Justice Committee on May 3rd, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 14 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference 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 by using the Zoom application. The proceedings will be made available via the House of Commons website.

I'd now like to welcome our witnesses. Before I do, I just want to say that I use some really simple cue cards so that I won't have to rudely interrupt you. When you have 30 seconds left, either in your opening statement or in the questions, I'll raise this yellow card, and when you're out of time I'll raise the red card. Please be mindful of that and adjust your time accordingly.

Today, in our first round of witnesses, we have, as an individual, Dr. Julie Desrosiers, full professor of law at Université Laval; Anie Samson, a municipal affairs strategic adviser for the CBC; David Henry, executive director of the Association des services de réhabilitation sociale du Québec; and Raymond Contonnec, executive director of C.R.C. Curé-Labelle Inc.

I will begin with Dr. Julie Desrosiers, as an individual. Please go ahead for five minutes.

[Dr. Julie Desrosiers, Full Professor, Faculty of Law, Université Laval, As an Individual]

Good afternoon, everyone.

Thank you for inviting me to appear before the committee.

It is a pleasure to address you today.

My name is Julie Desrosiers. I am a professor of criminal law at Université Laval. I specialize in penology, that is, in sentencing.

I have written a lot about both minimum sentences and alternative measures. I am the co‑author, with Hugues Parent, of a reference work on sentencing entitled Traité de droit criminel: la peine that is widely used by the courts and cited by courts at all levels.

More recently, I co‑chaired the committee of experts on support for victims of sexual assault and spousal violence, which published a report entitled "Rebâtir la confiance", and so I am more well-known recently for those aspects of my professional career.

Today I am going to focus on minimum sentences and alternative measures, the subject of the bill before us. Because I don't have a lot of time, I'm going to focus on certain aspects of the bill. Of course, we can come back to the points that are of more interest to you during the question period.

What I would like to say, first, is that the bill proposes to abolish certain minimum sentences, but not all. Many more minimum sentences have been enacted in recent years than the ones covered by the bill. It is nonetheless a step in the right direction.

In general, abolishing minimum sentences has little impact on the case law, since the judgments that make it up involve crimes of average seriousness. Where it particularly presents problems is at the extremes. A judge who is dealing with a minimum sentence has their hands tied. To be clearer—which is what I generally do with my students—I invite you to look beyond the question of being for or against minimum sentences. We have to see the concrete problems that can arise.

Two situations have caused problems in the Quebec case law recently. The first concerns discharging a firearm with intent. We might think that this kind of offence is associated with street crime or organized crime, for example, but it applies in all situations where someone discharges a firearm.

I wanted to bring a case to your intention involving a suicidal indigenous man who was intoxicated and discharged his firearm in his home, over the head of a police officer who had come as backup, after the individual's wife called him. That man was liable to a minimum sentence of four years.

We also have to remember that minimum sentences apply to accomplices.

Another situation also raised a problem when a young woman aged 19 was given a minimum sentence when she was the driver for her spouse, who was the one who committed the robbery. The first sentence received by a 19-year-old woman with no criminal record was therefore a mandatory sentence of four years.

We can come back to these issues, but the decision to repeal certain minimum sentences is truly welcome, because it gives judges back their decision-making discretion in situations where the accused to not deserve long prison sentences.

I am very glad to see conditional sentences, that is, the opportunities to apply a conditional sentence, being expanded. This type of sentence has very strong penological potential that has not been exploited in Canada. Limiting the opportunities to use conditional sentences created a number of problems, in particular for indigenous individuals. We can also come back to this point in the question period.

The last subject I would like to talk about quickly is opportunities for diversion in drug cases, to stress that, here again, we must not be afraid of diversion, which in this case applies for both police and prosecutors. There are two possible cases where diversion applies. Here again, the possibility of diversion does not interfere in any way with the possibility of taking a case to court in situations where it is necessary to do so for public safety reasons.

I'm going to stop here, given that the time I have is very short. We can come back to these points during the question period.

Thank you for your attention.

[The Chair, Liberal, Randeep Sarai]

Thank you, and particularly for staying on time.

Next we have Anie Samson from the CBC.

[Anie Samson, Municipal Affairs Strategic Advisor and Political Analyst, Canadian Broadcasting Corporation, As an Individual]

Thank you very much for inviting me today to testify before this committee.

I am addressing you as a former municipal councillor for almost 25 years. I represented the most multicultural neighbourhood in Montreal, where there is a relatively high crime rate. It is the birthplace of street gangs and one of the 10 poorest neighbourhoods in Canada. So you will understand that I know a bit about the problem of street gangs, and it is from that perspective that I want to talk to you about firearms.

I was also co-chair of the executive committee of the City of Montreal and responsible for public safety, and it is mainly in that capacity that I want to speak today.

Why do these changes need to be made to mandatory minimum penalties, or MMPs?

We are told: "These reforms would target MMPs that are associated with the overincarceration of Indigenous peoples as well as Black and marginalized Canadians."

I would first like to address this subject from a perspective that we don't talk about much: the perspective of victims. Big cities like Montreal, Toronto, Vancouver and Winnipeg have experienced a significant increase in crimes committed with a firearm in the last two years. In Winnipeg, there were 850 in the last year, making Winnipeg the city with the worst crime rate in 2021.

Young adolescents have lost their lives simply because young people had access to illegal firearms. Those weapons have destroyed families, friendships and lives. It is too easy today to obtain illegal weapons to commit crimes. The problem isn't limited to legally registered handguns. It involves firearms bought on the black market, including on the street. Knowing the source of the problem and where it gets into the country, it would be appropriate to legislate to improve controls at the borders and around indigenous reserves, because we know that's the source of the problem. We believe this is part of the solution.

What will be the consequences for offenders of reducing MMPs?

Street gangs, like criminals, are well aware of how to get around the current law. The older ones use the younger ones, often barely 12 or 13 years old, and pay them to do the dirty work. That may be shooting at houses, to send a message, or at young people, as a warning, something that happens regularly, or selling drugs. They know very well that they will get a light sentence if they're caught.

What does Bill C‑5 do to protect our young people and deter them from taking this path?

It does absolutely nothing to deter them, in fact. Abolishing certain MMPs simply exacerbates impunity for these kinds of acts.

How do we tackle the rate of overincarceration?

In the summary of the amendments made by Bill C‑5, it uses statistics to show that the population that is overrepresented in prisons, indigenous communities and black and marginalized Canadians, should be treated differently. But the fact is that a criminal who uses an illegal firearm, regardless of their origin, is still a criminal. It would be incomprehensible to let criminals use firearms to kill, rob or threaten people without worrying about having to face the same consequences as other criminals for the same crime.

Is that the solution proposed in Bill C‑5 for reducing the prison population composed of those communities in order to balance the statistics?

Did you know that the victims of street gangs are also overrepresented and often, in a majority, come from the same communities?

I think the solution lies in working upstream. Is it reasonable that in 2022, our 12- and 13-year-olds have to pay for protection from older children in their school so they don't get beat up during the day?

Today, again, a young person was stabbed by a young criminal at lunchtime in the Saint-Michel neighbourhood.

Prevention programs have to be put in place targeting the problems that exist in the poorest neighbourhoods. By knowing the problem, we are able to put programs in place. I can tell you more during the question period, if you like.

This bill will decide what type of society we want to leave our children. Prevention and enforcement are solutions, and I am concerned about the consequences that these changes might make for reducing crime. There is concern about the fate of our criminals in prison, when at the same time there are hundreds of families mourning the loss of a loved one. Should the law not stand up for the interests of the public rather than the rights of criminals?

No one is born a criminal; they become one. Violence knows no colour, nor does death.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Samson.

Next is David Henry, from the association.

[David Henry, Executive Director, Association des services de réhabilitation sociale du Québec]

Good afternoon.

Thank you for having me here today.

I am a criminologist and the Executive Director of the ASRSQ, the Association des services de réhabilitation sociale du Québec, an umbrella group of over 70 community organizations that offer rehabilitation services to more than 35,000 people with criminal records a year, throughout Quebec.

I believe that the main problem with Bill C‑5 is that it is aimed only at certain mandatory minimum sentences and not all of them that need to be abolished. It leaves in place the harshest mandatory minimum sentences, including the mandatory sentence of life imprisonment, which is contrary to a sentencing policy based in part on the principle of rehabilitation.

For most of Canada's history, there were ten mandatory minimum sentences in the Criminal Code. As we speak, there are now 73. Only 20 mandatory minimum sentences are identified by Bill C‑5 for repeal, in whole or in part. I would also note that 28 mandatory minimum sentences have been found to be unconstitutional by at least one court over the years. I think it is absolutely necessary for judges to impose fair sentences based on the sentencing principles set out in the Criminal Code.

Abolishing mandatory minimum sentences doesn't mean making sentences lighter. It simply means giving judges back the discretion to impose an appropriate sentence based on the circumstances of the offence and the person who committed it. Mandatory minimum sentences are unfairly harsh, particularly for marginalized individuals, women, and indigenous people.

Personally, I find it hard to explain why elected members don't trust judges to impose an appropriate sentence. To my knowledge, there are no studies that would connect mandatory minimum sentences and crime rates. So mandatory minimum sentences don't protect our communities. A number of criminological studies have even shown the reverse: that when a sentence or parole conditions are too harsh, they may have a tendency, in some cases, to cause the recidivism rate to rise.

To summarize, I would say that the Association supports Bill C‑5, but it should be amended so that judges have discretion not to apply the mandatory minimum sentences that are not repealed in the bill, if they might cause an injustice.

Thank you for your attention.

I am available to answer your questions.

[The Chair, Liberal, Randeep Sarai]

Thank you.

I think you are sharing your time with Mr. Cotonnec, so we will have Mr. Cotonnec for the remaining two and a half minutes.

[Raymond Cotonnec, Executive Director, C.R.C. Curé-Labelle Inc.]

Good afternoon.

My name is Raymond Cotonnec. I have a bachelor's degree in social sciences with a concentration in criminology and a bachelor's degree in social sciences with a concentration in sociology from the University of Ottawa, and I am the Executive Director of C.R.C. Curé-Labelle Inc., a federal and provincial halfway house located in Saint-Jérôme, in the Laurentians, that has been in existence since April 1993.

The changes proposed in Bill C‑5 will give judges more discretion for imposing penalties or sentences on individuals convicted of certain firearms, weapons or substances offences by removing mandatory minimums for incarceration in those situations. Some individuals did not have criminal intent at the time of the offence or were not aware of the severity of their actions in relation to the potential legal consequences and impact on society.

The Criminal Code must not further restrict judges’ sovereignty in sentencing. The federal government must trust that judges possess the requisite judgment and experience when determining the appropriate sentence. The justice system can no longer afford to convict people who do not deserve the harsh sentences imposed by mandatory minimums, especially when there is no real or direct victim. In these cases, there is no need for minimum sentences. We must consider the harm done to victims and the community.

The consequences of a criminal record are significant for offenders, and, in some cases, they become cruel and disproportionate to the real consequences to the potential victims of that same offence. Some individuals who have committed a crime pay for their actions for the rest of their lives, even if there was no actual victim. Having a criminal record can prevent them from getting a good job, a promotion, a loan and reasonably priced insurance, or being able to travel—in short, from becoming a citizen again. Where an offender re-offends, the sentences imposed by judges can be harsher, obviously.

On the question of diversion when an individual is arrested for simple possession of drugs, it would be appropriate to modify the current procedure so the offender is referred to a therapeutic resource, such as addiction treatment, rather than receiving a punitive sentence like prison. Otherwise, recidivism is almost inevitable.

Thank you for your attention.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Cotonnec.

Now we'll go to our first round of questions, beginning with six minutes for Mr. Moore from the Conservatives.

[Rob Moore, Conservative, Fundy Royal, NB]

Great. Thank you, Mr. Chair, and thank you to all of our witnesses.

As we deal with what is a very important bill, I do know, from some of the background, some of the rationale behind the imposition of mandatory minimum penalties. Some of these penalties have been with us for a very long time, including many that are being repealed whose origins trace back to the 1970s. Please know that at times it's our job as parliamentarians to put into place laws that we feel provide balance for the justice system, balancing the seriousness of the offence with the protection of our communities and the input from victims and their families.

Ms. Samson from municipal affairs, you're a strategic adviser, a former mayor in the Montreal area and former head of public security in Montreal, so you certainly can speak with a lot of experience. I don't know if you saw a certain recent article, but your testimony made me think of it. Recently, we saw that people were using drones to try to bring handguns into Canada. That's what we're hearing from our expert testimony—namely, that a lot of the firearms that are being used criminally are in fact illegal firearms brought in from outside the country.

Unfortunately, in an effort to deal with gang and gun crime, we see the government, number one, cracking down on law-abiding citizens, and then, number two, providing softer sentences for firearms crime. Some of these are serious weapons offences: weapons trafficking, extortion with a firearm and robbery with a firearm. I fail to see, as one of the witnesses just mentioned, how someone could without intent commit robbery or extortion with a firearm or traffic a firearm.

Be that as it may, you have called on the Prime Minister to take action to curb gun violence, and you mentioned the lack of respect for life, the feeling of impunity among street gang members, who are favoured among other things by the laxity of the laws in Canada. You've already, as someone with a lot of experience, found that there is an impunity. What do you think the criminal element will make of our weakening the laws when it comes to gun crime?

[Anie Samson]

You have given a good summary of my thinking.

We have to say, most importantly, that actually, if the bill had been introduced five years ago, before the pandemic and before the rise in the number of crimes, when the numbers were falling, there would have been no problem, we would have said we were going in the right direction.

Registered firearms present no problems. In the last two years, unfortunately, illegal firearms are appearing on the streets. School-aged children can buy them on Instagram. They arrange to meet up and they go get one. These young people then pick on other young people in the park because they don't like them.

We have to stress the ease with which young people have access to violence, this desire to shoot everywhere you want without fear of getting caught. These young people say to themselves that because of their age, if they get arrested for the first time, they will just get a rap on the knuckles, and then they won't go back to it.

I have started prevention programs for five-year-olds. When I was elected mayor, some students in the elementary schools in my borough, or their brothers who were members of street gangs, were assigned to oversee activities and distribute drugs in the schoolyard. We're talking about children, some of them not yet five years old.

So then we said to ourselves that we had to solve this problem and get children to understand when they are young. We had to give these children access to programs and sports, make sure they eat properly, and make sure they can tell right from wrong. We have been succeeding in doing this for15 years. We have changed the lives of an entire generation.

We are now finding that these children have grown up. Some of them are crossing the line that separates them from crime, and that is often explained by poverty and the social environment where they are living.

I'll give you an example. A father came to see me to tell me he wanted his child to go to university. The child belonged to the Haitian community—all communities are represented in my borough. This father, a taxi driver, confided in me. He told me that since he and his family were now living in Canada, he wanted his child to go to university, to get a good job. But when he tried to persuade his son, the son said: "Dad, you know, on the weekend, I made the equivalent of what you make in a month. Why would I go to university?" The boy is a member of a street gang. For him, that was the easy solution.

When we ask these young people what they want to do in life, they tell us they just want to get through the day, because they don't know whether they will still be alive tomorrow. That is what life is like every day for some young people in the Saint-Michel neighbourhood.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you. That is powerful testimony indeed.

As you know as a former mayor, it's not only the individual who is sometimes victimized, but communities are also put at risk. What do you think is the message to our communities, both urban and rural, if we pass Bill C-5 when so many of these communities are struggling with gun violence?

[The Chair, Liberal, Randeep Sarai]

Unfortunately, we're out of time, but if you could submit that answer afterwards or, hopefully, answer it subsequently, that would be great.

We'll move next to Madame Brière for six minutes, please.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

I'd like to thank all the witnesses for being with us this afternoon.

I'm going to address my question to Professor Desrosiers, or Mtre Desrosiers, if I'm not mistaken.

Ms. Desrosiers, in your testimony, you welcomed the expansion of conditional sentences. You said that limiting that practice had contributed to the overrepresentation of marginalized communities in prisons, particularly among indigenous people.

Can you give us more details about this?

I would also like you to talk about the perhaps overly simplistic equivalence drawn between imprisonment and the objectives of deterrence and denunciation.

[Dr. Julie Desrosiers]

Conditional sentences were created in 1996 in the hope of emptying prisons of inmates who had received short sentences. No one ever questioned imprisonment for serious crimes that were dangerous to public safety. That was never part of the discussions at the upper levels of the government of Canada.

However, there were a lot of doubts about using imprisonment for short sentences, because for them, the harmful effects of imprisonment are much more significant than the positive effects they might have. There is no debate about this. No one in criminology would question the fact that short prison terms are harmful.

In Canada, at present, the overwhelming majority of sentences are for less than six months' imprisonment. A majority of sentences even falls below three months' imprisonment; I think that is above 60 per cent. There are some sentences of less than one month in prison.

So that means that these sentences could have been avoided and another kind of sentence could have been used, but it had to be invented. There has to be something else that has punitive potential and is not just probation in the community. That was what we invented in 1996. That is why I said it had strong sentencing potential. We wanted to institute home imprisonment. There were already conditions that meant it had to be a crime that was not dangerous to the public, in the case of home imprisonment, conditional imprisonment and imprisonment in the community.

The rug was cut out from under judges' feet. Judges said to themselves that if they could not impose conditional sentences and they didn't want to send the offender to prison, they had to find a solution. So they decided to impose intermittent sentences. As a result, there was an increase in what's called "weekend sentences": intermittent sentences, short sentences of under 90 days, that the person serves only on weekends.

However, they could not be accessed by indigenous people, since the prisons are too far from their communities. So they have to serve their entire sentence in prison. That was strongly criticized by the Viens Commission.

There are also minimum 45‑day sentences for some offences, and judges are required to impose them. They may not use conditional sentences. That again contributes to rising imprisonment. The reason why it specifically targets indigenous people is that in some communities, for example, there are more drug-related offences. So if there are minimum sentences for those, there will be more indigenous individuals ending up in prison.

As well, the general deterrent potential of imprisonment has never been demonstrated. In fact, it is recognized in law, it is not even being discussed, and it was recognized by the Supreme Court in Nur, which found that a minimum sentence for firearms offences was invalid.

I can't avoid using my speaking time to come back to the earlier discussion and recall the fact that minimum sentences can't be used for adolescents, in all cases. There is a real firearms and organized crime problem in Canada. The problems described by Ms. Samson are real problems. She identified some very important aspects of the problem when she talked about poverty, education and integration.

However, I wonder about the solutions she proposes, because imposing minimum sentences under the Criminal Code is not how we're going to hold adolescents accountable or deter them from committing other crimes, because, in any event, these minimum sentences can't be used for adolescents. There is every reason to believe that what will work for adolescents' are measures involving prevention, education, and rehabilitation.

The problem of firearms on the street is a lot broader and a lot more complex than what using the criminal law offers. I would say that as elected representatives, if you tell your fellow citizens that you are going to solve the problem of organized crime and illegal firearms on the street by increasing mandatory minimum sentences, you are leading them up the garden path, because raising minimum sentences isn't going to solve that problem.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

You have 15 seconds.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Now I will go to Monsieur Fortin for six minutes.

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

Thank you, Mr. Chair.

To begin, I'd like to say that I'm happy to see that the witnesses in the group here today are francophones. Personally, I find that very refreshing and very pleasant. I am also pleased that my anglophone colleagues are getting a chance to hear a bit of French at this committee.

With that said, I thought the testimony was interesting on a number of points. Ms. Samson brought a very different perspective from Ms. Desrosiers', Mr. Cotonnec's and Mr. Henry's. It will certainly give us something to think about.

Ms. Desrosiers, my first question is for you.

Based on all the testimony, that is, the testimony we have heard today and from the witnesses who appeared earlier, there are many people who have major concerns.

As well, if we read the papers, we realize that the public as a whole has concerns about the increase in the number of crimes committed with firearms. Personally, I'm very worried about this increase.

I agree that instituting minimum sentences or increasing minimum prison terms is not the way to solve the problem; the opposite is true. I tend to agree with certain witnesses that it could even complicate things.

However, we are not here to judge; we are here as legislators. We have a responsibility to meet the public's needs.

Ms. Samson, a former mayor of the borough of Villeray—Saint-Michel—Parc-Extension in Montreal, shared her concerns about young people handling firearms and even being able to buy them on Instagram. It is also absolutely unbelievable that five-year-old children are mixed up in drug trafficking in schoolyards.

Yes, minimum sentences don't apply to them, but if we decide to abolish minimum sentences for certain offences, that sends the public a message that may not be the message we want to send.

In my opinion, no member wants to tell the public that handling firearms is no big deal. Everybody believes it's serious, particularly in the case of prohibited firearms.

Are there no alternatives?

Are we not a bit too locked into the reasoning that you have to be either for minimum sentences or against?

Is there no solution that would allow us to reassure the public, or at least confirm that we aren't indifferent and we are concerned about these types of offences, while allowing the courts the latitude they need to make the appropriate decisions?

[Dr. Julie Desrosiers]

My answer will have three parts.

First, the problems raised by Ms. Samson are truly matters of concern. Those problems worry me a lot. I think that as elected representatives, you have to take them on. What I'm saying is that reducing minimum sentences isn't going to solve the problem. I'm not just saying that; I'm convinced of it, because I base my opinion on studies. As elected representatives, you should do that more. Nothing is easier for politicians than to pass a law that prescribes a minimum sentence. It's a solution of convenience.

But this is a complex problem that calls for investments, public health measures, education measures, and negotiations with indigenous communities. This problem requires that we take concrete steps. It's an extremely complex problem and it calls for more than passing a law prescribing minimum sentences. Otherwise, the wrong message is being sent to the public.

Second, I'm going to talk about the idea that adopting a minimum sentence sends a message of deterrence and denunciation. In fact, in empirical terms, that has never been proved. Most people have no idea what minimum sentences are in force in Canada. When minimum sentences are enacted, people don't really know which one applies to what, and when it applies. So we really can't rely on that.

Third, I don't know what you are going to decide to do. As a professor, I give you the information I have and I'm sure of what I'm saying. Your role as legislators involves constraints that I am not subject to.

One thing for certain is that if you decide to keep minimum sentences in certain cases, you should also provide a possibility of making an exception to them in exceptional circumstances. In fact, that is what my colleague, Mr. Henry, suggests. In other words, you prescribe a minimum sentence, but you give discretion back to judges not to apply it in exceptional circumstances. Exceptional circumstances do exist. The reality is complex, and it isn't just hardened criminals who sell guns to children. The courts have to manage all sorts of situations, and sometimes it is not appropriate to apply a minimum sentence.

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

Are there places in the world where an exceptional circumstances scheme like you are telling us about has been established?

[Dr. Julie Desrosiers]

It's very common. In France, for example, there are several minimum sentences with the possibility of exemptions in exceptional circumstances.

If you read the Supreme Court decisions in R. v. Nur and R. v. Lloyd, you will see that the Court sent very clear signals in favour of creating possibilities for exemptions in exceptional circumstances.

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

Thank you very much, Ms. Desrosiers.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Now we will go to Mr. Garrison for six minutes.