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.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Mr. Chair.

Minister, it's good to see you here today.

I'm interested in learning more about the conditional sentencing orders that are also part of Bill C-5. When I had the honour of serving as the Attorney General of Ontario, we introduced a similar notion dealing with bills, introducing bill.... That's in the province. In fact, I recall making a certain announcement with Mr. Brock when he was a Crown prosecutor. He was quite supportive of that initiative.

It was an opportunity to allow people who had some serious mental health or addiction challenges.... Instead of being remanded and incarcerated while they were waiting for their trial, they were allowed to be in a community setting, under strict conditions, where they could get support services. There was ample evidence to demonstrate that this would be far more beneficial to them and to society in general.

What evidence and benefits have you seen in terms of the use of conditional sentencing orders that have compelled you to reintroduce them through Bill C-5?

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

Thank you.

The same day that you introduced Bill C-5, you were quoted as saying that this was not aimed at “hardened criminals” but at first-time, low-risk offenders. Specifically, you said this:

Think about your own kids. Perhaps they got into trouble at some point with the law. I bet you would want to give them the benefit of the doubt or a second chance if they messed up. Well, it is a lot harder to get a second chance the way things are now.

With all due respect to you, Minister, that tone-deaf response was not what Canadians wanted to hear one day removed from the commemoration, one day removed from our standing in solidarity against gun crime. You know that gun crime is on the rise across all of Canada, and particularly in my riding of Brantford—Brant.

Minister, this week, April 6, you then did not respond directly to a question posed by the Conservative member for Kamloops—Thompson—Cariboo. He brought to your attention the situation of a drive-by shooting, which this legislation captures. He asked you specifically how that is not a threat to public safety. The government could put into place a constitutional “safety valve” and have mandatory minimum penalties, with exceptions, to address the problems of over-incarceration. This could provide a perfect middle ground. Why wouldn't the government consider that?

Your response, sir, was that the “fallacy” of the member's argument was “clear”, and that you were eliminating MMPs to eliminate the bottom range for all offences. Then you drew another example and said that what you were talking about here was “where a person perhaps has a few too many on a Saturday night and puts a couple of bullets into the side of an empty barn”.

My question to you, Minister, is this. The discharge of a firearm with intent, or recklessly, deserves jail time. Would you agree with that or not?

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

Thank you, Mr. Chair.

Thank you to the minister and department officials. Thank you for your attendance.

It's my first opportunity to talk directly to you, Minister. Hopefully I'll get a number of questions in.

The first one I want to bring to your attention is the timing of your introduction to this particular bill. I remember that day very clearly, because, less than 24 hours removed from your presenting Bill C-5 in the House, we stood in solidarity as members of Parliament, and the entire House commemorated the École Polytechnique massacre from several years ago. We stood for the message that the government would stand strong against all forms of gun violence and to inform Canadians in very clear terms that we would take immediate steps to curb the ever-increasing tide of that criminal behaviour.

I think you'd agree with me, Minister, that the number one responsibility of a federal government is to keep its citizens safe. Do you agree with that?

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

Thank you very much, Mr. Chair, and I thank the minister for being here today.

I know that one of the motivations behind C-5 is to address systemic racism in the justice system, but I want to ask about something I think is very closely related. That's the overdose crisis in Canada.

In 2021, in British Columbia, 2,224 people died from an overdose and a poisoned drug supply. That's at least 2,224 families who lost fathers, mothers, sisters, brothers, kids, cousins and neighbours. This is a rapidly increasing problem.

One way that you've talked about it in this bill is with diversion and reducing mandatory minimums, but the First Nations Health Authority in British Columbia reported that indigenous British Columbians are five times more likely to experience an overdose crisis and three times more likely to die from that overdose crisis.

Minister, my question to you is, wouldn't it be better simply to eliminate the criminal offence of possession of small amounts of drugs for personal use?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Good afternoon, Minister. Thank you for being with us today.

I almost want to start with the same warning as my colleague Mr. Moore gave you. I'm not sure we're going to agree on Bill C‑5, even though, on the merits, the Bloc Québécois has historically disagreed with mandatory minimum penalties and will continue to do so.

We do think it's preferable to allow judges to determine the applicable penalties in most cases, but not all. On the matter of decriminalizing the use of small quantities of drugs, we think that's more a health problem than a legal problem.

So perhaps we could agree on substance, but we have some reservations with Bill C‑5 as drafted.

You told us at the outset that the bill was designed to combat systemic racism. I'd say you're stretching a point. Systemic racism is a major problem that obviously must be addressed, but first we should determine what it is. I'm not sure that systemic racism, in the sense the present government intends, actually exists. However, that's another issue that we won't be addressing today.

To my mind, reducing the applicable penalties for certain crimes in order to prevent racialized individuals from winding up in prison is an odd way to address racism

Having said that, I'm going to ask you some more specific questions because I only have six minutes, and I can't have more than five left. As you'd expect, we won't be able to address the entire issue in five minutes.

However, I want to validate a point with you.

You say that mandatory minimum penalties would remain in force for serious crimes.

Do you think that weapons trafficking is a serious crime or not?

[Élisabeth Brière, Liberal, Sherbrooke, QC]

We talked about over-representation earlier.

Bill C‑5 would grant significant discretion to police officers and prosecutors in criminal cases.

How would the changes made by the bill prevent the over-representation of certain populations in the correctional system?

[Élisabeth Brière, Liberal, Sherbrooke, QC]

According to the government's backgrounder on Bill C‑5, the repeal of mandatory minimum penalties is part of an effort to promote judicial discretion for sentencing.

However, the bill would not remove all mandatory minimum penalties.

If judicial discretion in sentencing is important for some offences, why isn't it for others?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Where I'm getting the information, Minister, is directly from Bill C-5. Offences for which a conditional sentence would be available include sexual assault with a weapon, threats or causing harm, trafficking or exporting, fraud over $5,000, robbery, breaking and entering, and robbery to steal a firearm. These are offences that are taking place in all of our communities. Under your bill, the perpetrators will now be able to receive a conditional sentence, otherwise known as “house arrest”, rather than jail time.

Minister, I'd like an acknowledgement on the source of many of these mandatory minimums that you say are for not serious offences. Do you know the origins in the Criminal Code of the mandatory minimum for using a firearm in the commission of an offence, for example, and for weapons trafficking? On those mandatory minimums, do you know when they were introduced?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you, Minister, for appearing. It's good to see you again virtually, as well as the officials who are appearing with you.

Minister, I know you and I agree with each other from time to time. Bill C-5 is not going to be one of those times. I can tell you from the testimony that we've heard in our deep consultations with witnesses and communities, both rural and urban, as well as various victims groups, that this bill could not be more breathtakingly out of touch at the time we find ourselves in in Canada.

Removing mandatory minimum penalties for serious gun crime, house arrest for serious offences against a person, Controlled Drugs and Substances Act trafficking, production and distribution minimums being eliminated for serious offences that are plaguing our communities.... This bill, quite frankly, flies in the face of those who are calling for safer streets and communities, and it is an affront to victims.

I heard in your opening remarks—it's quite heartening and I'm sure Canadians will be relieved—that you're maintaining the mandatory minimum penalty for murder. I guess that sets the bar fairly low, Minister. We're interested in making sure we have a justice system that's balanced, protects the rights of victims and keeps communities safe.

I want to jump right into questioning.

According to Statistics Canada, women were violently victimized at a rate nearly double that of men in 2019. We know part of this is due to the fact that, according to Statistics Canada research, women were five times more likely than men to be victims of sexual assault. At your appearance at committee on March 10, 2020, you stated that, “despite the robustness of our legal framework in this area, there are still extremely low rates of reports, charges and convictions in sexual assault cases.”

With your Bill C-5, Minister, both sexual assault with a weapon, threats or causing harm, and the offence of sexual assault under section 271 would have mandatory jail time removed, and an offender could serve their sentence from their home community.

Did you consult with victims of sexual assault before making the decision to allow the perpetrators to serve their sentence from home?

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

It's an honour for me to be with you this morning on the unceded land of the Algonquin Anishinabe people here in Ottawa.

I am accompanied by Deputy Minister François Daigle and subject matter experts from the Department of Justice: Matthew Taylor, who is in the room with me, as well as Carole Morency and Andrew Di Manno, who are participating in the meeting via Zoom.

Good afternoon to everyone in the room and to my colleagues online. Welcome to this meeting.

I'm pleased to appear today before this committee to speak about the important amendments proposed in Bill C-5, an act to amend the Criminal Code and the Controlled Drugs and Substances Act.

This bill is part of an effort by our government to combat systemic racism and discrimination. These realities are experienced by too many people who come into contact with the criminal justice system, from their initial interactions with police to sentencing.

Bill C-5 includes three categories of reforms. First, it will repeal mandatory minimum penalties for all drug offences, some firearm offences and one tobacco-related offence. Second, it will allow for greater use of conditional sentence orders, or CSOs. The third reform will require police and prosecutors to consider other measures for simple possession of drugs, such as diversion to addiction treatment programs.

These reforms have been long in coming. Indigenous persons, Black Canadians and members of marginalized communities, particularly those dealing with mental health or addiction problems, are over-represented at all stages of the criminal justice system, but especially in Canada's correctional institutions. This simply cannot continue.

An examination of the factors that exacerbate these disturbing issues reveals that some mandatory sentencing measures that limit judicial discretion have undeniably had a disproportionate impact on the members of those communities. These measures, which were intended to reduce crime by deterring offenders and isolating them from society, have proven ineffective, costly and harmful.

Between 2007 and 2017, indigenous and Black adults were more likely than other Canadians to be admitted to federal custody for an offence punishable by an MMP. Their admission to federal custody with an offence punishable by an MMP almost doubled during those years. For example, Black Canadians comprised 43% of individuals admitted for exporting or importing drugs in 2016-17, and indigenous people comprised 40% of adults admitted for a firearm-related offence that same year.

The sentencing reforms that we propose are consistent with the recommendations that social and criminal justice stakeholders have been making for many years.

The Truth and Reconciliation Commission noted the issue of overrepresentation of indigenous people in correctional institutions and called for its elimination over the next decade. The National Inquiry into Missing and Murdered Indigenous Women and Girls also called for the government to evaluate the impact of MMPs on the overincarceration of indigenous women, girls and 2SLGBTQQIA people and to take action to address the problem. The parliamentary Black caucus has also called for the elimination of MMPs.

The government is listening and taking appropriate measures. This bill would repeal certain mandatory minimum penalties, or MMPs, but not all. We propose to focus on repealing MMPs that have had the greatest impact on the communities in question, while guaranteeing that the courts can continue to impose harsh penalties for violent and serious offences.

Let me be clear on this last point: these reforms will have no negative impact on public safety and will not signal to the courts that the offences concerned are not serious.

MMPs will be retained for serious offences such as murder, sexual assault, all sexual offences against children and certain offences involving restricted or prohibited firearms or that involve a firearm and are related to organized crime.

As for the second category of reforms, Bill C‑5 will increase the use of suspended prison sentences, also called conditional sentences, or CSs.

A CSO is a sentence of incarceration of less than two years that is served in the community under strict conditions such as a curfew, house arrest, treatment and/or restrictions on possessing, owning or carrying a weapon. CSOs will increase access to alternatives to incarceration for low-risk offenders while also furthering the sentencing goals of denunciation and deterrence.

The evidence is clear. Allowing offenders who do not pose a risk to public safety to serve their sentences under strict conditions in their community can be more effective at reducing future criminality. Offenders can keep a job and maintain ties with their family and community. These measures bring back flexibility in sentencing by allowing judges to help people, not just jail them. For example, a judge can impose a CSO for an offender to serve their sentence at home while receiving appropriate mental health and rehabilitation supports.

The measures allow communities to take on the responsibility for the rehabilitation of their members through a community justice program that we are funding. Experts in the field and in the communities themselves tell us that this is the best way to move the community forward, to move society forward and to help everybody, including victims, heal while maintaining public safety. That is what CSOs do.

The reforms in Bill C-5 will remove many limitations on CSO eligibility, but not all. CSOs will be available only for sentences under two years for offenders who do not pose a risk to public safety. I want to emphasize this part, as I believe there is some misunderstanding that CSOs will become available for all offenders. I repeat: They will be available only where public safety is not at risk.

CSOs will also not be available for some offences, including advocating genocide, torture and attempted murder, as well as terrorism and criminal organization offences when they are prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.

Finally, while it is important to enact sentencing measures that aim to reduce recidivism and overrepresentation, it is equally essential to ensure that there are adequate off-ramps at the earliest stages of the criminal justice process. This is especially true for conduct that could more appropriately be treated as a health concern.

To this end, Bill C-5 will require police and prosecutors to consider alternatives to laying or proceeding with charges for the simple possession of drugs. Alternatives will range from taking no action at all to issuing a warning or, if the individual agrees, diversion to an addiction treatment program. These measures are in keeping with the government's public health-centred approach to addressing substance use and the opioid epidemic in Canada.

The damage caused by this failed criminal justice policy is not simply a Canadian problem. I was in Washington last month and met with a number of bipartisan groups and think tanks working on criminal law reform. The message from all of them was that incarceration has failed. Many states, both Democratic and Republican, have abandoned MMPs because they simply do not work. The reforms we are proposing are the reforms they are advocating, repealing MMPs, bringing greater flexibility to sentencing, and diverting offenders out of the criminal justice system in the first place. These are solutions that will address the problems we face.

In addition to the reforms in Bill C-5, our government remains committed to working with our partners in the provinces and territories, as well as with Black, indigenous and marginalized community leadership in order to eradicate the overrepresentation of these communities in the criminal justice system.

Community safety is what we want. These reforms will help make that happen.

I look forward to answering any questions you have.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Welcome to meeting number 11 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 witness, the Honourable David Lametti, Minister of Justice and Attorney General for Canada, who's appearing in person in the committee room.

I would also like to say that I don't have my flash cards today, so I'm going to rely on the minister and my colleagues to stay within the time. I will have to interject when needed to let you know your time has run out, but I ask that you stay within the time. Thank you.

I give the floor over to you, Honourable Minister Lametti.

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

Mr. Chair, my only concern is that as we embark on the study of Bill C‑5, it would be good to have a sense at the outset of how many witnesses we're talking about. While I agree that we may not be able to resolve it today, I wonder if there is time to do a subcommittee meeting early next week so that we can actually hammer this out.

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

Thank you very much, Mr. Chair.

I'm very supportive of your plan for next week. I am very concerned about getting started on the drafting work so the drafters can work away while we're starting on the hearings on Bill C‑5.

I don't believe we can settle the question of the number of meetings today in the time we have available to us, but I think you presented a good plan for next week. I'm presuming that we will have what you said, with the minister and officials for the full two hours on the Friday, and then we'll split the time on the Tuesday, so I am supportive of those suggestions. Maybe we can leave the total number of meetings to be discussed at another meeting.

Thanks.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

With respect to Bill C‑5, I'm of the opinion that due diligence is required. I don't think we should delay this, because it's important, and I'm aware of that. However, Bill C‑5 addresses two completely different issues, one is diversion for the use and possession of certain drugs, and the other is mandatory minimum sentences.

You may recall that this led us, after first reading, to ask the Minister of Justice to split Bill C‑5 into two separate bills, in order to expedite its processing. If we had been able to agree on diversion, which I think was more likely or easier, we could have passed this bill right away, but that was not the case. I don't want to go backwards; we have to deal with the situation as it is, but the fact remains that the fear I had at the outset, when we proposed splitting this bill, is still present. I can't imagine that we're going to get this resolved in five meetings.

My colleague Mr. Anandasangaree called me about this, and we discussed it. At the time, I told him that I hadn't really had time to think about it. Since then, I've thought about it and discussed it with people around me. What I would suggest, first of all, is that we leave some room to extend the study, if necessary. For the time being, I think we could already set aside four meetings to hear witnesses on the issue of diversion and four on the issue of minimum sentences. That would be a total of eight meetings. Then we could schedule two for clause‑by‑clause.

That's what I'm proposing to you today, Mr. Chair.

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

Mr. Chair, we're proposing about five meetings for Bill C‑5, followed by clause-by-clause, with maybe a deadline for witnesses proportionate to how we usually do it, so maybe a witness list to be provided by next Wednesday around noon, and then the minister and the officials are available for next Friday, April 8.