Justice Committee on April 26th, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 12 of the House of the Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of Thursday, March 31, the committee is meeting to study Bill C-5, an act to amend the Criminal Code and the Controlled Drugs and Substances Act.

Today's meeting is taking place in a hybrid format, pursuant to the House order of November 25, 2021. Members are attending in person in the room and remotely using the Zoom application. The proceedings will be made available via the House of Commons website.

I would like to welcome our witnesses to the committee's first meeting with witnesses appearing in person since we started this parliamentary session.

We have here in person two witnesses from Mothers Against Drunk Driving, Eric Dumschat and Steve Sullivan. We have, from the Canadian Bar Association, Jody Berkes and Tony Paisana. They are appearing virtually. From the South Asian Bar Association of Toronto, we have Janani Shanmuganathan, director. I think her camera is probably off, but she's there, I believe.

Each one of you will have five minutes as a group; you can split it among your team. Afterwards there will be rounds of questions.

I will give you and the questioners a 30-second warning signal, and then I will give an “out of time”. I try to be as liberal as possible in that respect.

It's now over to you. We'll begin with The Canadian Bar Association.

[Tony Paisana, Counsel, The Canadian Bar Association]

Thank you, Chair.

My name is Tony Paisana. I am the chair of the CBA's criminal justice section. I am joined by my colleague Jody Berkes, the immediate past chair.

The CBA represents approximately 36,000 lawyers, students and jurists across Canada. The criminal justice section, in particular, comprises a mix of both Crown counsel and defence counsel, and it's from this unique, balanced perspective that we appear today and offer our commentary on Bill C-5.

I will be addressing you on the provisions in this bill relating to CSOs, or conditional sentence orders, and Mr. Berkes will deal with mandatory minimum sentences.

Put simply, the CBA supports Bill C-5. As stated in our brief, this legislation will lead to a fairer and more just sentencing regime, one that recognizes that criminal offences can be committed in various ways and that one size does not fit all, particularly when it comes to offenders from traditionally marginalized communities.

The lifting of prohibitions on CSOs is among one of the most important reforms in the criminal law over the last decade, in our view.

We make several points about CSOs, but I'll highlight three here.

First, CSOs are vital to the proper functioning of the criminal justice system and to ensuring that non-dangerous offenders are encouraged to rehabilitate rather than harden themselves within our prison system. I emphasize and reiterate that CSOs, by statute, can only be granted to non-dangerous offenders who commit an offence deserving of less than two years in custody.

Second, making CSOs available does not mean that you will receive them. Indeed, I successfully argued a constitutional challenge to some of these very provisions in a drug trafficking case called “Chen”, but the trial judge nonetheless sentenced my client to nearly four years in custody. The sky did not fall, but as a result of that decision, numerous other marginalized accused in British Columbia have access to CSOs where appropriate.

What we are talking about is affording sentencing judges more discretion, not less. Suggestions that serial rapists, human traffickers or other serious offenders will now be liberally afforded CSOs are fanciful, in my respectful view. These people will continue to go to jail, as they always have.

Third, the need for reform is urgent. As a result of a patchwork of constitutional challenges across the country, Canadians have inconsistent access to CSOs. If a drug-addicted mother of three commits a low-level trafficking offence to feed her addiction in the Downtown Eastside of Vancouver, she is eligible for a CSO in B.C. If that same offender commits that same offence in Winnipeg or Edmonton, she is not. This lack of uniformity is troubling and inconsistent with our federal system.

Each day that goes by, more non-dangerous offenders are sentenced to jail when they might otherwise be provided an opportunity to rehabilitate in the community, where access to programming, work, treatment and counselling are more accessible and cost-effective to the state.

Those are my comments on CSOs. I'll now turn it over to Mr. Berkes to touch upon mandatory minimum sentences.

[Jody Berkes, Counsel, The Canadian Bar Association]

Good afternoon, Mr. Chair.

As Mr. Paisana mentioned, my name is Jody Berkes. I join you today from the traditional territory of the Wendat, the Anishinabek Nation, the Haudenosaunee Confederacy, the Mississaugas of the Credit First Nation and the Métis nation. This land is covered by the Dish With One Spoon treaty.

If there is one message that the CBA has for the committee, it is this: Bill C-5 is not soft on crime. If and when Bill C-5 is proclaimed in force, it will not prohibit any judge from sending a single violent offender to jail. On the other hand, it will allow non-violent offenders who deserve a second chance an alternative to incarceration.

Mandatory minimum sentences have contributed to overcrowding in prisons, an over-incarceration of marginalized communities and increases in court delays as people litigate matters when they are guilty, instead of resolving them. Additionally, mandatory minimum sentences have distorted the principles of sentencing. The fundamental principles of sentencing from the common law are now codified in section 718.1 of the Criminal Code. Those principles are that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

As a result of mandatory minimum sentences, instead of a sentence tailored to the seriousness of the offence and the record of the offender, we have a one-size-fits-all approach of jail for everyone, regardless of their circumstances. Allowing non-violent offenders to serve sentences in the community allows offenders to work to support their families, receive treatment for the addictions that caused their offending and give back to the community they harmed through restorative justice measures.

On the other hand, mandatory minimum sentences simply warehouse people until they can be released, often with diminished life skills and prospects for employment, and untreated for the problems that caused them to offend in the first place.

My colleague Mr. Paisana has spoken about the changes to the conditional sentence regime in Bill C-5, but the short answer is if an offence carries a mandatory minimum sentence, it is ineligible for a conditional sentence. As a result, without eliminating mandatory minimum sentences, the other aspects of this bill are useless.

Bill C-5 represents the first step in recognizing the harmful effects of mandatory minimum sentences. The CBA supports the repeal of all mandatory minimum sentences, except for murder. There is no harm prevented by mandatory minimum sentences but a lot of harm caused by them.

We look forward to answering the committee's questions.

[The Chair, Liberal, Randeep Sarai]

Thank you. Thank you to the Bar Association.

I will go to Mothers Against Drunk Driving. It's over to you for five minutes.

[Eric Dumschat, Legal Director, Mothers Against Drunk Driving]

Thank you very much.

Mr. Chair, members of the committee, we appreciate the opportunity to speak with you about Bill C-5 today. My name is Eric Dumschat. I am the legal director for Mothers Against Drunk Driving Canada. I am pleased to be sharing my time today with my colleague, Steve Sullivan, who is our director of victim services.

Much of the information we will discuss today here is expanded upon in the written brief that we've submitted to the committee, and this includes the appropriate reference information.

MADD Canada is a national charitable organization with the mission to stop impaired driving and to support victims and survivors of this violent crime. We have volunteer-led groups in over 100 communities across the country, and indeed many of our volunteers are themselves victims and survivors of impaired driving.

Our work is aimed at providing support to victims and survivors, raising awareness about the dangers of impaired driving and saving lives and preventing injuries on Canada's roads. We are here today to talk about the provisions of Bill C-5 dealing with conditional sentences and how they would impact victims and survivors of impaired driving.

If the bill is enacted in its current form, it would allow for the return of conditional sentences for any first-time impaired driving offender who met the eligibility criteria, including those convicted of impaired driving causing death or the associated refusal offence.

To put this in context, in 2018, as part of Bill C-46, the government repealed, revised and re-enacted the Criminal Code transportation offences. As a result of this, conditional sentences were allowed for some new impaired driving offences that were previously ineligible for them, so long as they were now tried by summary conviction. However, impaired driving causing death was excluded from eligibility for a conditional sentence, presumably because it was deemed sufficiently egregious to remain a purely indictable offence that carried a maximum sentence of life in prison. This decision is in line with the unanimous Supreme Court of Canada case of R. v. Proulx, which held that conditional sentences should not be imposed when the need for denunciation and deterrence is so strong that incarceration is the only way to express society's condemnation of the conduct or to deter similar acts in the future.

MADD Canada believes that impaired driving causing death and its associated refusal offence meets this criterion. We recognize that it would be uncommon to seek a conditional sentence for someone convicted of impaired driving causing death; however, any chance of this happening is too high when a life has been taken by the actions of another.

MADD Canada does not believe that a conditional sentence for impaired driving causing death should be an option at all. To allow the possibility for an impaired driver who has caused the death to serve his or her sentence outside of a prison would undermine the seriousness of the crime and adversely affect many victims and their families. We need to remember that this is a completely preventable crime that continues to occur despite years—decades—of advocacy and education efforts by MADD Canada, other organizations and indeed the Government of Canada, yet Canadians still make the decision to get behind the wheel of a car while impaired by alcohol or drugs, and in doing so, they take the lives of numerous Canadians each year.

We understand that the changes contained in Bill C-5 are made in part to address the systemic racism inherent in Canada's criminal justice system and we support this goal. However, the government has determined that some restrictions on conditional sentences are in line with this objective and are constitutional and that certain offences should remain ineligible for conditional sentences under Bill C-5. With this in mind, MADD Canada strongly recommends that impaired driving causing death in section 320.14(3) and the associated refusal offence in section 320.15(3) of the Criminal Code be added to the list of offences ineligible for conditional sentence in any circumstance, as has been outlined in clause 14 of Bill C-5.

Thank you for the time and the opportunity to present to you today. I'll now turn things over to Steve Sullivan, MADD Canada's director of victim services.

[The Chair, Liberal, Randeep Sarai]

Mr. Sullivan, I'll just remind you that you have about a minute.

[Steve Sullivan, Director of Victim Services, Mothers Against Drunk Driving]

Thank you, Mr. Chair.

MADD Canada is the only national anti-impaired driving organization in the country to provide services to victims and survivors of impaired driving. When conditional sentencing provisions were first enacted in 1996, families were outraged and felt revictimized by the imposition of house arrest for someone who took the life of their loved one.

Losing someone in an impaired driving crash is extremely difficult to deal with because it is something that is totally preventable and because these deaths are not seen to be as serious as other criminal deaths like homicide. In 2007, the federal government enacted Bill C-9, which narrowed the categories and excluded impaired driving causing death. MADD Canada and our volunteers—many of them have lived experience—worked hard to eliminate conditional sentences for impaired driving causing death.

People we support suffer from PTSD, depression and anxiety. Many feel sentences for impaired driving causing death do not reflect the harm that has been caused. For families, the intent and motivation of the offender is not significant. In recent years, courts have recognized the need for stricter sentences for impaired driving causing death, but we believe to allow for the possibility of conditional sentences in these cases, which are entirely preventable acts, suggests they are not a serious crime.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Hopefully, if you have more, we'll be able to extract it in the questions.

Next, for five minutes, we have Janani Shanmuganathan, from the South Asian Bar Association.

[Janani Shanmuganathan, Director, South Asian Bar Association of Toronto]

Thank you to the standing committee for the invitation to present today.

I'm a board director of the South Asian Bar Association, the largest diversity organization in the country. I'm also a criminal defence lawyer.

Almost seven years to the day, the Supreme Court of Canada released R. v. Nur, a decision in which the Supreme Court, for the first time in 30 years, struck down a mandatory minimum sentence. I had the privilege of being counsel for Mr. Nur at the Supreme Court and I have worked on several challenges to mandatory minimum sentences since then. I come before the standing committee today with the benefit of litigating these challenges and with the stories of my clients who actually faced the mandatory minimum sentences that Bill C-5 would repeal.

There is one particular story that I want to share today. It is the story of my youthful client who, with no criminal record, walked into a convenience store holding a BB gun he previously bought from Canadian Tire, showed it to the store clerk and stole $100.

He was an alcoholic at the time and extremely drunk when he committed the offence. He used the $100 to buy even more beer. He was caught within a couple of hours and immediately confessed. In the time between his arrest and sentencing, he completely turned his life around. He enrolled in university, got into a relationship, regularly attended Alcoholics Anonymous and became a facilitator for Alcoholics Anonymous. The last sip of alcohol he had was on the day he committed the offence.

This client, this real person, received a 12-month jail sentence because that's what the mandatory minimum sentence demanded. No one in that courtroom—not the lawyers, the judge or the court staff who heard his story—thought that this person should go to jail for 12 months and be stripped from the prosocial life he had developed only to be locked up in a jail cell, but they had no discretion or choice. In the trial judge's words, it was heartbreaking to send this person to jail, but she had no choice.

What Bill C-5 would do is introduce discretion into the criminal justice system again, the discretion to consider the circumstances surrounding the offence and the moral blameworthiness of the offender and to ask, “What sentence does this person actually deserve?”

I also come before the standing committee today as a director of the South Asian Bar Association and a racialized lawyer who represents the racialized accused. When I walk into a courtroom or a jail and look at the faces of the accused whom I see, they resemble my own. So often, they are racialized. The empirical evidence backs up my lived experience. Study after study has revealed that Canada has a problem with the overrepresentation of indigenous and Black offenders in jail.

If this problem of overrepresentation matters to us as a country, then we need legislation like Bill C-5. We need to give trial judges the discretion to let people serve their sentences in the community or to shorten their jail sentence to only what's necessary. Without such discretion, judges don't have the ability to consider the systemic factors that contribute to the commission of crime: colonial legacy, residential schools, poverty, over-policing of certain communities.

Bill C-5 is not about being soft on crime. Offenders who deserve long jail sentences will continue to get those sentences. Bill C-5 is about proportionality and giving judges the discretion they need to ensure justice is done.

Thank you again for the opportunity to present today.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Shanmuganathan.

I will next go to our first round of questions, beginning with Mr. Moore for six minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you to our witnesses for the testimony they provided. It is good to see some of our witnesses here in person, because that's a first for our committee. I hope to see more of that in the future.

We heard the characterization of Bill C-5 as some offenders just needing an opportunity to “give back to the community”. As someone who was involved in the drafting of Bill C-9, which ended the practice of giving conditional sentences such as house arrest for crimes like criminal negligence causing death, manslaughter, impaired driving causing death, aggravated assault, aggravated sexual assault, sexual assault with a weapon, kidnapping and torture, I can tell you that these are serious offences. To pretend that somehow someone who's committed these offences should immediately be given a chance to go back into the community so they can “give back” is absolutely ridiculous.

Every case before a judge is different and every one of them brings its own unique challenges. Mandatory minimum penalties and house arrest have their place, but for serious offences, we need to make sure that our communities are protected and that offenders can get the help they need.

Using a firearm in the commission of an offence, weapons trafficking, robbery with a firearm and extortion with a firearm are things we hear about every day as parliamentarians. We hear about gun violence. These are currently offences that require someone who's been found guilty to serve jail time, as they should. This bill would end that. Obviously it should be a concern for all Canadians, whether they live in rural or urban areas.

As I mentioned, as parliamentary secretary to the minister of justice at that time, I was happy to work with organizations such as MADD Canada, which supported Bill C-9. They were looking at these offences from the perspective of the many victims they represent, as well as protecting Canadians from impaired driving. It's hard to believe, in fact, in my opinion, that we're back here discussing some of these offences after the hard work that went into correcting the imbalance in our justice system.

I will pose my question to MADD Canada.

Could you tell us how the legislation from 2007 impacted victims of impaired driving, and why victims of impaired driving and their families were calling on changes to the legislation as it was?

[Steve Sullivan]

Thank you, Mr. Chair.

As we mentioned, MADD Canada was very much involved in the discussion and debates around Bill C-9 back in 2007. We brought a message from the families we work with and support, families that had lost a loved one or multiple loved ones: House arrest and conditional sentences were not appropriate for impaired driving causing death.

We have seen sentences increase generally over that time, and I think it's important that the courts have recognized that an essential message needs to be sent in terms of denunciation and deterrence. The idea, however, that we could step back and possibly allow conditional sentences for impaired driving causing death is hurtful and harmful to many of the families we support. They feel it could re-victimize them.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Sullivan.

In your brief, you stated that many of the individuals with whom MADD Canada works feel that sentences for impaired driving-related deaths do not reflect the harm that was caused. In a September 2020 letter to the Prime Minister, you stated that, “in too many cases, we are the only support victims and survivors have”. We've heard, in this justice committee, about the need for support for victims and their families.

Since impaired driving is often not a priority for government-funded victim services, could you share what, if any, consultation MADD Canada had with the federal government on Bill C-5? I know you were consulted widely on Bill C-9 when some of these changes were first put into effect. These are changes that will impact the families of victims of impaired driving and put impaired drivers back on the street rather than in jail. Could you talk about consultations you've had with the federal government on this?

[Steve Sullivan]

We did have an opportunity to discuss the previous bill, Bill C-22, I believe, with department officials. We also met with the then parliamentary secretary to the minister of justice and expressed exactly the same sentiment we're expressing here today.

[Rob Moore, Conservative, Fundy Royal, NB]

I only have one minute left. Time flies.

We appreciate the work that you're doing because you bring forward the perspective of victims and their families. It is important for us as parliamentarians that the Criminal Code reflect Canadian values and a balance in our justice system that treats everyone fairly. I always like to err on the side of protecting our communities and victims and listening to the concerns of the families of victims who are no longer with us.

You stated that victims and survivors should not be sacrificed to safely return offenders to the community and that you believe that the well-being of victims and survivors should be balanced with the safe integration of offenders. I think most of us support the safe integration of offenders.

Could you expand a bit on how you reconcile those two things?

[Steve Sullivan]

I think all of the folks we work with appreciate that at some point individuals will come back to their communities. Their number one concern is that people do not recommit and harm another family. We support people changing and rehabilitation, but at the same time those decisions can impact the people who have been most affected by the crime. We want to make sure, whether it's a parole decision or probation, that we take into consideration their concerns and their needs as well.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Now it's over to you, Ms. Dhillon, for six minutes.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Mr. Chair. My questions will be directed to Ms. Shanmuganathan.

I'd like to start with something we've been seeing more and more of, which is the overrepresentation of people of colour and indigenous people in the criminal justice system.

Can you please talk to us about the impact of mandatory minimum sentences on these communities and community members who come from financially disadvantaged backgrounds?

[Janani Shanmuganathan]

What mandatory minimum sentences do is handcuff the ability of trial judges to give what they feel is the appropriate sentence for a particular offender.

What we know from the empirical evidence is that members of racialized communities are overrepresented in the criminal justice system. They are arrested disproportionately to their representation in their community. They're convicted. They're sentenced for longer periods of time. What mandatory minimum sentences do is force judges to send these particular members of the community to jail, even when, outside the mandatory minimum sentence, they wouldn't have to go to jail.

The reality is that these members of these marginalized communities may not have the resources to fight mandatory minimum sentences and the challenges in the courts, so they end up getting a sentence that they otherwise would not have received.

Bill C-5, through introducing discretion to trial judges, will hopefully alleviate the problem of overrepresentation.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

We've seen that minimum sentences have been in place for over a generation. Do you find they've had an impact in general or that they've really harmed marginalized, racialized communities, in your opinion?

[Janani Shanmuganathan]

I can only speak based on the experience I have representing certain communities and based on my review of the empirical evidence. The empirical evidence shows that mandatory minimum sentences don't deter crime. Simply having a mandatory minimum sentence in the book doesn't mean that a prospective offender is going to see that minimum and then decide not to commit the offence.

The things that are going to help alleviate crime are investing in resources in the community, such as by addressing issues of poverty, over-policing and those kinds of systemic issues.

If mandatory minimum sentences don't deter crime, the harm that they produce, in my view, is disproportionate. We send people to jail for long periods of time when they shouldn't be going to jail for those long periods of time.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

In your opinion, what are some of the impacts on somebody who receives a mandatory minimum sentence if it's their first offence and it's the first time they're being sentenced to a sometimes harsh sentence?

Can you talk to us a little bit about how it impacts them as a member of society?

[Janani Shanmuganathan]

Sure. It's the impact generally of sending a person to jail, and the story outlines this person who is a youthful offender with no criminal record who essentially rehabilitated himself and become a prosocial member of society. He is suddenly stripped from his life, his family, his friends, his job and his Alcoholics Anonymous meetings and put into a jail cell for 12 months. Stripping this prosocial person away from the community and making him serve a jail sentence simply because it's a jail sentence that the code requires is not good for him, and it's not good for society as a whole.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

In your opinion, can mandatory minimum sentences force those from disadvantaged backgrounds to relinquish their rights to be heard in court because they don't have adequate resources or legal representation and don't get the same, equal treatment they should get?

[Janani Shanmuganathan]

The danger of a mandatory minimum sentence is that it can act like an incentive, in that if a person is charged with an offence and is facing a mandatory minimum sentence if convicted and were to plead guilty to a lesser offence in order not to have to face that mandatory minimum sentence, it incentivizes the person to plead guilty to an offence even if they're not guilty of the offence. Even if the Crown can't prove the offence, they're incentivized to plead guilty just to avoid that mandatory minimum sentence.

Unfortunately, many of our accused who go through the criminal justice system don't always have the benefit of counsel and make these decisions with a cost-benefit analysis, and if they say, “Oh, if I just plead guilty to this, I don't have to go to jail for 12 months”, they may very well do that.