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.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order. Welcome to meeting number 13 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 is taking place in a hybrid format pursuant to 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 via the House of Commons website.

I would now like to welcome our witnesses, but first, I just want to let each group know that they will have five minutes to make their opening statements, and then members will have questions.

I don't have a time card, but when you have 30 seconds left, I'll wave an envelope to give you a heads-up that you have about 30 seconds. I will have to interrupt you when your time is up.

We have three witnesses in the first round. We have Michael Spratt, criminal and appeal lawyer and partner at AGP LLP. We have, from the London Abused Women's Centre, Jennifer Dunn. From Saskatoon Tribal Council, we have Chief Mark Arcand, tribal chief.

I will begin by inviting Michael Spratt to speak for five minutes.

Justice

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

Madam Speaker, Bill C-5 would provide judicial discretion to allow courts to craft proportionate sentences that consider all the relevant circumstances, including factors such as an individual's experience with systemic racism, their history of trauma or their need for community and health supports.

Should Bill C-5 be enacted, the human trafficking regime would not change. Conditional sentences would continue to be unavailable for the offence of trafficking in persons and trafficking of minors. In all cases, courts would continue to be required to impose sentences that reflect the seriousness of the offence and the moral blameworthiness of the offender.

Bill C-5 is an important step toward addressing systemic racism and discrimination in the justice system while also maintaining public safety.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Madam Speaker, one of the things I would note is that in northern Alberta we have an ongoing revolving door of criminals who continue to get out on bail, so I put forward initiatives around human traffickers having reverse onus bail. This bill would continue to allow human traffickers to get house arrest for being convicted of human trafficking.

In Alberta, our Alberta Law Enforcement Response Teams, or ALERT, have been doing incredible work apprehending traffickers and helping victims regain their lives. In one case last year, they arrested traffickers in Edmonton involved in the sex trafficking case that Staff Sgt. Lance Parker described as “truly sickening”. Staff Sgt. Parker went on to say, “We owe it to [the victim's] safety and well-being to have these suspects in custody and prevent any other women from suffering the same”. Changes in Bill C-5 would allow traffickers like this to serve their conviction at home.

I once again ask the parliamentary secretary if he believes pimps and sex traffickers should be serving their sentences at home. I know he says that judges would not allow this to happen, but the bill would allow for pimps and traffickers to serve their sentences at home.

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I am pleased to have an opportunity to speak to Bill C-5, particularly to dispel some possible misunderstandings about the impact these sentencing reforms would have on the human trafficking regime in the Criminal Code.

Some critics of this bill suggest the proposed reforms would allow hardened human trafficking offenders, who may be linked to organized crime or who are otherwise observing harsh sentences, to serve their sentences at home. This is simply not true.

Currently, all offences that carry mandatory minimum penalties of imprisonment in the Criminal Code are ineligible for a conditional sentence. Bill C-5 would not change this. If the proposed reforms were to pass, offences carrying MMPs would continue to be ineligible for conditional sentences. To be completely clear, the offence of human trafficking, as well as any child-related trafficking offences, carries mandatory minimum penalties of imprisonment and thus would continue to be ineligible for a conditional sentence.

I want to make clear that when there is no MMP for any provision, CSOs can only be considered by the court in a specific set of circumstances. Namely, where a sentence of less than two years is appropriate, where serving the sentence in the community would not endanger the same of the community, and where such a sentence would be consistent with the fundamental purpose and principles of sentencing, including deterrence and denunciation.

Our government is committed to fighting human trafficking. With former bill, Bill C-75, which came into force in June of 2019, we took measures to facilitate the prosecution of human trafficking offences under the Criminal Code.

In September of 2019, we launched the national strategy to combat human trafficking, which brings together federal efforts and is supported by an investment of $57.22 million over five years and $10.28 million ongoing. This builds on previous investments of $14.51 million over five years and $2.8 million per year to establish a Canadian human trafficking hotline, which launched in May of 2019.

In February of 2021, we also launched the national human trafficking public awareness campaign to raise awareness among Canadian youth and parents of the misperceptions of human trafficking and increase understanding of the warning signs.

Our government has taken strong measures to combat human trafficking at it roots, instead of fuelling the ideological tough-on-crime narrative, which has not proven to be true empirically, has not served our communities and has not made us safer nor helped victims.

Let me be very clear. Human trafficking is a serious offence for which courts impose stiff, denunciatory terms of imprisonment in the majority of cases, and that is what we and all Canadians expect from a court system. I have the utmost faith that, after the passage of Bill C-5, sentencing courts would continue to impose fit and appropriate sentences that reflect the seriousness of each offence and the moral blameworthiness of the offender before them in all cases.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Madam Speaker, they say the devil is in the details, and Bill C-5 is an excellent example of this. While the parliamentary secretary will only want to talk about criminal justice reform, the reality is that buried deep in Bill C-5 are insidious changes that will deeply harm the most vulnerable. Bill C-5 would extend house arrest to a number of serious crimes, including criminal harassment, sexual assault, kidnapping, abduction of a person under 14 and trafficking in persons for material benefit, in section 279.02. Extending house arrest to those offences places victims at serious risk from their abuser or trafficker. When I asked the minister about this, he seemed unaware that this was in his own bill, and when I asked the parliamentary secretary about it, he claimed that Bill C-5 would help marginalized communities, except that these changes proposed in clause 14 of Bill C-5 would only lead to more harm to marginalized communities.

Victims of human trafficking deserve to have confidence that the justice system will put their safety first. Indigenous women are significantly overrepresented, estimated to be at least 50% of the victims of human trafficking in Canada. By letting the traffickers serve their sentences in the community, the government is telling victims that their lives and safety are not a priority. Victims of human trafficking experience anxiety, depression, substance abuse, suicidal tendencies and PTSD because of the abuse by their traffickers. They also experience physical abuse, torture and injuries such as broken bones, burns, scars and broken teeth. These are all very common injuries. Also, after conviction, pimps and sex traffickers will seek out their victims and continue to retraumatize them through psychological and emotional abuse.

The one hope victims have that gives them strength and courage to come forward and testify is that the trafficker will be locked away for a few years. Now the Liberals are destroying this hope for survivors by allowing their traffickers to live at home in the community. It is these victims, many of whom are indigenous or racialized, who will be further harmed by the changes in Bill C-5. If these changes go through, their traffickers will be eligible to serve their sentences in the community.

This past month, a human trafficking trial has been taking place in the small Ontario town of Cayuga for a young woman who was forced into prostitution. Like the vast majority of victims here in Canada, she knew her trafficker before he began trafficking her. He was her drug dealer when she was only 17. When she turned 18, she was convinced by the drug dealer that he was her boyfriend and that he could help her get her dream career. Instead, he and his friends advertised her body online for sexual services. For months she was forced to perform sexual acts on eight to 10 men per day in hotels throughout southern Ontario. She was blindfolded between locations. The five traffickers monitored her phone and profited from her exploitation.

Let us say this trial ends in the conviction of all five of these traffickers. Under Bill C-5, the court could sentence these traffickers solely to house arrest rather than prison. How is this mindful of the survivors of trafficking? The safety and healing of these survivors are not even accounted for in Bill C-5.

Human trafficking is a serious crime and it is happening within 10 minutes of where we live. It has long-term, serious effects on its victims and is much closer to home than we think. In no world should convicted traffickers stand a chance of not serving jail time.

[D/Commr Rick Barnum]

The contraband tobacco issue—this sounds kind of strange—is a unique issue, but it's not. What I mean by that is that the profitability for contraband tobacco for organized crime groups in Canada is absolutely huge, and contraband tobacco is a Canadian problem. Ninety per cent of the contraband tobacco that we seize in our country is from Ontario, in most cases. It's not something that's coming into our harbours and it's hidden or something of that nature.

The organized crime groups that are engaged are Canadian organized crime groups for the most part. They're selling contraband tobacco in Canadian communities. This money that they make goes to fuel all kinds of crime, as we're talking about today. I understand these conversations so very well. I've lived these conversations for the last 20 years of my career. I'm not here to comment from a policing perspective on these issues, but they are all intertwined now with contraband tobacco.

From the last 10 years, I do not recall a single person whom we arrested or charged on contraband tobacco at a significant level being engaged with any sort of race-based group or from any sort of specific racial community. Ninety percent of them were white organized crime figureheads. That's who we're dealing with here.

My message on the contraband tobacco issue would be to please not just swipe it away with the rest of what Bill C-5 hopes to accomplish, which, for the record, I'm not against. However, this issue is unique from the perspective that organized crime is targeting contraband tobacco, pairing it with cocaine and fentanyl and all of the issues that we're talking about today, and using it to make millions of dollars to use themselves.

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

I guess my last question for you is somewhat similar to what I've just asked the witness from The Dispensary. Do you think that Bill C‑5 is a robust enough response to the existence of systemic racism in the justice system?

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

Thank you.

I know we're getting very short of time today. I want to go back to Mr. Rolle for just a moment.

In Bill C‑5, there's an increase in discretion proposed for police and prosecutors in how they would proceed with cases of personal possession of small amounts of drugs. I'm just wondering, given the existence of systemic racism in the system and the absence of serious police reform, if you have any concerns about this increase in discretion and how it would be applied.

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

Thank you very much, Mr. Chair.

I'd like to stay with Ms. de Kiewit for a moment.

We're talking about Bill C-5 here, but we have another bill before Parliament. It's a private member's bill, Bill C-216, which proposes not to take away mandatory minimums but to take away the offence of personal possession of drugs and to establish a regime for safe supply.

I don't know whether you've actually seen the bill, but my question for you is an obvious one. In order to attack the opioid crisis, don't we need a lot more than what's in Bill C-5?

[Deputy Commissioner Rick Barnum, Executive Director, National Coalition Against Contraband Tobacco]

Thank you, sir.

Good afternoon, committee.

My name is Rick Barnum, and I am the recently appointed executive director of the National Coalition Against Contraband Tobacco.

I most recently served as deputy commissioner of the Ontario Provincial Police and had an over 30-year career in law enforcement. During my career, I spent most of my time combatting organized crime. I saw first-hand how lucrative the contraband tobacco trade can actually be.

The Criminal Intelligence Service of Canada estimates that contraband tobacco and cannabis have a cost of over $12 billion in health care, lost productivity, criminal justice and other direct costs.

The RCMP estimates that there are over 175 criminal gangs involved in the illicit trade of contraband tobacco. These gangs make millions of dollars a day off contraband tobacco, which they use to fund their other illicit activities, including illegal firearms, drugs such as fentanyl, and human trafficking.

To combat this important funding source for organized crime groups, in 2014 the government passed Bill C-10, which introduced a Criminal Code offence for the trafficking of contraband tobacco and also a mandatory minimum penalty for the same offence. Both of these tools have been used by law enforcement across Canada since that time to dissuade individuals from participating in the contraband tobacco trade.

Prior to this, many of those charged and found guilty under provincial tobacco tax laws would simply be fined, but the fines would never actually get paid. The Criminal Code offence and penalties associated with this offence have made trafficking of contraband tobacco less attractive for some people.

However, Bill C-5 proposes to eliminate the mandatory minimum penalty for the trafficking of contraband tobacco while keeping the Criminal Code offence. By eliminating the mandatory minimum penalty, the government is removing a tool used by law enforcement to dissuade possible contraband tobacco traffickers.

The government of late has also helped to fuel the contraband tobacco trade by continuous increases in tax on tobacco. History shows us, as was also reported by the Parliamentary Budget Officer, that tax increases without action against contraband tobacco result in a larger black market that directly funds criminal gangs. This is why, after removing one of the law enforcement tools, the government must add another.

First, the contraband tobacco trade continues to grow across Canada without concerted federal action. Illegal cigarettes, manufactured mostly in Ontario, can be found from British Columbia to Newfoundland. To curb the illicit trade, we recommend that the government create a contraband tobacco enforcement team within the RCMP that would help to coordinate enforcement across the provinces. Provinces like Quebec have seen great successes in such a model, in which municipal and regional law enforcement have been coordinated.

Second, further increased taxation on tobacco without action against contraband tobacco will only help to further grow the illicit trade. We recommend that the government resume a prudent approach toward tobacco taxation until contraband tobacco is addressed across the entire country.

Lastly, Ontario continues to be the epicentre of contraband tobacco in Canada. One in three cigarettes purchased in the province is purchased illegally. Criminal gangs make millions of dollars every day from this illicit trade.

To address this core issue, we recommend that the government partner with Ontario in taking action against contraband tobacco. By supporting law enforcement through countrywide coordination and a prudent taxation approach, the government can begin to effectively address Canada's growing contraband tobacco problem. With the removal of one law enforcement tool, the government must add another.

We hope we can count on your support in taking action against contraband tobacco and also against organized crime.

Thank you for your time. I'll be happy to take any questions.

[Dr. Jean Robert, Medical Specialist in Public Health and Medical Microbiology and Infectious Diseases, Professor, Université de Montréal and Université du Québec en Outaouais, The DISPENSARY Community Health Center]

Thank you, Mr. Chair.

It's an honour to be invited to appear before the committee.

I will be speaking from the heart much more than from the head.

I am a physician, and my first specialty is infectious diseases, which I've practised in university hospital centres. I also have extensive experience working under a community health model. This year marks my 46th caring for patients. I say “caring” because I don't necessarily treat them. I provide support to individuals who are part of a culture that carries a systemic stigma; they are oh so cruelly referred to as “addicts”.

Given my years of experience, I was deeply troubled and saddened when I read Bill C‑5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, because it appears to put guns and drugs in the same category. Keep in mind that guns kill other people, whereas drugs kill the person who takes them. Guns are a safety issue, but drug use is not a justice issue; it is a health issue. That is very important.

This is something I am extremely concerned about. I completely agree that it is finally time to get rid of mandatory minimum sentences for individuals who, for lack of proper care, treat themselves using substances that are available around them. That is the first point I want to make.

My second point has to do with people who die as a result of substance abuse or overdose. A unique feature of people who try to treat themselves using substances is that they are totally unaware of what is in the substances being sold to them. For example, as a physician, I am required to inform users of what this residue contains. I have here a minuscule amount of a substance, smaller than a match head. It's heroin that was recently brought to me by users, and it contains 12 different substances. What kills people is not knowing what they are actually taking. That is why it is important not to prevent these substances from being handled. I am able to do it because it's part of my job and because it's necessary in order to care for people. That is a crucial issue.

The bill sets out exemptions for simple drug possession offences. The third point I want to make is how vital it is that an exemption be added so that people like my team members and I can have access to these substances. There needs to be an exemption for professional use. That way, when our outreach workers, who are professionals, cross the street with a bag containing a small amount of powder residue, they won't have to fear being arrested or thrown in jail.

That is my only recommendation. I have other ideas, of course, especially when it comes to the terminology, but those are my own personal observations. I have spent 46 years working in this field. I've worked with inmates, and I am very familiar with the issue. Residue analysis can save lives. We also do urine analysis to determine what people have taken. That is the basis for the care we provide.

We, ourselves, applied for an exemption exactly a year ago, and we are still waiting. We haven't gotten it.

Now I will turn the floor over to my colleague, Ms. de Kiewit.

[Brandon Rolle, Senior Legal Counsel, African Nova Scotian Justice Institute]

Thank you, Mr. Chair.

Good afternoon. My name is Brandon Rolle, and I'm the senior legal counsel at the recently established African Nova Scotian Justice Institute.

I'm pleased to speak today in support of Bill C-5, which we see as a necessary step towards justice.

African Nova Scotians are a distinct people who descend from free and enslaved Black planters, Black Loyalists, Black refugees, maroons, and other Black people who inhabited the original 52 land-based Black communities in that part of Mi'kma'ki known as Nova Scotia.

The African Nova Scotian Justice Institute is a provincially funded—but importantly, community-led—infrastructure developed in response to systemic anti-Black racism faced by African Nova Scotians in the justice system. We acted as intervenors in the Anderson case, a Nova Scotia Court of Appeal decision that affirmed the use of impact of race and culture assessments, IRCAs, as a valuable sentencing tool when sentencing people of African descent and provided a framework for applying systemic and background factors related to race and culture.

There can be no serious dispute that systemic anti-Black racism exists in the criminal justice system. In R. v. S. (R.D.), a well-known case from Nova Scotia that went to the Supreme Court of Canada, the Supreme Court endorsed comments from another Nova Scotia case and put it very bluntly:

[Racism] is a pernicious reality. The issue of racism existing in Nova Scotia has been well documented in the Marshall Inquiry Report (sub. nom. Royal Commission on the Donald Marshall, Jr., Prosecution). A person would have to be stupid, complacent or ignorant not to acknowledge its presence, not only individually, but also systemically and institutionally.

The evidence is also very clear that one of the ways that systemic anti-Black racism has manifested is through the over-incarceration of African Canadians.

The committee has the data from the Department of Justice about the disproportionate impact of mandatory minimums on custody rates for Black people, but I would suggest there are some contextual factors that we can look at to help us understand why MMPs disproportionately impact people of African descent.

First, we know that Black communities are subjected to over-policing and over-surveillance. Since Black people are more likely to be arrested and charged with an offence, they are subject to a disproportionate risk of criminal liability for offences carrying a mandatory sentence.

Second, Black accused are disproportionately detained before trial. The research is increasingly clear that accused persons who have been denied bail feel greater pressure to plead guilty.

Third, African Nova Scotians and African Canadians at large have experienced the legacy of slavery, colonialism, segregation and racism that has led to this historic pattern of disadvantage, which includes overrepresentation in custody, involvement in certain offences, being denied bail and receiving longer jail sentences, and subsequently serving harsher time while in custody.

We submit that to truly address systemic anti-Black racism, the approach has to be multi-faceted and must include the type of legislative reform being proposed by Bill C-5. We suggest that has to be done in combination with efforts further upstream in the justice system that address the root causes of offending behaviour, which is the type of infrastructure we're trying to build here at the African Nova Scotian Justice Institute.

We endorse the comments of Justice Derrick in R. v. Anderson, that case I mentioned earlier, when she was discussing this exact type of legislative reform. At that time it was called Bill C-22, but we know that was the earlier version of this bill. She said, and I quote:

It speaks to what the Supreme Court of Canada noted in Gladue: “Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament”.[29] Its proposed reforms would enhance the discretionary powers of judges in sentencing Black offenders. The increased availability of conditional sentence orders would afford judges greater scope in imposing sentences that better serve the principle of proportionality, thereby better serving the community and the offender, with systemic factors and historical disadvantage taken into account.

We agree that MMPs do not effectively address recidivism. Longer and harsher jail sentences have been shown to actually increase recidivism, and as such MMPs can work to decrease public safety. Mandatory minimum sentences do not accord with the fundamental sentencing principle of proportionality, because they remove that discretion of the sentencing judge to consider the moral blameworthiness of the offender and provide no opportunity to account for not only the personal circumstances of the accused but also those systemic and background factors that may come into play.

When it comes to African Nova Scotians and Black Canadians, we suggest that judicial discretion should always be informed by tools like impact of race and culture assessments to better address overrepresentation. This type of legislative reform is an important part of the answer. It's not the complete answer, but we suggest it is a step towards substantive equality.

Thank you, Mr. Chair.

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

Thank you very much, Mr. Chair.

I want to go back to Mr. Paisana and his comments on the application of CSOs in the cases of drunk driving causing death or bodily harm. You quickly passed over the normal sentences for those, so I'm drawing a conclusion that what you said is that passing Bill C-5 in its current form would have relatively little effect on cases of drunk driving causing death because the sentence is almost always more than two years.

Is that correct?

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

When Bill C-5 is passed into law, what opportunity do you see as it relates to CSOs being available as a way of sentencing?

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

Thank you.

I want to ask the Canadian Bar Association a question. I think both Tony and Jody were talking about “non-violent” and how you could see the mandatory minimums being removed from “non-violent”, but would that mean that you don't agree that robbery with a firearm, extortion with a firearm or discharging a firearm with intent are violent? To me, all the firearm offences are pretty violent.

Even when we get into the expansion of conditional sentencing, there are some of these that would apply to kidnapping. Would you not consider that violent? In the case of an abduction of a person under 14, imagine telling the parents of that individual, “Oh yes, we're going to CSO because we're reducing some mandatory minimums.”

I just wonder if you do agree that some of these offences that are listed in Bill C-5 should remain because they are violent, and that in fact Bill C-5 could be amended.