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.

Justice

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, 16-year-old Thomas was shot and killed in northern Montreal after an individual called out to him from an alleyway. Thomas lived in the riding of the member for Bourassa.

A 17-year-old teen was shot several times in his upper body in Laurier—Sainte‑Marie and later succumbed to his injuries.

Now the NDP-Liberal coalition, supported by the Bloc Québécois, wants to expedite the passage of Bill C-5, which will only serve to help street gangs carry out more shootings. Why?

[Shannon Stubbs, Conservative, Lakeland, AB]

Mr. Speaker, violent crime is increasing under the Prime Minister. Gun crime is up 83% since the Liberals took office. At the same time, they are going to make it allowable for criminals to get house arrest instead of going to jail for armed robbery, weapons trafficking, drug trafficking, breaking and entering, possession of illegal firearms and drive-by shootings.

He is going after law-abiding Canadians, but going soft on gangsters who do not care about his rules and paperwork. Will he scrap Bill C-5?

[Larry Brock, Conservative, Brantford—Brant, ON]

This particular offender, who had a criminal record both here and in America, was facing a serious charge. He asked me if I remembered him. I said that I didn't and asked if I should.

He said that I had prosecuted him. He said that I hadn't given a damn about him two years ago. His exact words were that I didn't give a damn about him two years ago, so why should he listen to me now?

That's a fair comment. Nine times out of 10, if not 99% of the time, they have a lawyer and that lawyer is their representative. There are rules of conduct, Mr. Chair, that you are aware of as a lawyer, as mandated by the law society of your particular province. As Crown counsel, I couldn't just walk up to an offender and force him to engage in conversation. He remembered that. His point was that I didn't care, when I didn't have the ability to question him or talk to him. Maybe he didn't know that I had ethical obligations on my part not to do that.

Quite frankly, to any of the lawyers on this committee who have had any sort of experience in a busy criminal court, you know you don't have that opportunity. In a given day, Mr. Chair, I was prosecuting anywhere from 30 to 40 cases. You don't have an opportunity to get to know your offender. I told him it was a fair comment, but that this format was vastly different. I explained why it was different.

In the second round, for the first time in my life I was now talking directly to the offender and pointing at him and asking what the hell he was thinking. What caused him on that particular day to pick up that loaded weapon? What were the circumstances?

Again, I'd never, ever, had an opportunity like that as a Crown prosecutor, with the exception of a trial format. If he wished an opportunity to testify, he's not constitutionally required to do that. At all times, it's the Crown attorney's onus and burden to prove a case against an individual beyond a reasonable doubt. Until there is a finding by a judge, accused persons have the luxury of presumption of innocence. They're not compelled to provide a defence. They don't have to disprove anything. They can sit in the weeds and determine whether or not Mr. Brock, the Crown, or any other Crown has proven all the essential elements of the offence.

This was different, and he recognized the difference. Slowly it progressed, like peeling the layers of an onion. There were my questions. The judge and the offender's own lawyer were asking similar questions. The knowledge keeper was trying to draw in why he was engaging, as a proud member of an indigenous clan, in this type of criminal behaviour. The family members were there.

These were very emotional events, Mr. Chair. Numerous times my eyes welled up because you really got to the heart of the matter that you would never get in a trial. You would never get that by simply reading a Gladue report. You would never get that by simply listening to defence counsel talk about the circumstances of the client's background.

After you have that sort of...awakening, I call it, and a challenging of why they found themselves in conflict with the law, then you go to the next round and look at ways the offender wishes to learn from this particular exercise.

Again, it's a concept foreign to the traditional criminal justice format. If you're successful as a prosecutor in securing a conviction or presenting a guilty plea, after trial you don't question why. You don't question the steps they're going to take for their own rehabilitation.

While I know that rehabilitation is an important sentencing feature in any given case, in a traditional criminal format system it sometimes doesn't play as much of a factor as the other sentencing principles, particularly in these areas I referenced in earlier interventions tonight—several hours ago now—when I talked about how judges repeatedly cried out for sentencing principles that apply denunciatory sentences for gun offences and send a very strong deterrent message to the offender and to the community: If you engage in activities like this, you will expect to receive a jail sentence, and it's not only in Canada. I've done case law research on other larger cases across this country.

Going full circle back to the indigenous circle, I was able to listen to what the plan was that this offender had for his life. He was very candid. I think he was a grandfather many times over. I think he was in his sixties at this point. He suffered just horrible, horrible examples of abuse, physical and sexual, outside of the criminal justice system and inside as an offender. It predominantly was much worse in the United States. He found himself in a carjacking situation in Buffalo as a young offender—I think he said he was 14 or 15 at the time—with two adult friends who were 18. He was tried as an adult and he was sentenced as an adult. He did some hard time. I forget the institution he was in, but you can well imagine the horrors he experienced as a young boy in an adult male population. He had no problems recounting that and sharing that terrible chapter in his life, but he'd had enough. He'd had enough.

If I had a dollar, Mr. Chair, for every offender who said, “This time it's going to be different, Judge; I've learned my lesson, Judge; you're never going to see me here again, Judge”, I'd probably be long retired. They're hollow words.

It's much the same sort of insincere rhetoric I used to hear daily in bail court, where they would promise the justice of the peace, “Oh, throw on as many conditions as you want. I'll comply with everything. I'll comply with house arrest. I'll stay away from the alcohol. I'll stay away from the drugs. I won't harass my girlfriend, even though I've done it 10 times over.” They'll promise the sun and the moon and the stars just to secure their release, but it's hollow. It's a hollow promise. I experienced that in the criminal justice field as well.

It was different in the Indigenous People's Court. I listened to him. I'm not going to mention the offender's name, out of respect. I said to him, “You'll have to forgive me if I don't believe you. You'll have to forgive me if I have my doubt.” I explained why I had my doubt, but I said, “You appear to be sincere, so I'm going to give you a challenge. You talked about upgrading your education. You talked about getting some counselling for your addictions.” I think he was addicted to crystal meth or something—a harder drug. I said to him, “You talked about securing a job. You talked about being a role model to your grandchildren. You recognize that to be a role model, you're going to have to have some stable housing.”

He made a commitment to that.

This particular case probably lasted the better part of two years. Ordinarily, someone accepting responsibility for something like that would have been in and out of the criminal justice system in two or three months and would have been serving a sentence in some institution long before this particular case ended.

He did everything he set out to do, and not only did he show me certificates of attendance, but he showed me certificates of putting a 110% effort into everything he said he was going to do. He came armed with character reference letters from the institution and the organizations he was involved in. He found himself a job. He was earning a regular paycheque. He had turned a significant page.

It came to the point, Mr. Chair, that I had to ask myself, “I have all this discretion. I've now seen an offender who was sincere in everything he said he wanted to do to change his life. Do I believe there is more than a reasonable prospect that I will never see him again in the criminal justice system?” I concluded that was the case. Through my discussion with my Crown manager and other colleagues, we were able to craft a sentence that still held the offender responsible but prevented the traditional brick and mortar institution.

To all the members of this committee who feel that Bill C-5, which we are currently debating, is the answer to all of these issues, I've given you an example of steps Crown prosecutors take daily, and they take the job very seriously. There are other ways to address the over-incarceration issue without compromising community safety. That was the example I wanted to share with you.

I've often asked myself when and where should I raise this issue, and I think, now that it's on my mind right now, I don't want to lose the train of thought.

We've heard numerous times in this committee, not only from witnesses but from committee members, the Attorney General, all other senior ministers, the back bench, the Greens, Ms. May and Mr. Morrice today that we should trust our judges, that judges know best and that judges need to have this discretion in their hands to do their job. I've been a proud member of the Ontario bar for 30-plus years, and when I say what I'm about to say, I mean absolutely no disrespect to the judiciary.

I appeared in front of many judges in my lifetime, Mr. Chair. They too, just like Crown attorneys, are not walking robots. They do not all think the same. They do not all pronounce judgements in much the same way. Hence, we have appellate courts, depending on the charge and depending on Crown election to proceed summarily. Sometimes the appellate route is to the Superior Court of Justice—the Court of Queen's Bench for my western colleagues—the various provincial courts of appeal or ultimately the Supreme Court of Canada.

Judges, folks, do not think the same. They do not apply the law equally in the same respect. There are judges who have acquired reputations—soft, hard and all in between.

I'll give you another example.

There was one particular judge in the lower court in Brantford—again, I'm not going to repeat her name, out of respect. I know you'd like me to, Gary, but I simply can't, out of respect.

It was extremely frustrating to Crown attorneys, very frustrating to us, because it appeared that—it was a female justice—she just had a different perception on criminal justice and always placed the principles of rehabilitation paramount. She would mention, “This is an offence that attracts”—

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you.

Before I was cut off, I think I was talking about the sad reality that many indigenous communities are under boil water advisories. It's disgusting how this Liberal government can claim to be an ally to our indigenous neighbours and have these individuals—hundreds, thousands, tens of thousands—suffering.

Do you think it would be different if in this precinct all of a sudden maybe we would have a chlorine issue with our drinking water, just like we had in Nunavut on a couple of occasions when some diesel fuel got into the water supply? You saw how quickly the government reacted. Do you think it would be any different in this precinct if we had a similar issue? Would immediate steps, regardless of the cost, be utilized and deployed to rectify the situation? It would happen in less than a week. We wouldn't have to wait for years.

That's the legacy of this government, and this is the message this government is sending to my indigenous friends and my indigenous neighbours across this country.

I've talked about water. We have housing issues. We have lack of education, a lack of nurturing, because, again, the whole concept of the trauma of the residential school system has prevented it and has robbed parents and grandparents of social abilities and social cues to raise their children, to guide their children to be law-abiding and respectful. It's no wonder that under all of those circumstances, Mr. Chair—again, to my earlier point—there is an overabundance of indigenous offenders who are engaging in very serious criminal activity. We heard not only from the chief of the Brantford city police at this committee, but also from the chief of the Six Nations police service. Both of them are indigenous, Mr. Chair, and both of them described an out-of-control situation on the Six Nations of the Grand River in terms of the lawlessness that exists.

Quite frankly, it got to the point a few years ago—and this was when I was a Crown attorney—that there were strong recommendations from the chief of police to our community in Brantford that it might not be a good idea to travel on the Six Nations of the Grand River during the day, because at that time there was an abundance of high-speed chases. The Six Nations of the Grand River at that point had a reputation of being the car theft capital of Canada. It was a very lucrative trade for a lot of the indigenous youth and the young indigenous males on the territory. It got to the point where they recommended that you not travel during the day.

When you have all of these factors, Mr. Chair, it's no wonder that we find ourselves in a situation of having far too many offenders of an indigenous nature in our prison system, as well as Blacks—Black Canadians. I've read numerous newspaper articles, have watched television programs and have read online articles on the ever-increasing role that gang activity has in large centres. The predominant racial makeup of most of these gangs unfortunately is Black Canadians, and they are actively recruiting Black youth, because there's very little opportunity in larger centres.

I know that during the last election, to a certain degree the government and even the Conservative Party talked about crime mitigation measures. We talked about ways that we can deter offenders away from the criminal justice system. The Conservative platform certainly referenced that. I know the government's platform referenced it in the election, and they talk about it in the House, but what are they doing about it besides talking and meeting and, using the words of the Minister of Foreign Affairs, convening?

It's time to put some action into your words. Instead of talking the talk, it's time to walk the walk. If they are that serious about the overall impact of criminal justice reform, we need take a look not only at the existing legislation but at the underlying causes. That aspect is not being addressed. I know that's not a component of Bill C-5, but we don't want Bill C-5 to just be a band-aid to the overall significant issue. We have to be mindful of that significant overall issue as parliamentarians.

The committee will probably be very grateful to know that I'm going to move on to a different area. I think I've expressed my thoughts with respect to the indigenous issues close to my riding. I want to do a deeper dive under section 244.

As a prosecutor—and I talked about this earlier—I've had at least a dozen cases dealing with section 244. All of them were essentially drive-by shootings or one gang shooting up another gang. One case in particular was outside a variety store, a variety store that I attended every single day as a Crown attorney going home for lunch and picking up a newspaper. Just before this particular crime that I'm about to share with this committee, I happened to be there three days before the offence occurred. My vehicle is known to Brantford city police. We have an understanding that we have to share our licence plate numbers with the local police so they are in a position to ensure they can watch us and give us some protection.

I've dealt with numerous cases, Mr. Chair, in which my life was threatened, my family's life was threatened. I had to get resources in to beef up the security on my house, changing the locks, putting in bulletproof glass and surveillance cameras. I've dealt with a whole litany of things. When someone will ask me, “Mr. Brock, give me a day in the life of you as a prosecutor”, I can say, “I don't know when I show up at the office if I'm prosecuting a shoplifting case or I'm getting ready for a homicide.” It was that myriad of cases that I was dealing with. Given the experience that I had, Mr. Chair, it was more often than not that I would be handed the homicide, I would be handed the gang-related activities, I would be handed the shootings, I would be handed the child exploitation cases.

Going back to the variety store issue, an officer saw me and said, “What are you doing, Brock? What are you doing at this particular store?” The store had a notorious reputation for criminal activity.

I fluffed it off. I said, “I'm just getting a newspaper. I'm not worried about it.”

Three days later, around the same time that I was there, there were two individuals who had a prior beef. It was two o'clock in the afternoon. The one who was inside the store picking up a pop or whatever came out, and immediately the offender was staring right at him, literally six feet away with a handgun. He pulled it out, and the victim pulled out another handgun. They both shot at each other. It was in broad daylight, 10 feet away from the front door of the very same variety store that I attended to pick up a newspaper.

Luckily, both were pretty good shooters, in the sense that they shot themselves and they didn't shoot any bystanders, but you can imagine the panic. You can imagine the fear and the confusion.

That's what section 244 talks about. This isn't the first-time offender. This isn't the first-time low-offence-related activity. Both of these individuals wanted to wound. Both of these individuals wanted to maim. Both of these individuals wanted to disfigure and endanger the life of the other.

Mr. Chair, the Greens feel that eliminating the mandatory minimum penalties will address the over-incarceration issue and promote some sense of responsibility in an offender. I don't know where the Greens are getting their talking points, but I can assure you that they need to spend a day in the life of a prosecutor who's on the street daily dealing with these serious crimes. They are completely out to lunch on their talking points. It's dangerous activity.

Not too long ago, members of this committee may have heard about the Just Desserts shooting in Toronto—or was it Scarborough? Gary would probably recognize that.

I'd like to spend time just informing the committee about the circumstances of the Just Desserts shooting, because this was a section 244 offence:

The Just Desserts shooting was a notable crime that occurred in Toronto on the evening of Tuesday, April 5, 1994. Just after 11:00 PM, a group of three men barged into the Just Desserts Café, a popular café on Davenport Road in Toronto's Yorkville neighbourhood.

It wasn't in Scarborough, Gary.

One of the men was armed with a shotgun. The armed robbers ordered the thirty staff and patrons to the back of the store and took their valuables.

One of the patrons that evening was 23-year-old hairdresser Georgina Leimonis...who was there with her boyfriend. A dispute broke out when two male patrons refused to hand over their wallets; they were punched by one of the robbers. Soon after, the man with the shotgun fired and hit [the victim] in the chest. The robbers fled the restaurant. [She] was rushed to hospital; after surgery she died at 2:45 on Wednesday morning.

A security camera in the restaurant filmed the entire scene, but its low quality and lack of audio made it difficult to make out events and hard to identify the murderers. The police began a search for four men, the three who had been involved in the robbery and another who had helped them case the restaurant earlier. The police were criticized when the descriptions released of the four men was that they were 6-foot-tall black men. Many felt that such a vague description would do nothing to help capture the perpetrators and would merely enhance stereotypes of black men being criminals.

A week after the shooting Lawrence Augustus Brown was identified as a suspect and he turned himself in to police. Another of the three, O'Neil Rohan Grant, was arrested soon after. That fall, Gary George Francis and Emile Mark Jones were arrested. Grant, Francis, and Jones were charged with manslaughter and robbery. Brown, who had fired the shotgun, was charged with first-degree murder. The charges against Jones, who was not involved in the robbery itself, were later dropped.

The already famous crime also became notable for being extensively mishandled. The move to trial was extremely slow, as the men sat in jail for years, being denied bail, but not being brought to trial. The case was marred by errors by police and prosecutors, but it was mainly lengthened by defence lawyers who were later accused of unprofessional conduct. While the new defence team argued the charges should be thrown out due to the long delay, this motion was rejected. By the time it came to trial, 40,000 pages of files related to the case had accumulated.

The trials finally got underway in May 1999, with Brown now acting as his own defence counsel. The trial itself became one of Canada's longest, with Brown extensively cross-examining each witness, often for up to two days.

Allegations of racism and discrimination—

Where have we heard that one before?

—were levelled from the very beginning. One of the lawyers—there were dozens hired, fired and removed—likened the preferred indictment to “the modern-day equivalent of a lynching.” Moreover, in a letter written in 1995 to Ian Scott, then chief counsel for special investigations at the Crown Law Office, lawyers for the accused alleged that “this case has drawn a tremendous amount of publicity...not because of the nature of the crime itself, but because the defendants are all black, Ms. Leimonis—

—the victim—

—is white and the incident occurred in an upper-middle-class restaurant frequented primarily by white people.”

What I didn't mention is that she was not the only victim in that restaurant, Mr. Chair. There were probably another dozen victims, if not two dozen, who had to experience this random shooting designed to wound, maim, disfigure and, in the particular case of this victim, end a life.

A scathing 60-page summary ruling on the case by Mr. Justice Brian Trafford puts the police and the justice system in an unenviable light. The selective use of leg irons, belly chains and handcuffs on the three suspects displayed “cultural insensitivity towards black people,” stated Judge Trafford. He also found that to this day Toronto police have “never comprehensively investigated allegations of abuse.” Activists, angry at the use of shackles, have brought up the spectre of the slave trade. They have pointed out that Paul Bernardo was never shackled in court.

Here is the verdict:

The case continued to attract widespread public interest. On the day after the trial closed on December 6, 1999, The Globe and Mail published an unprecedented six-page section devoted to the murder and trial. The verdict was finally released on December 11: Brown and Francis were found guilty, and Grant was acquitted. Brown was given a life sentence with no chance of parole for twenty-five years. Francis was given fifteen years, and seven were knocked off for the years in jail during the trial. He was thus eligible for parole only three years later, but his 2002 application was rejected. He was released on parole in 2005. On February 24, 2008, Francis was found in possession of 33 grams of crack cocaine and in May 2008 sentenced to 7½ months in jail for several drug related offences—

I will eventually be talking about the drug component to Bill C‑5, but certainly not in relation to this particular clause.

—Grant was deported from Canada to his native Jamaica where he was shot to death on October 29, 2007.

That's one example, Mr. Chair.

I have another. Does anyone remember the Boxing Day shooting in downtown Toronto, at Yonge Street and Dundas? It's one of the most heavily populated shopping areas in all of Canada. That was known as the Jane Creba case. That particular shooting:

was a Canadian gang-related shooting—

Again, it attracted section 244 considerations.

—which occurred on December 26, 2005, on Toronto's Yonge Street, resulting in the death of 15-year-old student Jane Creba.

She had the misfortune of taking her Christmas money that she got from her parents and relatives and travelling down the street because she wanted to go to the record store. Toronto actually had record stores on Yonge Street in 2005.

She never made it to the record store. She never used her Christmas money.

She wasn't the only victim, Mr. Chair. Six other bystanders—four men and two women—were wounded.

Again, I mean no disrespect to Mr. Morrice. I think he's a fine gentleman and a fine parliamentarian. I have a lot of respect for him. It's the position of his party that I'm criticizing, sir, not him.

With this particular incident and the amendment, really there is a disconnect as to what we're trying to do here. We're not trying to make it easier and softer for the types of individuals who decided on Boxing Day, in one of the busiest areas in the country, to wildly shoot.

Jane Creba, I might add, was not the intended victim. There was another gang-related person in her vicinity. Let's face it and let's be honest: Apart from the example I gave you of the two young men outside the variety store in Brantford who were good shooters, in the vast majority of gang-related activity and use of firearms, the firearms are mostly, if not all, illegal firearms. They're not the long rifles. You don't take a long firearm into a variety store and say, “Hey, I want to rob you.” You want to conceal that weapon. You can't conceal a long firearm.

In this case, my point is that these criminals are not equipped. They don't have the training. They are not expert marksmen or markspeople. They just shoot wildly, hoping that one bullet perhaps may hit the intended target. It didn't in this case. It killed 15-year-old Jane Creba. Six other bystanders—four men and two women—were wounded.

The story generated national news coverage in Canada and influenced the 2006 federal election campaign, which was then under way, on the issues of gun crime and street violence.

Police arrested two men on several gun charges at Castle Frank subway station within an hour after the shooting. Andre Thompson, 20, was on probation at the time, and Jorrell Simpson-Rowe was 17. Thompson had been released just before Christmas from Maplehurst prison near Milton, where he had served 30 days for his role in a convenience store robbery. He declined a bail hearing for his current charges. Police believe as many as 10 to 15 people were involved in the shooting and that more than one gun was fired.

Twenty Toronto police detectives were assigned to Project Green Apple to work on the case. It was named Project Green Apple because that was Jane's favourite food. On June 13, 2006, Toronto police conducted multiple raids at 14 locations throughout Toronto in the early morning, arresting six men and two teenagers. Charges laid against them included manslaughter, second degree murder and attempted murder relating to the six other bystanders. All those arrested were members of two different street gangs.

In October 2007, a young man who had been rounded up by the initial arrests, Eric Boateng, was shot dead in a seemingly unconnected incident. Boateng was not charged with the shooting, but had been later charged with cocaine trafficking.

It's too bad, I guess, that didn't happen in 2022, because he might receive a conditional sentence. Again, I'll speak to that aspect of Bill C-5 in due course.

As of December 2007, 10 people had been charged with murder or manslaughter in the case, three of whom were youths. Those charged with second degree murder included Tyshaun Barnett and Louis Woodcock, both 19; Jeremiah Valentine, 24; and Jorrell Simpson-Rowe, who was 17 at the time of the shootings.

One of the teenagers who was arrested in June and charged with manslaughter was exonerated on October 25, 2007, after the preliminary hearing. The teenager charged with murder was committed to trial. On December 7, 2008, Jorrell Simpson-Rowe—previously known as JSR, because the Youth Criminal Justice Act forbids disclosure of identities of minors—was convicted by a jury of murder in the second degree. In April 2009, he was sentenced as an adult to life in prison with no chance of parole for seven years.

In November 2009, manslaughter charges against four individuals involved in the incident were dropped because the prosecutors felt there were no reasonable prospects for a conviction.

On that point, I really stress the whole concept of prosecutorial discretion, Mr. Chair, but in addition to that basic tenet, we are also bound by two rules. Every prosecutor who gets a case to prosecute has to ask himself or herself two questions.

Question number one is this: Is there a public interest in continuing the prosecution? That's generally a very low-threshold analysis, Mr. Chair. You just have to look at the size of the Criminal Code, which represents all of the laws in this country. When you take a look at the number of ways people can commit criminal offences, you can well imagine that there are extremely less serious charges all the way to the most serious of charges, which include murder. Quite often I had to exercise my discretion by questioning if there was a public interest in this prosecution and coming to the conclusion, Mr. Chair, that perhaps—capturing the language of the Liberal government—there are situations where good people make some pretty bad decisions on a particular bad day. Quite often, by reading the entire Crown brief, I was able to determine in the equation of spending all of this public resource money and time—my time and the judges' time and the police time to monitor and provide security and the time of clerks of the court and the other staff processing the paperwork—that there was not an interest in continuing that particular prosecution.

It didn't happen a lot, Mr. Chair. I can tell you I can probably count on both hands, over 18 years, the times I didn't answer that question in the affirmative, and again had the backing of Mr. Naqvi, as my ultimate boss at the time, as the attorney general, that I could justify the decision to pull that case, to withdraw that case from the criminal prosecution stream. That's the first question you ask yourself as a prosecutor.

The second question is really an important one, because you have to ask this question numerous times throughout the lifespan of a criminal charge.

As I've described to the committee, some cases can get wrapped up in very short order, perhaps two or three months. Others, with the advent of charter litigation—as you heard when I read out the story of the accused firing and rehiring and firing and rehiring defence counsel—can drag on for months, if not years, but through that entire process, at each pivotal point in that particular prosecution, we as prosecutors have to ask ourselves, “Is there a reasonable prospect of a conviction?”

I asked that question on the first day I get a Crown brief from the likes of my colleague Mr. Morrison, when he was actively engaged in law enforcement, to the time I receive further disclosure from Mr. Morrison and other like-minded law enforcement personnel. It's to the point where I'd now be engaging in discussions with defence counsel or perhaps engaging in thoughtful, productive discussions with my colleagues, because although we all have law degrees and we all have the same sort of legal training as far as working within the criminal justice field goes—particularly with the Attorney General, with numerous opportunities to engage in continuing legal education—some people retain more issues than others. On major cases, quite often I either would be paired up with another colleague or we would just share ideas. One might say, “I see this as a case with a reasonable prospect of a conviction.” A colleague may not see it that way.

Again, the Crown prosecution service is constantly evaluating, re-evaluating and welcoming and receiving further information from law enforcement and from defence counsel, who is often charged with the responsibility of putting the very best case forward for his or her client. Particularly within the context of an indigenous offender or a marginalized offender, it's to talk about the upbringing of that particular offender in the hopes that perhaps I can look at abandoning in its entirety that prosecution, which was a very bitter pill for me to digest and, quite frankly, was contrary to Ontario Crown policy, because our policy was very clear that if there was a reasonable prospect of a conviction, every firearm offence had to be prosecuted, and only and when if you ever got permission from your Crown manager could you deviate from that policy.

Mr. Chair, it did happen, and it happened to me on a couple of occasions with indigenous offenders. As I told you, Brantford has a Gladue court, the Indigenous People's Court, and I can remember the case very well. It involved an individual who had a significant criminal record, not only in Canada but also in the United States, and who had all of the Gladue factors that you can think of: unstable family, no employment, lack of education, food insecurity and ties to the residential school system. Every single marker was checked off.

He found himself, Mr. Chair, in possession of a loaded firearm. He didn't discharge it, but it was captured by the language in Bill C-5. It attracted a mandatory minimum penalty, but in that particular case, we engaged in a deep discussion, not only about the offence but also about the offender and how I think the indigenous peoples courts, Gladue courts, operate. We certainly don't have enough Gladue courts in this country. Quite frankly, I think the government should be looking at mandating them. I know they'll have to work with the provinces in terms of rolling that out with various ministries. There are advantages to these offenders, Mr. Chair, and Bill C-5 on its own only scratches the surface.

In this particular case, I heard his story. It was one of those opportunities that you really never get as a Crown prosecutor. In fact, I had prosecuted that same individual for a different offence probably two or three years prior to that. I didn't remember him; he certainly remembered me.

How the indigenous peoples court operated is that you wouldn't force the offender to be arraigned. Being arraigned means the charge is read out and they have to make an election of pleading guilty or not guilty. The presumption of anyone who entered into the indigenous peoples court was that there was a willingness and acceptance of responsibility. They had to ultimately plead guilty, but we would thoroughly examine the circumstances of the offence and the offender to determine the best sentencing outcome for that particular offender. In this case, he wasn't arraigned. We were all in a circle, because the whole concept of indigenous peoples court is to break down barriers.

We heard from witnesses in this committee that there is a lack of trust that indigenous peoples have with the criminal justice system. They have their great law. We have our Criminal Code. The two systems could not be more diametrically opposed to each other, but because they are, there is an inherent mistrust.

The two pioneers of the indigenous peoples court in the Brantford jurisdiction were Justice Colette Good, a former Crown attorney in Brantford, and another judge whose name escapes me right now. It'll come to me. They are also indigenous. The whole concept was born from an idea to deliver justice differently to our indigenous offenders.

The Brantford Indigenous People's Court, Mr. Chair, has been operating for over 10 years in the Brantford jurisdiction. We knew a decade ago, if not longer, that over-incarceration was an issue. The judiciary in Brantford took immediate steps to address that.

Part of the composition of the indigenous people's court is that the judges would not appear inside that courtroom with their gown. They would take the black gown off. They would take their red sash off. They would take their judicial tabs off and appear in business attire.

We're all familiar with the composition of a criminal court. You walk in and see rows of seats. You'll see what we call the legal bar. The bar separates lawyers and staff from the public. We have the bar, an opening, chairs for defence and Crown counsel, tables, the court clerk and the court reporter. Then we have an upper area known as the judicial dais. That's where our judges sit.

Gary knows that, because he's lawyer.

[Larry Brock, Conservative, Brantford—Brant, ON]

That's right, because the prosecution has to establish that there was an intent to wound, maim or disfigure, or to endanger the life of or prevent the arrest of or detention of any person. The Attorney General, the leading legal authority in this country, offered Canadians a woefully inadequate description of what Bill C-5 is really trying to capture.

Would you agree?

[Larry Brock, Conservative, Brantford—Brant, ON]

Right.

Am I correct—because I don't have the actual bill in front of me—that Bill C-5 speaks to paragraph 244(2)(b), which reads, “in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years.” That's what Bill C-5 is trying to eliminate. Is that correct?

[Matthew Taylor]

Yes. Of the four cases I referenced, three speak specifically to the MMP that would be repealed in Bill C-5. Two of those decisions, as I said earlier, predate both Nur and Lloyd from the Supreme Court. One follows Nur in 2015.

[Larry Brock, Conservative, Brantford—Brant, ON]

The majority of the jurisprudence that you just referenced upholds the mandatory minimum penalties as they relate to the areas that Bill C-5, as drafted, does not capture. Is that correct?

[Larry Brock, Conservative, Brantford—Brant, ON]

The Green amendment is designed to take the existing Bill C-5 as proposed by the government and essentially wipe out every single mandatory minimum under section 244.

Section 244, entitled “Discharging firearm with intent”, reads:

Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person — whether or not that person is the one at whom the firearm is discharged.

The “Punishment” section, which the Greens wish to annihilate, reads as follows:

Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years; and

(b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years.

Subsection 244(3) lists the provisions for subsequent offences. I'm not going to get into that discussion.

I'm looking at my Tremeear's Criminal Code. I do see a section regarding charter considerations. From what I can see here, by way of an annotation, there was a provincial Court of Appeal decision from New Brunswick, Regina v. Roberts, 1998. The minimum punishment provided for in that section does not offend charter section 12.

I will postpone my debate at this point, Mr. Chair, and I will turn to the Department of Justice witnesses.

Gentlemen, in addition to that particular case, are you aware of any decision, whether it be a lower court or an appellate decision, across this country that speaks to this particular offence?

[The Chair, Liberal, Randeep Sarai]

We'll have a recorded vote on clause 9.

(Clause 9 agreed to: yeas 7; nays 4)

Next we have proposed clause 9.1.

On PV-5, I will rule that this is non-admissible due to the parent act.

I'll go one by one.

I'm going to rule PV-6 inadmissible for the same reason. None of the act that it's proposing to amend is being debated.

On PV-7, section 153 of the Criminal Code is not being amended by Bill C-5. It is therefore the opinion of the chair that the amendment is inadmissible.

On PV-8, section 155 of the Criminal Code is not being amended by Bill C-5. It is therefore the opinion of the chair that the amendment is inadmissible.

On PV-9, paragraphs 160(3)(a) and 160(3)(b) of the Criminal Code are not being amended by Bill C-5. It is therefore the opinion of the chair that the amendment is not admissible.

On PV-10, since subsections 163.1(2) to 163.1(4.1) of the Criminal Code are not being amended by Bill C-5, it is the opinion of the chair that the amendment is not admissible.

On PV-11, since sections 170 and 171 of the Criminal Code are not being amended by Bill C-5, it is the opinion of the chair that the amendment is inadmissible.

On PV-12, since paragraphs 171.1(2)(a) and 171.1(2)(b) of the Criminal Code are not being amended by Bill C-5, it is the opinion of the chair that the amendment is inadmissible.

On PV-13, since paragraphs 172.1(2)(a) and 172.1(b) of the Criminal Code are not being amended by Bill C-5, it is the opinion of the chair that the amendment is inadmissible.

On PV-14, since paragraphs 172.2(a) and 172.2(b) of the Criminal Code are not being amended by Bill C-5, it is the opinion of the chair that the amendment is inadmissible.

On PV-15, since paragraphs 173(2)(a) and 173(2)(b) of the Criminal Code are not being amended by Bill C-5, it is the opinion of the chair that the amendment is inadmissible.

On PV-16, since subsection 202(2) of the Criminal Code is not being amended by Bill C-5, it is the opinion of the chair that the amendment is inadmissible.

(On clause 10)

Now we will move to Green Party amendment 17. Note again that if Green Party amendment 17 is adopted, Bloc amendment 1 and Conservative amendment 7 cannot be moved, as they amend the same line.

[Larry Brock, Conservative, Brantford—Brant, ON]

This is debate only, with no questions. I'm putting it out to my Liberal colleagues to really reflect upon the purpose of this particular section and the type of criminal it's capturing. It is not capturing the indigenous first-time offender or the racialized Black Canadian offender. It's not targeting the low-risk offender. These are offenders who are knowingly engaged in a commercial enterprise to import and export weapons within our borders and internationally.

Please reflect upon the countless stories we have shared as politicians over the last several months, what we are reading in the papers, what we are seeing on the television about the floodgates being open and about the importing and illegal gun smuggling that's happening at our porous borders.

To my colleague Rob Moore's point, now we have drones that are circumventing our lawful borders to ensure that the commercial exchange of weapons continues.

We have to draw a hard line in the sand as parliamentarians and look at the type of criminal we are trying to capture here. We need to send a denunciatory message to these seasoned criminals that if they continue to do this, they will expect to go to jail—no ifs, no ands, no buts about it. This isn't a situation where they need to get a break. They have chosen an illegal enterprise and a way of life that is so opposite to what your government has been preaching to Canadians with the introduction of BillC-5.

Please give that some consideration.

[The Chair, Liberal, Randeep Sarai]

We turn now to new clause 7.1, as proposed by the Green Party. It's Green Party amendment 3.

I'm deeming that inadmissible. I'll read it out this time, but on the other ones I'll just deem the ruling.

The amendment seeks to amend paragraph 102(2)(a) of the Criminal Code, which deals with the offence related to alteration of a firearm. House of Commons Procedure and Practice, third edition, states on page 771 that “an amendment is inadmissible if it proposes to amend a statute that is not before the committee or a section of the parent Act, unless the latter is specifically amended by a clause of the bill”.

Since paragraph 102(2)(a) of the Criminal Code is not being amended by Bill C-5, it is therefore the opinion of the chair that the amendment is inadmissible.

(On clause 8)

We have Green Party amendment 4. Again, if it's adopted, Conservative amendment 6 cannot be moved, as they amend the same line.

Shall Green Party amendment 4 carry?

(Amendment negatived: nays 10; yeas 1 [See Minutes of Proceedings])

We now have Conservative amendment 6.

Go ahead, Mr. Moore.

[Larry Brock, Conservative, Brantford—Brant, ON]

In keeping with the spirit of the Conservative amendments that you've heard Mr. Moore speak about, we're looking at a compromise.

We are not supporting the elimination of that particular mandatory minimum as contemplated by Bill C-5, but we recognize, again, the spirit behind Bill C-5 in terms of the objective of providing some recourse to the courts and to Crown prosecutors to exercise that discretion where required, but we also want to send a message to the community that should you engage in activities such as in the section that contemplates criminal behaviour, you can expect not to be treated leniently. You'll be expected to serve a period of incarceration.

We are reflective of the overall objective, and we feel that six months, as opposed to one year, is an appropriate compromise.

[Rob Moore, Conservative, Fundy Royal, NB]

No one from the Green Party spoke to this.

We're dealing in Bill C-5 with amending a number of different provisions related to firearms and then provisions related to weapons. Sometimes people think of a firearm as a weapon, or a weapon as a firearm, and use the terms interchangeably, but in some cases the possession of a weapon does not include a firearm. In this case, I believe for this mandatory minimum penalty proposed by the Green Party, the removal would expand this to include a firearm when we're talking about weapons trafficking. In the legislation that's currently before us in Bill C-5, there are a number of very important measures that remove mandatory minimum penalties when it comes to firearms, but perhaps our witnesses could just speak to the distinction between weapons trafficking and firearms trafficking, which I think is important to this Green amendment.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I'd like to apologize from the bottom of my heart, Mr. Brock.

You're quite right that it didn't meet the definition of a filibuster, but it is a definite effort to slow down the review of this legislation. I had thought that since my first amendment came up under clause 6, it would be attended to relatively early in a two-hour committee hearing, and I'm not inexperienced.

You're quite right, Mr. Brock. It doesn't meet the definition of a filibuster, but since I've brought forward most of the amendments before the committee tonight, it does place me in something of a quandary, because I don't have the right to withdraw my amendments. They are deemed put forward by the committee. That is a committee motion that you yourselves adopted, unfortunately, and every committee has done so, right through the system of the Parliament of Canada, and it does mean that I must proceed to present each and every one of these unless we can find a solution.

I wanted to open with an offering that we know that a number of my amendments will be deemed to be inadmissible, and I would like to ask the committee.... From my point of view, there's no purpose in my speaking to inadmissible motions, so I don't intend to. I want to make that clear right now. We can skip over anything inadmissible.

Certainly the first amendment I have before us is admissible and does go to what we should be doing, which is, as in the Nur case, as Chief Justice McLachlin suggested, it would be better if Parliament got rid of all mandatory minimums and reviewed the use of mandatory minimums. She didn't go as far as to say to get rid of them, but to deal with them efficiently.... Bill C-5 removes some but not all, not even all of the mandatory minimums that have already been struck down by courts.

It certainly would be preferable to find a way.... As was noted by the court, it's better for Parliament to deal with this than to sit back and simply wait for the courts to handle them in a piecemeal way. The finding, of course—which I will quote from because I think it's central to this—is that after reviewing at least 50 years of research on mandatory minimums, as the Supreme Court of Canada did in Nur, they found, “Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes....”

If we turn to Statistics Canada, we can find that from 2003—which was the peak of any crime rate in Canada—and 2020, crime rates in Canada dropped by 30% and violent crimes dropped by 23%. The discussion that's happened today in committee would lead anyone to think that we had a terrible crime wave.

Any crime is unacceptable, any violent crime, and I wish we were doing more for victims. We do not have good legislation. We do not have a good framework. We do not have good supports for victims of crime, and we should, but in the context of mandatory minimums, all we are doing is removing the discretion that a judge would use on an individual case and potentially even giving a higher and more punishing sentence, if that's what you're looking for.

If we're looking for a criminal justice system that is affordable, one that's fair and effective and reduces crime rates, this isn't it, and that's why my first amendment calls for removing the provisions that impose mandatory minimums in cases where we have.... Basically, it's the provisions on trafficking in a firearm. Bill C-5 deals with only subsection 99(3), and my amendment would add subsections 99(2) and 99(3) so that we would be more efficient in improving our criminal justice system by removing more mandatory minimums.

With that, that's the longest submission I will make. I know that under the rules you've adopted, we're to make short submissions, but I wanted to take an overarching approach this time, because we do support Bill C-5. We just don't think it goes far enough.