Bill C-5 (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

[David McGuinty, Liberal, Ottawa South, ON]

Madam Speaker, the answer is yes, we are treating this as a health issue. Yes, this government remains open to the concept of decriminalization based on evidence and comparative experience, and I would encourage the member to bring that evidence forward to committee when this bill is being studied.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, I am not sitting in my usual place, because Standing Order 17 does not apply. Government Motion No. 1 made sure of that, so I am taking advantage of that motion.

This is the first time I am rising in the House to give a speech of some length, although I have risen several times in Routine Proceedings and on some other things, but I want to thank my constituents, the residents of Calgary Shepard, for honouring me with this third term in the House of Commons. I am still in awe of this place. This is the cathedral of our democracy, as was said by one of my mentors who was a former member of Parliament.

I have listened to the debate we have had so far from different members on both sides of the House. Sometimes they are describing the content of the bill and other times they are speaking to its aspirations. I think the government side is getting carried away with the aspirations of this bill, and the hopes and dreams it has put into these words and this piece of legislation.

We Conservatives often get called the “party of law and order”. It is said that we are tough on crime, and that we do not see both sides: of the offender and of the victim or victims involved. Often times what I have heard from the government side is an exclusive focus on the offender or accused. The provisions of this bill only apply to offenders once they have reached the part of the proceedings in court where they are found guilty of a crime and sentencing is involved. Where does it talk about the victims? That is what I do not see here. That is what many of my constituents would say, some of whom are victims of crime. I know some of these victims of crimes. Members of our caucus have family members who have been victims of crimes.

I will add that if members look at my voting record in my third Parliament now, I was one of the members who did not vote for the life means life private member's bill. The member for Sherwood Park—Fort Saskatchewan also voted against it. I also voted for, and can name him now because he is no longer a member, Larry Bagnell's bill. He was a great chair of the PROC committee and had to live through my 13-hour filibuster at committee. I promise not to do that here.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Never again, right?

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Never again? Never say never again here, from the other side.

Madam Speaker, that was on Bill C-235, which Mr. Bagnell tabled in the House. We had a second reading vote on his private member's bill. Fifteen Conservatives voted with him. I was one of them, because I thought an assessment order for those with fetal alcohol syndrome should get them some type of special treatment in the courts and judges should be directed to look at that during sentencing. It was an assessment in that case that I thought was perfectly reasonable.

If we look at my voting record on other bills, members will realize that I am willing to look at bills as they come forward and judge them on the merits of their content, not the aspirations placed behind them. Judges do not look at the aspirational language we use in this place to describe bills.

I have heard members say this bill would help indigenous or Black Canadians get the type of treatment they deserve in the court system so they are not overly given harsh criminal sentences, but the words “race”, "racism" and "systemic racism" are not in this bill. Another member mentioned, aspirationally, that the bill would help to stop minorities from being overly sentenced harshly by the judicial system, but I do not see those words. The Liberals could have introduced an assessment order and a requirement for judges to consider that.

On that point, Liberal members have asked several times if we do not trust judges. Of course we trust judges. The government appoints them to sit on the bench and render decisions on behalf of Canadians. They are supposed to look at both sides, those of the offender and the victim, and determine what outcome would be fair and just for society while including an opportunity for rehabilitation and a punishment that would fit the crime, to ensure that victims also feel that justice has been served in their case.

The Liberals talk about judicial discretion. How do they feel about the discretion of the Attorney General of Canada or those of the provinces? I wonder how Jody Wilson-Raybould would feel right now when we are talking about the discretion of judges. It was the current government, on the opposite side, that got itself involved in a criminal proceeding for favouring a particular party, so how does it feel about attorney generals using their discretion in the pursuit of justice?

I think it is hypocritical of government members to be talking about judicial discretion and the ability of judges to determine a proper sentence. We do not talk about attorneys general who give direction to prosecutors. In this caucus, we have several prosecutors on our side who have actually gone through this and used these sections of the Criminal Code to sentence people.

Many of our comments probably echo the member for St. Albert—Edmonton's terrific verbal dissertation on the merits of the bill's contents. However, I thought it remarkable that one of the offences that is being rolled back in the bill is the production and manufacturing of schedule I drugs, including hard drugs such as cocaine, heroin, fentanyl and crystal meth.

I live in a suburban community that is made up entirely of single-family detached homes, mostly next to a hospital. Just a few years ago, a fentanyl lab was found in my own community in one of the homes closest to Deerfoot Trail. I think two million or three million pills were found, including pill presses. This has been a common story in Calgary. These pill press mills are being found in residential neighbourhoods. In the past six years, this sleepy, suburban community also had two murders committed in it. One of these, if I remember correctly, was connected to the drug trade. Again, this is happening in all of our communities across Canada. We see the daily numbers of opioid deaths, and I entirely agree that it is a crisis.

However, again, the way in which the bill is being framed does not match the contents of the bill. What I see in the bill is a kind of softening of the minimum we can set for people who commit crimes such as robbery with a firearm or kidnapping, which are things that most of my constituents think is absolutely wrong.

Before I get accused of not caring about those who wind up in the prison system, in my riding we have the historic Ogden Hotel, which has been there for almost a century. A CP is located right next to it, and it is one of Calgary's original hotels. This is where Pastor Delaney runs the Victory Foundation for the church: It helps men who are getting out of the prison system to get back on their feet, find jobs and get some training and education.

I have had coffee there with people out of the prison system who are trying to get their lives back on track. I have a beautiful painting in my house from a gentleman who was homeless. He wound up in the judicial system and was charged, but I call him an expert painter from Calgary. He made a beautiful painting of an elk being attacked by a cougar, and he was helped by the Victory Foundation. I have met and interacted with these men and tried to better understand what they go through. Many of them will tell us that they wronged someone and that they have to right the wrong at some point.

There are two sides to the debate we are having here. Where is the voice of the victims who want to see fairness in the judicial system? If we are going to talk about judicial discretion, we have to talk about attorneys general being able to direct prosecutors to actually pursue these cases as well. Also, we set the box within which judges are supposed to rule, and the box shows what the minimum is, what the maximum is and what is reasonable in between.

A member on our side mentioned that it is an expectation of Canadians that a crime committed in eastern Canada, for example in Montreal on the south shore in beautiful Brossard, in the B section where I lived for part of my life, would be treated the same way if it was committed in downtown Calgary. The same crime would be looked at by judges in the same way and would be given a similar type of sentence. We say that every case is different and every case has particular circumstances to it, but that is what we are asked to do here. I am not a lawyer by profession, so I am unburdened by a legal education and can just give a layman's interpretation of what the judicial system should look like. I consider that a bonus, but maybe some lawyers do not.

Before I forget, I have a Yiddish proverb for members to consider: “When you sweep the house, you find everything.” As I have gone through the bill, I have mentioned the fundamental aspects of the judicial system here. As I am sweeping across the bill, I look for those terms that have been mentioned by members aspirationally hoping that it would achieve the goals of not having offenders judged solely by immutable characteristics such as race, but only on the merits of their particular cases. That is a concept that I agree with, but it is not in the bill. There is no assessment order. The government could have taken an idea from our former colleague Larry Bagnell and applied it to the particular thing that they truly care about.

I cannot see how I can support this type of bill. This is the same thing as Bill C-22 in the last Parliament, and government members knew we would not support this type of legislation. They had an opportunity to fix it, but they chose not to take it. Between tabling Bill C-22 and the return of this Parliament, they lost the opportunity to find some type of consensus in the House on producing a bill to help Canadians and to help victims of serious crimes.

[Julie Dabrusin, Liberal, Parliamentary Secretary to the Minister of Natural Resources and to the Minister of Environment and Climate Change]

Madam Speaker, I am always happy to hear Yiddish proverbs in this place as a Jewish person. There are not very many of us in the House. It is a language that is close to being lost, so it is always nice to hear some of it.

First, I will make a clarification. In fact, sentences are not being removed. Mandatory sentences are being removed in this bill. Going forward, it proposes to actually confront the opioid crisis from a health perspective. I know that in my community, we have lost many people to the opioid crisis.

Does the member not support safe supply and treating the opioid crisis from a health perspective?

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, I am glad the member enjoys my Yiddish proverbs. It is a disappearing language, which is why I refer to them. I will save the member me trying to pronounce it in Yiddish. My Yiddish pronunciation is not very good.

The member mentioned that part of the bill deals with the very serious crisis of people who are addicted to opioids. It is a health crisis, not a criminal crisis. I know people in my community and I have friends who are impacted by it. They became addicted to things like OxyContin and other opioid narcotics. It has a huge impact.

However, this bill also contains things like eliminating the mandatory minimum for offences such as robbery with a firearm, extortion with a firearm, weapons trafficking, importing or exporting or knowing of it when it is unauthorized, and discharging a firearm with intent. Why mix the two in one bill?

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

Madam Speaker, does my Conservative colleague realize that Bill C‑5 does not do away with sentences, but simply eliminates the obligation to impose a specific sentence for a specific crime? Does he realize that in committee, we could determine which mandatory sentences should remain in effect?

There are things that we and the Conservatives agree on, including the treatment of violent crimes involving firearms and repeat offenders. However, does my colleague not realize that there are people who are qualified to judge the seriousness of a crime and the level of punishment warranted? A court's duty is more to protect society than to punish perpetrators.

Does my colleague recognize that the sentences can be just as harsh, even if they are not—

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

The hon. member for Calgary Shepard.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, of course I realize that Bill C‑5 will not eliminate all sentences, only mandatory minimum sentences.

However, for serious sentences, it is up to us, the members of Parliament, to determine what the judge should consider for each offence. That is our decision. We can set the minimum and maximum sentences, but the judge will decide how they will be applied based on the specific circumstances of each case.

I would also like to say that I totally agree with the Bloc Québécois concerning offences involving firearms and minimum sentences. The hon. member is absolutely right, and I am certain that we can take that into account in committee.

However, I would like to see a bill that is properly written from the outset, that the committee will not need to revise.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Madam Speaker, I have appreciated working with the member for Calgary Shepard in the past.

Perhaps he could answer a question for me. At the same time as the former Harper government put in place legislation a few years back, it gutted the network of crime prevention centres across the country. Members will recall that $100 million in funding for crime prevention was slashed by the Harper government.

As we know, $1 invested in crime prevention saves $6 in policing costs, court costs and prison costs. It did not make sense that the Harper government eliminated crime prevention across the country, including centres such as the B.C. Centre for Crime Prevention.

Could the member explain why the Harper government gutted one of the most effective tools in combatting crime?

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, I think we have hit the twilight zone in this chamber. The Harper government has not been in power in six years. It has been the government of the member for Papineau for the last six, so we should ask questions about that. This bill has nothing to do with financial decisions or spending decisions, so I cannot answer the member's question.

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

Madam Speaker, the hon. member spoke about an excellent piece of legislation in a previous Parliament that sought to take into consideration the circumstances of people with fetal alcohol syndrome. I note that some of the members from the government who have spoken, the justice minister and the member for Ottawa South, opposed that bill.

Could the member share more about why he supported this excellent private member's bill and why we need to see something like it passed into law?

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

We have time for a five-second answer from the member for Calgary Shepard.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, five seconds is not enough. I will have to find another Yiddish proverb.

The member is correct. It was Bill C-235, proposed by Mr. Bagnell from the Yukon. He will forgive me for saying, “from the Yukon”. I understand we are not supposed to say that, as it is the Yukon territory. It was an excellent piece of legislation because it carved out special treatment for offenders who have fetal alcohol syndrome. They should be treated differently in the judicial system.

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

Madam Speaker, I am pleased to rise to discuss Bill C-5.

It proposes important reforms to reduce the over-incarceration of indigenous people, Black Canadians and members of marginalized communities.

I am going to spend my time primarily talking about conditional sentence orders. I would like to bring to this conversation today my experience as the Minister of Community Safety and Correctional Services and the Attorney General of Ontario. As we all know, responsibilities in the administration of justice lie at the provincial level. In my comments, I will share some of the frustrations I felt, when I was in my provincial roles, with some of the changes that were made during the Harper government that are trying to be undone by Bill C-5.

As we all know, a fair and effective criminal justice system is critical to ensuring that Canadians feel safe in their communities, have confidence in their justice system and trust that offenders are being held accountable in a manner that is equitable and transparent and that promotes public safety in Canada. The unfortunate reality is that far too many people face discrimination and systemic racism at all stages of our criminal justice system. This problem has been exacerbated by tough-on-crime sentencing policies, including the indiscriminate and broad use of mandatory minimum penalties of imprisonment, generally known as MMPs, and added restrictions placed on the availability of conditional sentence orders, or CSOs. These restrictions were meant to keep Canadians safe, so to speak, but this missed the point because conditional sentences are never permitted in cases where public safety is put at risk.

These restrictions have prevented judges from imposing non-custodial, community-based sentences, even in cases where these sentences would otherwise be appropriate under the circumstances. This one-size-fits-all approach to sentencing denies the reality that offences can be committed in a broad range of circumstances with varying degrees of seriousness. Someone who steals to feed their family is less blameworthy than someone who steals goods to sell on the black market. One-size-fits-all sentencing has too often used the latter example as the baseline for sentencing laws and this has created problems in our justice system. MMPs also run counter to the fundamental principle of sentencing, namely that sentences must be individually tailored to the particular circumstances of the offence and the degree of responsibility of the offender before the court.

Bill C-5 is an important step forward to provide alternatives to incarceration where appropriate, including for indigenous people and Black Canadians. One important component of the proposed reforms is a series of amendments to the conditional sentencing regime that would allow the regime to fulfill its original purpose, namely to address the overreliance on incarceration for less serious crimes.

To better explain the importance of Bill C-5's amendments in this area, let me take a moment to speak about their original legislative purpose. CSOs were enacted in 1996, and I believe Allan Rock was the Minister of Justice in the House at that time. They were enacted as part of a comprehensive set of reforms that recognized the need to address Canada's inflated incarceration rate, particularly as it related to indigenous people.

A CSO allows an offender who does not pose a threat to public safety to serve a prison term of less than two years in the community under strict conditions, including house arrest and curfew. The law governing CSOs provides judges with the ability to impose a broad range of conditions that balance public safety against other important objectives, including rehabilitation. For example, a judge can require an offender to attend an approved treatment program, which can help address the underlying reasons that led to offending in the first place. This makes good sense to me. As Minister of Community Safety and Correctional Services and the Attorney General of Ontario, I addressed this, because if an inmate or offender is sentenced two years less a day, that person goes to a provincial prison.

In my previous roles, I visited enough jails in Ontario to know they are not the best places to be. For someone who is facing an addiction or mental health issue, jail is not a place where they will get the right care, as opposed to being in a community. Evidence shows that allowing offenders who do not pose a risk to public safety to serve their sentences in the community under strict conditions, while maintaining access to employment and community and health-related support systems, is far more effective at reducing future criminality than harsh penalties such as incarceration.

Indeed, evidence gathered after the original enactment of CSOs supports this finding. Within the first few years of the implementation of CSOs, recidivism rates declined and the incarceration rate decreased by 13%. Criminal Code amendments enacted by the Conservative governments in 2007, with former Bill C-9, and in 2012, with former Bill C-10, have since severely restricted the availability of CSOs. These amendments made CSOs unavailable for all offences prosecuted by way of indictment that are punishable by a maximum term of imprisonment of 14 years or life, as well as those punishable by a maximum term of imprisonment of 10 years if the offences resulted in bodily harm or involved drugs or the use of a weapon. The reforms also introduced a list of ineligible offences to the CSO regime, including for non-violent property crime.

Because of these restrictions, the use of CSOs was significantly diminished. Statistics Canada data shows that the number of cases resulting in a CSO decreased from 11,545 cases in 2004 to 7,022 cases in 2018. Studies have further shown that these restrictions have had a disproportionately negative impact on indigenous people. These restrictions have also resulted in an increased number of charter challenges and calls for reform.

Bill C-5 would return the CSO regime to what existed prior to the 2007 amendments while ensuring that CSOs are unavailable for offences of advocating genocide, torture and attempted murder, as well as terrorism and criminal-organization offences that are prosecuted by way of indictment and for which the maximum term of imprisonment is 10 years or more. They would also continue to be unavailable for any offence carrying a mandatory minimum penalty. CSOs would thus become accessible for all other offences where the sentencing judge determines that a custodial sentence of under two years is appropriate, provided that the court is also satisfied that imposing a CSO would not endanger public safety and would be in keeping with the fundamental purpose and principles of sentencing.

This approach would allow sentencing judges to consider all available sanctions other than imprisonment for all offenders, consistent with the sentencing principle of restraint, which requires sentencing courts to take into consideration all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of indigenous offenders. These amendments strike the right balance between ensuring the availability of alternatives to incarceration where appropriate and recognizing the importance of public safety where serious offending is at issue.

This legislation is a key milestone in our government's ongoing efforts to transform the criminal justice system. I applaud our government for proposing reforms that would realign CSOs with Parliament's original intent, an approach that evidence shows would directly contribute to reducing the overrepresentation of indigenous people, Black Canadians and members of marginalized communities in our criminal justice system, and would afford more opportunity for rehabilitation and better reintegration in appropriate cases.

These are the kinds of things that, when I was the Attorney General of Ontario, we were asking the federal government to undertake. I am thrilled to see that this is taking place through Bill C-5. I am also quite thrilled that in my new role as a member of Parliament, I am able to speak to this bill and will be supporting it. I encourage other members to vote in favour of it as well.