Justice Committee on May 6th, 2022

[J. Michele Guerin Skalusat]

Oh, wow, I would say probably that we need an action plan for the inquiry into missing and murdered indigenous women and girls. There are many recommendations made in there that would probably be very helpful if they were implemented. I don't know.

What did help me in the long run is that I became part of a project called 49 children project, and I learned this through freedom of information request. I did an FOI request for my file from the ministry, which was mind-blowing. I learned through that process that I had become part of a master's thesis project, where a social worker took 49 children and returned them to their biological parents. He said he was going to monitor them to see what happened. I always wanted to say to him, “Here I am. I'm still killing it.” It's those kinds of things that are very offensive to indigenous people, especially if you grow up in care, and then you find out you became part of these experiments.

[The Chair, Liberal, Randeep Sarai]

Thank you.

I want to thank Mr. Garrison and all of the witnesses. It's always tough reflecting on your experiences and sharing those in a public forum. Our hearts go out to you for doing that in such a great manner.

I'm going to suspend for a few minutes while we do a sound check. Other witnesses will tap back in, and the others can leave.

We'll resume in a few minutes.

[The Chair, Liberal, Randeep Sarai]

We'll now resume.

To the new witnesses who just came in, I have some quick housekeeping to do. When you have 30 seconds left, I'll raise a green folder. When your time is up, I'll raise a red folder. Please try to watch for those, so I don't have to interrupt you. I'll do the same for members when they're speaking.

Each group will have five minutes to present an opening statement, followed by rounds of questions. If there's something you haven't been able to get out in your opening statement, please do so in the round of questions.

From the Brantford Police Service, we have Robert Davis, chief of police. From the Canadian Association of Chiefs of Police, we have Rachel Huggins, deputy director and co-chair drug advisory committee, along with Michael Rowe, inspector, and member of law amendments committee. We also have, from the National Police Federation, Brian Sauvé, president.

Welcome to all of you.

We'll begin with Chief Robert Davis, for five minutes.

[Chief Robert A. Davis, Chief of Police, Brantford Police Service]

Good afternoon, members of the committee. Thank you for the opportunity to be here before you today. My name is Rob Davis and I am the chief of police for the Brantford Police Service. I'm proud to be a Mohawk from the Six Nations of Grand River Territory on which the city of Brantford sits. We are located on the western edge of the Greater Toronto Golden Horseshoe area. I'm proud to be the only indigenous leader of a municipal police service in Ontario, and I've been in policing since 1990. I have served over half of my career in indigenous communities, with the majority of that time being with my home community of Six Nations, where I served with the Six Nations Police Service as well as with the Nishnawbe Aski Police Service in Ontario's far north. I've been the chief of police for over a decade, having led a small municipal service in Ontario's northwest—Dryden—prior to leading Alberta's third-largest municipal police service in Lethbridge, and now serving in the city of Brantford, a mid-size city with approximately 100,000 people.

I have witnessed first-hand throughout my career and especially over the last five years the lack of deterrence bail reform has created, specifically since 2019 when we saw bail reform implemented, and it will only be amplified if Bill C-5 is passed and allows for even weaker sentences. Victims of communities will live in fear of gun violence and fearful of retaliation by armed criminals, and people will continue to overdose, many of whom will die from fentanyl and other drugs laced with fentanyl that continue to be trafficked with impunity.

Certain crimes must result in the removal of the perpetrators from society so that the masses, the law-abiding masses, have a reprieve. Specifically for crimes committed using firearms; trafficking, production and importation of drugs, and many of the offences listed in paragraph 742.1(f), they're calling for conditional sentences.

My observation has been that crimes committed using firearms are prolific and ever-increasing. The victims of crime live in fear. We are seeing the scourge of trafficking, importation and production of drugs in our cities. Conditional sentences as suggested clearly will not work.

With that, I will take any questions.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Next we will go over to Rachel Huggins.

[Rachel Huggins, Deputy Director and Co-Chair, Drug Advisory Committee, Canadian Association of Chiefs of Police]

Good afternoon and thank you for the opportunity to address this committee on behalf of the Canadian Association of Chiefs of Police.

The CACP applauds the government's effort to modernize Canadian legislation to help address the disproportionate representation of indigenous and racialized communities in Canada's justice system. As stated in our July 2020 report, we support the decriminalization of simple possession of illicit drugs as an effective way to reduce the public health and public safety harms associated with substance use.

While there is support to divert substance users away from the criminal justice system, police across the country have maintained the pursuit of individuals associated with organized crime and criminal networks making large profits trafficking and producing dangerous illicit drugs. Currently under the CDSA, mandatory minimum sentences apply only to serious drug trafficking, production and import/export offences from which public safety is at risk. The use of mandatory minimum sentences is considered when there are aggravating health and safety factors, such as for offences involving the use of a weapon or threat of violence and production operations that constitute a potential security, health or safety hazard to persons under the age of 18. We believe the use of aggravating factors applied to mandatory minimum sentences allows police and the court system to focus on those driven by monetary gains who are putting communities in harm's way, rather than those who commit drug offences to support their drug use.

Therefore, diversion is an important theme of our submission today. Diversion means ensuring that the unique circumstances of a specific offence and offender are considered by a judge when determining an appropriate sentence. It means distinguishing between vulnerable people committing minor offences who need to be oriented towards pathways of care and criminals committing serious offences. Diversion also provides opportunities to reduce recidivism and ancillary crimes.

It's important to note that for diversion at the police or court level to be successful, there must be an investment in community capacity and resources to support the availability and integration of health and social programs. The basic principles of this modernized approach of aggravating factor guidelines that have been adopted for serious drug-related offences could conceivably be applied to other crimes such as those involving firearms.

To speak more about this, I now invite my colleague Michael Rowe to address the committee.

[Staff Sergeant Michael Rowe, Inspector and Member, Law Amendments Committee, Canadian Association of Chiefs of Police]

Good afternoon.

The police in Canada support the primary objectives of mandatory minimum penalties to ensure consistency in sentencing, to protect the public and to discourage others from engaging in similar conduct.

For police officers, victims of crime, members of the public and even the offenders themselves, the circumstances that result in a criminal charge for most firearms offences often result in a real threat to public safety, exposure to stress and trauma that has a lasting impact on mental health and the erosion of public safety.

In my experience as a police officer, the following firearms offences, for which the mandatory minimum penalties are recommended to be repealed, hold significant value when addressing public safety and gang-related violence: the use of a firearm or imitation firearm in the commission of an offence, possession of a prohibited or restricted firearm with ammunition and discharging a firearm with intent or recklessly.

The mandatory minimum penalties assigned to these sections of the Criminal Code create a meaningful legal condemnation of the decision to unlawfully pick up a firearm and reflect the important distinction between offences involving firearms and those that do not. Rather than repealing mandatory minimum penalties for serious offences that have a direct impact on public safety, Parliament could provide the judiciary with additional powers via a legislated clause or safety valve, which is something other countries with mandatory minimum penalties have but which is currently absent in Canada.

This remedy would allow for the objectives of mandatory minimum penalties to be met, especially for firearms offences that present a real threat to public safety. It would also establish judicial discretion to individually assess each offence and offender to determine if the mandatory minimum penalties are appropriate. Finally, this approach would reduce the need to rely on a reasonable hypothetical to test the impact of mandatory minimum penalties on outlying cases. Imagined offenders and reasonable hypothetical arguments often reduce the significance of firearms offences to regulatory infractions.

This can be frustrating for police officers who see the very real impact of the unlawful possession of loaded handguns, the use of firearms and imitation firearms to commit crimes and the discharge of live ammunition, and the impact that these have on the perception of safety within our communities across Canada.

In conclusion, the Canadian Association of Chiefs of Police recommends proceeding with the decriminalization for possession of illicit drugs. We also support maintaining mandatory minimum penalties for serious crimes that warrant them, and we support adding a legislated safety valve that provides sentencing judges with an opportunity to consider the individual circumstances of the offence and the offender to determine if the mandatory minimum penalty is appropriate or if an individual could be diverted away from the justice system toward an alternative pathway.

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Thank you to both of you.

Next, we have Brian Sauvé from the National Police Federation in Surrey, B.C.

[Brian Sauvé, President, National Police Federation]

Good afternoon. Thank you for inviting me to appear today.

I'm Brian Sauvé, a sergeant in the RCMP and current president of the National Police Federation, which is the certified bargaining agent representing close to 20,000 members of the RCMP.

I'd like to begin by acknowledging that I'm speaking today from the traditional unceded territory of the Algonquin Anishinabe people.

Bill C-5 takes several important steps in the right direction. This legislation acknowledges and supports practices that are happening today, such as the discretion of police officers to refer offenders to diversion and treatment programs. Legislative support for these practices means enforcement across Canada will become more consistent. However, the legislation lacks clarity in many areas. I'd like to address three main areas of concern.

The first is police resources and discretion. We support the use of police discretion and alternatives to incarceration for lower-risk offenders who would benefit from treatment and rehabilitation. Diversion to these programs is a valuable tool for police. Our members acknowledge this key role, but government must provide the necessary support and resources to make sure that police officers can do it effectively.

Even after this bill is passed, police officers will still need to enforce laws against those involved in drug smuggling, drug trafficking and drug production. The link between weapons and drug trafficking still needs to be addressed. Drug trafficking exacerbates the opioid epidemic, which continues to impact Canada's health network and police services.

For perspective, in 2020 the opioid crisis claimed the lives of 6,306 people in Canada. That's equivalent to 17 deaths per day. The government has invested hundreds of thousands of dollars to combat this crisis, but the numbers continue to rise. To address these important issues, we will need a whole-of-government approach.

The second area of concern is program availability. Bill C-5 needs to be accompanied by an expansion of investments in programs such as addictions treatment, rehabilitation and diversion. The need for greater support for social programs exists across Canada, however the gap that police officers and community members face in rural and remote areas needs to be urgently addressed.

According to a Justice Canada report, 48% of surveyed police agencies have a pre-charge diversion program for youth offenders. However, 66% of rural and small-town police agencies have no pre-charge diversion program. This gap is further exacerbated in indigenous communities where the lack of diversion programs aggravates overrepresentation in the justice system. Successful diversion programs need consistent, ongoing funding and and meaningful evidence-based oversight to ensure effectiveness. Meanwhile, police officers require the time, the staff and the resources to be able to refer cases to these treatment programs.

The third is border integrity. Bill C-5 strikes down some mandatory minimum penalties related to weapons trafficking and firearms offences. This is inconsistent with the expressed intent of the government to reduce firearms violence in Canada. The legislation maintains mandatory minimum penalties for offences such as weapons trafficking, the production of automatic firearms and murder or manslaughter involving the use of a firearm. However, tackling criminal activity requires strong measures against criminals who threaten vulnerable communities, especially criminal activity that funds and empowers gangs and organized crime. Bill C-5, unfortunately, does not address these problems.

The removal of mandatory minimum penalties requires additional deterrence measures to address criminal activity, such as providing more resources to stop the import of illegal drugs and firearms at the border. The NPF calls for increased funding for the RCMP border integrity program and the creation of an investigative firearms smuggling unit.

In conclusion, to achieve its primary goal, this legislation needs to be backed by increased funding in three areas. It is needed for evidence-based and effective social programs to ensure that the root causes of drug use and firearms trafficking are being adequately addressed; for sufficient police resources to ensure that members have the personnel and resources to meet the increased workload created by this legislation; and for support for border enforcement to address the import of illicit drugs and firearms.

Thank you. I'm happy to answer any questions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Sauvé.

Now we'll go to our first round of questions.

For clarity, for any of the witnesses who don't have interpretation, I'll just let you know there's an interpretation function on the bottom of your screen if you're doing it remotely. In the House, you can set the headset that's in front of you to the floor, which is whatever language is being spoken, or English or French. You can turn up the volume and use those. I know you've probably been advised already. I'm just letting you know in case there is any issue.

We'll go to Mr. Brock for six minutes.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair.

Thank you, witnesses, for your attendance today.

To Chief Davis, given your decades of police service in numerous cities and towns in various provinces and indigenous reserves in both southern and in northern Ontario, I would like to hear your opening thoughts on the impact of policing and community safety if the current version of Bill C-5 passes without amendment.

[Chief Robert A. Davis]

Thank you for the question, Mr. Brock.

As I mentioned in my opening remarks, victims of crime are already frustrated with bail reform. The perception of the victims is that the criminals' rights supersede those of citizens. With Bill C-5 and the proposed changes now, we are going to see sentencing become a joke, to be quite candid. The perception of the victims of crime will be, once again, that their rights have been given to the criminals.

I am very concerned that what we're seeing with indigenous populations.... In my experience on reserve and off reserve, with urban, indigenous populations, there is already a layer of distrust of the police and the justice system. We have to work really hard to get people to co-operate with us. I experienced this when the justice system was perceived to fail them, because the criminals' rights supersede those of the victim—

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chief. We have to move on, because my time is limited.

Bill C-5 removes limitations placed on the use of conditional sentences of imprisonment. Offences such as sexual assault, arson, criminal harassment, kidnapping, trafficking of persons, abduction of persons under 14 and prison breach are now open for consideration.

Can you comment on how this will impact community safety in the context of the offences I just read out? I would also like to hear your opinion on the deterrent impact of conditional sentences and the reality on the street when it comes to the compliance and enforcement of those orders.

[Chief Robert A. Davis]

I'll reiterate that the criminals are going to operate with impunity. We already have weak bail conditions. They will be exacerbated by weak sentences. Essentially, conditional sentences are so that they can serve in the comfort of their homes. That is not a sentence. They will be able to operate.

When you look at the list in paragraph 742.1(f), it's perplexing. There's criminal harassment. We heard the earlier speakers talk about the intimidation and harassment that goes on by the criminals. There are sexual assaults and kidnapping that we see tied to the drug industry with firearms being involved. There's trafficking in persons. If we're serious about human trafficking, are we going to allow house arrest for a human trafficker? It makes no sense.

[Larry Brock, Conservative, Brantford—Brant, ON]

Opponents of mandatory minimum penalties argue that they unjustly limit judicial discretion, have little or no deterrent effect and can result in disproportionate sentencing. The government argues that we should trust our judges across our country to do the right thing and hold offenders accountable, while at the same time promoting community safety.

I'd like to hear your thoughts based on your experience, both on the judicial issue and the deterrent impact of eliminating mandatory minimum penalties, particularly within the firearm context.

[Chief Robert A. Davis]

First, with the judicial impact and the question about trusting the judges and there will be consistency, there is no consistency. My experience from southern Ontario to northern Ontario was night and day. My experience from Ontario to western Ontario, when I was serving in Alberta, was night and day. The belief that there would be consistency among judges is not founded in the reality I've observed throughout my career.

With respect to the impact of turning sentences into conditional sentences, again, I think the justice system is being brought into disrepute. People will operate with impunity and the victims' rights are going to be given away in favour of the rights of the criminal.

I'm sorry. I have one last point. The enforcement of conditions requires police resources to do those compliance checks, which we're not funded for. If we're going to have house arrests, there has to be a rigorous compliance program. At this point, most police services would struggle to have the resources to do an effective job of that compliance.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chief.

I've got a minute and a half.

The government has argued since introducing the bill that mandatory minimum penalties have the disproportionate impact of the over-incarceration of indigenous offenders—males, and especially females—and other marginalized populations. Given my prior legal career as a Crown attorney, I am particularly cognizant of the over-incarceration issue.

I would like to hear your thoughts on this and the efforts, particularly in Ontario, and impact of indigenous peoples courts, commonly known as “Gladue courts”, in under one minute, please.

[Chief Robert A. Davis]

There's a time and place for Gladue. Gladue considerations do make sense. I support Gladue considerations for the offences that are lower in nature. But when we're talking about using firearms in the commission of an offence, the trafficking of drugs, the importation of drugs or the production of drugs that impact communities, those are crimes for which it makes no sense to apply Gladue, especially when the victims are indigenous as well.

So there is a time and place for Gladue, but for the offences that are suggested to have the minimums removed, it makes no sense.

[Larry Brock, Conservative, Brantford—Brant, ON]

Very quickly, what is the perception of law-abiding indigenous residents on the Six Nations of the Grand River as it applies to Gladue courts?

[Chief Robert A. Davis]

Again, I don't speak for Six Nations. It's the largest community base of population, so there are varying opinions. My experience when I worked there, in dealing with indigenous people from Six Nations in Brantford, was much like I said. There is a time and place for Gladue, but if the people committing the crimes are indigenous and it's impacting our people, then the Gladue considerations are moot, because they're harming our own people.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chief.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock, and thank you to our witness.

Ms. Diab, you have six minutes.

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

Thank you very much, Chair.

Thank you to all of our witnesses for coming to be with us this Friday afternoon as we continue to hear testimony on Bill C-5.

Mr. Sauvé, I am going to direct my first question to you. I met this week, as part of Lobby Week, with two sergeants from the Halifax police association. We had a great discussion. The conversation included a discussion of mandatory minimum sentences. They gave me a pamphlet—I'm not sure how many MPs met with them too—with three recommendations, one of which, when I read it, tied exactly into Bill C-5, and I told them that. It dealt with mandatory minimum sentences.

The sergeants I was meeting with didn't know anything about Bill C-5. They were lobbying us in government—obviously, as it's called Lobby Week—to exempt officers and to allow the mandatory minimum sentences that allow judicial discretion when officers discharge their service weapon in the line of duty. Would you argue for that same change? Can you discuss the importance of flexibility for judges to craft sentences that fit whatever unique circumstances?

Given what we're doing, I found this one very important, so I'll ask you that question.

[Brian Sauvé]

Thank you for the question. I am familiar with the position they have lobbied you on. Essentially, what we're talking about is that we entrust police officers with a lot of power and authority in Canada. Section 25 of the Criminal Code gives them essentially the ability to take a life if the situation warrants it. Unfortunately, that life may be taken with the use of a firearm.

Right now judges have very little discretion. If a member of a police service takes a life using a firearm, that is the use of a firearm in the commission of an offence. Should that interaction be deemed criminal in nature by any civilian oversight body, and you go to a judicial proceeding and that member of that police service is found guilty, there is no discretion. A mandatory minimum must be imposed.

The ask to impose some judicial discretion for police officers or corrections officers or those working at the border who are armed, should they end up in a lethal interaction and ultimately end up in a proceeding where they're found guilty, is for the judiciary to have some discretion to not impose a mandatory minimum sentence on that member of that police service. That's what they're asking for.

Yes, I would support that 100%.

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

To take that a bit further, I think I may have heard this, but I just want to double-check. Would you support, then, more flexibility for judges to use their discretion in other offences, depending on the unique situation?

Remember, we're talking mandatory minimums for offences that generally we're trying to...and for conditional sentence orders as well, where, again, the term is less than two years of imprisonment for those who don't pose a threat to public safety, whether it's police officers or any members of society, whether it's an indigenous individual, somebody from the African community, or a white or Black man or woman or whoever.

That's what I'd like to know.