Evidence of meeting #13 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 community.
A recording is available from Parliament.
1:55 p.m.
Liberal
Lena Metlege Diab Liberal Halifax West, NS
Chief, do you have anything to say on that particular point?
1:55 p.m.
Tribal Chief, Saskatoon Tribal Council
I would agree just because I think the system has to change, and when you talk about that, let's focus on rehabilitation or prevention. How do we prevent somebody from being charged? If it leads to that hope clause, then so be it.
If people are convicted, what's the rehabilitation mechanism? We have to have those investments in there to really focus on these situations, because all I keep hearing about is the serious crimes. Well, how did we get to those serious crimes? If that hope clause is something that's going to do all that, I'm in full support.
1:55 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Chief Arcand, and thank you, Madam Diab.
Next we'll have two rounds of two and half minutes, and that will conclude this panel.
We'll begin with Mr. Fortin for two and a half minutes.
1:55 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Mr. Chair.
Ms. Dunn, I understand the concern you expressed in your testimony, and I would like to ask your opinion on one aspect Mr. Spratt addressed. He said that even in murder cases, mandatory minimum sentences should be abolished and the judge should be allowed to decide on the appropriate sentence. That may make sense. Mr. Spratt gave us the example of a woman who was charged with murder for killing her abusive partner and he told us about other situations like that. According to Mr. Spratt, in such a case, the mandatory minimum sentence could be detrimental to the woman who, in the circumstances, is also a victim. I would appreciate your comments on this.
Should we indeed abolish the mandatory minimum sentence for certain lesser crimes? I don't like to call them lesser crimes, because in my opinion, when someone commits a crime, it's always important. However, I am thinking of robbery with a firearm, extortion with a firearm and trafficking in firearms. These crimes seem to me to be serious enough that the mandatory minimum sentence should be maintained so that the public has confidence in the justice system.
As for you, given what Mr. Spratt has told us about situations such as a woman accused of killing an abusive spouse, don't you think we should abolish mandatory minimum sentences in certain circumstances?
2 p.m.
Executive Director, London Abused Women's Centre
There are no simple answers for this, to be able to answer this in two minutes, but what I do believe is that it needs to be looked at from the lens of violence against women. I urge the committee to look at the case of Helen Naslund. That might provide you with some answers to your question.
I believe repealing some mandatory minimum penalties over others does nothing for public safety. I believe all of the mandatory minimum penalties should be considered with the lens of violence against women.
2 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Monsieur Fortin.
Now we'll go to Mr. Garrison for two and a half minutes.
2 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Mr. Chair.
I want to return to Chief Arcand and ask somewhat of a leading question.
Chief Arcand, I think there's a popular opinion that criminal records somehow keep the public safe. This bill doesn't have a provision which I think might be quite useful, and that's for the automatic expungement of criminal records for personal possession of drugs so that, say, after a year, those criminal records would be erased.
What kind of impacts would a provision such as this have in your community?
2 p.m.
Tribal Chief, Saskatoon Tribal Council
If we focus people on sending them to treatment as their punishment, it's going to help them deal with their trauma. When you talk about expunging their criminal charge after one year, they should be able to complete that sentence and follow the guidelines that are going to make them better at making better choices so they don't get into that situation.
You'll see more success in people. It's like a second chance for those kinds of charges that will stop them from simply crossing the border to take their family into the United States, right? Things like that will really benefit the program, but sentencing them to try to get help with that addiction is going to really benefit our society and our communities.
2 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Again, thank you very much for your testimony.
I want to take the last minute I have here with Mr. Spratt.
Mr. Spratt, I think you told us at the beginning that Bill C-5 is not a real response to the opioid crisis and that you're looking to see the government do something more comprehensive when it comes to addressing that. Is that correct?
2 p.m.
Partner, AGP LLP Criminal Trial and Appeal Lawyers, As an Individual
That is right. We have seen that giving the police more discretion doesn't work. We've seen that through the 2018 legislation meant to deal with administration of justice offences, and I have talked to individuals.
On her podcast, I talked to a young woman who had lost her brother. He was charged. That charge may have been diverted, but because he was charged and it was dealt with through the criminal justice system, he wasn't able to get into treatment. He later died of an overdose.
The act of criminalization, even if there is a diversion option down the road, is a harm in and of itself. We need to move toward decriminalization and safe supply. Too many people have died.
2 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
We will, of course, as members of the House of Commons, have a chance to address decriminalization and safe supply in a private member's bill. Gord Johns' bill is going to come to a vote in about three weeks in the House of Commons.
In the last 30 seconds we have here, can I ask you—
2:05 p.m.
Liberal
The Chair Liberal Randeep Sarai
You're welcome. Thank you, Mr. Garrison.
Witnesses, I want to thank all of you for your invaluable testimony and your time and commitment to show up and give your thoughts and your insight.
I will now ask the clerk to suspend for a few minutes to do sound checks.
The witnesses are dismissed. You are more than welcome to stay and watch, but I think from this video presentation you will be dismissed and we'll welcome the other ones.
We'll give it a minute or so until the clerk lets me know that we're good to go. Thank you.
2:05 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Clerk.
Welcome back.
I want to welcome the next round of witnesses. We have André Gélinas, retired detective, from the intelligence division of the Service de police de la Ville de Montréal. We also have, from the Canadian Association of Black Lawyers, Raphael Tachie, president, and Jacqueline Beckles, secretary. We also have, from the HIV Legal Network, Sandra Ka Hon Chu, co-executive director.
Each group will have five minutes to give an opening statement and then there'll be rounds of questioning. I'll raise a green folder when there are 30 seconds left in your time, just to give you a warning to wrap it up. If not, I will unfortunately have to interject at the end.
We'll begin with André Gélinas for five minutes, please.
2:05 p.m.
André Gélinas As an Individual
Good afternoon, Mr. Chair.
The current stance of this bill is an admission of failure by successive governments and a failure of our country's social services. It is also an incoherent attempt to camouflage the criminal reality by trying to make it disappear. It is an attempt to shift the responsibility for reducing the numbers of people from black, indigenous and marginalized communities onto the judges by encouraging them to be lax. This is certainly not an appropriate way to reduce the number of members of these communities in the prison population.
The role of the courts is to ensure that the law applies equally to all. That is why the statue representing justice wears a blindfold: it judges the facts, and it must do so straightforwardly. It is not her role to drive down statistics, costs or proportions, or even to care.
For the police and society, a criminal is a person who does not respect the minimum rules we have given ourselves and who compromises the security, development, and well-being of his fellow citizens. The criminal is not a patient or a client as he may be for other entities.
The Criminal Code does not make you a good or nice person. It is the absolute minimum that one must abide by to function in society. It prohibits, as they say in Latin, malum in se, or evil in itself.
This bill is nothing more than a race to the bottom. It conveys the message that if you cannot meet the minimum requirements, they will simply be lowered to avoid your being held accountable for your actions, actions that put citizens' lives at risk. Again, we are talking about gun crimes.
As we all know, particularly the police, the number of illegal firearms is skyrocketing. It is virtually only these weapons that we find in seizures, at crime scenes or in the possession of criminals. The more illegal guns there are, the more they will be used for crimes that are covered by this bill and committed by members of criminal organizations, including street gangs.
Violence and the use of firearms are the basis for controlling an illicit territory or activity, such as prostitution or the sale, production or importation of drugs. This is exactly what the various criminal groups and their members do in perpetrating the criminal acts covered by this bill.
It must be understood that it is the users of illegal weapons who are at the heart of the problem. It is not hunters or marksmen, but members of street gangs or other strains of organized crime. These people are particularly resistant to attempts at social reintegration because of the intrinsic workings of their criminal organizations. It is totally false and naive to believe that a criminal can absolve himself of any connection to biker gangs, street gangs or different types of mafias.
The crimes covered by the bill allow individuals to advance in a criminal organization, climb the ranks and position themselves as violent leaders in their groups, neighbourhoods or communities. In short, it is the preferred way to promote oneself in the underworld using firearms. For them, violence is everything.
Reintegration is possible for some criminals with particular problems. This is not the case for those who use in the commission of their crimes, as they do so for criminal organizations in order to protect or further their illegal and highly lucrative activities. If we are to have any hope of countering this problem, it is imperative that we act upstream, because once we get into the operations, it is usually too late.
I seriously encourage you to listen to what the police will have to say about the total lack of coherence and deterrence in this bill. The police have the big picture, and contrary to what some may think, they are very clear-eyed.
We deal with the criminals and the victims. We see with our own eyes the devastating result of these illicit activities committed with, among other things, illegal firearms. Sometimes we walk in the blood of their victims, whose complaints we hear when they are frightened, injured or dying. We console their families and loved ones. Our 360‑degree view is the most complete that can exist. No other profession has such an insightful and broad view of the criminal landscape.
It's interesting to note that the groups calling for relaxation of the laws are usually those furthest from the commission of the crime, from the victims, from the actual violence and its consequences. I'm talking about the violence we witness first hand because of our mission and interventions, not the violence we can read about in a report or see on TV.
It is paradoxical and totally dichotomous to think that abolishing mandatory minimum sentences that apply to criminal offences involving firearms will have a beneficial effect on our communities. We are seeing a significant increase in the number of shootings in major cities such as Montreal and Toronto. The answer proposed in this bill is to abolish mandatory minimum sentences to satisfy the wishes of certain ideologues. This will only increase the arrogance already present in the criminals who commit the very acts the bill wants to target.
There will be no deterrence. It is as if, faced with a significant increase in school dropout rates and a decline in graduation rates, the strategy would be to lower the passing grade on final exams. This is a concept that defies logic.
The message this sends to the police who confront these criminals will only fuel discouragement and disengagement from these police officers. The same assumption could be made for Crown prosecutors, who are also bulwarks of justice.
This does not bode well for our collective security. As a society, we are facing an abdication and a retreat that is certainly not a solution to the overrepresentation of the communities targeted by this bill.
Finally, I would like to point out that nowhere in this bill is the word “victim” mentioned.
Thank you, Mr. Chair.
2:10 p.m.
Raphael Tachie President, Canadian Association of Black Lawyers
Good afternoon, Chair and honourable members. Thank you for inviting the Canadian Association of Black Lawyers to share our views on the bill.
My name is Raphael Tachie. I'm the president of the Canadian Association of Black Lawyers. I'm here with my colleague Jacqueline Beckles, the secretary of the association. I want to highlight that a lot of the comments I'm about to give have been the result of the impressive work of Ms. Beckles and our criminal justice reform committee. More importantly, they are a reflection of our lived experiences as Black people in Canada. When I hear about removing minimum mandatory sentences, the request to remove those is made by people who are further from the crimes. I'd like to highlight that many victims of crimes tend to be people from the same communities that are faced with overrepresenation in the criminal justice system.
We appreciate the opportunity to speak to you today. Our comments around Bill C-5 are really structured around three issues.
Generally our comments focus on the request that when considering criminal justice reform, we encourage the government to look at the status prior to sentencing. At the sentencing stage, the competing priorities need to be balanced, including community safety. There are significant strides that can be made much earlier, such as in diversion, which lead to the ultimate over-incarceration of members of the Black community in the criminal justice system.
Our comments are focused in three areas: mandatory minimum sentences, conditional sentence orders and evidence-based diversion.
With respect to mandatory minimums, Bill C-5 proposes to repeal a number of mandatory minimum sentences, especially the four-year mandatory minimums. While those are really laudable goals and we are encouraged by them, the five-year minimum sentences will remain where a restricted or prohibited firearm is used or where the offence is committed in connection with a criminal organization. This includes cases in which an offender is the subject of party liability, whether or not the weapon was in that particular offender's possession. As a result of that, the only avenue available to an offender in order to avoid a minimum sentence is that a prosecutor will act with their prosecutorial discretion and agree to resolve the charges by accepting a plea of a lesser offence. What this really means is that a Black person who is accused has to plead guilty in order to avail themselves of the opportunity to avoid a minimum sentence.
In order to address this possibility and in order to uphold judiciary discretion, CABL recommends eliminating all mandatory minimums for drug and weapons offences.
I heard Chief Arcand and the other panellists earlier speak about how mandatory minimum sentences restrict judges from imposing appropriate sentences on individuals and can prevent judges from really taking relevant factors, like systemic anti-Black racism, into consideration. Judges have been elevated to perform an essential function within the criminal justice system and they should be afforded the full discretion to perform that function, especially as we work really hard to make sure that the judiciary reflects the community in which they serve.
Mandatory minimum sentences often hamper real justice from being done. When they're included in legislation, the justification is usually that they are a deterrent, but much research has shown that these sentences do not often achieve that result and do not impact crime rates.
The second issue I would like to talk about is conditional sentencing orders. They are essential tools for combatting recidivism as they can allow for offenders to maintain familial ties, employment and school commitments. Chief Arcand spoke about being holistic in our approach. We agree entirely with that, and with the focus on keeping these ties really as a focus to promote the social determinants of justice, making sure that offenders have the ability to recover from what might be a one-time mistake. Removing the limit formerly found at paragraph 742.1(c) and expanding the application of conditional sentence orders are very good steps in the right direction.
However, we are mindful that, given the historical application of CSOs, it is important to reinforce that a CSO can be imposed where the court is satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.
Including and enforcing this language with respect to the bill will reduce the arbitrary limits on their use, such as requiring an offender to have an employment in order to be considered suitable for a CSO.
2:15 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Tachie. I'm going to have to stop you there, but hopefully you'll be able to answer in one of the questions.
Next we have, from the HIV Legal Network, Sandra Ka Hon Chu for five minutes.
April 29th, 2022 / 2:15 p.m.
Sandra Ka Hon Chu Co-Executive Director, HIV Legal Network
Thank you to the members of the committee for inviting us to speak about Bill C-5. I'm the co-executive director of the HIV Legal Network and I'm presenting today on behalf of my organization and the Centre on Drug Policy Evaluation.
Today I'm going to focus my remarks on the section of Bill C-5 that pertains to evidence-based diversion measures. Before I begin I'd like to endorse the recommendations made by the previous speakers calling for the restoration of conditional sentences and the repeal of all mandatory minimum sentences, or, in the alternative, an amendment to Bill C-5 that ensures that judges retain discretion to not apply mandatory minimum sentences if doing so would result in injustice.
I'll turn to the evidence-based diversion measures. Despite acknowledging in its declaration of principles the need to “protect the health, dignity and human rights” of people who use drugs, the stigma associated with the criminalization, and that “judicial resources are more appropriately used in relation to offences that pose a risk to public safety”, Bill C-5 stops short of repealing section 4 of the Controlled Drugs and Substances Act. This failure to eliminate criminal sanctions for drug possession completely undermines the principles underpinning the bill.
From 2014 to 2020, police in Canada made more than 600,000 arrests for drug offences. Two-thirds of those were for simple drug possession, yet more than a century of drug prohibition in Canada has not had an impact on the levels of drug consumption. As the Canadian Mental Health Association has concluded, contrary to the logic of criminalization, incarceration does not result in a cessation of substance use nor does it prevent harm.
As we outline in more detail in our submission, drug prohibition fuels stigma and discrimination against people who use drugs. Criminal records limit employment and housing opportunities. They affect child custody and restrict travel. The frequent contact the police have with people who use drugs leads to syringe sharing, rushed injection and isolation while using drugs. It creates barriers to accessing health services and contributes to epidemics of preventable HIV and hepatitis C infection as well as overdoses, which have resulted in nearly 27,000 deaths in Canada between January 2016 and September 2021.
Considering the ample evidence demonstrating the harms associated with criminalizing simple drug possession, and consistent with Bill C-5's declaration of principles, Bill C-5 should include a full repeal of section 4 of the Controlled Drugs and Substances Act.
Short of such a repeal, we recommend some amendments to the bill, in particular, in proposed section 10.1 regarding the declaration of principles.
We recommend that this section explicitly centre human rights and not frame drug use as primarily a health issue. It should acknowledge that most cases of drug use do not pose problems for the individual and that pathologizing drug use actually contributes to stigma.
It should reference the harms of criminalizing necessity trafficking. It is common for people to sell drugs to others in their network as a means of livelihood to support their own use and to avoid withdrawal or to provide a safe supply.
Finally, it should acknowledge the disproportionate impact of criminal sanctions for drug possession on Black, indigenous and other racialized communities, given the racist roots of Canada's drug control framework and the fact that Black and indigenous communities in Canada continue to be disproportionately charged, prosecuted and incarcerated for drug offences.
In proposed section 10.2(1), which outlines options for a peace officer who encounters someone in simple possession of drugs, an officer is required to “consider whether whether it be preferable, having regard to the principles set out in [the bill], to take no further action, to warn the individual or, with the consent of the individual, to refer the individual to an agency or service provider in the community”.
Despite this requirement, the subsequent section indicates that subsequent charges are not invalidated if a peace officer fails to consider these options. We recommend deleting this paragraph altogether as, in practice, it will completely undermine the purpose of the bill.
In proposed section 10.3, a prosecutor could, instead of laying criminal charges, opt for “alternative measures as defined in section 716 of the Criminal Code”. In the context of drug offences, this typically includes drug treatment courts, but such courts have been critiqued for being coercive, ineffective and posing numerous human rights concerns. They should not be presented as an alternative to decriminalization.
In proposed section 10.4 regarding a record of warning or referral, the police force “may keep a record of any warnings or referrals relating to individuals alleged to have committed an offence under subsection 4(1)”, which is the section that criminalizes simple drug possession.
This provision is contrary to the spirit of Bill C-5 and the declaration of principles. Police record-keeping would negatively affect the privacy of people who use drugs, could be used as a tool of surveillance and could undermine the potential to improve the quality of drug users' encounters with police. It is imperative that police not engage in monitoring, surveillance and record-keeping under the guise of reform of public safety. Therefore, we suggest replacing “may” with “must not keep records”.
I want to conclude by urging this committee to reject incrementalism and take bolder steps with respect to Bill C-5 that will more meaningfully address systemic racism and the harms of drug prohibition, including a full repeal of section 4 of the Controlled Drugs and Substances Act.
Thank you.
2:20 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Ms. Ka Hon Chu.
Now I'll go to the first round of questions, beginning with Mr. Morrison for six minutes.
2:20 p.m.
Conservative
Rob Morrison Conservative Kootenay—Columbia, BC
Thank you, Mr. Chair.
Thank you to the witnesses for being here. We especially appreciate the diverse knowledge that's here.
My question is for Mr. Gélinas.
Thank you for helping us focus. Sometimes we get the victims, and we also get the offenders. Sometimes the victims are not as vocal because they've been involved in some heinous crimes and they just don't feel comfortable talking about it. Thanks for bringing that up.
In law enforcement, I know that you're there, right front and centre, having to deal with the victims and dealing with the aftermath of serious and violent crime. It is interesting that you brought up the fact that in organized crime and gang activity, almost always, I believe—and you can correct me if I'm wrong—are illegal guns, yet here we are in the middle of not only this Bill C-5 that we are reviewing, but some other legislation that coming up for the seizure of what some people have called “weapons” or “guns that look like assault weapons”, and they don't specify or actually define that kind of gun.
I know that now in Vancouver, which is an area I'm more familiar with, ghost guns are quite popular. They're 3-D printed and used just one or two times. In your experience in dealing with organized crime and gang activity, do you deal with many people who have PALs or RPALs, who actually have legal guns, or are you almost exclusively dealing with illegal guns?