Evidence of meeting #11 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offence.
A recording is available from Parliament.
Counsel, Department of Justice
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.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
So if I have I understood you correctly, you're saying that the reason why racialized people are overrepresented in our prisons possibly or probably has nothing to do with the issue of mandatory minimum penalties.
In which case, is it not somewhat surprising that the Department of Justice should react by saying that it is going to do away with these mandatory minimum penalties?
Counsel, Department of Justice
According to several studies, the mandatory minimum penalties have different, and negative, effects on racialized communities. Various sources of evidence confirm that denying judges the discretionary power to identify risks with respect to procedural equity means that these people end up in the criminal justice system more often.
And yet the government has also made strategic investments to counter these problems, including in community justice centres.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
The government has also established—with the endorsement of the Supreme Court —the famous Gladue reports that allow a social study to be carried out when a member of an indigenous community is charged[Technical difficulty—Editor].
People who work in the field tell me that there are not enough resources in the indigenous communities to prepare the Gladue reports. The judges ask for them, but the defence lawyers claim that they don't have the resources needed to prepare a Gladue report.
Would that not have been a better way of attacking the overrepresentation of indigenous people in our prisons, for example?
Counsel, Department of Justice
If I may, I'd like to answer that question in English so I don't have to stumble over my words.
In fact, the government made several investments in budget 2021 and the fall economic statement that supported Gladue writing at sentencing.
The same thing goes with respect to the impact of race and cultural assessments. They assist the judge in considering the disadvantages and systemic racism that have contributed to racialized Canadians' interactions with the criminal justice system.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
There clearly appear not to have been enough of them yet.
I briefly mentioned the matter of discharging a firearm with intent. The minister told us that it was not necessary to send someone who had fired a gun into a wall to prison if, for example, that person had drunk too much alcohol, or whatever the reason. I can understand that.
However, as I told the minister, if this offence were to be broken down into its parts, we could consider treating the case of a person who fired a weapon at an inanimate object differently from a person who aimed the firearm at someone else.
Do you feel that it would have been possible to split up this offence in a way that would allow for different treatment depending on the circumstances?
Counsel, Department of Justice
The nature of any offence is determined by the courts and this offence is very broad in scope. In other words, the crime may have been committed under a variety of circumstances.
If a mandatory minimum penalty is applicable, a judge cannot take all the circumstances into consideration in determining the penalty, even if that judge wanted to impose a sentence that was less severe than the minimum penalty. As the Supreme Court determined in the Nur decision, one of the solutions to the issue of the constitutionality of mandatory minimum penalties is reducing the scope of the offence.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Precisely. Don't you agree with me that a person who discharges a firearm—
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Fortin. We're out of time, unfortunately.
Mr. Brock, we'll go over to you for five minutes.
Conservative
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.
Counsel, Department of Justice
From what I understand, the trends over the last 10 years or so demonstrate that the enactment of these mandatory minimum penalties have contributed to an increase in charter challenges.
Carole Morency Director General and Senior General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Mr. Chair, if I might add, in 2016 the federal, provincial and territorial ministers responsible for justice determined, as part of their deliberations over how to address the Supreme Court of Canada's decision in Jordan and to find efficiencies to address and prevent delays, agreed that one of the important measures that could be advanced and that would help address the issue of delays more generally would be to address mandatory minimum penalties.
In general terms, I think there is certainly the expectation, and as my colleague has outlined, we are tracking quite a number of charter challenges that have moved in this direction. We hope to see some of the benefits coming from this down the road, and, of course, we will work with our existing federal, provincial and territorial counterparts to monitor and assess the impacts of the amendments if—
Conservative
Larry Brock Conservative Brantford—Brant, ON
Thank you, Ms. Morency. I want to move on now.
I want to address the whole concept of still maintaining the 14 mandatory minimums but putting into place a constitutional exemption that would give the flexibility to judges across this country to exempt the outliers for whom the mandatory minimums would constitute cruel and unusual punishment. Did the departments consider this, and, if so, why has it been rejected in the form of the draft bill?
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.
Conservative
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.
Liberal
The Chair Liberal Randeep Sarai
Mr. Brock, you're out of time, but I'll give Mr. Di Manno a few seconds, if he has a quick answer.
Counsel, Department of Justice
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.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Brock.
Mr. Zuberi, it's over to you for five minutes.
Liberal
Sameer Zuberi Liberal Pierrefonds—Dollard, QC
Thank you, Mr. Chair, and thank you to the witnesses for being here.
I want to continue on the theme of CSOs, or conditional sentence orders. We heard the minister explain them. We just had a series of questions on them. I'd like to open up the floor for more elaboration, if you would, please, around how CSOs would actually work in practice. How often are they currently imposed?
Counsel, Department of Justice
We've seen with the enactment in the last 10 years of further restrictions on CSOs a diminishment in their being ordered, because they weren't available for as many cases. In terms of community-based sentences like CSOs, according to Statistics Canada, data shows that in 2019-20, CSOs were imposed in 6,720 cases across Canada. By contrast, in 2004-05, prior to the reforms that restricted their availability, CSOs were imposed in 11,545 cases across Canada.
The purpose of a CSO, as the Supreme Court of Canada has noted in Regina v. Proulx, is a sentence that can have two components to it. It can have a punitive aspect to it, which involves strict punitive conditions like house arrest, curfew and prohibitions on owning firearms, which all go to the public safety component of the sentence. It can also have rehabilitative aspects, and components of it that go to restorative justice.
By imposing these sentences in appropriate cases, it shows that you can get significant reductions in recidivism. Imprisonment in the wrong cases can sometimes strengthen gang affiliation and contribute to stigmatization that actually endangers public safety.
Liberal
Sameer Zuberi Liberal Pierrefonds—Dollard, QC
Certainly.
At the end of that, you really touched on a point that I'd like you to elaborate on further. Has there been any research done in terms of the impacts of utilizing CSOs effectively, and how that bears better results than mandatory minimum penalties? If there has been any research done, can you share that with us?
General Counsel and Director, Criminal Law Policy Section, Department of Justice
We have a bibliography of research that we'd be happy to provide to the committee.
Liberal
Sameer Zuberi Liberal Pierrefonds—Dollard, QC
I think that would be really interesting. For example, for somebody who is addicted to opioids, I would suggest that CSOs would be better than MMPs to help this person get back on their feet and fully contribute to society in the way they would probably like to. Can you share any insight on how CSOs would be better than MMPs for people who are, for example, addicted to opioids or other drugs?
Counsel, Department of Justice
One of the contributing causes to the opioid crisis is stigmatization. Several studies demonstrate that the overreliance on incarceration is actually associated with an increase in reoffending, and produces particularly negative effects on lower-risk offenders. Moreover, studies show that recidivism rates for CSOs have actually been relatively low. CSOs are effective in appropriate circumstances, because they provide offenders with the ability to access treatment and continue their employment while simultaneously decreasing incarceration rates.
Liberal
Sameer Zuberi Liberal Pierrefonds—Dollard, QC
In the minute I have left, can you talk a bit about the minutiae of how conditional sentence orders work? The justice minister gave us some examples. Can you elaborate with a few other examples for the understanding of our committee?