Justice Committee on April 26th, 2022

[Steve Sullivan]

I speak to victims and survivors every day.

To clarify, it's not repealing mandatory minimums for impaired driving; it's expanding the ability of judges to impose conditional sentences for a wider variety of offences, including impaired driving causing death.

I've talked to families from years ago, who may still work with us, about conditional sentences being handed down. In more recent times, I've talked to families about some of the things we're involved with and talked about the possibility of conditional sentences being reintroduced. Many are shocked. Those people we work with today can't imagine a time when a conditional sentence would be given for impaired driving causing death.

The families we talk to today about it—I don't even know what the words are—are just shocked that it could be a possible sentence for someone, who, by their own decision, has caused the death of someone else.

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

Thank you.

I want to ask the Canadian Bar Association a question. I think both Tony and Jody were talking about “non-violent” and how you could see the mandatory minimums being removed from “non-violent”, but would that mean that you don't agree that robbery with a firearm, extortion with a firearm or discharging a firearm with intent are violent? To me, all the firearm offences are pretty violent.

Even when we get into the expansion of conditional sentencing, there are some of these that would apply to kidnapping. Would you not consider that violent? In the case of an abduction of a person under 14, imagine telling the parents of that individual, “Oh yes, we're going to CSO because we're reducing some mandatory minimums.”

I just wonder if you do agree that some of these offences that are listed in Bill C-5 should remain because they are violent, and that in fact Bill C-5 could be amended.

[Tony Paisana]

I'll take this question, Chair.

One of the problems that I think surrounds this debate is that the focus remains on the black-letter wording of an offence, as opposed to the circumstances in which it is committed.

For example, take “robbery with a firearm”. When people say that, what comes to mind immediately is the person with the gun in their hand holding up the bank. What doesn't come to mind is the drug-addled assistant to the robber, who is driving the car and has no idea or is willfully blind to the fact that someone is going to go into a store with a weapon. Is that person in the same circumstance as the person holding the weapon? Clearly not, but they're going to be treated the same under a mandatory minimum, because one is a party and one is a principal, and under the law, those things are the same.

When we speak of offences in the singular terms of how they're written down in the law, we lose sight of the fact that they can be done in a wide variety of circumstances, and when we think about conditional sentences, that's particularly important.

Think about drug importing. We all think of the major drug trafficker who brings kilos and kilos into the country. We don't think of Cheyenne Sharma, the appellant in the Sharma case before the Supreme Court of Canada, who was raped at 13, was a sex worker at 15 and was trying to feed her family by taking on a task at the behest of someone who was exploiting her.

In my respectful view, it is overly simplistic to look to just the name of the offence and close the book. What we have to think about is not just the evidence, but what happened.

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

Yes. Thank you for that. I have just a short time.

I do agree in some cases about robbery with a firearm, but when you look at a victim who doesn't know the difference between a pellet gun and a nine-millimetre or .45 calibre gun, I find it a little hard to imagine that we're going to remove mandatory minimums because somebody couldn't identify whether or not it was a pellet gun.

Let's talk about drug offences and the production of crystal meth. How can someone possibly say, “Yes, go ahead and produce it, and let's remove mandatory prison for drug dealers.” We have an opioid crisis on our hands in Canada. If we start dealing with removing mandatory minimums for trafficking and what you're talking about, what are we saying now to the victims and to the people we should be helping?

Do you not agree that maybe we should be spending way more time on crime prevention, not crime reduction? I do agree with you that putting people in jail isn't exactly the answer, but—

[The Chair, Liberal, Randeep Sarai]

Unfortunately, we're out of time. I'm sorry about that.

Next I'll go to Mr. Naqvi for five minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Mr. Chair.

I am going to go back to Mr. Paisana to talk a bit more about conditional sentence orders.

Perhaps just so that we are all understanding from the same foundation, describe to us your understanding of some of the key features or elements of CSOs. What makes them unique? Why do you think they are an important tool to have in the Criminal Code?

[Tony Paisana]

The conditional sentence order was an elegant solution introduced by Parliament in the 1990s to address the problem of overincarceration. Why it was elegant is that it was a scalpel instead of the sledgehammer of jail.

What it did is tailor a sentencing option to people who were, first of all, non-dangerous; second of all, who could be properly managed in the community; third of all, who had committed an offence deserving of less than two years in jail that was, fourth of all, an offence for which the deterrence and denunciation requirement could be addressed by a community sentence.

That was incredibly innovative and important progress in the law because it addressed a subsection of offenders who had committed a mistake and had done something terrible in their lives but who had a great prospect of rehabilitation. It's the kind of thoughtful, insightful criminal law policy that distinguishes us from other jurisdictions like our neighbours to the south, who take much more of a sledgehammer approach than a scalpel approach. I think it is more appropriate to our system.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Can you speak to the impact of the non-application or non-use of CSOs on the criminal justice system in particular and people within the criminal justice system? What have you seen in your practice and heard from other colleagues within the Canadian Bar Association?

[Tony Paisana]

You see two important knock-on effects as a result of CSOs not being available.

The first is the obvious one, which you've heard a lot about today. People who would otherwise properly serve their sentence in the community and rehabilitate are forced into the jail system. I don't think there's any real debate that they are not going to rehabilitate there to the extent that they would in the community.

You also see the opposite end of the spectrum. Individuals are getting suspended sentences instead of the more harsh version of a sentence in the form of a conditional sentence because the parties that are litigating and the judges who hear the cases realize it would be completely unjust to send the person to jail. They are left with only one other alternative, which is simple probation. Rather than unjustly sending the person to jail, they give them something less than a conditional sentence and probation. That doesn't do anything for the administration of justice either.

When we take away the discretion of this elegant middle option, we're really forcing people to go to one end of the spectrum or the other and avoiding the obvious answer, which lies in the middle and is often the conditional sentence.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Can you further speak to the impact on indigenous people, Black people and people of colour of not having CSOs available within the tool kit of the criminal justice system?

[Tony Paisana]

This is one of the great ironies of Bill C-10 in taking away conditional sentences. The conditional sentence was introduced primarily in response to the problem over incarceration in the 1990s of indigenous and other marginalized communities. In the 25 years since, that problem has only become worse with these restrictions being put on CSOs.

The very purpose of this thing was to give the system greater restraint and a greater toolset to deal with communities that are overrepresented. By removing it, we have simply exacerbated the problem, in my view.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

When Bill C-5 is passed into law, what opportunity do you see as it relates to CSOs being available as a way of sentencing?

[Tony Paisana]

It will significantly expand the eligibility of offences that we don't really think about when we think about violent offenders. The scope of offences that is captured by the current prohibitions against CSOs is staggering. It includes things like forging a passport, contraventions of the Competition Act and other offences that one does not associate with the serious offending that it was said to be targeted towards. It will unlock CSOs for a number of offences for which it would be appropriate.

I reiterate what I said earlier today. This is only about giving more discretion, not less. If jail is appropriate, be it under two years or over two years, that discretion will remain the same. That includes offences like drinking and driving causing death. That's an offence for which the range of sentences across this country is in the years and sometimes double digits.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you. My time is up. I really appreciate your participation.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Naqvi.

Next we'll go to Mr. Fortin for two and a half minutes.

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

Thank you, Mr. Chair.

My question is for Jody Berkes, of the Canadian Bar Association.

I quite agree that mandatory minimum penalties aren't really helpful to the courts in dealing with the cases before them, but I also think that what we do as lawmakers sends society a message. We pass laws, we amend laws and we repeal laws day in and day out. We have been doing that since the earliest days of Confederation, even since the beginning of time, and we probably always will. I believe that legislation should match the realities of society, that it should be appropriate and that it should be a tool that helps the people we represent.

Right now, some regions of Canada are experiencing a rise in violence. My fellow member talked about the opioid crisis earlier. He is right. I am seeing it in my region as well, not to mention an increase in gun violence. On the news, I heard mothers being interviewed, and they were saying that they were afraid to send their children to school because kids in some schools had guns. That's pretty worrisome. Members of the public reach out and ask us to do something. Efforts are made, special police units are created to tackle gun smuggling and so on. Now, we are being asked to do away with mandatory minimum sentences.

Mr. Berkes, I heard you say earlier that perhaps an exception should be made for murder. I'd like to know whether you think it's necessary to make distinctions. The idea of eliminating mandatory minimum penalties today, in 2022, has to fit the reality of 2022, not the reality of 1970 or the reality of 2060, whatever that might be. In 2022, the public is worried about gun violence.

Shouldn't we show some restraint and caution in eliminating mandatory minimum sentences?

[Jody Berkes]

Thank you, Mr. Chair.

Mr. Fortin raises a very important point, which is that the members of the public whom he serves and whom all of the lawyers involved in the criminal justice system serve are aware of the public perception of what we do. The answer is that if we eliminate certain mandatory minimums or, as the CBA recommends, all mandatory minimums except for murder, it doesn't mean that people don't need to go to jail as denunciation of their conduct or that those using firearms in a violent way won't end up in jail. They will end up in jail. The fact that violent crime is on the rise while we have these mandatory minimums on the books is evidence that they don't work to deter that kind of crime. What we need is more enforcement.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Berkes.

Next is Mr. Garrison for two and a half minutes.

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

Thank you very much, Mr. Chair.

I want to go back to Mr. Paisana and his comments on the application of CSOs in the cases of drunk driving causing death or bodily harm. You quickly passed over the normal sentences for those, so I'm drawing a conclusion that what you said is that passing Bill C-5 in its current form would have relatively little effect on cases of drunk driving causing death because the sentence is almost always more than two years.

Is that correct?

[Tony Paisana]

That's correct. The range in sentences for that offence across the country in courts of appeal is in the multiple single digits and sometimes, depending on the circumstances, double digits. It's not uncommon to see six-, eight-, 10-year sentences. Of course, there was the famous Humboldt case that resulted in an eight-year sentence, for example.

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

Okay.

I want to go back to Ms. Shanmuganathan.

I appreciate that you were very clear that your expertise is in mandatory minimums, but I want to talk about another aspect of the built-in or structural racism, and that has to do with the effect of criminal records on those who have been sentenced for drug offences.

I wonder whether the clients you deal with have seen the long-term impacts of not being able to get diversions or dispositions that would result in no criminal record for employment and housing and those kinds of things.

[Janani Shanmuganathan]

Yes, absolutely. Being stamped with a criminal record has long-lasting, lifelong effects on a person. It can hinder their ability to be gainfully employed, to get housing, to move on with their lives in some meaningful way, and so if there are mechanisms to divert people away from a criminal offence or a criminal conviction and a criminal record, it is of course a welcomed option.

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

When you talk about housing, I know in my own community, there are some social housing and supportive housing programs that you're simply not eligible for if you have a criminal record. Is this the kind of impact that you're talking about, that you've seen with your clients?

[Janani Shanmuganathan]

Yes, absolutely. There are checks that are run on certain people in order to get housing in places, in order to get jobs, and if you become flagged as somebody with a criminal record, you're out of the running for those types of things.

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

I see I'm out of time. Thanks very much.