The children of his community are begging for parents. There are many underlying issues that start well before we get to the commission of crimes, but in the commission of crimes, these are not minor offences; these are not minimum kinds of matters that we are talking about with this legislation. At the end of the day I absolutely and 100% believe that our actions result in consequences, and those consequences have to act as a deterrent at the end of the day.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. Speaker, the problem with the Conservative approach to the justice system is that they assume every offence is exactly the same, when there are always complicating individual factors. In the Criminal Code, there exists already section 718.2, which allows a judge to increase a sentence depending on the severity of the case.

Why do the Conservatives not have faith in our judges to dole out the appropriate punishment when the Criminal Code already has a section that allows them to do just that?

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, I would provide a very simple answer like I started originally. It is the responsibility of us, as members of Parliament and legislators, to give guidelines. I believe that is one of the fundamental roles that we have. In my time as mayor of a small city, there were two things that I took very seriously. One was the management of the finances of my little city and one was the safety of my citizens. Those two were paramount. As a member of Parliament, I believe the safety of my citizens, of my riding and this country is paramount, and I believe it is our job as members of Parliament to set the guidelines, to establish the rules and laws to which those guidelines must submit.

[Larry Bagnell, Liberal, Parliamentary Secretary to the Minister of Economic Development and Official Languages (Canadian Northern Economic Development Agency)]

Mr. Speaker, you are doing a wonderful job, as always, in the Speaker's chair.

I would just like to say I am coming from the traditional territory of the Kwanlin Dün First Nation and the Ta’an Kwäch’än Council.

When I heard there was a bill coming up with some of the content here, I was really supportive of it. I asked if I could speak to it to show my support. There are five items from my riding, my area or my perspective over the years, which I am very supportive of.

First, the reduction of overrepresentation of indigenous people in our jails. Parliament has wrestled with this for a long time, trying to come up with solutions to this. Two parties have already mentioned in this debate that roughly 5% of people in Canada are indigenous, yet they make up about 30% in federal jails.

Second, I would like to see movement towards the success Portugal has had in its dealings related to drugs as a health issue.

Third, the bill would make society safer, and I will go into the reasons why.

Fourth, it will lower costs for government. Almost every member of Parliament has ideas where that saved money could be spent, or it could pay down the debt.

Finally, it will reduce the number of victims.

I will explain how the three elements of the bill would do this, from my perspective. I have not written these down in a speech. I have just scratched out some points to make.

First, on the mandatory minimums and the effect on indigenous people and racialized people in our justice system. A large number of those particular people are in jails because of offences that have mandatory minimums.

Second, related to mandatory minimums—

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Mr. Speaker, I rise on a point of order. Sorry to interrupt, but I believe the parliamentary secretary forgot to indicate that he is going to split his time with the member for Newmarket—Aurora.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I did forget that and I thank the member.

I will now go to the three main elements of the bill and explain how they would fill the objectives of which I am supportive. I mentioned the unbalance of people in federal institutions. Certain mandatory minimums have also been found unconstitutional because they are excessive. They do not reasonably match the crime and the criminal with the punishment. People can get off unreasonably and I do not think others would want that if that happened.

Another item related to the mandatory minimums is it leads to longer trials and often more cases end in acquittals, that many would not have occurred if people were not facing an unreasonable option as an end result. Another reason, from my perspective, is for first-time offenders on minor offences. The evidence has shown that often it is less safe and has less positive results when first-time offenders are put in jail as opposed to some of the alternatives like diversion and other types of programs and treatments.

We are all social animals. If people do not think they are, they can try to go against their own political party members on a particular issue.

I call jail the university of crime. If we put people in jail for the first time, they will learn from the people they deal with every day, and they will learn from every day on how to become more hardened criminals, rather than from dealing with their problem.

Some people say that putting criminals in jail makes communities safer. It does not if they are making more hardened criminals. The point people neglect to mention when making that case is that virtually almost everyone gets out of jail, so we want them safer when they get out and we want them rehabilitated.

Another reason to remove some mandatory minimums is that we cannot really trump other provisions of the justice system, like the Gladue provisions and other such provisions on racialized reports, by having a mandatory minimum. There is a conflict there. A number of people from various parties have raised the fact that it limits a trained judge from the individual tailoring of a sentence to the severity of the crime and the background of the criminal.

The second major item in the bill is related to the greater use of conditional sentences. For people who want evidence-based policy and legislation, it has been proven time and time again that people are far less likely to reoffend if they have the appropriate rehabilitation. A conditional sentence can be very hard with the treatment that can be assigned with it. It is not easy for someone, but it is much more effective.

I remember when we were dealing with this and debating it about 10 years ago. A big supporter of this was Conservative Senator Vern White, who had been the police chief in Whitehorse and then in Ottawa. At that time, recidivism rates were around 40% to 60%, and the conditional sentencing rates were 10% to 30%. Much progress has been made in many cases.

I appreciate the Bloc's view on this from the experiences it has had in Quebec with diversion, conditional sentences and other forms of dealing with people, especially young offenders. I remember in February 2001, Michel Bellehumeur from Berthier—Montcalm was really passionate about this. In fact, I think he spent most of his term in the House of Commons passionately making that case about more appropriate treatment of people. In that case, it was young offenders, but also more progressive and successful treatment of first-time offenders.

Also, I want to clarify what some have talked about with respect to safety and conditional sentencing. Once again, that is only allowed if the person is not a “danger to society ”, which is the term for use by the judge and only for a sentence that is less than two years. There have been a number of successful stories of women who were not put in jail, but were given conditional sentences to stay with their family and their social network, and go to treatment.

The third element of the bill relates to the possession of drugs. In the majority of crimes, people are either on substance or are trying to get money for a substance, including alcohol. Therefore, I personally would move more toward what Portugal is doing. It is a step in the right direction. If people have an addiction, the last thing they need is a criminal record. It is harder for them to get a job, which is what may have caused the addiction in the first place, to feed their family, etc.

Finally, the federal economic statement, which I hope we will be voting on this week, has support for some of the items that people have mentioned, such as support for the Gladue report, the race and cultural assessments and community justice centres, all of which can deal with the root causes and the situations people are in. From my perspective, this is a move in the right direction on a number of fronts to make it safer, to reduce the number of victims, to reduce the costs and to have a fairer justice system.

[Martin Champoux, Bloc, Drummond, QC]

Mr. Speaker, I thank my colleague and congratulate him for his speech.

I am hearing a lot of comments about sentencing. We know that harsher sentences do not result in fewer crimes being committed. Prisons are overcrowded, and people from racialized or indigenous communities are overrepresented in our prison system. We are hearing a lot about good will. We are also hearing a lot about protecting victims of serious crimes.

However, I have not heard anything about a solution for the root cause of the problem. It is not necessarily by reducing sentences, eliminating minimum sentences or encouraging convicted criminals to undergo therapy that we are going to find a solution for the root cause. Racialized communities and indigenous people continue to account for a large proportion of the prison population, and I would like my colleague to tell us how to solve this problem.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, the bill does deal with them, but unfortunately only once they are in the system. Then we try to ensure they do not go back into the system.

The member is exactly right. We have lobbied and made the case for years that we have to deal with the root causes as to why people come into the system in the first place. That is why we have the biggest housing fund in Canadian history. It all starts with housing first. If people do not have a home, how can they deal with other problems, such as addictions or anything else that might lead them into the justice system?

That is why we have increased the homelessness programs. I think we have more than doubled those. We have increased money for mental health, because a number of people in the mental health system end up in hospitals or jails when there should be mental health supports. That is why we have increased the special contributions to every province and territory for mental health. It is why we have supported indigenous and other cultures to ensure they are included in our policies and laws so they do not feel disjointed, which could add to them getting into the criminal justice system.

All these items relating to poverty and addiction need to be dealt with to reduce the root causes. Then we would not need to have a major debate like this.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Mr. Speaker, as a member of Parliament representing a riding in Alberta, I have been horrified by our provincial government's response to the opioid crisis that is devastating our province and other regions of the country.

The lack of understanding, the lack of empathy and the lack of common sense shown by the UCP in regard to this issue has meant that Albertans, more than ever, are depending on the federal government to step up and protect our loved ones, and to treat addiction and substance abuse as a medical issue, not a criminal issue.

Sadly, this bill simply removes the mandatory minimums, but individuals who struggle with substance issues will still end up in the criminal justice system.

The member spoke about how he possibly did not agree with this, but I wonder how he can support legislation that does not go far enough, that does not take people struggling with addiction out of the criminal justice system.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I do not think we should let the perfect be the enemy of moving forward, of having some success. We have to take steps. This is a move in exactly that direction. It will reduce some. I would like to move as far as Portugal has.

As the member very appropriately said, it is a health issue. A majority of crimes in Canada are caused by someone with an addiction or someone raising money to support an addiction. That is where the support needs to be to deal with that. It is not a criminal issue. Criminalizing people with addictions just accentuates the problems that would put them in jail. I agree.

It is a move in that direction, maybe not as far as some people want, but we have to take as many steps and opportunities as we can to move in that direction.

[Tony Van Bynen, Liberal, Newmarket—Aurora, ON]

Madam Speaker, today I join you from the traditional territories of the Wendat, Haudenosaunee and Anishinabe people and the treaty land of the Williams Treaties First Nations to speak to Bill C-22, particularly on the issue of MMPs, or mandatory minimum penalties, in the Criminal Code and the Controlled Drugs and Substances Act.

The importance of equitable sentencing laws in the criminal justice system cannot be overstated. Indeed, imprisonment represents one of the most grave intrusions by the state into the lives of individuals and, as such, sentencing laws must be carefully reviewed to ensure that they reflect the values that Canadians hold dear. Unfortunately, there are inconsistencies with the current sentencing regime provided by the Criminal Code and the Controlled Drugs and Substances Act that disproportionately impact indigenous peoples, Black Canadians and members of marginalized communities.

Bill C-22 proposes to repeal the particular MMPs that have shown to have the most significant impact on these communities, while ensuring that the courts can continue to impose sentences for violent and serious crimes that respond to their seriousness and the harm caused.

When considering the appropriate sanction for an offender in a criminal case, a judge must effectively balance the principles of proportionality, parity and restraint. The principle of proportionality requires a sentence to reflect the gravity of the offence and the degree of responsibility of the offender. The principle of parity requires it to be similar to those imposed on similar offenders in similar circumstances. Perhaps most importantly, the principle of restraint dictates that an offender should not be deprived of liberty if less restrictive sanctions can be appropriate under the circumstances.

Balancing these principles is a highly individualized process that demands an assessment of all relevant factors, including personal characteristics, life experiences and the individual standing before the court. However, when an offence carries an MMP, the minimum punishment is prescribed by law, which removes a certain amount of discretion from judges and means that they cannot impose sentences below the legislated minimum, even in cases where they find that a shorter period of imprisonment or no imprisonment at all would be an appropriate sentence given the circumstances of the offence.

While proponents of MMPs would argue that this ensures consistency and fairness in sentences for the same crime, the reality is that for some crimes this cannot and does not yield a fair result, which has negative impacts on the justice system at large, as well as on the victims. MMPs can be inconsistent with the direction of the Criminal Code requiring judges to use imprisonment with restraint and to consider all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, with particular attention to the circumstances of indigenous offenders.

Between 2007 and 2017, data shows that indigenous and Black individuals were more likely to be admitted to federal custody for an offence punishable by an MMP than were other Canadians. In fact, the proportion of indigenous adults admitted with an offence punishable by an MMP almost doubled between those years, from 14% to 26%. Similarly, in 2018-19, Black persons represented 7.2% of the federal inmate population, but only 3% of the Canadian population.

Indigenous people and Black Canadians are particularly overrepresented for firearm and drug offences carrying MMPs. Specifically, Black Canadians comprised 43% of individuals convicted of importing and exporting drugs in 2016-17, while indigenous people comprised 40% of those admitted for a firearm-related offence in the same year.

Bill C-22 responds to this data by proposing to repeal MMPs for all drug offences in the CDSA, as well as for one tobacco-related offence and 13 firearm offences in the Criminal Code.

MMPs would remain for offences such as murder, sexual assault, all child sexual offences and for certain offences involving restricted or prohibited firearms or where the offence involves a firearm and is linked to organized crime.

While MMPs have been in place since the Criminal Code was first enacted, they were largely the exception until relatively recently. Over the last two decades, there has been an increased reliance on MMPs to further denounce crimes, deter offenders and separate them from society. The proliferation of MMPs has resulted in an increase in successful charter challenges at all levels of court, including the Supreme Court, culminating in two significant decisions. The first decision was Nur, in 2015, involving three- and five-year MMPs for illegal possession of a loaded prohibited or restricted firearm, and the second was the Lloyd decision, in 2016, involving a one-year drug MMP. Both cases make it clear that the use of MMPs for offences that cover a broad range of conduct is susceptible to charter challenges. More charter challenges mean more trials, increased costs and delayed justice, outcomes that are good for no one.

It is my understanding that as of February 8, 2021, out of 560 ongoing charter challenges in Canada tracked by the federal Department of Justice, 47% are challenges to MMPs. The proposed reforms will therefore improve the efficiency of the justice system by lowering the volume of charter challenges in the courts, which put additional pressures on their already limited time and resources.

The MMPs being repealed in this bill have failed to achieve their purported objectives: deterrence and the protection of public safety. Research has shown that increases in the severity of sanctions actually increase the likelihood of recidivism, thus failing to deter crime or protect the safety of the public. We know that a justice system that provides a one-size-fits-all response to crime can be ineffective and lead to unjust results for victims, for offenders and for Canadians in general.

Courts must have the flexibility to order sentences that reflect the circumstances of each case. In some cases, jail will be appropriate, and this bill would not change the ability of judges to sentence offenders to incarceration when it is warranted. However, in other cases, sentences that more effectively address the root causes of the offence and that better address the harm caused may be more appropriate. I might add that they would be more effective in ensuring public safety as well, because they reduce the likelihood of reoffending.

The amendments proposed in Bill C-22 would ensure that the courts are still able to impose tough sentences for violent and serious crimes, while restoring their ability to consider the systemic factors that disproportionately impact indigenous peoples, Black Canadians and marginalized people, and impose non-custodial sentences or sentences of imprisonment below the MMP when satisfied that the sentence would be appropriate to the degree of responsibility of the offender and the gravity of the offence.

The reforms would also respond to recommendations from many stakeholders in the area of anti-racism and the criminal justice system, including key stakeholders in my riding of Newmarket-Aurora, whom I had the pleasure of bringing together for a conversation with the Minister of Justice back in October.

The Truth and Reconciliation Commission has also called for the elimination of indigenous overrepresentation in correctional institutions over the next decade, including through amendments to the Criminal Code in the area of MMPs. Similarly, in its final report, the National Inquiry into Missing and Murdered Indigenous Women and Girls called for all levels of government to evaluate the impact of MMPs on the over-incarceration of indigenous women, girls and 2SLGBTQQIA people, and to take appropriate action to address their over-incarceration. More recently, the parliamentary Black caucus, composed of senators and members from all parties, called for the elimination of MMPs in the statement issued on June 20, 2020, which I am proud to support.

Bill C-22 shows that we are listening to the calls of our fellow Canadians to bring about evidence-based reforms to the sentencing regime. The proposed amendments are an important step toward creating a justice system that represents and protects all Canadians in an equitable and non-discriminatory way.

[Derek Sloan, Independent, Hastings—Lennox and Addington, ON]

Mr. Speaker, I have a comment to make myself. Several people today have noted that the science with respect to mandatory minimum penalties has been conclusive and their usefulness has been completely debunked. In my opinion, this is false. I reached out to the Library of Parliament a few weeks ago and asked them this very question. Their conclusion to me, in a lengthy document that I would be happy to share, is that while deterrence, as such, may or may not be increased in certain punishments, it “is not the only factor in the debate over MMPs”, as mandatory minimum penalties are called, “and some other factors are more commonly addressed from a qualitative rather than quantitative standpoint.” Their final conclusion to me is, “Due to the variety of different metrics employed, the Library is unable to definitively comment on the degree to which scholarly opinion is settled with respect to MMPs.”

I wonder if the member could comment on the status of the science in question and the research report from the library.

[Louise Chabot, Bloc, Thérèse-De Blainville, QC]

Mr. Speaker, I rise on a point of order.

There was no interpretation for a minute. However, the problem now seems to have been resolved.