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

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, it is a privilege to stand in the House to speak to a bill that is not only a long time coming and not only important to many Canadians, but is one that touches upon a very real and profoundly important issue that touches every community in our nation.

The bill deals with the issue of mandatory minimums and the initiative of the government to remove mandatory minimums for a number of prescribed sentences. It would remove mandatory minimum sentences for all drug offences under the Criminal Code and then some others with respect to tobacco and firearms provisions.

I was in the House when many mandatory minimum sentences were put into the Criminal Code by the previous Harper Conservative government, and our party opposed that approach then and we oppose it now. We do so for a number of reasons. The New Democrats have long opposed the imposition of mandatory minimum sentences in our Criminal Code for all but the most serious of crimes. These are some of the reasons for that position.

First, it is a very blunt tool. It removes the discretion of a judge to shape sentences to suit the specifics of every case. I happen to have been trained as a lawyer, and I spent 16 years litigating cases in the labour setting. I would posit before the House that every single case that comes before a judge is unique. It touches upon unique individuals with unique circumstances and it occurs in very specific circumstances and conditions. The essence of justice is to fashion a resolution that suits the particular circumstances that come before a court.

Politicians should not be sentencing people from this chamber. In our system of government, we have separation of powers, the judiciary separated from the legislative branch, separated from the executive branch, separated from the police force. These are core elements of our modern democracy and they are very important ones.

I am always suspicious of attempts by politicians in the House to try to reach into the courtrooms of our nation to tell judges what to do in a particular situation. What is particularly wrong with mandatory minimums is that they purport to tell judges to sentence a person irrespective of the person before them and the circumstances of that case.

Second, mandatory minimum sentences are routinely ruled as unconstitutional in our country. I think we could safely say that in most cases, mandatory minimum sentences do not comport with our Constitution and our Charter of Rights and Freedoms.

Third, the evidence is crystal clear now that mandatory minimums are a major factor that contributes directly to the overrepresentation of the incarceration of the most marginalized Canadians, including indigenous, racialized and poor people.

As an example, indigenous people make up about 4.9% of our population, but if we were to walk into our prisons, we would find that 30% of the people in prisons are indigenous. With respect to indigenous women, it is even more shockingly appalling that 42% of the women in prisons are indigenous. A major factor contributing to that is the use of mandatory minimum sentences.

Finally, mandatory minimum sentences do not work. I need only point to the United States as the best example for that. The United States locks up the highest percentage of its population of any country in the world, and it has done nothing to reduce the crime rates or the rate of violent offences in the United States. If it were true that the use of mandatory minimum sentences reduced crime, then there would be empirical evidence of that in our neighbour to the south, and it has been proven to be quite the opposite.

In fact, the State of Texas, one of the most tough-on-crime jurisdictions we will find on this planet, has publicly stated that mandatory minimum sentences have not worked. All that has happened is that it has locked up an incredibly high percentage of the population in that state, with no impact on crime rates.

Therefore, I support this measure and I support the bill. Discretionary sentences and diversion from prison are distinctly preferable to mandatory minimum sentences that lock up more Canadians, for longer time, with no positive effect.

However, make no mistake that the bill would do nothing, zero, to address the core problem with our drug policy; that is to treat drug addiction and substance use as health issues, not criminal ones. That is the root cause of the problem with our drug policy. Substance use and addiction are health issues, not criminal ones. They are not moral failings. They are not issues of character. They are pure issues of health. Addiction is a complex biopsychosocial illness. It results in compulsive behaviour that is rooted in trauma. Substance use disorder is listed in the “DSM-5”, which is a diagnostic manual that our medical professionals use.

This is one of those issues where I will say that the general population is far ahead of the politicians of our country and, dare I say, many politicians in the House. That is because no family, not one, is untouched by addiction or substance use disorder. Everyone has a mother or father, a sister or brother, an uncle or aunt, a cousin, a grandparent or maybe even himself or herself, who has suffered from substance use, whether that is alcoholism or addiction. These families know something that is important to acknowledge in the House: Those people who are suffering are not criminals; they are sufferers, they are patients, they are people struggling with an illness.

Dr. Gabor Maté, whom I consider to be an authority of global stature in our country, a great Canadian, has found that the basic cause of addiction is trauma. He is on record as saying that after treating people in the Downtown Eastside of Vancouver for many years, he never treated a single person who did not have significant childhood trauma.

Therefore, what does criminalizing those people do to them? Criminal sanctions are society's way of imposing maximum trauma on citizens. They get accosted by the police. They go through the trauma of arrest. They go into the very serious, intimidating context of a court. They go through a trial. They go to jail. This system is designed to impose the most serious pressure society can possibly impose. In other words, what we do when we criminalize drug policy is we retraumatize people whose main issue is that they suffer from trauma. That is completely counterintuitive. In fact, it is cruel and it does not work.

If criminalizing drug use worked, we would have eliminated it years ago. We have spent billions of dollars, incarcerated millions of people around the world, harmed tens of millions of people, and achieved nothing. Today, Canada is setting, year after year, record deaths in opioid overdose. Every year since the government was elected in 2015, the death rate has gone up. Since 2016 until 2020, over 17,000 Canadians have died. In B.C., six and a half people die every day.

I will conclude by saying that stigma, shame and punishment are the core emotional issues of those suffering from substance use disorder and criminalizing their behaviour exacerbates and deepens that shame and stigma. We do not need to get rid of mandatory minimum sentences; we need to decriminalize drug use, bring in a regulated low-barrier safe supply, focus on education prevention and a treatment on demand through our public health care system. Then we will make progress on drug policy and use in our country.

[Yasir Naqvi, Liberal, Parliamentary Secretary to the President of the Queen’s Privy Council for Canada and Minister of Emergency Preparedness]

Madam Speaker, I appreciate the member's support, with a caveat, for this bill. I agree with him that, and I think we all know, mental health and addiction issues are health issues and as such we need to treat them in that manner.

However, there is a fair bit of debate as to what those next steps would look like. We know that decriminalization of simple possession of drugs is one path forward, but it is important that there be enough supports in the communities around treatment, harm reduction and other sorts of things. There are models, like in Portugal and the Scandinavian countries, that, with certain debate, are effective in some manner.

I would be interested to learn from the member his thoughts on what steps need to be taken beyond just decriminalizing simple possession of drugs.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, as I said, in terms of a mandate from Canadians, I fundamentally believe it is there. Most Canadians right now want their government to decriminalize drug use and to treat it authentically and comprehensively as a health issue.

The government has said on many occasions that it is guided by evidence, as it should be. The Liberals say that quite consistently. They have said it throughout the COVID crisis. Why do they not follow the evidence when it comes to drug policy? There is a consensus, from public health officers to the Canadian chiefs of police to addictions experts to people with lived experience to drug researchers, that we must fully decriminalize drug use and provide a different approach to this.

What we are asking for in the House is leadership.

[Greg McLean, Conservative, Calgary Centre, AB]

Madam Speaker, I noted that the member spoke primarily on mandatory minimums for drug possession as opposed to what this is. The bill would allow judges further discretion to deliver minimum sentences or define where they fit in that spectrum. The member is right on drug minimums, that we need to get a law that decriminalizes a lot of these activities.

However, the actual exhortation of the bill is to give more authority to legal people to determine what those are as opposed to Canadians who elect people to determine what those penalties should be or the breadth of those penalties. We are here to give that role, but we are usurping that role right now to somebody else.

How will we represent Canadians on what they expect in the criminal justice—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

I have to give the hon. member for Vancouver Kingsway a chance to make a comment.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, again, I go back to what Canadians expect us to do here and I think they expect us to be guided by evidence, to be legislating with wisdom and passion, and to be coming up with good public policy.

The fundamental question for us in the House is this. We either fundamentally believe that drug use and addiction are health issues or we do not. If we do believe it, then they have no place in the Criminal Code. On tinkering with the sentencing, it might be preferable to have non-mandatory sentences, but it is still in the Criminal Code and we still use the sanction of criminality on something that fundamentally is inappropriate to do so.

As it says in the big book of AA, “Half measures availed us nothing.” This is a half measure and it will avail us nothing.

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

Madam Speaker, I would like to thank my colleague from Vancouver Kingsway for his sensible and measured speech. It is good to hear reasonable people speak in the House.

I would like to hear what he has to say about a specific issue. We know that the Bloc Québécois is also amenable to the idea of doing away with mandatory minimum sentences in general. However, there are certain exceptions, including repeat offenders, violent crimes involving firearms, and illegal arms trafficking. That is a huge problem right now.

What is the NDP's position? Is it prepared to examine these positions and adopt a more nuanced bill?

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

The hon. member for Vancouver Kingsway, 15 seconds.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I thank my hon. colleague for his kind words. He is quite right that I focused my entire remarks on the aim of the bill to eliminate mandatory minimums when it comes to drug sentences. I am aware that there are other sections of the Criminal Code where mandatory minimums may be taken away.

When the bill goes to committee, those sections deserve closer scrutiny. I am sure I speak for my colleagues when I say that they will give every consideration to make wiser—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

Resuming debate, the hon. member for Ottawa South.

[David McGuinty, Liberal, Ottawa South, ON]

Madam Speaker, I want to begin by thanking the voters of Ottawa South. This is my seventh consecutive election. I am honoured and privileged to represent such a magnificent riding, a very diverse riding, with over 82 languages spoken and over 160 countries of origin. I like to describe my riding as “the United Nations of Ottawa South”.

A great deal of time has already been spent describing the objectives of Bill C-5, its proposed reforms and expected impacts. I support these changes, and I believe they will make a significant positive contribution to our criminal justice system. They will also contribute to efforts to address the undeniable and disproportionate impacts existing criminal laws have on certain communities in Canada.

We know that certain communities in Canada and other countries are involved in the criminal justice system at higher rates than other people. In Canada, the over-incarceration of indigenous persons and Black Canadians is well documented. The reasons for this are systemic, and they include our laws on sentencing. It is clear to me that the issue of over-incarceration must be addressed by revisiting our existing sentencing laws. That is exactly what Bill C-5 proposes to do.

Canada is not alone in recognizing that the increased and indiscriminate use of mandatory minimum penalties, or MMPs, has proven to be a costly and ineffective approach to reducing crime. Indeed, many jurisdictions comparatively around the world are moving away from this approach to criminal justice. While MMPs can be a forceful expression of government policy in the area of criminal law, we know that MMPs do not deter crime and can result in unjust and inequitable outcomes. The Supreme Court of Canada has been very clear about these issues.

Criminal justice policy is not developed in a vacuum. Evidence-based policy is informed by relevant research, including comparative studies from other countries. By examining a particular policy's successes and failures, we can develop reforms that build on what we know works and address what we know does not work.

For instance, while the United States, both at the federal and state levels, has historically made great use of MMPs, in the last decade many states have moved toward reducing or outright eliminating mandatory sentences, with a particular focus on those for non-violent and drug-related charges. These trends reveal a shift motivated by, among other things, a need to address high levels of incarceration and the corresponding social and fiscal costs. One could speak to a California legislator about how expensive it has been for the state of California over the last several decades.

This is being done by governments of all political stripes in the United States, and I encourage all parties in this House to recognize the true impacts of MMPs and work to improve our criminal justice system. Some in the United States have termed this the “smart on crime” movement. It is an approach that recognizes the need to address high levels of incarceration of young Black and Hispanic Americans, who face disproportionate negative impacts because of the use of mandatory minimum sentencing laws in the United States, particularly, as I have already noted, for non-violent, drug-related offences.

Some have also pointed out that mandatory minimum sentencing actually encourages cycles of crime and violence by subjecting non-violent offenders, who could otherwise be productive members of society, to the revolving door of the prison system.

Recently, the President of the United States indicated his intention to repeal MMPs at the federal level, where he has jurisdiction, and provide states with incentives to repeal their own mandatory minimums as well. Other countries have made similar changes. For example, in 2014, France repealed certain MMPs, predominately citing evidence that the reconviction rate had more than doubled between 2001 and 2011, increasing from 4.9% to 12.1%.

When examining trends in like-minded countries, we can see a clear policy shift toward limiting the use of mandatory minimum penalties to the most serious of cases and restoring judicial discretion at sentencing. While international comparisons cannot be the only lens through which we develop sentencing policy in Canada, particularly given our unique cultural traditions and diversity, such comparisons provide a useful backdrop against which to assess the adequacy of our own sentencing laws.

Currently, the Criminal Code and the Controlled Drugs and Substances Act provide MMPs for 73 offences, including for firearms offences; sexual offences; impaired driving; kidnapping; human trafficking; sex trade offences; murder; high treason; and drug-related offences, such as trafficking, importing and exporting, and the production of certain drugs like cocaine and heroin.

In the last 15 years, 30 offences have been amended, almost entirely by the previous Harper government, to increase existing MMPs or to impose new ones.

I was in this House when those amendments were made by the previous government, and when they were introduced, and I had an opportunity to debate them at the time. I was opposed to them then, and I am opposed to them now. I was particularly struck at the time by evidence that was presented to the House, produced by the criminal law policy division in the Department of Justice, where the director happened to be a former Progressive Conservative member of Parliament. The evidence adduced and presented by the Department of Justice indicated that the amendments the government of the day was pursuing would not achieve the outcomes it desired. It had been warned and forewarned, not only by opposition members at the time, but also by the think tank insider at the Department of Justice.

Bill C-5 would reverse that trend, and in so doing, it seeks to make the criminal justice system fairer and more equitable for all. It would repeal MMPs for 20 offences, including MMPs for all drug-related offences, as well as some for firearm-related offences. This is not a signal from Parliament that drug and firearms offences are not serious and not worthy of important denunciatory sentences in appropriate cases.

Firearms and drug offences can be very serious, and I have full confidence in our courts to impose appropriate penalties. Bill C-5, as I said, would not repeal all MMPs in the Criminal Code. This bill does not propose changes to the penalties for child sexual offences and other sexual crimes, nor would the mandatory penalty of life imprisonment for murder be changed.

Some will argue the government should have done away with all mandatory minimum penalties. Others will be critical of the government's decisions to reform the MMPs that are included in this bill. This bill is an important and balanced step forward, and I know our justice minister is always open to considering further changes in the future.

Despite there being differences of opinion as to the role of MMPs in our sentencing laws, I would not want these views to distract us from our job, which is to examine the important changes in Bill C-5. We have a good bill before us that has been welcomed by a broad range of stakeholders. It would make critically important changes, not just in the area of MMPs, but also with respect to conditional sentencing and the way the criminal justice system addresses simple drug possession.

I will be voting in favour of these changes because I am convinced they will make our justice system fairer and better. I urge all members on all sides of this House to support the swift passage of Bill C-5.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, I congratulate my colleague on his re-election. He began his speech talking about how certain historically marginalized communities, for instance Black and indigenous Canadians, are disproportionately represented in the prison population.

It seems clear one possible cause of that overrepresentation is that members of certain communities are receiving disproportionately long sentences relative to others for the same crime. It would seem that one way of combatting racism in the justice system is to ensure consistent sentencing. People, regardless of their background or race, for instance, receiving similar kinds of sentences for the same crimes in the same circumstances.

One way of reducing racism would be to have clear sentencing guidelines. Perhaps it is with mandatory minimums, or perhaps it is with sentencing starting points. This legislation, by removing mandatory minimums and widening the range for judicial discretion, does not seem to be combatting discrimination on that basis. Rather, it creates more space for the inconsistent application of penalties for the same crime. I wonder if the member has a comment on that.

[David McGuinty, Liberal, Ottawa South, ON]

Madam Speaker, although I am desirous of seeing the kind of consistency the member alludes to, one size does not fit all. When there is a crime being adjudicated in a court, judges have a specific responsibility to adduce and hear all of the evidence; to consider it; and to take into consideration background, mental health and addiction. We have heard repeatedly on the floor of the House that this question of addiction is, on some sides of the House, considered to be a weakness, perhaps even a choice. Addiction is the antithesis of being free. When one is addicted, one is not free to make rational choices.

The answer to the question the member poses is that one size does not fit all. We now see that trying to force fit every case into a box, as the previous government did, has led to evidence of what we know to be the case, which is a small percentage of a population, for example, indigenous Canadians, being widely overrepresented in the prison system.

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

Madam Speaker, I would like to thank my colleague for his speech.

I would like to hear more about the importance of maintaining discretion and flexibility for people qualified to determine appropriate sentences. A number of factors come into play, such as the circumstances, the individual before them and whether this person is a repeat offender or a young person who was led astray.

I would like to hear more from him on this subject and what he thinks about sentences for illegal arms trafficking. Right now, illegal arms trafficking is one of our biggest concerns.

[David McGuinty, Liberal, Ottawa South, ON]

Madam Speaker, I want to pick up, if I could, where I left off, and that is the role and purpose of judges and the difficult role they fulfill when they sit as triers of fact.

I remember when I began my career as a young articling student with a criminal law firm, and I was struck by the difficulty judges face when these cases are presented to them. I was also struck by the connection between criminal activity and mental health and addiction. We know this to be true. We have seen the kinds of complexity which is put before courts and calls for the kind of judicial freedom to be able to assess meaningfully and find other opportunities to deal with a serious situation.

This bill would not do away with all mandatory minimum sentences. I said that in my remarks. There are occasions when that is the case, but we need to make sure that judges maintain that flexibility.