David Lametti Liberal
This bill has received Royal Assent and is, or will soon become, law.
This is from the published bill. The Library of Parliament has also written a full legislative summary of the bill.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
What I can tell you is that, depending on the circumstances, the offence may be broader in scope. It's up to the court to decide on a penalty appropriate to the circumstances.
For these offences, Bill C‑5 maintains the minimum penalties of five years and seven years of imprisonment if a prohibited or a restricted firearm was used and the offence is linked to organized crime.
What I can say is that under Bill C-5, there are certain conditions that would be required for a CSO to be imposed—the first one being a sentence of less than two years—that it respects public safety; that it is consistent with the purpose and principles of sentencing; and that it is not an offence of advocating genocide, torture or attempted murder or a terrorism or criminal organization offence of 10 years or more prosecuted by indictment.
Larry Brock Conservative Brantford—Brant, ON
Thank you.
I want to move on now to conditional sentences. I think we all agree that it is a condition precedent within the code itself that a justice must be satisfied that serving a sentence at home would not endanger the safety of the community.
We also have section 752 in the Criminal Code, which is completely absent in Bill C-5. Section 752 defines what a “serious personal injury offence” is, and a serious personal injury offence can be any indictable offence involving:
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person
In my opinion, for the offences of sexual assault, criminal harassment, kidnapping, human trafficking, arson and abduction of a person under 14, for which, pursuant to Bill C-5, conditional sentences would now be available, this would run contrary to section 752, which would then increase the amount of litigation within the courts.
Has the department considered the impact of section 752? Judges across this land have consistently ruled, particularly at the appellate level, that any time you have a serious personal injury offence, the whole concept of a conditional sentence does not qualify.
Matthew Taylor General Counsel and Director, Criminal Law Policy Section, Department of Justice
I can try to answer that.
As the minister said, he looked at a number of options with respect to addressing the negative impacts that my colleague has discussed from mandatory minimum penalties. His decision was that the approach proposed in Bill C-5 was achievable and contained, and could move in the short term.
Larry Brock Conservative Brantford—Brant, ON
Thank you, Chair.
To all the participants, thank you for your attendance. I will not be asking questions specific to anybody. Anybody can respond.
The first point I want to address is the latter point from my colleague Mr. Garrison, who left the committee with the impression that there is some benefit to passing Bill C-5 because there's going to be an ultimate savings to the criminal justice system, first, in terms of cost, and second, in terms of expediency.
I can explain—hopefully, the panellists will also agree with me—that that is a complete fallacy. Eliminating mandatory minimum penalties will not decrease substantially the amount of charter litigation. As a member of the Ontario bar who has prosecuted in the Ontario courts for the better part of 30 years, I can inform you that there are charter challenges for just about every offence in the Criminal Code. It's not necessarily confined to gun offences.
Is the department prepared to acknowledge that there will not be a direct correlation, a substantial correlation, in the reduction of charter litigation if we eliminate these 14 mandatory minimums? Yes or no.
That's a very complex question, because the reasons are complex. In fact they go beyond the scope of Bill C‑5.
According to our data, some offenders, including indigenous people, Black people and people from marginal communities, are overrepresented for certain offences, including firearms and drug offences.
People who have committed offences sanctioned by mandatory minimum penalties are overrepresented in the criminal justice system.
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you for that. I think it's an important point to remember when we're considering this that there are not only costs but savings from removing the mandatory minimums. We might get better outcomes for a cheaper price when it comes to the court system.
I want to switch and ask a question on a concern I have about increased discretion for the police in this bill in the absence of serious reform with regard to systemic racism in the police. I know the justice department is not responsible for that, but there are two provisions in the bill around which I'm concerned that in the absence of reform, there aren't safeguards to prevent systemic racism from continuing to operate.
The first of those is allowing police additional powers of discretion at the initial level of contact. My concern, as we've seen with too many police forces, is that discretion will benefit upper-middle-class white people who come in contact with the police, and not racialized and indigenous Canadians. The second has to do with record-keeping. Bill C-5 says that the police may keep records. Again, my concern in the absence of police reform is that those records will be kept on indigenous and racialized Canadians and will not be kept on others who come in contact with the police.
I wonder if the department has any comment on my concern about police discretion and record-keeping discretion in the absence of that serious police reform.
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
The reason I ask these questions is that I'm one of those people who would like to see the court spend its time on the more serious violent crimes that really threaten communities. From what you're telling me now, if we pass Bill C-5, it will take a significant number of future challenges out of the court system completely.
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Mr. Chair, for keeping me on my toes.
I want to start by asking a question about the number of mandatory minimum penalties that will remain on the books after Bill C-5 passes, if you have that figure. My recollection was that there were probably around 73 or 75 existing mandatory minimums or something like that.
I can start by saying that there haven't been specific consultations on Bill C-5, but there were consultations done at the criminal justice system round tables in 2016, and the mandatory minimum penalties that are being targeted in this bill are the ones that are particularly associated with negative disproportionate impacts on indigenous people, Black Canadians and members of marginalized communities.
As the minister noted earlier, indigenous persons are overrepresented with respect to certain firearm-related offences, and the same goes for Black Canadians, who are overrepresented with respect to import/export offences. I can also say that there's one in five indigenous women who are serving a sentence for a serious drug offence or conspiracy to commit a serious drug offence, and that by repealing the mandatory minimum penalties in those cases, the government is restoring judicial discretion to impose fit sentences in all cases.
Lena Metlege Diab Liberal Halifax West, NS
Thank you very much, Mr. Chair.
Thank you very much to the witnesses for being here this afternoon. This is very important research—or meeting—that we are doing here. I look forward to all the presenters who will come forth.
In my time in Nova Scotia, when I was involved in the justice portfolio.... In Nova Scotia, we have a ridiculously high number in terms of overrepresentation in our correctional facilities of Black and indigenous Nova Scotians. I would say that overwhelmingly the research and the evidence are clear now, from the many people who have spoken on it since those years. There's clearly a problem in our system. Can you speak to me in relation to that?
What consultations informed the development of Bill C-5, specifically with groups representing racialized groups and indigenous people or provinces like Nova Scotia? What have you heard and can you tell me the impact that MMPs would have on that overrepresentation?
I look to whoever is able to answer that.
You are indeed correct. Many of the mandatory minimum penalties that will remain after Bill C-5 is adopted are five- and seven-year mandatory minimum penalties for offences in which a restricted or prohibited firearm is used, when the offences are in connection with organized crime. The mandatory minimum penalties that are targeted, let's say, for firearm offences in this bill are the ones in the “in any other case” category, which particularly relates to the use of firearms like long guns.
It's reasonable to expect that the reforms to CSOs will place a greater demand on treatment programs at the outset. However, mandatory minimum penalties are extremely costly in the criminal justice system, and they increase charter challenges. What ends up happening is that if we implement the reforms in Bill C-5, we expect that over time, while there will be an initial increase in requests for treatment and programs, we'll see long-term reductions in recidivism and more efficient ways of dealing with crime.
What I can say about Bill C-5 is that it's just one of the mechanisms that the government has put in place, not only to reduce criminality but also to impose fairer sentences that will serve the communities themselves. Some of the measures in Bill C-5 with respect to mandatory minimum penalties restore judicial discretion, and the same thing with conditional sentences of imprisonment: They allow judges to impose sentences with a community-based sanction when appropriate. With respect to the Controlled Drugs and Substances Act, again, there are mechanisms there that allow the criminal justice system to keep individuals outside of the criminal justice system and to get the help they need.
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Mr. Chair.
I know that Bill C-5 is targeting systemic racism, but there's another impact of mandatory minimums that has been a concern for me—since everyone's citing their past—as a criminal justice instructor for 20 years, and that is the situation of women who are in abusive or controlling relationships. They often end up in the justice system as a result of the activities of their partners, particularly around drugs that they are quite often forced to deliver or hold on behalf of a coercive partner. Therefore, they end up under mandatory minimums.
I wonder if the Minister has any comments on how the bill will impact women who come into conflict. Again, because of systemic racism, a lot of those women are Black women and indigenous women.