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.

[Leo Russomanno, Senior Defence Counsel, Criminal Lawyers' Association]

Hi, everyone. It's nice to be back here before the committee on behalf of the CLA. I also have some experience appearing before this committee when a lot of the mandatory minimum sentences in a previous government were introduced, as well as restrictions to the conditional sentence regime.

I've been a criminal defence lawyer in Ottawa, eastern Ontario and Quebec for the last 14 years. I have seen the impact, as a trial lawyer, of mandatory minimum sentences on a practical as well as on a human level; the limits to conditional sentences; and, broadly speaking, the disastrous effects of the war on drugs, which is one of the greatest policy failures of our time.

I have three broad points to make on behalf of the CLA about Bill C-5. I understand that Minister Lametti presented this bill as three broad areas of reform—number one, dealing with mandatory minimum sentences; number two, dealing with conditional sentences; and number three, dealing with prosecution for simple possession. CLA is broadly supportive of the first two measures, because in fact what they do is they restore judicial discretion in sentencing on an individual level.

On a fundamental level, we have faith in the justice system to get it right. We have faith in the process. We have faith in judges to be able to hear the evidence as part of the adversarial system where the Crown marshals its best arguments and evidence and the defence does the same. The judge decides. The judge gives reasons. That judge is held responsible or accountable for their reasons through the appeal process. Mandatory minimum sentences, as well as conditional sentences, limit this and create one size fits all, which often creates injustice and has broad negative impacts.

So in terms of the first two areas of reform, we're broadly supportive of this, because it restores judicial discretion and would call for the repeal of other mandatory minimum sentences. It's important to note that just because a mandatory minimum sentence isn't available, it does not mean that a person is going to automatically be sentenced to no jail. A primary example of this can be seen in the wake of the Supreme Court's decision in R. v. Nur, in which a mandatory minimum sentence for possession of a firearm in certain instances was struck down. It did not create this crisis in which all of a sudden people convicted of these offences were not getting jail sentences.

The second point I want to make is that as someone who is spending a lot of time in trial court, I can tell you that mandatory minimum sentences, as well as limits on conditional sentences, create delays in the justice system. They create delays because it makes people less likely to want to accept responsibility for what they have done and more likely to go to trial and consume valuable trial or court resources—and time, which is currently at a premium in our criminal justice system. We suffer from very significant delays in our criminal justice system. It impacts everyone, including victims of crime. Not having a conditional sentence available will often tip the scale in terms of whether a person decides to plead not guilty and have a trial, because they're going to lose their job if they're sentenced to jail.

It's important to note that the Crown and defence don't have to agree on whether or not a sentence of jail can be imposed. If a conditional sentence is available, an accused person can take a shot at it in terms of having their counsel argue as to why a conditional sentence should be imposed in this particular case. Part of what the court has to consider is whether or not a person is worthy of a less than two-year sentence—if it's two years or more, it's simply unavailable—and also whether or not if released on a conditional sentence they would be a risk to public safety.

Would they be able to follow those conditions? Can those conditions be enforced? If it can't be shown that they can, then a person will not receive a conditional sentence, but at least through the adversarial system an accused person can try to persuade the sentencing judge to give them a conditional sentence. That will lead to the resolution of more cases.

The last point with respect to simple possession is simply that the bill offers a great deal of discretion to police officers. It is my view that racialized and indigenous groups will not be benefiting from this, because they're already over-policed. This is not going to solve some of the problems that are seen in the war on drugs and with the over-incarceration of those groups.

I look forward to speaking to the members individually.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much, Mr. Chair.

Thank you to all of the witnesses for appearing as we continue to talk about Bill C-5.

Today in Parliament, we have Science Meets Parliament day, and I have guests with me who are listening to these proceedings this afternoon. Much of what we've heard about this act goes to spot facts, evidence, science and reports.

I have a question with my less than three minutes for Mr. Merraro.

The Gladue reports and the impact of race and cultural assessments, according to facts and what we have seen in many provinces and jurisdictions, help judges to understand the role of systemic racism and bringing someone before the courts. However, mandatory minimum penalties of imprisonment impose a one-size-fits-all approach to sentencing that prevents them from using that information to craft a fit sentence.

Can you tell us why judicial discretion, in your opinion, based on your 25 years of experience working with young people, is important in ensuring that people receive appropriate sentences that take into account all of their circumstances?

[Rob Moore, Conservative, Fundy Royal, NB]

I will address this to Chief Montour. You raised so many great points. Thank you for using the word “victims” in your testimony, because oftentimes we do not hear about victims, and I'm afraid they're the forgotten group when we're dealing with Bill C-5.

You mentioned the problem with drugs and overdoses. There's a misconception with this bill that it somehow deals with the simple possession of drugs when, in fact, it eliminates mandatory prison time for drug dealers. The mandatory sentence under the Controlled Drugs and Substances Act that targets drug dealers who are charged with, for example, trafficking or possession for the purposes of trafficking, importing and exporting for the purposes of exporting, and production of a schedule 1 or 2 substance—that's heroin, cocaine, fentanyl, crystal meth.... Mandatory prison time would be eliminated for all of those things.

Chief, could you speak to what impact you think that would have on communities, on offenders and even on morale within the police, who are trying to help make our streets safer?

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

Thank you, Chief.

I'll move on to Penny McVicar.

Penny, the Victim Services of Brant provides accessible, confidential, client-centred support for victims of crime. As the executive director, can you provide this committee with your opinion of Bill C-5 and the impacts on victims and survivors of crime, particularly in the context of domestic violence, bearing in mind now that the offence of sexual assault will offer the benefit of a conditional sentence, if Bill C-5 passes?

You have 30 seconds.

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

Thank you, Chair, and thank you to all of the witnesses for your attendance today.

I'm going to start with Chief Montour.

Chief, it's good to see you again. Thank you for participating.

Chief, you touched upon an important point in your summary. You talked about the differences between repeat offenders and first-time offenders.

This particular bill, Bill C-5, makes no distinction between them. It offers the same benefits to first-time offenders as to repeat offenders by eliminating the mandatory minimum penalties for those significant firearm offences, the significant drug offences, and opening up the possibility for further consideration for conditional sentences.

I would like to know from your perspective how this is going to impact policing on the territory and community safety if the current version of Bill C-5 passes without amendment.

[Chief Darren Montour, Chief of Police, Six Nations Police Service]

Thank you, sir.

Good afternoon, everyone.

I come from an indigenous police service. Here at the Six Nations of the Grand River Territory, we have seen a drastic increase in violent crimes over the past few years mainly due to the infestation of illicit drugs within the community. Outsiders are supplying the drugs. As a result, community members become addicts, resulting in an increase in violent crimes. We have also lost numerous community members to fentanyl overdoses in the last few years.

In my 30 years as a police officer on Six Nations, this violence has become unprecedented. Many community members have died due to the opioid crisis that the entire country is facing. Homicides have become increasingly frequent. The root cause of all this is drug addiction, which results in people committing other residual crimes, such as break-ins, theft, auto theft, etc., to feed that addiction.

In my experience, sentences imposed by the courts have shown no deterrent effect against this criminal activity. We have charged the same people for the same drug trafficking offences several times over, and they still continue to traffic in this community. Rarely is there a custodial sentence for controlled drugs and substances trafficking. In conjunction with the drug charges, traffickers arm themselves with various types of weapons, including firearms that are both prohibited and restricted. None of the traffickers has the proper licence to even possess these firearms. There needs to be a deterrent to persons committing acts of violence when armed with firearms. Regardless of race or ethnicity, there needs to be a deterrent in place for offenders to realize that the violence in our community and against others needs to stop before any further loss of life.

Our Haudenosaunee way of life here at Six Nations is suffering. The recent mental health review of the Ontario indigenous police services contains a comparison of crime severity between indigenous and non-indigenous communities. The crime severity index for the Six Nations of the Grand River in 2020 was 217.62 compared with Brantford at 112.95; Hamilton at 93.53; and Toronto at 90.41. The current murder rate per capita in Ontario is 1.59 per 100,000 of population. The rate here at Six Nations is 7.79.

The proposed conditional sentences for violent offences will not deter offenders from committing further crimes. We are not in a position to continuously monitor sentenced offenders to ensure their compliance with the conditional sentence restrictions handed down by the courts. Police services across the country, and especially those within indigenous communities, are significantly understaffed. We are continuously asked to do more with less, and we cannot sustain this workload. We are currently faced with officers being off for mental health and mental well-being. This will worsen as time goes on.

The Gladue case law for sentencing purposes also has a great influence on whether or not an offender receives a custodial sentence. I can appreciate the statistics regarding the overrepresentation of indigenous offenders in our jails, but along with the rights of offenders, victims and victims' families deserve rights as well. Gladue has a place in sentencing of certain individuals, but those repeat offenders know the difference between right and wrong, and the sentencing principles under Gladue are exploited to the benefit of these offenders.

In my experience growing up and working here on Six Nations, indigenous communities everywhere, as well as here, face the same issues. Intergenerational trauma from the residential school system still plagues our communities. There is a lack of social programs, a lack of infrastructure that non-indigenous communities take for granted—including, for example, clean drinking water and housing—and the list goes on. It is more than just improved law enforcement that is needed to better the lives of all indigenous people in this country.

Among indigenous people there is a inherited historical lack of trust in the justice system and other federal statutes, such as the Indian Act. Colonization has imposed this and other cultural values, such as religion and policies, on indigenous peoples who do not favour them. For some indigenous nations their way of life is no more. For far too long our people have suffered under the effects of colonization. We deserve to feel safe and, more importantly, our children deserve to grow up in a community free from violence. I implore you to consider the well-being not only of the people of Six Nations, but also of all indigenous communities on Turtle Island, when making your decision on proposed Bill C-5.

I'd like to thank this committee for their time today. I look forward to your final decision on this important matter.

Thank you.

[Marlon Merraro, Executive Director, Peacebuilders Canada]

Good afternoon, Mr. Chair, members of the committee, and distinguished guests who are also presenting here today.

I would like to start off by saying that the integrity of the justice system depends on equitable social conditions in which we all live. I'm here today to express the Peacebuilders' support for and provide some advice on Bill C-5 and to draw attention to the substantial strides this bill makes in remedying Canada's response to significant social health issues impacting marginalized communities.

For over 17 years, Peacebuilders relied on restorative justice practices to encourage the reintegration of the community with those involved in the justice system. A restorative justice model addresses the individual and collective experiences of systemic marginalization as it relates to exposure to violence, mental illness, mental health, systemic discrimination, poverty and unequal access. Our programs directly respond to the disproportionate number of Black and racialized individuals involved in the justice system.

While we understand the causes of over-incarceration are complex and multi-faceted, we know that sentencing and charging processes play an important role in mitigating the cycle of oppression and connecting individuals to necessary supports and services. Indeed, Peacebuilders believes that Canada's justice system requires sentencing and charging structures that adequately address and respond to the needs of Black justice-involved individuals. We see Bill C-5 as a means of promoting fairer and more just outcomes for Black and marginalized Canadians, while continuing to protect public safety by amending sentencing laws to increase alternatives to incarceration.

By no means does this legislation address the historical issues impacting Black and indigenous folks who are overrepresented in the justice system. It is a step in the right direction. When we look at the wide range of mandatory minimum penalties that have been added to Canadian laws in recent years, it's no secret that many politicians may feel more comfortable with the idea of eliminating some types of mandatory minimum penalties than they do eliminating others. Discrimination, the undermining of public safety and violations of constitutional rights are problems associated with all mandatory minimum penalties, not only the 13 of the 72 offences carrying mandatory minimum penalties dealt with in Bill C-5 and the seven additional offences partly dealt with by the bill.

As countless previous reports and Black and indigenous leaders have urged across this country, we think that the proposed amendments would move beyond a piecemeal approach and address all mandatory minimum penalties. We believe that you will be making the right decisions by addressing the historical needs of various communities, especially those who are Black and indigenous and who are overrepresented in the justice system.

Peacebuilders believe that Bill C-5 will address and respond to some of the needs in a more fulsome way, while also promoting public safety and improving confidence in the justice system. We hope to see an increased use of accountability measures that are better suited to addressing the underlying reasons for criminality and that best prevent recidivism. Evidently the public will benefit greatly from Bill C-5 as a tool to respond in enhancing public safety, support the administration of justice, and save funds for other critical resources.

It is through our collective frontline experience, research and community partnership that Peacebuilders can confidently endorse and encourage that more work be done with regards to amendments to Bill C-5, as in committee forums, necessary to begin transforming Canada's justice system. Consequently, we're calling on the Government of Canada to enact and make changes to Bill C-5 in recognition of the need for the justice system to do better for Black and indigenous folks who have been over-represented in our communities. This is about providing other opportunities, such as diversion programs and alternatives to sentencing, and ensuring that we have safer communities for those who are in need of supports that are culturally relevant to integrate back into their communities and have the opportunity and support to better themselves and members of their families.

It is in the best interests of communities that Bill C-5 works to provide judges and other justice officials with the means to be able to support both the community's safety and those who are in need of support to address the overrepresentation of Black and indigenous folks across this country.

Thank you.

[The Chair, Liberal, Randeep Sarai]

I call the meeting to order.

Welcome to meeting number 16 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference of Thursday, March 31, the committee is meeting to study Bill C-5, an act to amend the Criminal Code and the Controlled Drugs and Substances Act.

Today's meeting will be taking place in hybrid format pursuant the House order of November 25, 2021. Members are attending in person in the room and remotely, using the Zoom application. The proceedings will be made available by the House of Commons website.

I'd like to say, in the interests of time, that since we had votes and started late, I will condense the first round of questions to five minutes from six minutes, the second round to four minutes and the third round to two minutes—if we reach the third round. I'll try to make sure we reach it, so we'll do them for about 45 minutes each.

For our guests, to let you know, I will give you a 30-second card when your time is at about 30 seconds left, and then I'll give you an “out of time” card. Today, I'll have to be particularly precise on timing, due to the time constraints.

I'll begin with opening statements. We have three panellists for the first hour, or 45 minutes. From Peacebuilders Canada, we have Marlon Merraro, executive director; from Six Nations Police Service, Darren Montour, chief of police; and from Victim Services of Brant, Penny McVicar, executive director.

It's over to you, Mr. Marlon Merraro, for five minutes.

Bill C-5

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, the city of Cranbrook is family friendly, but that reputation is under threat because of Bill C-75's existing offender release legislation. Bill C-5, now being studied at the justice committee, would remove mandatory minimum penalties and introduce new catch-and-release conditional sentencing orders. This would make the existing situation worse. In fact, the Attorney General of B.C. has acknowledged the problem and pointed a finger right at the federal government's legislation.

As we work to address the opioid crisis, Canadians should not be left to accept criminal behaviour, vandalism or violence in our communities. Residents have had enough. Individuals are being threatened with machetes. Businesses are being broken into, and students are being intimidated at work. How many other small communities across Canada have the same situation?

As we consider Bill C-5, we must pursue legislation that serves to make our communities safer. This will only be realized when the government stops aiding offenders and begins to prioritize victims.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Speaker, last Friday, the president of the National Police Federation told the justice committee that the Liberal government's effort to get rid of mandatory jail time for serious crimes related to weapons trafficking and firearms offences is “inconsistent with the expressed intent of the government to reduce firearms violence in Canada.” In no uncertain terms, the Liberals' Bill C-5 would make Canadian communities less safe.

We are all familiar with the long trail of broken promises left by the Liberal government over the past seven years, but it seems particularly offensive to tell Canadians that the government will crack down on gun crime while writing a bill that does exactly the opposite. Regardless of whether people live in an urban centre or in a rural community, they deserve to feel safe.

I invite the Minister of Justice to take the bill back to the drawing board and to shift his focus from protecting criminals to protecting Canadians.

[Rachel Huggins]

With regard to Bill C-5 and the drug piece, it's very much reflective, so that the aggravating factors that are associated to the mandatory minimum penalties actually align with the CACP's perspective, in that it allows both the police and the courts to focus on the more serious factors when it comes to trafficking, importing, exporting and production. The way the aggravating factors line up, and looking at things like when there is violence or the use of weapons or the fact of its production when there is a child involved, those are the kinds of aspects that make the current state, that modernized approach, of the bill much more effective.

Mandatory minimums are there, but they are being used in a very specific way, and so we really do support the way it is currently, right now, with those aggravating factors versus just having no mandatory minimums. We think the way it is articulated actually matches with the need to allow both the courts and police to divert individuals into pathways of care.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Chair.

I'm going to go to Ms. Huggins and talk a little bit about what she was speaking of in terms of diversion. I believe it was in CACP's July 2020 statement addressing the opioid crisis that the organization called for alternatives to criminal sanctions for simple possession of illicit drugs and the adoption of a more health-based diversionary approach.

In your view, does Bill C-5 answer that call? Will it help address the opioid crisis that Canada is going through?

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

There's maybe one other thing too. I know from your policing experience and your representing of a large group of diverse police officers that lots of times, and even on this BIll C-5, we seem to focus a little bit on offenders when, in fact, really our priority and our focus, especially as representatives for Canadians, whether in my riding or across Canada, should be on victims.

I know that you, as a former police officer, always see the aftermath because you're dealing with the victim first and, of course, your job is to investigate and charge if charges are possible and arrest someone. From the people you have spoken to, if you have talked to them about Bill C-5 or about removing mandatory minimum penalties, if you've talked to the victims, have they given you any opinion on where they stand?

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair.

I want to thank all the witnesses for being here today.

I do have one question, I think for Mr. Sauvé, who represents 20,000 police across Canada, many in rural and really remote areas, which are, in some cases, are understaffed.

One of the clauses in the expansion of conditional sentences is that someone could get a conditional sentence order if they assaulted a police officer and caused bodily harm or used a weapon. I'm just wondering how it would resonate throughout the Royal Canadian Mounted Police across Canada if in fact Bill C-5 approved that.

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

Thank you very much, Mr. Chair.

I want to thank Chief Davis and the National Police Federation for bringing the resource question to the table. It's simply not enough to pass law. We have to make sure programs are properly resourced.

I want to start with a question for Mr. Rowe from the Canadian Association of Chiefs of Police. It's about the idea of a safety valve for mandatory minimums—something I personally favour. It's difficult for me to see how that could be added into Bill C-5.

Have you had any discussions, either among yourselves or with the government, about how we might get such a safety valve into Bill C-5? It would deal with overall judicial discretion, and the bill's a bit narrower than that.