Justice Committee on April 26th, 2022

[The Chair, Liberal, Randeep Sarai]

Thank you. I'll now conclude this first part of the panel and suspend for a minute to do a quick sound check for Dr. Robert. I think the rest have all been sound-checked.

To the rest of the witnesses, we're happy to have you stay on if you want. Otherwise you can disconnect if you'd like.

I'll suspend for one minute.

[The Chair, Liberal, Randeep Sarai]

We're resuming with the second panel for this meeting.

I'm going to ask each group to speak for five minutes, and then after the five-minute rounds for each each of the speaking groups, we will continue with questions. As I outlined earlier, I have a 30-second time clock card and then an out-of-time card. Please be respectful of the time so that all the members can have a question.

We'll begin with Brandon Rolle, senior legal counsel for the African Nova Scotian Justice Institute, for five minutes, and then we'll go over to The Dispensary and then the National Coalition Against Contraband Tobacco.

We'll begin with you, Brandon Rolle, please.

[Brandon Rolle, Senior Legal Counsel, African Nova Scotian Justice Institute]

Thank you, Mr. Chair.

Good afternoon. My name is Brandon Rolle, and I'm the senior legal counsel at the recently established African Nova Scotian Justice Institute.

I'm pleased to speak today in support of Bill C-5, which we see as a necessary step towards justice.

African Nova Scotians are a distinct people who descend from free and enslaved Black planters, Black Loyalists, Black refugees, maroons, and other Black people who inhabited the original 52 land-based Black communities in that part of Mi'kma'ki known as Nova Scotia.

The African Nova Scotian Justice Institute is a provincially funded—but importantly, community-led—infrastructure developed in response to systemic anti-Black racism faced by African Nova Scotians in the justice system. We acted as intervenors in the Anderson case, a Nova Scotia Court of Appeal decision that affirmed the use of impact of race and culture assessments, IRCAs, as a valuable sentencing tool when sentencing people of African descent and provided a framework for applying systemic and background factors related to race and culture.

There can be no serious dispute that systemic anti-Black racism exists in the criminal justice system. In R. v. S. (R.D.), a well-known case from Nova Scotia that went to the Supreme Court of Canada, the Supreme Court endorsed comments from another Nova Scotia case and put it very bluntly:

[Racism] is a pernicious reality. The issue of racism existing in Nova Scotia has been well documented in the Marshall Inquiry Report (sub. nom. Royal Commission on the Donald Marshall, Jr., Prosecution). A person would have to be stupid, complacent or ignorant not to acknowledge its presence, not only individually, but also systemically and institutionally.

The evidence is also very clear that one of the ways that systemic anti-Black racism has manifested is through the over-incarceration of African Canadians.

The committee has the data from the Department of Justice about the disproportionate impact of mandatory minimums on custody rates for Black people, but I would suggest there are some contextual factors that we can look at to help us understand why MMPs disproportionately impact people of African descent.

First, we know that Black communities are subjected to over-policing and over-surveillance. Since Black people are more likely to be arrested and charged with an offence, they are subject to a disproportionate risk of criminal liability for offences carrying a mandatory sentence.

Second, Black accused are disproportionately detained before trial. The research is increasingly clear that accused persons who have been denied bail feel greater pressure to plead guilty.

Third, African Nova Scotians and African Canadians at large have experienced the legacy of slavery, colonialism, segregation and racism that has led to this historic pattern of disadvantage, which includes overrepresentation in custody, involvement in certain offences, being denied bail and receiving longer jail sentences, and subsequently serving harsher time while in custody.

We submit that to truly address systemic anti-Black racism, the approach has to be multi-faceted and must include the type of legislative reform being proposed by Bill C-5. We suggest that has to be done in combination with efforts further upstream in the justice system that address the root causes of offending behaviour, which is the type of infrastructure we're trying to build here at the African Nova Scotian Justice Institute.

We endorse the comments of Justice Derrick in R. v. Anderson, that case I mentioned earlier, when she was discussing this exact type of legislative reform. At that time it was called Bill C-22, but we know that was the earlier version of this bill. She said, and I quote:

It speaks to what the Supreme Court of Canada noted in Gladue: “Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament”.[29] Its proposed reforms would enhance the discretionary powers of judges in sentencing Black offenders. The increased availability of conditional sentence orders would afford judges greater scope in imposing sentences that better serve the principle of proportionality, thereby better serving the community and the offender, with systemic factors and historical disadvantage taken into account.

We agree that MMPs do not effectively address recidivism. Longer and harsher jail sentences have been shown to actually increase recidivism, and as such MMPs can work to decrease public safety. Mandatory minimum sentences do not accord with the fundamental sentencing principle of proportionality, because they remove that discretion of the sentencing judge to consider the moral blameworthiness of the offender and provide no opportunity to account for not only the personal circumstances of the accused but also those systemic and background factors that may come into play.

When it comes to African Nova Scotians and Black Canadians, we suggest that judicial discretion should always be informed by tools like impact of race and culture assessments to better address overrepresentation. This type of legislative reform is an important part of the answer. It's not the complete answer, but we suggest it is a step towards substantive equality.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Rolle.

Next we have The Dispensary Community Health Center and Hugo Bissonnet, Alexandra de Kiewit and Dr. Jean Robert for five minutes.

You can split it up however you want.

[Dr. Jean Robert, Medical Specialist in Public Health and Medical Microbiology and Infectious Diseases, Professor, Université de Montréal and Université du Québec en Outaouais, The DISPENSARY Community Health Center]

Thank you, Mr. Chair.

It's an honour to be invited to appear before the committee.

I will be speaking from the heart much more than from the head.

I am a physician, and my first specialty is infectious diseases, which I've practised in university hospital centres. I also have extensive experience working under a community health model. This year marks my 46th caring for patients. I say “caring” because I don't necessarily treat them. I provide support to individuals who are part of a culture that carries a systemic stigma; they are oh so cruelly referred to as “addicts”.

Given my years of experience, I was deeply troubled and saddened when I read Bill C‑5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, because it appears to put guns and drugs in the same category. Keep in mind that guns kill other people, whereas drugs kill the person who takes them. Guns are a safety issue, but drug use is not a justice issue; it is a health issue. That is very important.

This is something I am extremely concerned about. I completely agree that it is finally time to get rid of mandatory minimum sentences for individuals who, for lack of proper care, treat themselves using substances that are available around them. That is the first point I want to make.

My second point has to do with people who die as a result of substance abuse or overdose. A unique feature of people who try to treat themselves using substances is that they are totally unaware of what is in the substances being sold to them. For example, as a physician, I am required to inform users of what this residue contains. I have here a minuscule amount of a substance, smaller than a match head. It's heroin that was recently brought to me by users, and it contains 12 different substances. What kills people is not knowing what they are actually taking. That is why it is important not to prevent these substances from being handled. I am able to do it because it's part of my job and because it's necessary in order to care for people. That is a crucial issue.

The bill sets out exemptions for simple drug possession offences. The third point I want to make is how vital it is that an exemption be added so that people like my team members and I can have access to these substances. There needs to be an exemption for professional use. That way, when our outreach workers, who are professionals, cross the street with a bag containing a small amount of powder residue, they won't have to fear being arrested or thrown in jail.

That is my only recommendation. I have other ideas, of course, especially when it comes to the terminology, but those are my own personal observations. I have spent 46 years working in this field. I've worked with inmates, and I am very familiar with the issue. Residue analysis can save lives. We also do urine analysis to determine what people have taken. That is the basis for the care we provide.

We, ourselves, applied for an exemption exactly a year ago, and we are still waiting. We haven't gotten it.

Now I will turn the floor over to my colleague, Ms. de Kiewit.

[The Chair, Liberal, Randeep Sarai]

Thank you. Unfortunately your time is up, but I'm hoping you can answer some of your questions or make your statements in answering some other questions and extract it out of there.

[Alexandra de Kiewit, Risk and Harm Reduction Educator, The DISPENSARY Community Health Center]

Thank you.

[The Chair, Liberal, Randeep Sarai]

I'll next go over to the National Coalition Against Contraband Tobacco. We have Rick Barnum for five minutes.

[Deputy Commissioner Rick Barnum, Executive Director, National Coalition Against Contraband Tobacco]

Thank you, sir.

Good afternoon, committee.

My name is Rick Barnum, and I am the recently appointed executive director of the National Coalition Against Contraband Tobacco.

I most recently served as deputy commissioner of the Ontario Provincial Police and had an over 30-year career in law enforcement. During my career, I spent most of my time combatting organized crime. I saw first-hand how lucrative the contraband tobacco trade can actually be.

The Criminal Intelligence Service of Canada estimates that contraband tobacco and cannabis have a cost of over $12 billion in health care, lost productivity, criminal justice and other direct costs.

The RCMP estimates that there are over 175 criminal gangs involved in the illicit trade of contraband tobacco. These gangs make millions of dollars a day off contraband tobacco, which they use to fund their other illicit activities, including illegal firearms, drugs such as fentanyl, and human trafficking.

To combat this important funding source for organized crime groups, in 2014 the government passed Bill C-10, which introduced a Criminal Code offence for the trafficking of contraband tobacco and also a mandatory minimum penalty for the same offence. Both of these tools have been used by law enforcement across Canada since that time to dissuade individuals from participating in the contraband tobacco trade.

Prior to this, many of those charged and found guilty under provincial tobacco tax laws would simply be fined, but the fines would never actually get paid. The Criminal Code offence and penalties associated with this offence have made trafficking of contraband tobacco less attractive for some people.

However, Bill C-5 proposes to eliminate the mandatory minimum penalty for the trafficking of contraband tobacco while keeping the Criminal Code offence. By eliminating the mandatory minimum penalty, the government is removing a tool used by law enforcement to dissuade possible contraband tobacco traffickers.

The government of late has also helped to fuel the contraband tobacco trade by continuous increases in tax on tobacco. History shows us, as was also reported by the Parliamentary Budget Officer, that tax increases without action against contraband tobacco result in a larger black market that directly funds criminal gangs. This is why, after removing one of the law enforcement tools, the government must add another.

First, the contraband tobacco trade continues to grow across Canada without concerted federal action. Illegal cigarettes, manufactured mostly in Ontario, can be found from British Columbia to Newfoundland. To curb the illicit trade, we recommend that the government create a contraband tobacco enforcement team within the RCMP that would help to coordinate enforcement across the provinces. Provinces like Quebec have seen great successes in such a model, in which municipal and regional law enforcement have been coordinated.

Second, further increased taxation on tobacco without action against contraband tobacco will only help to further grow the illicit trade. We recommend that the government resume a prudent approach toward tobacco taxation until contraband tobacco is addressed across the entire country.

Lastly, Ontario continues to be the epicentre of contraband tobacco in Canada. One in three cigarettes purchased in the province is purchased illegally. Criminal gangs make millions of dollars every day from this illicit trade.

To address this core issue, we recommend that the government partner with Ontario in taking action against contraband tobacco. By supporting law enforcement through countrywide coordination and a prudent taxation approach, the government can begin to effectively address Canada's growing contraband tobacco problem. With the removal of one law enforcement tool, the government must add another.

We hope we can count on your support in taking action against contraband tobacco and also against organized crime.

Thank you for your time. I'll be happy to take any questions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Barnum.

Now we'll go to the first round of questions. I believe we have Mr. Cooper for six minutes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair, and thank you to the witnesses.

I will address my questions to Mr. Barnum.

You cited in your testimony that since the passage of Bill C-10, adding that section to the Criminal Code has been an important tool for law enforcement. Given your extensive background in law enforcement and tackling organized crime, I would be interested in your comments related to the mandatory minimum aspect of Bill C-10 as it pertains to the trafficking of contraband tobacco.

We've heard a number of witnesses who simply say that mandatory minimums don't work, that they're ineffective and increase recidivism. Is that your experience? I presume it's quite the contrary.

[D/Commr Rick Barnum]

My experience would show that over the years, individuals whom we've caught doing trafficking in contraband tobacco in significant amounts usually ended up with a hefty fine the first time and usually the second time as well. It's not until the third or fourth time that they usually end up with a small jail sentence. It would be less than two years.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Would you agree that a mandatory minimum is an important tool?

[D/Commr Rick Barnum]

It's an important tool for law enforcement from the perspective that it gives us the opportunity to make sure, when we charge and arrest people and do significant investigations, that there is the opportunity that they could do some jail time.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Have you seen the impact of that since the passage of Bill C-10?

[D/Commr Rick Barnum]

The investigations that we were doing were very high level. These aren't individuals that are walking down the street with a baggie of contraband tobacco. We're talking about full tractor-trailers and things of that nature.

We have seen the opportunity for the individual to go to jail, but most often it's a significant fine, sometimes $200,000 to $300,000 or more, but not jail time.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I think it's an important point that you've made that these are not people with a baggie.

Part of the problem, I think, with this bill is that it's not as advertised. The government talks about minor possession, even though there is a directive that has been issued not to prosecute such cases. What the substance of the bill does offer is eliminating mandatory jail time for trafficking offences and the importing, exporting and production of schedule I and schedule II drugs.

Speaking of schedule I and schedule II drugs, we have an opioid crisis in Canada. Twenty Canadians die a day.

Can you elaborate on the connection between those who are involved in the trafficking of contraband tobacco and those who are involved in perpetuating the opioid crisis in Canada?

[D/Commr Rick Barnum]

Yes, I can, and that's an excellent question.

There's absolutely no doubt in my first-hand, lived experience that in probably the last 10 years or so, it's not been uncommon for police to do significant high-level investigations targeting contraband tobacco or cocaine, methamphetamine or fentanyl and during the course of those investigations to run into significant amounts of whichever drug, but at no time in my experience have I seen high-level organized crime groups working in a linear fashion, just dealing in contraband tobacco. In our seizures, it's not uncommon to find cocaine, tobacco and fentanyl together with handguns, and the list goes on.

Recently, in 2020, in Project Cairnes, which was an investigation the OPP did just north of Toronto in York region, there were two or three kilograms of cocaine, hundreds of cases of contraband tobacco, kilograms of fentanyl, handguns and other associated types of drugs that are used to break down cocaine for sale on the street, all captured from one organized crime group, and one arrest.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

How much time do I have, Mr. Chair?

[The Chair, Liberal, Randeep Sarai]

You have one and a half minutes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that. I'll turn the balance of my time to Dr. Robert.

Dr. Robert, you spoke about issues around simple possession and personal use, but again, this bill doesn't address that. What it does is eliminate mandatory jail time for the producers and pushers of dangerous drugs that harm many Canadians.

When we talk about the opioid crisis, 20 Canadians a day die. That's 7,000 a year. Are you concerned that this bill eliminates mandatory jail time for traffickers, producers and pushers, and would you not see a significant distinction between those involved in such activities and someone who is involved in simple possession for their personal use?

[Dr. Jean Robert]

Thank you for your question.

The statistics you referred to represent the worst case. Can it be worse?

We are talking about personal use. Our goal is to ensure that people are no longer punished for their illness. That's what matters. Selling, producing and distributing have more to do with public safety than they do with the health of individuals.

I should point out, by the way, that we spoke mostly about opioids, but almost 90% of the substances sold contain between two and 18 different substances. The focus has been on opioids, but there are other drugs as well.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Cooper. Thank you, Mr. Robert.

Next it's over to Madam Diab for six minutes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much, Mr. Chair.

Thank you to the witnesses for being here today.

I am going to be directing my questions to Mr. Brandon Rolle of the African Nova Scotian Justice Institute.

For the benefit of my colleagues, I had a chance to meet Mr. Rolle when I served in the provincial legislature, and I am familiar with a number of the initiatives that have been undertaken in Nova Scotia to combat the systemic racism that Nova Scotians experience. It's well documented in our system, so I'm really grateful you're here with us to share your experience and expertise with our committee today.

I understand, Mr. Rolle, that you recently met with the justice minister when he was in Nova Scotia, I think a couple of weeks ago. Can you share with the committee whether or not you would have spoken about this bill and what you would have shared with him—and I would direct you to be as blunt as you obviously need to be with us—on the use of mandatory minimums and the restrictions on conditional sentencing orders, which are the two things we're talking about today, and the effect on the features of racism in our justice system, from your expertise and your experience?

[Brandon Rolle]

Thank you for the question.

One of the arguments we put forward in Anderson, which I think is important to remember, is that the law itself has been used as a tool to oppress people of African descent, and particularly African Nova Scotians, for centuries. This is obviously a complex problem that resides not only in justice, but we do need a justice response, because in part this is a justice problem.

When Minister Lametti visited Nova Scotia, we talked primarily about the work being done with impact of race and culture assessments. Those are connected to this debate, because by allowing more community-based sentences, we can actually allow some of that work that gets at root causes to take place. An impact of race and culture assessment looks at the historical context of that specific community and at how the reason the person came to be before the court is connected to some of those systemic factors. It then presents rehabilitative options that are culturally appropriate.

By keeping this punitive regime of mandatory minimum penalties, we're taking the discretion away from judges to provide that sort of culturally specific programming that's needed to get at root causes. If the idea is that mandatory minimum penalties somehow send the message that they are going to decrease recidivism, I think that decades of research have shown that this is not the case. We need to get at the root causes to really address the problem. That's the work we're trying to do at the institute.

We also have to recognize that sentencing is at the end of the process, so we need to infuse that throughout the process and look at police discretion and Crown discretion. Those are the sorts of supports—bail supervision programs and reintegration programs—we want to implement at the institute so that people are fully reintegrated in a way that's beneficial to community safety. That's some of the work we're trying to do.

Racism is pervasive in the justice system—I think that's clear—and the response has to be multi-faceted, as I said in my opening statement.