Justice Committee on April 8th, 2022

[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?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

The seriousness of the offence under all of these Criminal Code offences—you know this, as a former Crown—depends on the circumstance. We are talking about sentencing here. It's up to the judge to determine, according to all of the facts in front of the sentencing judge, the seriousness of the offence in question.

It's still the same offence in terms of actus reus and mens rea, but there are different degrees of seriousness. Serious offences will always be punished seriously. A drive-by shooting is going to be punished seriously. There is going to be serious jail time associated with that. It is an affront to Canadian people to try to mislead them otherwise.

In terms of the offences we're talking about, I based that example on a real case. The person who did that one night had a job. He had a girlfriend. He was going to school. He had a few drinks too many that evening. He put a few bullets with his shotgun into the side of an empty barn. There was nobody around, but a neighbour heard it and called the police. He was charged with a minimum mandatory penalty. He got four years. He lost the job. He lost the girlfriend. He lost the education. When he left prison, he ended up moving into the same house with the people he had served time with, so that's the education he got.

That's what we're doing here. That wasn't a serious set of circumstances that deserved jail time, whereas a drive-by shooting certainly would.

[The Chair, Liberal, Randeep Sarai]

Thank you, Minister. In the interests of time, I have to move on.

Next we have Mr. Naqvi for five minutes.

[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?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

It's wonderful to have two former attorneys general around the table with me here this afternoon.

There is a mountain of evidence on conditional sentence orders and this kind of flexibility in sentencing, which shows a positive impact, not just for the rehabilitation and reintegration of the offender, but for victims and communities. Having conditional sentence orders allows us to attack the real problem, be it problematic addiction, intergenerational trauma in the case of racialized communities, poverty or a lack of housing. Those are the problems we need to attack.

What a conditional sentence order allows us to do, instead of sending a person to jail—and oftentimes, in the case of a woman, then having to take her kids into custody—is to keep that person at home and getting the treatments they need, perhaps keeping their job and staying around the community supports they have.

I would also add that it enables us to realize the potential of the investments we are making for indigenous people with Gladue reports, which allow a sentencing judge to craft a sentence based on what is in that Gladue report.

We have started a pilot project on IRCAs—impact of race and culture assessments—in Nova Scotia, in Montreal and in Toronto. An IRCA allows, in the sentencing of Black offenders, a similar kind of sentencing report to a Gladue report. Again, a conditional sentence order allows for the potential there—without a minimum mandatory penalty, with no harm and no public safety threat to the community—for the judge to actually craft a sentence that will be beneficial to everybody in the community: the victim, the offender and everyone around them. It also allows communities to take charge of sentencing and rehabilitation in a very positive and proactive way. This is something that expert groups, particularly across North America, are recommending.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

I thought it was quite harmful or devastating when they were taken out of the Criminal Code. I think this opportunity given to a judge to look at the overall circumstances, especially as they relate to indigenous people, Black people and racialized people, is extremely important.

When you were talking about MMPs, you alluded to their broader impact on indigenous, racialized and Black people. Can you talk about some of the data you have seen that demonstrates how MMPs have been overly utilized in relation to the indigenous peoples of Canada, Black folks and racialized people?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

There are certainly a number of studies and statistics with respect to overrepresentation, and with respect to MMPs in particular. You know the statistics. Indigenous people represent a tiny percentage of our population but 30% and higher of people who are in federal incarceration. The number is even higher for indigenous women. The Black population, at approximately 3% of the population, I believe, represents, again, close to 9% of all offenders.

With respect to MMPs themselves, of all admissions to federal custody between 2010 and 2020, 53% of Black offenders and 36% of all indigenous offenders were admitted for an offence punishable by an MMP. Those are shocking statistics. It is simply inexplicable, for any reason other than systemic racism, that those numbers are that high. Therefore, we need to attack the problem at all levels. Sentencing is one of them, but there are other places, too, where we need to attack this.

[The Chair, Liberal, Randeep Sarai]

Thank you, Minister.

Thank you, Mr. Naqvi.

Next, a two-and-a-half minute round goes to Monsieur Fortin.

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

Thank you, Mr. Chair.

I agree with what you said earlier, Minister. A judge will usually sanction an offence linked to a serious crime with a sentence of imprisonment, whether or not a mandatory minimum penalty is prescribed for that offence.

I also agree with the example you gave, about the fact that someone should not be sent to prison for four years for discharging a firearm into a wall on a side street.

But it might have been useful to break this type of offence down into its components. Discharging a firearm with intent and pointing it at an inanimate object is one thing, but discharging a firearm with intent while pointing it at people requires a mandatory minimum penalty. You have not taken this aspect into consideration, but that's perhaps what I would have done. We might put forward an amendment of this kind in the committee's report.

Now, Minister, I'd like to draw your attention to two things.

First of all, legislation changes over time. The current Criminal Code is not the same as the one we had 10, 20, 50 or 100 years ago. Laws change because the legislator needs to legislate in a way that reflects the concerns of people at the time it is being drawn up.

Then, Minister, if you agree with this statement, why is legislation being prepared today to repeal mandatory minimum penalties for the use of a firearm with intent to commit an offence?

There is, at the moment, an increase in firearm violence, and people are worried about it. We hear mothers saying that they are hesitant about sending their children to school because firearms are circulating in the schools and it's dangerous.

Do you, Minister, feel that the timing on this is bad?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

The proposed amendments to the mandatory minimum penalties in this bill are not aimed at assault weapons or the kinds of firearms used by street gangs in Montreal and elsewhere.

Our government is currently working to combat trafficking in weapons of that kind and to deal with street gangs. It is doing so in a way that will go down in history.

We are listening to people's concerns and are reacting by implementing some measures, in coordination with the provinces, including Quebec, and with municipalities.

The purpose of this bill is to address another problem—the overrepresentation of Black and indigenous people in the judicial system. It's a real problem and we are addressing it now.

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

The crimes are serious, but this bill means that criminals won't go to prison. It's a curious sort of reasoning.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Fortin.

Thank you, Minister.

We'll to Mr. Garrison for two and a half minutes.

[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.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

There's absolutely no question that this is one of the situations that we're attacking here. It's for women who, through no fault of their own, are drawn into a relationship in which they are controlled, or have a problematic addiction within the context of a relationship, or have an addiction that forces them to seek out a relationship in order to maintain that dependence. They end up becoming a mule or being charged with possession or other things. We're trying to keep those women out of the criminal justice system. We're trying to give those women sentences that fit the crimes and that will allow them to seek and get the help they need, while remaining safe.

All of that is part of this package. We think it will have a great deal of success, particularly with the interaction of the minimum mandatory penalty and the conditional sentencing order working together.

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

One of the things I've often heard, from both defence attorneys and prosecutors locally, is that mandatory minimums actually contribute to court delays by making a lot of cases go to court that might not otherwise if they were able to reach a deal in the absence of those mandatory minimum penalties being on the table.

I wonder whether the department has looked at that problem.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Very much so; they cost us a massive amount of money. The minimum mandatory penalties reduce the amount of plea bargaining in the system, so more cases go to trial. They increase the number of charter challenges; over a third and possibly even higher of all the charter challenges in the system are on minimum mandatory penalties, and about half of them actually succeed. These clog up the system and they cost us money. When other people walk free on serious crimes because of a Jordan ruling, it's in large part caused by the massive logjam that is being caused by minimum mandatory penalties. If you look at the introduction of MMPs under the Harper Conservatives and the taking away of CSOs, the number of court cases go up and the delays go up, so we're attacking that too.

[The Chair, Liberal, Randeep Sarai]

I want to thank the minister for his time and staying over. I think we're about three minutes into the intervention, but I've used my liberty to go over seven minutes.

Thank you, Mr. Lametti, for appearing before our committee. You're always most welcome to come back.

I'll now suspend for a few seconds so you can leave. Then we'll resume with your officials, who will remain for the remaining hour and the next round of questions.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Thank you, Mr. Chair.

Thanks to everyone.

[The Chair, Liberal, Randeep Sarai]

Most of the next panel is online, so I'll introduce them.

From the Department of Justice, we have François Daigle, deputy minister of justice and deputy attorney general of Canada, who I believe is appearing in person. We have Carole Morency, director general and senior general counsel, criminal law policy section. Also from the criminal law policy section, we have Paul Saint-Denis, senior counsel; Andrew Di Manno, counsel; and Matthew Taylor, general counsel and director.

I'll resume questioning, if everyone's ready to take answers.

I'll begin with Mr. Morrison, for six minutes.

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

Thank you, Mr. Chair.

I have a question, and anyone on the panel can answer this. Do you believe that there is an overrepresentation of indigenous, Black and other marginalized communities who are victims?

[Andrew Di Manno, Counsel, Department of Justice]

In fact, what the available data shows is that indigenous persons, Black Canadians and members of marginalized communities are sometimes overrepresented both as victims and as offenders in the criminal justice system.

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

When we talk about long-term solutions, and this is short-sighted in my opinion, we look at crime prevention. We look at how we tackle the fact that we have.... For example, let's go to the opioid crisis, which is part of this bill. How do we resolve the issue of the opioid crisis in a crime prevention versus crime reduction way, which of course is putting people in jail?

I am way soft on that; I believe we need to have a crime prevention program. I'm wondering if you or anyone in your area has discussed how we can have a long-term solution here.

[Andrew Di Manno]

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.

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

Do you support, and have you budgeted for, the increase in policing, for example, that will be required, especially under the CSOs that they're not doing today? Is there a plan? I didn't see that in the budget yesterday. Is that there, and are you anticipating supporting law enforcement agencies that will need that support under the CSO program?

[Andrew Di Manno]

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.