Bill C-5 (Historical)

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.

Criminal Code

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, if I could speak to the same point of order. In this case, I provided my notes in advance to the interpreters. I have a great deal of respect for what they do.

It is a bit of a challenge when members want to deliver a certain amount of content in a limited time frame, and we are under time allocation of course as well, but I think it is a question of the ability of members to need to convey ideas in a limited time frame, so—

[The Assistant Deputy Speaker, Carol Hughes]

Again, we have to ensure that all members are able to understand what is being said in the House. That is what we need to do. Hon. members generally know how much they can put within the 10- or 20-minute time frame, so it is not about rushing but about making sure the speech is being delivered as it should.

The hon. member for Sherwood Park—Fort Saskatchewan can continue.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, I hope the interpreters are able to deliver the content, but I am entitled to give my speech as a member, and I hope that, given I have provided the notes in advance, this issue will be addressed.

I was speaking about under-representation in post-secondary institutions. I imagine if I were to propose that the way to reduce under-representation of Black and indigenous peoples in universities was to reduce the length of degree programs, we would recognize that did not make sense. If I were to claim that reducing the length of an undergraduate degree from four years to three years would address the under-representation of people from particular communities, we would recognize that is obviously absurd, because changing the length of a degree program does nothing to change the proportion of people from different communities who are there or to address the underlying factors that lead to under-representation. What is true for the length of degree programs is also true for the length of criminal penalties, which is that changing the overall length does not change the proportion.

I want to now speak about the relationship between racial justice and judicial discretion. Bill C-5 lowers sentences for a variety of crimes, including very serious crimes, and does so in part by widening the window for judicial discretion. I believe that judicial discretion, as well as the setting of benchmarks and parameters by the legislature, are both important elements in sentencing. In a democratic society, it is right and important for the people's representatives to deliberate and give direction about the kinds of sentences they see as appropriate for certain categories of crimes. It is also important for judges to be able to exercise their discretion in accordance with the particular facts of each case, using the parameters and formulas established by the people's representatives.

One key function of sentencing parameters set by the legislature is to help ensure relative consistency. If the facts of two different cases are virtually identical, then the sentences should also be virtually identical, even if the two defendants go before two different judges. The most effective way to ensure that two different judges in two different courtrooms apply a similar sentence to a similar set of facts is to have something such as sentencing starting points set by the legislative branch. Too much individual discretion leads to inconsistent decision-making. One risk of giving too much discretion to judges is that they, like all of us, have unconscious bias, a possible partial explanation for the over-representation of Black and indigenous peoples in prisons is that the unconscious bias of judges leads to relatively longer sentences being applied in cases with Black and indigenous defendants.

To be fair to judges, I do not know for sure if that is the case or not, but insofar as parliamentarians regularly identify the presence of systemic racism and unconscious bias in virtually all other institutions, it seems at least consistent to acknowledge that unconscious bias impacts the decisions of judges as well. If that is the case, then widening the range of judicial discretion, as Bill C-5 does, actually risks exacerbating the problem of over-representation by allowing more space for subjective determinations based on how a judge evaluates the character and motivation of a defendant.

Relying more on the work of legislatures to establish that a certain type of crime should carry a certain type of sentence in general reduces the range of difference that could be informed by unconscious bias applied to individual cases. This is not necessarily a defence of the idea of mandatory minimums as such, but I simply want to point out that, insofar as unconscious bias leads to differential outcomes when a decision-maker has broad discretion, a law which broadens the range for that discretion is more likely to increase than decrease the problem of over-representation.

I suspect many members of this House will be familiar with the iconic opening of The Godfather trilogy. It is a scene about criminal justice and also about racism. The character Amerigo Bonasera, a Sicilian immigrant who had long trusted the American justice system, is seeking justice for a daughter who was violently beaten by two privileged young men. The racial element implied in the film is clear in the original novel, with Bonasera noting that the parents of the perpetrators in this case were “his age but more American in their dress”. The judge opts to be lenient to the perpetrators saying, “"because of your youth, your clean records, because of your fine families, and because the law in its majesty does not seek vengeance.... Sentence to be suspended.'” This injustice, the exempting of two young men from the consequences of their crime because of their so-called “fine families”, leads Amerigo to lose faith in the legal system and instead rely on the mafia to get what he considers justice.

This is fictionalization of course, but it is compelling because it is very real to the circumstances and experiences of many people. Judicial discretion creates the space for preferencing those whose experience and background the decision-maker identifies with and, in this case, drives a further wedge between a minority community and the state, because Bonasera sees how the system is less likely to have the back of a person who comes from his background.

This raises a critical question: What does this bill do for Black, indigenous and other minority communities who are victims of crime and who want the police and courts to be present and consistent in order to protect them and their families from crime? What does Bill C-5 offer them? It offers them nothing. In fact, it offers them worse than nothing because it does not actually address the real problem of racism. It does not address differential outcomes, and it makes every community less safe by causing the early release of serious violent criminals from any and all backgrounds.

I have one more point I want to make. Black and indigenous people are over-represented in the prison population. Another group that is over-represented in the prison population is men. Men actually account for over 90% of adult admissions to federal custody. That is a very significant over-representation problem.

It becomes even more striking when we overlay statistics for race and gender. Indigenous women make up about 2.5% of the total population and 3% of federal prison admissions. That is relatively close. Statistically speaking, the phenomenon of indigenous over-representation in prison is overwhelmingly a problem of the over-representation of indigenous men. Over 25% of total federal prison admissions are indigenous men. Clearly, gender as well as race has to be part of the conversation about over-representation.

This raises challenging questions. Does our justice system have a problem with systemic sexism? How might the government go about trying to address the over-representation of men in the system?

I do not have time to answer those questions, but what is clear is that Bill C-5 does nothing to address the issue of over-representation of particular communities. The bill itself makes no mention of the issue of over-representation or racism, and it contains no measures which targets those problems. Reducing sentences for serious crimes makes our communities less safe, and it makes victims and potential victims of all races and from all communities more vulnerable.

[Mike Morrice, Green, Kitchener Centre, ON]

Madam Speaker, I listened to the member's speech, and in it he purports that mandatory minimum penalties do not contribute to over-representation of Black, indigenous and racialized folks across the country.

That is not the opinion shared by those from the Black Legal Action Centre, the Canadian Association of Elizabeth Frye Societies and the Women's Legal Education & Action Fund who have called for the repealing of all mandatory minimum penalties for exactly that reason.

What does the member have to say to experts like these?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, the member identified a number of stakeholders who have a particular point of view, and I do not doubt that the committee heard from a broad range of stakeholders with different points of view on the bill.

My point was fairly specific. It was simply to say that when we broaden the range of discretion for decision-making in a situation where the decision-maker may, or likely does, have unconscious bias, broadening the range of discretion for that decision-maker does not make the problem better. It makes the problem worse.

We could talk about alternative mechanisms, like sentencing, starting points or clearer parameters for judicial decision-making, but in the absence of those things, when the government proposes a bill that widens the latitude for judicial discretion and there are concerns about unconscious bias, it does not make any sense to me to say that that is somehow going to address the problem of over-representation. It is not.

[Yasir Naqvi, Liberal, Parliamentary Secretary to the President of the Queen’s Privy Council for Canada and Minister of Emergency Preparedness]

Madam Speaker, I listened very intently to the member opposite's comments on Bill C-5.

I had the opportunity to sit on the justice committee where the bill was deliberated. We heard from witness after witness talking about the negative impact of mandatory minimum sentences, especially on those who are of indigenous or racialized backgrounds.

I want to talk to the point around discretion. In the member's opinion, is it not better and more appropriate for judges who are presiding over cases, who have the benefit of listening to detailed evidence and cross-examinations, to be able to determine, if someone is found guilty, what the appropriate sentence should be, as opposed to legislators preordaining a mandatory minimum sentence when we do not know what the circumstances may be?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, clearly, judicial discretion and parameters set by legislators both have a role.

The question of what is the appropriate sentence for a particular category of crime is a philosophical question. It is a moral question. It is something that in a democratic society the legislature, in general terms, should pronounce on.

The question to what extent those broad parameters apply to the particulars of a case is a question of the facts of the case at hand, a question that requires surgical discretion that responds to the particular factors. That is why the legislature should not say this particular offence always or in every case carries exactly this sentence. It is legitimate for the legislature to say that, in general, we wish to express that we think this type of crime proportionately accords with this type of sentence.

[Luc Desilets, Bloc, Rivière-des-Mille-Îles, QC]

Madam Speaker, I have a question for my colleague.

Is he aware that incarceration is completely ineffective in the case of minor sentences and especially sentences given to offenders with respect to drugs and drug use?

There are no empirical studies that show that these prison sentences are effective.

Is he aware of that and does he agree?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, we need to be very clear that there are no mandatory minimums for personal possession-related offences for drugs. Our party does not support mandatory minimums for personal possession for personal use offences. We do believe that it should be against the law to possess drugs for personal use, but we do not support mandatory minimums in those cases.

I am concerned about the fact that this legislation reduces sentences for very serious violent crimes like sexual assault, kidnapping and weapons trafficking. Those are clearly very different cases from the cases the member spoke about.

[Maxime Blanchette-Joncas, Bloc, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Madam Speaker, to begin, I would like to say that I am both pleased and disappointed to be speaking to Bill C-5. I am pleased because it makes several advances in the area of diversion, and the Bloc Québécois fully believes that it is a step in the right direction. However, I am disappointed because Bill C-5 addresses the issue of mandatory minimum sentences, but it does not get to the heart of the problem or offer any solutions. I will come back to these two aspects in detail a bit later.

First of all, I want to condemn the fact that our request that the government divide this bill went unheeded. I want to be clear: Diversion and the abolition of mandatory minimum sentences are two very different issues. That is why the Bloc Québécois feels that it would have been preferable, in the interest of transparency towards our constituents, for elected officials to have the opportunity to vote on each of these subjects separately. Since I cannot do that, I will spend the next few minutes sharing my reservations about the bill.

I will start with what I do not like about Bill C-5. First, it does not solve the fundamental problem with mandatory minimum sentences. Minimum sentences are problematic because they are subject to Constitutional challenges for a simple reason: They apply to all adults without regard for the circumstances in which the offence was committed. The outcome is that sometimes a harsh sentence is handed down when the extenuating circumstances would warrant a lesser or different sentence. The very principle of justice is sacrificed when judges are not given any flexibility to assess each situation and its special circumstances.

However, there is a simple solution that we, the legislators, can implement to address this problem. We can introduce a clause that would enable a judge to depart from the mandatory minimum sentence when warranted by exceptional circumstances. With such a provision, we could have prevented many injustices and saved public financial resources, which are getting gobbled up by legal challenges of mandatory minimum sentences instead of being used to fund programs or infrastructure for Quebeckers and Canadians.

This amendment was proposed by the Bloc Québécois in committee but was rejected. The Liberal Party also moved a similar amendment, but when the time came to defend it, the government simply lacked the political courage to do so. It chickened out and did not even have the decency to defend it.

To all that, I would add that the Truth and Reconciliation Commission of Canada's call to action 32 recommended that a similar provision be added to the Criminal Code. Basically, the government messed up the opportunity to listen and do what needs to be done to move forward as a society along the path to reconciliation with first nations. That is deplorable.

The other thing that bothers me about mandatory minimum sentences is that there is a lack of consistency with respect to which ones will be abolished. When the government announced the bill in February, it said it would be abolishing mandatory minimum sentences, except for serious offences. That makes sense. As lawmakers, we do want to maintain some degree of control over sentences for crimes against the person. However, the bill abolishes minimum sentences for crimes such as discharging a firearm with intent or recklessly and robbery or extortion with a firearm. We see those as serious crimes.

It would have been preferable to maintain mandatory minimum sentences for these serious crimes, especially in a context marked by an increase in gun violence and in which public concern is palpable. In short, we would have preferred a less ideological approach from the government on these issues. I hope that the criticisms and suggestions I have raised will be heard by the government.

Now that I have outlined the areas where an amendment would be required, I would like to take the time I have left to talk about what we like about Bill C‑5, or, more specifically, the diversion measures.

We must recognize that the war on drugs has never been, is not, and will never be the solution to the opioid crisis and to other drugs that are wreaking havoc in Quebec and Canada. After decades of gathering evidence leading to this inevitable conclusion, it is time to acknowledge this reality and change our approach to treating addiction problems. We need to recognize them for what they really are and that is health problems, first and foremost.

That is the main principle behind Bill C-5, and I must admit that, like all of my Bloc Québécois colleagues, I am relatively satisfied with the progress made. We understand that the government wants to emulate the success Portugal has had in tackling drug abuse. I think it is entirely appropriate to rely on the evidence and follow best practices to move forward on this issue.

I firmly believe that the benefits of offering diversion measures will soon be felt in our communities and our justice system. Rather than dragging people through the courts unnecessarily and at great expense, we can dedicate those resources to treatment and education. This will also enable our justice system to focus on the cases that are truly problematic, in other words, the drug traffickers.

The only caveat I would add about Bill C-5 on these issues is a simple reminder to the government that Portugal's success relies on frontline services. In order for these services to be delivered, additional resources will be needed. Of course I am talking about an increase in health transfers and an increase in social transfers.

Someone who is trying to recover from addiction needs access to a series of support measures during their most vulnerable period in that transition to recovery. These measures include housing, employment assistance, psychological support and, of course, health care services.

I remind the government that it also has health care responsibilities and that it must sit down with Quebec and the provinces and increase health transfers to 35% of system costs. This is how we can achieve our objectives when it comes to tackling drug addiction.

I want to conclude by talking about decriminalization for simple possession. I think that we have found a balance with Bill C‑5 and that expungement of a criminal record after two years for this type of offence is a good compromise. It will take some time for our procedures to adjust to this new approach. I believe that we must consolidate our network before we move forward with decriminalization and that diversion programs are the best approach for the time being.

[Ruby Sahota, Liberal, Brampton North, ON]

Madam Speaker, I appreciate the balance the member brought to his speech. I wanted to hear a bit more on the diversion of those with addictions to treatment and other things since it is such a pressing issue. The member said he believes that is the way to go but that we need to build up programs. I would love to hear from the member what he thinks Canada and the provinces should be doing to help those who are facing these addictions.

[Maxime Blanchette-Joncas, Bloc, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Madam Speaker, it is not a question of what the provinces should do, but what the federal government should do. This is the federal Parliament; we are the federal lawmakers.

As I said in my speech, if the federal government wants to facilitate the diversion process, it must increase health transfers. The premiers of all the provinces, including Quebec, and the Quebec National Assembly are unanimously calling for that. This request has support, even here in the House of Commons, from the Conservative Party, the New Democratic Party and, of course, the Bloc Québécois.

I would like to remind my colleague from Brampton North that, here, we are the ones who decide what happens in the federal Parliament. The provinces are autonomous and it is not up to the federal government to impose its legislation and decide for Quebec and the provinces.

[Andréanne Larouche, Bloc, Shefford, QC]

Madam Speaker, I would like to follow up on what my colleague just said about Bill C‑5 in terms of helping people who have addiction problems, among others. This is a public health problem, so it is important to increase health transfers.

It seems to be hard for the federal government to understand what its responsibility is and what it needs to do. The same thing is happening at the Standing Committee on the Status of Women. For example, yesterday, even the Conservatives opposed the fact that health transfers and social services are needed to help women experiencing intimate partner violence. Something is not getting through. It is the federal government's role to make these transfers so that organizations in Quebec can then help women experiencing intimate partner violence, as well as people with addiction problems. Once again, I get the impression that the Bloc Québécois is the only party defending this idea.

I would like to hear my colleague's thoughts on that.

[Maxime Blanchette-Joncas, Bloc, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Madam Speaker, Quebec has fantastic social programs. However, these programs require financial support from the federal government, and that support is completely lacking. The fiscal imbalance is a well-known problem.

There was nothing in the federal government's latest budget about increasing health transfers. Now it is proposing something new, diversion and decriminalization. Making all these changes requires resources.

Obviously, if we want to be proactive in providing assistance, helping people heal and preventing addiction, we will have to take certain approaches, and the federal government can definitely help by increasing health transfers.

[Lisa Marie Barron, NDP, Nanaimo—Ladysmith, BC]

Madam Speaker, I thank my hon. colleague. I enjoyed working with him at the Standing Committee on Fisheries and Oceans today.

Given that criminal records for personal possession of drugs are a significant barrier to employment and housing, which are two important factors in recovery from addiction, why does the Bloc Québécois oppose the NDP's amendment to expunge all criminal records for personal possession offences within two years?