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

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

Madam Speaker, I would be pleased to rise in the House today rather than just speak to a pinhole camera, as I always say, but let me say that New Democrats will be supporting Bill C-22 at second reading, because there are some good ideas in it. However, if we are going to be amending the Controlled Drugs and Substances Act, we see Bill C-22 as a real missed opportunity. We have two very important crises in front of us as Canadians. One is the opioid crisis and the other is the over-incarceration of indigenous people, Black Canadians and Canadians living in poverty. We had a real chance to tackle both of those issues in this bill and, instead, the government has given us a very tepid response.

What we should see in this bill is a change to the Controlled Drugs and Substances Act to decriminalize the personal possession of small amounts of drugs for personal use, and we should also see a second provision that would automatically expunge previous criminal records for personal possession of drugs. If we had those two things in this bill, we could tackle the problem of addiction by moving it clearly to the health system rather than the criminal justice system, and we could tackle one of the main causes of over-incarceration of marginalized people in Canada.

The policies that New Democrats are talking about are more effective, more just and even cheaper. I want to talk about mandatory minimums. The one good idea in the bill is to eliminate mandatory minimums for drug offences. New Democrats have certainly long argued for this. Conservatives, in their speeches, have been saying that the bill would eliminate mandatory minimums created by the Liberals, which is true and I am for that, and it creates a lot more mandatory minimums created by Conservatives, and I am also in favour of that.

Mandatory minimums do not do a thing to prevent or deter crime or make Canadians safer. All that mandatory minimums do is to guarantee that some people who should not be in prison at all, who would be better off in rehabilitation or diversion programs, are incarcerated. Mandatory minimums end up costing the public money, and having spent 20 years as a criminal justice instructor before coming here, I can say that those who go to prison actually end up far more likely to reoffend than those who do not. Therefore, rehabilitation and diversion programs are a great success and mandatory minimums stand in the way of those programs.

When it comes to overrepresentation, there is no doubt that when we look at the statistics of how many indigenous people are in the correctional system, though they are only 4.9% of the population, they make up over 30% of the people incarcerated in Canada, as the criminal investigator, Ivan Zinger, reported. If we look at Black Canadians, in the last census though they were about 3.5% of Canadians, they are more than double that percentage of the prison population. Many people who live in poverty end up embroiled in the criminal justice system because of very minor drug offences. Again, if we are looking at what the real solution is to both of these problems, it is decriminalization of the personal possession of small amounts of drugs.

Let us take the example of Portugal, which decriminalized personal possession in 2001. We see some very positive results as a result of that legislative action. There have been steep declines in overdose deaths in Portugal, in drug usage, in new cases of HIV and hepatitis C infections and in drug-related crime. Overdose deaths declined from over 400 per year to less than 40. Drug usage declined among all age groups, but it was an especially large decline in the 15-year-old to 24-year-old age group. New HIV infections declined by 90%. Portugal previously had the highest rate of drug-related HIV cases, and decriminalization led to that very steep decrease. It also led to a decrease in incarceration, by about 75% for drug offences.

This measure had lots of related impacts. First of all, the police reported that they had much more time to devote to serious drug trafficking cases when they were not messing with personal possession cases, and it helped eliminate many long delays in the Portuguese criminal justice system by taking many of these minor cases out of the court system.

Did it solve all problems related to addiction and drug use? No, of course it did not. Observers have pointed to the need that if we decriminalize personal possession, we need strong prevention and treatment programs to go alongside that. We need things like supervised injection sites, needle exchanges, provisions for the safe supply of drugs, better access to anti-overdose medications and improved access, obviously, to drug prevention and treatment programs.

Certainly the opioid crisis makes more dramatic action than this bill offers necessary. On the south island, in 2019, there were 65 overdose deaths. In 2020, during the current pandemic crisis, there 120 deaths. In British Columbia as a whole in the period of COVID, the number of toxic-drug deaths doubled in that time period.

Is decriminalization of the possession of small amounts of drugs for personal use still an idea outside the mainstream? Certainly I felt like an outlier when I first began talking about this as a city councillor in 2008, though, of course, Portugal was my example then as it is now. However, now we can add to the list of supporters of decriminalization of personal possession, including big city mayors, from Kennedy Stewart in Vancouver to Valérie Plante in Montreal; the Elizabeth Fry Society; the John Howard Society; virtually every criminal justice researcher; the Canadian Association of Chiefs of Police; the World Health Organization; the Global Commission on Drug Policy; and various UN agencies.

While the New Democrats are offering support for this timid bill, it does do one good thing in eliminating those mandatory minimum sentences for drug offences. However, what we are offering is also criticism for the failure to take on the bigger questions that lie behind our failure to confront the opioid crisis, the over-incarceration of indigenous people, Black Canadians and Canadians living in poverty.

The New Democrats will continue to fight for more effective, comprehensive and cheaper measures to get these two jobs done.

[The Deputy Speaker, Bruce Stanton]

It being 6:42 p.m., the House will now proceed to the consideration of Private Members' Business as listed on today's Order Paper.

The House resumed from March 24 consideration of the motion that Bill C-22, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, be read the second time and referred to a committee.

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Crown-Indigenous Relations]

Mr. Speaker, I will be splitting my time with my good friend, the member for Beaches—East York.

I am speaking to members from the traditional lands of the Mississaugas of the Credit in Scarborough—Rouge Park. I want to, first and foremost, thank the Minister of Justice and his team for their hard work in bringing this bill together. I will be speaking in support of Bill C-22. There are three basic elements to it. First, it repeals mandatory minimum penalties of imprisonment for 14 such offences. Second, it allows for conditional sentence orders to be expanded and, third, it requires police and prosecutors to consider all other measures for simple possession of drugs, such as diversion and addiction treatment programs for those who may be charged.

I have worked extensively within the criminal justice system as a youth worker. I used to run a youth organization here in Scarborough called the Canadian Tamil Youth Development Centre. During my tenure there, I met with dozens of young people who had been charged both criminally and under the YCJA. My experience led me to believe that the criminal justice system has a profound impact, particularly on racialized youth, and in the case of Scarborough, particularly Black youth.

The experience goes beyond my work at the Canadian Tamil Youth Development Centre. It goes into my work as a lawyer when I started practising, as well as into when we developed the national anti-racism strategy in 2019. As I went across the country, community after community spoke to the disproportionate impact of the criminal justice system on young people, particularly Black, indigenous and racialized youth. I believe Bill C-22 addresses, in part, some of the concerns that stem from the imposition of mandatory minimum sentences, particularly since 2006 when it was brought forward by the previous Conservative government.

My experience with young people leads me to believe that they are often caught in a moment when they were in the wrong place at the wrong time. They may have been with the wrong set of friends or they may have just acted stupidly. This gets them into the criminal justice system. It is an on-ramp that eventually leads to greater charges, in part because they are also being surveilled by several police services.

I want to highlight the recent case of someone I know quite well now. His name is Rohan George. He was admitted to the bar of the Law Society of Ontario just last year. He served eight years for manslaughter. He talks about his life experiences as a young person who went to St. Mother Teresa school in my riding of Scarborough—Rouge Park.

It started when he was about 14 with a stolen bottle of alcohol and a failure to attend court. This eventually escalated into something much more serious. This speaks to the failure of the criminal justice system to ensure that there are adequate supports and off-ramps for these young people. This young man served his time. He served eight years, went to law school and did thousands of hours of community service. I know him because he was working at an organization called the South Asian Autism Awareness Centre. I never knew that he had a criminal conviction and he was finishing his time.

I want to quote a line from the Law Society panel. It said, “The concept of rehabilitation is based on the capacity in human nature for someone to recognize their mistakes, to make amends, to correct the course of their lives, and to become productive and positive members of their community.” I believe that young people, particularly those from racialized communities who have been charged, are often not given the support that they need to get out of the criminal justice system.

As a member of Parliament, I have seen many cases that have come to our office where there may have been criminality that has escalated to removal from Canada because of immigration status. I believe the supports were not there when young people were around and getting into trouble for them to get off on these off-ramps.

The work I did, particularly with young Tamil men in Scarborough, has proven to me the need for community intervention and investments into the community. At that time, the work we did stemmed from the national crime prevention strategy funding of $50,000. We were able to help hundreds of young people avoid the criminal justice system. Those who did enter into it were supported to get out, often through education.

Since being an MP, I had the chance to visit institutions such as Millhaven and Beaver Creek. One does not have to spend too much time there before one realizes there is a gross misrepresentation within these institutions. It is partly because when one goes in, the officers, those who help people enter the facility, are primarily white, but once one goes into the facility it is racialized Black and indigenous people who occupy the cells. Once one talks to people, and I think as MPs we have the prerogative to speak to these individuals, one soon finds out there is an incredible story, which is the failure of the system, when one digs deeper into each and every one of those cases.

In 2019, I had the opportunity to welcome the Minister of Justice to Scarborough—Rouge Park. There are many organizations in Scarborough as well as around the GTA that do a great amount of work supporting youth. I want to recognize their work. Fernie Youth Services is an organization that provides an off-ramp right here in Scarborough—Rouge Park, as well as the Canadian Association of Black Lawyers, which has been really vocal in its opposition to the impacts of mandatory minimum sentences, particularly on Black youth. TAIBU Community Health Centre, the Zero Gun Violence Movement, the Urban Rez Solutions, Urban Alliance on Race Relations are some of the organizations that were able to meet with the Minister of Justice and outline the disproportionate effects mandatory minimums and other measures have on young people within our community.

The numbers speak for themselves and I want to give members some highlights.

Between 2007 and 2008, 39% of all Black offenders and 20% of all indigenous offenders were admitted into federal custody for MMP offences. That is an astonishing number. When we look at the proportion of indigenous offenders admitted with an offence punishable by an MMP, it has increased from 14% in 2007-08 to 26%. It has essentially doubled in the decade from 2007 to 2017. Of the offenders convicted of a Controlled Drugs and Substances Act section 6 offence, 42% were Black. The proportion of Black offenders increased from 33% in 2007-08 to 43% in 2016-17.

In 1999-2000, indigenous people represented 2% of the Canadian adult population, but accounted for 17% of admissions to provincial and federal sentenced custody. In 2020, despite this population growing to 5% of the overall adult population, 30% of male inmates and 42% of female inmates were indigenous.

The numbers are quite clear and show that there is a need for this to be addressed. This is systemic racism that needs to be addressed. I believe—

[The Assistant Deputy Speaker, Carol Hughes]

Unfortunately the hon. member's time is up.

Questions and comments, the hon. member for Cowichan—Malahat—Langford.

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

Madam Speaker, I appreciate my hon. colleague's speech, but I am going to call the Liberals out on Bill C-22.

There are absolutely some helpful measures, and I appreciate that we are tackling some important reforms to the justice system, but let me be very clear, a declaration of principles is not a substitute for decriminalization. Warnings and referrals are not a substitute for decriminalization. The problem with giving police officers this kind of power is that their discretion varies, depending on what province and what city they are in.

Could the hon. member tell us why, despite all of the evidence from so many organizations, including the Canadian Association of Chiefs of Police, the Liberals are not being bold with this reform to our justice system and getting rid of section 4 in our Controlled Drugs and Substances Act, making it fully decriminalized?

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

Madam Speaker, I believe these are very important measures to address issues of systemic racism.

When I was going across the country to develop the national end to racism strategy, it was evident across the board that mandatory minimum sentences, in particular, had a disproportionate effect on indigenous and Black communities. I believe this is an important step in that direction.

Obviously there is more to do. There is more to do on, overall, addressing systemic racism, but in this particular case, I think this is a very important step that does take us in the right direction.

[Raquel Dancho, Conservative, Kildonan—St. Paul, MB]

Madam Speaker, I would like to thank the hon. member for his work at the community level to support youth and recidivism rates.

I do have some concerns about this bill, however. My understanding is that it eliminates prison time if somebody robs someone with a gun or fires a gun at someone with the intent to harm them. Further, it eliminates mandatory minimums if a criminal sexually assaults someone or kidnaps someone, and it allows them to serve that time on house arrest.

I am very unsettled and think this would make communities very unsafe. It also does not adequately ensure punishment for someone who robs someone with a gun or intends to hurt them with a gun.

I would appreciate it if the member could comment on that.

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

Madam Speaker, the member's interpretation of this bill is incorrect.

There are 14 mandatory minimum sentences where the mandatory component would be taken out. It would still leave discretion with our highly qualified judges to make the determination. In terms of sexual offences, they are not included in this bill. As well, any serious offences that are highlighted would continue to have mandatory minimums.

The member's comments on this measure are incorrect. I would invite her to review the changes to the mandatory minimum provisions as outlined in the bill.

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

Madam Speaker, I am concerned.

I have experience working with community organizations that focus on delinquency prevention. My concern is this: What ever happened to a change that would target basic prevention needs to avoid minimum sentencing?

I would like to hear my colleague's comments on that. When will there be a clear commitment to education, monitoring and prevention for these crimes that lend themselves to changing the bill?

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

Madam Speaker, the changes to the particular provisions of the criminal justice system are just one aspect of a broader set of measures that our government has introduced over the years, including the Canada child benefit. This has directly taken over 300,000 children out of poverty, which in my opinion is one of the major factors in reducing overall crime. In fact, the social determinants of health have impacted many communities, particularly the racialized communities.

I believe the measures taken by the government are an important step in addressing the systemic issues that my friend opposite has highlighted.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Madam Speaker, I am in support of Bill C-22. Bill C-22, for those interested in the subject, comes in three parts. It would address mandatory minimum sentences in a serious way; it would restore judicial discretion as it relates to conditional sentencing and an emphasis on restorative justice; and the third piece is an emphasis on treating drug use as a health issue, and I will have more to say about that in a bit.

I want to start by focusing on mandatory minimum sentences with a simple premise that is overwhelmingly supported by the evidence, which is that mandatory minimum sentences do not work. They are ineffective; they do not deter crime. I am the member of Parliament for Beaches—East York, and we were deeply impacted by the Danforth shooting a few years ago. If mandatory minimum sentences could prevent another Danforth shooting from happening, I would support them, but they would not, and instead they disproportionately and negatively impact racialized Canadians. We see the numbers. We see, of Black Canadians, who represent 3% of the population, 9% are imprisoned. We see, of indigenous people, who represent 5% of the population, 30% are imprisoned. There are obviously instances where crimes are so abhorrent that retribution demands a lifetime in prison, and that obviously accords with our sense of justice, but we have seen cases before our courts, and there are obviously any number of hypotheticals that lawyers will devise, where mandatory minimum sentences do not fit the crime and judicial discretion is important. We have seen courts render these mandatory minimums unconstitutional because of their unfairness. They are not only ineffective, but unfair.

It is the same with conditional sentencing, that notion of effectiveness but also fairness. Punishments and remedies need to take into account context. There are reasons of fairness, and I mentioned reasons of fairness as it relates to racial justice, but also I have already heard a question from a Conservative colleague emphasizing public safety, so let us talk about public safety. Unless offenders are sentenced to life or something close to it, they will, as a simple fact, be released into our community. If we do not focus on restorative justice, rehabilitation and reintegration, we put our communities at greater risk. The evidence is there. It is as simple as that. If we care about public safety first and foremost, we ought to care about restorative justice.

I want to move to, for the remainder of my comments, the third part of Bill C-22, which is the reform, in a more sensible way, of our drug policy laws. This is roundly accepted by anyone who has studied the issue, but the so-called “war on drugs” is an abject failure. I will read from the Global Commission on Drug Policy. They write, “the evidence overwhelmingly demonstrates that repressive strategies will not solve the drug problem, and that the war on drugs has not, and cannot, be won.” The long-term answer is regulation, that all drugs should be, in many cases, strictly regulated according to their respective harms. Caffeine is different from morphine and they should be regulated, of course, differently. Again, this is the view of the Global Commission on Drug Policy, a commission made up of experts and former world leaders who have been deeply impacted by the failings of the war on drugs. They write:

Regulation and management of risky products and behaviors is a key function of government authorities across the world. It is the norm in almost all areas of policy and law – except drug policy. ... In the field of public health, when compared with policy responses to other risky behaviors – such as dangerous sports, unhealthy diets or unsafe sex – it is punitive drug prohibitions that are the “radical” policy response, not regulation. Drugs should be regulated not because they are safe, but precisely because they are risky.

We are not going to get there tomorrow, so on the road to that goal, let us first take stock of where we are and where we will go from here, realistically. In taking stock, we can look over the last five or six years. We have as a government regulated cannabis, a real model for the world. We have expanded harm reduction options, including safe consumption sites across this country to save lives. We are in the midst of an opioid crisis, and we know that the benefits of safe consumption sites have been proven and that they save lives. We have also increased money for treatment options for the provinces.

We have implemented safer supply pilot initiatives, including here in the east end. South Riverdale just received funding to renew its safe supply pilot for another two years. Again, this will save lives.

We have established new guidelines for prosecutors in relation to the simple possession of drugs and the prosecution of simple possession of drugs. In practice, for those interested in the numbers, from 2014 to 2018 we saw drug possession prosecutions cut in half, from 13,678 to 6,374. Now, we unquestionably need to build on that progress, and that brings me to the third part of Bill C-22, which is nearly a cut-and-paste of a private member's bill I introduced in February of last year.

To go even further back to the fall of 2019, in the midst of an election I was at Hope United Church here in the east end of Toronto and I was asked this question: If you had the opportunity to introduce a private member's bill, what is the first private member's bill would I introduce? I very quickly said that I had had a bill in the last Parliament to reform our drug policy laws and to treat drug use as a health issue, and I would revisit that issue. Early in 2020, I introduced two bills in this Parliament to that end, and I never expected that one of those bills would be picked up so quickly as a government bill in an almost identical fashion.

Now, the bill is not perfect, and I said in the course of my speech on my private member's bill that I would like to see full decriminalization. I do not think that there should be any penalty. There should be no intervention other than a positive, voluntary health intervention for people who use drugs. These are the people we want to help, not the people we want to punish. However, I also recognize the reality of the ability to move a private member's bill forward, and I want to make difference in the law.

The elements in Bill C-22 as they relate to drug policy are not perfect either, but they unquestionably will make a significant difference. The bill would make it virtually impossible for a prosecution of simple possession to proceed successfully. It would not give discretion to police, as they have discretion already, and it would not give discretion to prosecutors, as they have discretion already, but it would significantly fetter their discretion in accordance with evidence-based principles, which are simply worth reading from the bill. These principles are:

(a) problematic substance use should be addressed primarily as a health and social issue;

(b) interventions should be founded on evidence-based best practices and should aim to protect the health, dignity and human rights of individuals who use drugs and to reduce harm to those individuals, their families and their communities;

(c) criminal sanctions imposed in respect of the possession of drugs for personal use can increase the stigma associated with drug use and are not consistent with established public health evidence;

(d) interventions should address the root causes of problematic substance use...; and

(e) judicial resources are more appropriately used in relation to offences that pose a risk to public safety.

Now, there are real challenges to police and prosecutorial discretion, but the proposed system, if implemented well, is not so far away from the Portugal model that we hear many advocates of decriminalization call for. In this model, police remain first responders in many cases, and dissuasion panels have significant discretion to mete out different remedies, including some that are quite punitive.

I have spoken with Bryan Larkin, chief of police for the Waterloo area, and he has helped to lead efforts. I want to credit the chiefs of police for really pushing for decriminalization and a more sensible drug policy. I can tell members that with prosecutors and chiefs of police on board, we now unquestionably need resources from the government to expand treatment options and health services for the provinces.

There is a real opportunity with Bill C-22 to make a meaningful difference and to effectively end the war on drugs. My preference would be to simply delete section 4 of the CDSA, which is the preference of the Global Commission on Drug Policy as well.

It is important to remember that of the 250 million people around the world who use drugs, 10% are problematic cases. Therefore, the idea of throwing the book at people and that people who use drugs ought to be criminalized is significantly divorced from the evidence. We need to replace the criminalization and punishment of people who use drugs with the offer of health and treatment services.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Madam Speaker, I appreciate my colleague's candour regarding his desire for full decriminalization. It is vital and important. However, he speaks about the fact that he wants full decriminalization and that this bill would fail to achieve that.

I would ask him again why the government does not support full decriminalization for the possession of small amounts of drugs for personal use and the automatic expungement of previous criminal records for personal use possession.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Madam Speaker, I have called for drug decriminalization since I was elected. I remember the then leader of the Conservative Party getting up in question period and saying that the member for Beaches—East York wants to do this and how dare he. He then asked the Prime Minister what he thought of it. I wondered if I had just indirectly asked the Prime Minister a question in the House of Commons around drug policy.

The answer to the member's question is politics. I am glad the member is calling for full decriminalization and treating drug use as a health issue. I remember when the leader of the NDP called for this in his leadership bid, and I have not heard him speak about this in a significant way since. I hope all leaders, whether they are individual members of Parliament or leaders of our parties, speak up, and speak up loudly, to change the narrative and educate Canadians, because that is the way we will move this forward.

[Jenica Atwin, Green, Fredericton, NB]

Madam Speaker, I will ask a question around prosecutorial and police discretion because I still have concerns about the lack of understanding that still exists in Canada.

I am wondering what other additional measures the member would like to see. I am thinking about Bill C-3, which made it mandatory for judges to have training around sexual assault. What about trauma-informed care? What about information around residential school experiences, or about Canadians who continue to be oppressed in our country? Are there additional measures that the member would like to see in this bill?