Justice Committee on May 10th, 2022

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

Thank you.

I know that in my riding, we've seen consequences where the sole supporter of elderly parents has been deported for something that most people wouldn't have thought deserved that harsh a penalty.

I want to turn to you, Mr. Russomanno, on the question of discretion. I think that's something we haven't discussed enough in these hearings. Your opinion is that the discretion to charge will not necessarily benefit racialized and indigenous people. Could you tell us a bit more about your analysis of that discretion?

[Leo Russomanno]

Yes. Thanks for the question.

Practically speaking, when a person comes into contact with the criminal justice system for, let's say, simple possession, one of the things that a police officer may do, and most often will do, is check their police records to see how many contacts that person has had with the police. It doesn't take too much mental energy to figure out that racialized groups and indigenous groups, who are overpoliced and are overexposed to the criminal justice system, will only be further disproportionately affected by leniency that is rooted in police discretion. We have seen time and time and time again that when you provide those persons with a wide degree of discretion, it is disproportionately negatively impacting racialized groups.

A person who is found by a police officer to be smoking cannabis in their upper middle-class neighbourhood is going to be dealt with leniently. A person who is found in a lower-class or subsidized-income neighbourhood that's overpoliced, who has had a number of contacts with the police even if they weren't found guilty, is not going to get the benefit of the doubt. That, in my view, is how that's going to play itself out.

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

Bill C-5 as drafted doesn't require keeping any records on the exercise of that discretion. I wonder whether you would be concerned about that, in the sense of how we would know who is benefiting from the discretion if the police aren't required to keep those records.

[Leo Russomanno]

In many different ways I guess the failure to keep those records is going to have an impact just in terms of being able to track how that discretion is used.

The simple solution to this—I was slightly encouraged, I guess, to hear Minister Lametti express that it is something they are looking into—is to decriminalize all simple possession offences. If we're talking about people who are using drugs for their own personal use, it is a health care issue. If it's a matter of there being concurrent criminal offences being committed, then those offences can be prosecuted. But to resolve the situation of people who are prosecuted for simple possession by continuing to prosecute them, I mean, what better evidence is there of the abject failure of that than the last several decades of a failed war on drugs?

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

We do have Bill C-216, which is coming before the House of Commons for a vote on decriminalization of simple possession. That's a different process from this one, but it will be coming forward.

Mr. Chair, I see that I am out of time. Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

I can do two quick three-minute rounds over six minutes, if I have the consent of the committee. Otherwise, we'll have to wrap up, as it is 5:30 p.m.

[A voice]

[Inaudible—Editor].

[The Chair, Liberal, Randeep Sarai]

That might be tough. That will go to 10 minutes.

Is it the will of the committee...?

[A voice]

We can wrap up.

[The Chair, Liberal, Randeep Sarai]

Okay. We'll do two three-minute rounds. Then we can wrap up.

Mr. Moore, you have three minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

I appreciate all of you for being here today. You've all brought your perspective to this bill.

I want to ask a question of Mr. Russomanno.

It's no secret that we've raised some concerns about the legislation. You mentioned your involvement in the past when the previous government was bringing in some changes to conditional sentencing as well as mandatory minimum penalties. In spite of what the talking points are, which is that this bill is about getting rid of Harper-era mandatory minimums, I can tell you that one of the great ironies of this bill is that for the minimums being contemplated to be removed by this legislation, some go back to the seventies and they certainly go back to the nineties. Many of the mandatory minimum penalties, particularly some escalating ones around gun violence, that came in under a previous Conservative government, the government has chosen to leave in.

Do you feel that there is any place for mandatory minimum penalties in the Criminal Code at all? We know there's a mandatory minimum penalty for first-degree murder, for example. We know that some serious firearms offences have mandatory minimum penalties that are not touched by this legislation.

From that starting point, do you believe there's any role for mandatory minimum penalties?

[Leo Russomanno]

Thank you for the question.

I think that from your perspective.... I heard one of the members in a previous discussion with Ms. Shanmuganathan say that mandatory minimums serve a purpose for Parliament in expressing a denunciation or a revulsion to certain crimes. I suppose on a theoretical level it certainly has that effect and it has that use.

Do I personally believe that mandatory minimum sentences are necessary? No, I don't believe they are. I don't think there is going to be a judge on a first-degree murder sentencing who will be sentencing people to a conditional sentence. I think judges do take into account victims of crime. I think they're very mindful of the impact that these crimes have on the community. If you go to a sentencing courtroom for first-degree murder, you'll see that this is what's actually taking place.

No, I don't believe that, because I believe judges have to be accountable for their decisions. They have to provide reasons. They have to consider certain factors. First-degree murder is the most serious crime in Canada, so I don't think there is a need for it in court.

Although I do understand how, as parliamentarians, you might feel like that has some sort of communicative effect to members of the community, I think it does more harm than it does good.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

We'll go to Mr. Zuberi for three minutes.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Thank you, Mr. Chair.

Thank you to the witnesses for being here today.

My first question is for Mr. Russomanno.

It's in relation to the third point that you mentioned in your opening remarks. You said that the Criminal Lawyers' Association has hesitation around the aspect of simple possession.

If we were to keep the spirit of what is there currently in the bill, but we want to mitigate it for what you identified, which is the wide discretion of police and how that can unwittingly continue the overrepresentation of indigenous and Black communities, what would you recommend for us to do while maintaining what is there? Would you, for example, recommend that some new wording, language or certain guidelines be added?

[Leo Russomanno]

Thank you.

That's a complicated question. Fundamentally, we're against the sort of structure that's being proposed because of the injustices it perpetuates, but you're asking me what sorts of changes I would make within that structure.

I would say that, for example, police officers should not be in any way basing their discretion on the number of police contacts that a person has had in the past. They should have to take into account whether a person is racialized, indigenous or otherwise a vulnerable member of our society or someone who's overexposed to the criminal justice system.

That discretion isn't really reviewable, so I think it's kind of ineffectual.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

From your perspective, does the “tough on crime” approach really help reduce crime, or does it increase injustice towards indigenous communities and other racialized communities?

[Leo Russomanno]

I think that everybody probably knows that the “tough on crime” model has not done anything in this country or in any country to lower crime rates or to keep people safe. I listened intently to Chief Montour talk about the issues that are plaguing his community. I can't speak to the individual or specific issues in that community, but something that did strike me was the comment that serious drug trafficking has gotten worse and violent crime has gotten worse.

I thought to myself, all of that has happened under the guise of increased mandatory minimum sentences for violent offences through successive “tough on crime” models being imposed, and what do we have to show for it? We have overcrowded jails, money spent on incarcerating people and not keeping Canadians safe in the end. I think, as they say, the proof of the pudding is in the eating.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Zuberi.

Thank you to all the witnesses for your invaluable testimony.

I will now conclude this meeting. I'll see everyone else in this committee on Friday.