Bill C-5

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 and Controlled Drugs and Substances Act

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

moved that Bill C-5, 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 Justice and Attorney General of Canada]

Mr. Speaker, I am delighted to join the House this morning to speak to Bill C-5, an act to amend the Criminal Code and the Controlled Drugs and Substances Act. I want to acknowledge that we are gathered here on the traditional unceded lands of the Algonquin Anishinabe peoples.

This bill fulfills a platform commitment to reintroduce former Bill C-22 within 100 days, and I am proud to work with the Minister of Justice on this important piece of legislation. The proposed reforms represent an important step in our government's continuing efforts to make our criminal justice system fairer for everyone by seeking to address the overrepresentation of indigenous people, Black Canadians and members of marginalized communities. Bill C-5 focuses on existing laws that have exacerbated underlying social, economic, institutional and historical disadvantage and which have contributed to systemic inequities at all stages of the criminal justice system, from first contact with law enforcement all the way through to sentencing.

Issues of systemic racism and discrimination in Canada's criminal justice system are well documented, including by commissions of inquiry such as the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls, and the Commission on Systemic Racism in the Ontario Criminal Justice System.

More recently, the Parliamentary Black Caucus, in its June 2020 statement, called for reform of the justice and public safety systems to weed out anti-Black racism and systemic bias, and to make the administration of justice and public security more reflective of and sensitive to the diversity of our country. I was pleased to sign this statement, as were numerous cabinet colleagues, including the Minister of Justice, many members of Parliament and senators representing the different political spectrums.

The numbers speak for themselves. Black Canadians represent 3% of the Canadian population yet represent 7% of those who are incarcerated in federal penitentiaries. Indigenous people represent roughly 5% of the Canadian population yet represent 30% of those who are federally incarcerated. The number is profoundly higher for indigenous women, who represent 42% of those who are incarcerated.

Indigenous people and Black Canadians have been particularly marginalized by the current criminal justice system. The calls for action recognize that sentencing laws, and in particular the broad and indiscriminate use of MMPs, or mandatory minimum penalties, and restrictions on the use of conditional sentences have made our criminal justice system less fair and have disproportionately hurt certain communities in Canada.

This is precisely why Bill C-5 proposes to repeal a number of mandatory minimum penalties, including for all drug-related offences and for some firearm-related offences, although some MMPs would be retained for serious offences such as murder and serious firearm offences linked to organized crime. Data shows the MMPs that would be repealed have particularly contributed to the over-incarceration of indigenous people, Black Canadians and members of marginalized communities.

This bill would increase the availability of conditional sentencing orders in cases where offenders do not pose a risk to public safety. CSOs allow offenders to serve sentences of less than two years in the community under strict conditions, such as house arrest and curfew, while still being able to benefit from employment, educational opportunities, family ties and community and health-related support systems.

I want to talk about who we want to help with Bill C-5. It is the grandmother who agrees to let her grandson leave a gun at her house overnight even though she knows she is not supposed to because he did not purchase the gun legally. It is for the young indigenous man who shoots a hunting rifle at what he believes to be an empty building and no one gets hurt. The incident prompts him to get his life back on track. He goes into a rehab program to get off drugs and starts counselling to address childhood and intergenerational trauma that has haunted him throughout his young life. By the time of sentencing, he has a job and a new relationship, and is ready to contribute positively to his community.

These are not the hardened criminals. These are people who deserve a second chance or an off-ramp from the criminal justice system. They are people who, with the right support, will never offend again. Sending them to jail, which hurts not only them but their families and communities, will do nothing but put them on a path toward further criminality. This is why MMPs that tie judges' hands can lead to negative outcomes in the justice system and for our society more broadly.

To appreciate the pressing need for these reforms, we must go back to the foundational principles of sentencing in Canada. The fundamental purpose and principles of our sentencing regime are rooted in trail-blazing reforms made in 1996, which created a statutory recognition that sentencing is an individualized process that relies on judicial discretion to impose just sanctions. Such sanctions are proportionate to the degree of responsibility of the offender and the seriousness of the offence.

To achieve these sanctions, the 1996 reforms directed judges to take into account a number of sentencing principles, including rehabilitation and deterrence. Some of these principles acknowledge that in sentencing less serious crimes, imprisonment is often ineffective, unduly punitive and to be discouraged. The sentencing principles also recognize the need to address the over-incarceration of indigenous persons, who were at that time already overrepresented within the system. As such, the amendments to the Criminal Code directed judges to consider all sanctions other than imprisonment that are reasonable in the circumstances before choosing to send an offender to jail. This principle applies all offenders, but requires judges to pay particular attention to the circumstances of indigenous offenders.

To give full effect to these principles, the 1996 reforms created conditional sentences of imprisonment that allowed judges to order that terms of imprisonment of less than two years be served in the community under certain conditions. An offender could be eligible for a conditional sentence if serving their sentence in the community would not pose a risk to public safety, if the offence for which they were convicted is not subject to a mandatory minimum penalty and if the community-based sentence would be consistent with the fundamental purpose and principles of sentencing.

Unfortunately, the previous Conservative government's increased use of mandatory minimum penalties and imposition of additional restrictions on the availability of conditional sentencing orders have restricted judicial discretion and made it difficult for courts to effectively apply these important principles. These so-called tough-on-crime measures have actually made our criminal justice system less effective by discouraging the early resolution of cases. These measures have eroded public confidence in the administration of justice.

The biggest problem with these measures has been that they disproportionately affect indigenous people, Black Canadians and members of marginalized communities.

In fact, the Ontario Court of Appeal recently found in its 2020 decision in R. v. Sharma that certain of the limits on conditional sentence orders enacted in 2012 undermine the purpose of the Gladue principle by limiting the court's ability to impose a fit sentence that takes the offender's circumstances into account. The Court of Appeal held that those limits perpetuate a discriminatory impact against indigenous offenders in the sentencing process.

By targeting these sentencing policies, Bill C-5 seeks to restore the ability of courts to effectively apply the fundamental purpose and principles of sentencing, and ensures that sentences are individualized and appropriate for the circumstances of the case. Although it is important to ensure that fair and compassionate sentences are imposed, it is equally important to ensure that measures are in place to avoid contact with the criminal justice system in the first place.

This is why Bill C-5 would require police and prosecutors to consider alternatives to laying or proceeding with charges for the simple possession of drugs, such as issuing a warning, taking no action or diversion to addiction treatment programs. We want to focus on getting individuals the help they need, whether that be treatment programs, housing or mental health support, instead of criminalizing them. These measures are consistent with the government's public health-centred approach to substance use and the opioid epidemic in Canada.

Together, these measures would encourage responses that take into account individuals' experiences with respect to systemic racism, health-related issues and the particular supports they could benefit from. These reforms would allow police, prosecutors and the courts to give full effect to the important principle of restraint in sentencing, particularly for indigenous offenders, and explore approaches that focus on restorative justice, the rehabilitation of individuals and their reintegration into the community.

It is essential that Canadians have confidence in the justice system and that they believe it is there to protect them, not harm them or their community. These reforms reflect what we have heard from Canadians.

The 2017 national justice survey revealed that Canadians overwhelmingly support diversion measures, less restrictive sentences and judicial discretion in sentencing, even in cases where there is an MMP. For instance, 91% of Canadians indicated in the survey that judges should be granted flexibility to impose a lesser sentence than an MMP. Moreover, 69% of those polled believe that diversion could make the criminal justice system more effective and 78% believe that diversion could make it more efficient by reducing the caseload for the courts and court processing times.

I would like to assure my colleagues that our government takes violent gun crimes seriously. I am from Scarborough, a community that has issues with gun violence. I understand the need to crack down on firearm traffickers and the organized criminal element that threatens our communities. In my previous life, I ran a youth organization and saw many young men buried as a result of gun violence. I saw the pain in the faces of the parents. In fact, I recall one mother, whose son was killed over 20 years ago, who is still grieving for her loss. This affects the community as a whole. That is why we are not repealing MMPs for those offences.

I had a chance to speak with Louis March of the Zero Gun Violence Movement this morning. He has advocated for taking guns off our streets. He came to Parliament about two years ago, just before the pandemic, to advocate for MMPs to be removed, because he feels it is crucial for judges to have discretion over decisions and that MMPs have disproportionately impacted members of the Black community. Many of the mothers who came here that day were broken by what they saw as a problem with guns. I bring the issue of gun violence to Parliament each and every day, and in many ways, in Toronto and other major cities, it is a significant problem that requires a significant response. Our government is working toward that.

For less serious offences, particularly when someone is a first-time offender who is young or non-violent, MMPs are not the answer. MMPs that send young Black men in my community to prison, when they could be rehabilitated and turn their lives around, only serve to continue the vicious cycle that leads to involvement in gangs and further criminality.

We are repealing the MMPs for robbery and extortion with a firearm, and for discharging a firearm with intent or recklessly when this does not involve a restricted firearm or organized crime. In other words, where the offender—

[Some hon. members]

Oh, oh!

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I apologize for interrupting the hon. member, but I want to remind members of the official opposition that they will have an opportunity not only to ask questions and make comments, but to also debate the issue. I would ask them to hold off on their comments while the hon. parliamentary secretary is speaking.

The hon. parliamentary secretary.

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

Madam Speaker, in other words, this would apply when an offender uses a firearm that may otherwise be legal. A review of the case law reveals that many indigenous offenders and marginalized groups who have experienced significant trauma, including the legacy of residential schools, commit non-violent offences using long guns.

Maintaining the four-year mandatory minimum penalties that relate to the commission of these offences with firearms that are not restricted or connected to organized crime would directly undermine our important commitment to reduce the over-incarceration of indigenous peoples. We know that Canadians are troubled by gun violence. By maintaining the MMPs for serious offences, using restricted firearms or an association with organized crime, we keep the strong tools in our tool box to combat serious and gang-related gun crime.

Our government will also work to crack down on gun crime in other ways. In our platform we committed to continuing to combat gender-based violence and fight gun smuggling with measures we previously introduced, such as increasing maximum penalties for firearms trafficking and smuggling, from 10 to 14 years of imprisonment; lifetime background checks, to prevent those with a history of abuse against their spouse or partner from obtaining a firearms licence; red flags that would allow immediate removal of firearms if that person was a threat to themselves, or otherwise to their spouse or partner; and enhancing the capacity of the RCMP and the Canada Border Services Agency to combat the illegal importation of firearms.

Our government is taking steps to ensure that the strong hand of criminal justice is used where it is needed to keep people safe, but not where it would be discriminatory or counter-productive. Bill C-5 is an important step taken by our government to address the injustice of systemic racism in our criminal justice system and to ensure that it is fair, just and compassionate for all Canadians.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Madam Speaker, the parliamentary secretary said that one of the targets of this legislation is not targeting a marginalized offender who perhaps shoots a firearm at a residence that he or she does not know to be occupied.

First, I am not sure why anybody would be doing target practice in such a scenario on a residence. Second, section 244 of the Criminal Code deals with discharging a firearm with intent, and that provision is under the mandatory minimum sought to be repealed.

If there is intent to harm, how does that fit in with the government's narrative?

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

Madam Speaker, I want to congratulate my friend for Kamloops—Thompson—Cariboo on his recent election. I know he has a great deal of experience as a Crown attorney, and I appreciate the question he posed.

The mandatory minimum sentences that we are proposing to repeal are 14 of the 57 that are in the Criminal Code right now. This reflects that we are maintaining the ones that involve serious criminality. We are taking down 14 of them that have a disproportionate impact on indigenous and Black Canadians. The facts kind of speak for themselves, as I outlined earlier.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I am still hearing people think loudly. I would ask them to hold off, because there are 10 minutes for questions and comments. They may get another question. My interrupting is eating up the time, so I would ask members to be respectful.

The hon. member for Beauport—Limoilou.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Madam Speaker, the United States and Australia have much harsher mandatory minimum sentences for drug trafficking than Canada does.

However, we have not seen any major differences in drug use on the ground. What we have seen is—

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I have to interrupt the member because there seems to be a problem with the interpretation.

Is it working now?

[Some hon. members]

Yes.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I invite the hon. member to repeat her question.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Madam Speaker, minimum sentences for drug trafficking are much harsher in the United States and Australia than they are here in Canada.

Despite that, there is no on-the-ground evidence of reduced consumption. What we are seeing is more small-scale dealers in prisons. These are not the people who are least likely to be rehabilitated. They typically rehabilitate on their own.

The thing is, when people get involved in drug dealing, arms trafficking or any kind of trafficking, they are doing it to get more money because they are in tough situations.

That is why it would be good to look upstream at prevention, especially at things like adequate social housing, health transfers for social needs, and social supports.

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

Madam Speaker, I completely agree that there are many issues within our society that need attention. Our government is focusing on housing, including a national housing strategy, but as a government we are also investing in youth programs that would enable youth to be proactive and would enable them to get out of the criminal justice system.

The amendments that we are bringing forward are off-ramps that would allow young people to have a second chance. That is precisely what we are trying to do today.

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

Madam Speaker, I would like start by welcoming the Parliamentary Secretary to the Minister of Justice to his role. I did a lot of positive work with his predecessor, and I think Bill C-5 shows there is a lot of work we could do to improve legislation.

When this bill was introduced as Bill C-22 in the last Parliament, lots of stakeholders in the community criticized it for its narrowness and for being a half measure. Certainly the Truth and Reconciliation Commission, more than six years ago in its call to action number 32, called for the restoration of judicial discretion to ignore mandatory minimums when there were good reasons to do so.

Why has the government chosen to pick just 14 offences instead of following the truth and reconciliation call to action to give judges back their discretion when there are mandatory minimum sentences?