Justice Committee on May 13th, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order. Welcome to meeting number 17 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 using the Zoom application. The proceedings will be made available via the House of Commons website.

For those using Zoom, your choice of language is at the bottom of your screen. You can either choose the floor if you can understand both English and French, or you can choose English or French.

For those in the room, you can use the earpiece and select again the same desired channel, whether it is floor, English or French. Just remember to push up the volume, because it is usually on very low when you start on the House devices.

Are there any questions from any of the witnesses? You can raise your hand. I think you should all be briefed on it. It is just that we've had some technical challenges with some previous witnesses.

Furthermore, just by way of housekeeping, I will show you a 30-second card when you have 30 seconds left in your time, whether you're questioning or answering. Just be mindful of that. When you're out of time, I'll give you a red out-of-time card, and I hope you'll try to wrap it up then. I don't like being a stickler, but because everyone wants to ask questions, we have to be mindful of time.

In the first hour, we have three witnesses. As an individual, we have Beth Bui, a probation and parole officer. We also have Jonathan Rudin, a program director from Aboriginal Legal Services. From the Canadian Association of Elizabeth Fry Societies, we have Emilie Coyle, executive director—I believe she is here in person—and Nyki Kish, director of advocacy and systems change.

Each group will have five minutes.

I'll begin with Beth Bui with five minutes for the opening statement.

[Beth Bui, Probation and Parole Officer, As an Individual]

Good afternoon.

My name is Beth Bui. I have been employed as a probation and parole officer since 2007. I am here to speak about my personal experience as a victim of sexual assault; thus, my views and opinions do not represent those of my employer.

I was born in Saigon in 1979. In 1985, my mother advised me that I was going to go on a trip with her. I was then just five years old. I recall my mother's hand holding mine tightly as we ran through the rice fields at night, trying to be quiet and not draw attention. I recall walking through the swamp and being carried on the shoulder of an adult when the water rose too high for me to continue by foot. The boat we boarded was small and flimsy and we were packed together like sardines.

We were known as the “boat people” fleeing Vietnam. For more than 10 days, we drifted on the open sea. We were robbed by pirates, but we were eventually saved. We stayed at a refugee camp, and it was here that my mother met a man and they began a romantic relationship. After nine months at the refugee camp, my aunt sponsored my mother and me to come to Calgary. Eventually, my mother decided to be with this man, and we moved to Brantford to reside with him, along with his sister and his nephew, in a two-bedroom apartment.

As an immigrant, my mother worked two jobs, sometimes three, mostly at night, and the man worked during the day. This created opportunities for this man and his nephew to take advantage of me sexually. I was a young child, just eight years old, unable to speak English and not knowing or understanding what was happening to me.

Before this incident, I viewed the world as an adventure. Afterwards, the world became a dark and frightening place.

In 2012, in my early thirties, I became a mother, and I realized that I could no longer live with this secret, and that in order to ensure my child's safety, I must report the two perpetrators to the police. The first perpetrator was found not guilty in criminal court. I cannot identify this man due to a non-disclosure agreement in civil court, but he continues to reside with my mother to this day.

As a victim, the criminal court process left me wounded inside and invisible on the outside.

As for the second perpetrator, he left the country, and there was a warrant for his arrest.

At first I hesitated to meet with Mr. Larry Brock in preparation for this case. I honestly felt that the one-hour-and-thirty-minute drive in rush hour to Brantford was not worth my time for a five-minute face-to-face meeting with him. Mentally, I was preparing to hear why my case was insignificant, but I wanted to find a reason to not trust Mr. Brock to do the job of protecting me as a victim. It is what I have learned and expected. I was ready to be dismissed and defeated. However, Mr. Brock proved me wrong.

In 2019, the perpetrator was found guilty at youth court in Brantford. He received six months' house arrest followed by six months' probation. The offender was a few months short of being an adult during the commission of this offence. Due to the offender's reporting his address in Brampton, which is where I am living, I thought it was best not to access counselling and resources close to my home. I felt that my choices were limited, and I felt alone.

I feel that I do not deserve the label of “survivor”, because I feel that I am not surviving. I still view myself as a victim, because the sexual abuse is devastating. It is shameful as a mother to admit that I do not want a child who is a girl because I know the challenges that she may face too well. It is crippling to constantly question whether I'm a good mother for my children. It is exhausting to unlearn past behaviours and relearn healthy ones. I feel that the offender's lenient sentence negated my lost childhood, my self-worth and my potential.

Ultimately, I feel that I was not supported by the criminal justice system, and I continue to view myself as a victim even to this day.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Bui.

I can imagine...it's very brave of you to have come forward with your own personal story, and there are no words I can share but to give you my heartfelt sympathy in sharing this. I think that I and all the members are very thankful that you've been very brave to come here and share your story. Please do recognize that we all want to hear you and that we all share the pain that you've gone through yourself.

Next, I will ask Mr. Jonathan Rudin, from Aboriginal Legal Services, to take five minutes for an opening statement.

[Jonathan Rudin, Program Director, Aboriginal Legal Services]

Thank you very much.

I'd like to thank the committee for the opportunity to speak about Bill C-5.

As I begin my submission, I want to note that while the English name of our organization is Aboriginal Legal Services, our Anishnabemoin name, given to us by elder Jackie Lavalley, is Gaa kina gwii waabamaa debwewin. This translates as “All those who seek the truth”.

As the legislative summary makes clear, a major impetus for the introduction of this bill was the case of Sharma. ALS was involved in this case since it began in 2016. We wrote the Gladue report for Ms. Sharma.

Shortly after completing the Gladue report, at the invitation of Ms. Sharma's counsel, we intervened in the case at the Superior Court of Justice and led the calling of expert evidence and arguments on the charter issues. We were successful in having the particular mandatory minimum for drug importing struck down as cruel and unusual punishment. We also intervened at the Ontario Court of Appeal, where the restrictions on access to conditional sentences were found to violate the equality rights of indigenous people and the right to liberty under section 7. We recently intervened at the Supreme Court in the PPSC's appeal of the Court of Appeal decision. As you know, that case is now on reserve. I was privileged to be able to act as lead counsel for ALS throughout.

While we are, of course, supportive of this bill, it must always be kept in mind that if it passes as written, all it will do is partially restore Canadian criminal law to where it was in 2012. All of the work that was done in Sharma and all of the work of this committee just brings us back to where we were 10 years ago. While this is certainly necessary, it is hard to see this as representing progress.

We need to be clear: What is happening to indigenous people in the criminal justice system today is mass incarceration. In their paper entitled “Criminal Justice Reform and the Mass Imprisonment of Indigenous People in Canada”, Jane Sprott, Cheryl Webster and Tony Doob studied non-indigenous and indigenous rates of incarceration per 100,000 of population. In 2017-18 the non-indigenous incarceration rate was 79 per 100,000. That represented a 20% decline from 1996, when the legislation creating conditional sentences in paragraph 718.2(e) was passed. In contrast, the indigenous rate was 677 in 2017-18, a 33% increase from 1996. Indigenous Canadians are now almost nine times more likely to be in prison than non-indigenous Canadians.

When the 2017-18 rate of indigenous incarceration is compared to that of the U.S., the indigenous rate is actually slightly higher. America is the leading example of mass incarceration in the industrialized world. The fact that indigenous rates are even higher than the U.S. means that mass incarceration is the only term that can adequately describe what is happening to indigenous people. This fact is a national disgrace.

This government promised in 2015 to implement all the recommendations of the Truth and Reconciliation Commission. One of those recommendations was to abolish mandatory minimum sentences and the restrictions on conditional sentences. Bill C-5 is a start, but only just a start, on this commitment.

We believe this is likely the only opportunity Parliament will have to enact meaningful changes to mandatory minimums and conditional sentences. It is important, then, for this committee to be brave and to be bold and to proactively address the other mandatory minimums in the Criminal Code not expressly addressed in Bill C-5.

We know that the other mandatory minimums have not been studied in depth by the House, but that is not going to happen any time soon. An option that has always existed, and that we urge on this committee with respect to all other mandatory minimums, is to do what other countries have done and allow for what are called “safety valves”. A safety valve can be used by a judge who is concerned that the imposition of a mandatory minimum sentence will cause serious injustice to the particular individual before them and exempt that person from the mandatory minimum without having to declare the minimum sentence unconstitutional.

The advantages of such an approach are twofold. First, it is quicker than having to challenge the constitutionality of a mandatory minimum and leaves the legislation in place for most offenders. Second, decisions of trial judges are, of course, subject to appellate review. Within a few years, we would have a robust set of jurisprudence on what sort of cases merit the use of a safety valve.

Introducing an amendment to permit judges to rely on a safety valve for other mandatory minimums is a necessary and positive step forward.

Meegwetch. Nia:wen. Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Rudin.

Next, I have the Canadian Association of Elizabeth Fry Societies.

You may split your time accordingly, but you have a full five minutes between the two of you.

[Emilie Coyle, Executive Director, Canadian Association of Elizabeth Fry Societies]

Thank you to the committee for the invitation to attend and provide testimony today.

Our organization works to address the persistent ways in which women and gender-diverse people impacted by criminalization are routinely denied their humanity and excluded from conversations of community. Even the use of the word “offender”, which is used throughout this legislation and in common parlance, serves to separate the people we work with from being considered part of the public in “public safety”. Our head office is located on unceded and unsurrendered Algonquin territory.

The Women's Legal Education and Action Fund, which is known as LEAF, the Black Legal Action Centre, which is known as BLAC, and our organization have jointly submitted a brief to you. You will have already seen it, hopefully. It details our five areas of interest in this bill. As you are all very much aware, this bill seeks to reduce the structural racism, systemic discrimination and inequality that we know are a crisis in our justice system. This has been acknowledged at this committee by several witnesses and even by the Minister of Justice. We recognize this bill as a step toward that goal, though it does not go far enough, as Jonathan Rudin stated.

I also want to acknowledge Beth for sharing her story at the outset. It was really brave, and I thank her for that.

Today, we would like to offer context about the human and social impacts we see within this crisis.

I will turn it over to my colleague Nyki.

[Nyki Kish, Director, Advocacy and Systems Change, Canadian Association of Elizabeth Fry Societies]

Thank you.

Part of our work is monitoring the conditions of confinement in the five prisons designated for women across the country. It is there we meet the people who have been harmed and continue to be harmed by existing legislation. The majority of these women and gender-diverse people face complex mental health issues and unresolved addictions. They properly belong in the health care system, not the prison system. If and when they are released, their unresolved issues will be compounded by the strong stigma that follows those with criminal records.

When you walk into a maximum-security unit in these prisons, you see that they are full of indigenous women, gender-diverse people and two-spirited people. It is a sobering fact, one that should make us all take pause: 50% of all women and gender-diverse people in prisons in Canada are indigenous. In these prisons, we meet so many Black women and gender-diverse people whose neighbourhoods have been over-surveilled, criminalized and ultimately failed by multiple systems and who end up being overly punished by our legal system. In these prisons, we meet the countless survivors of sexual and physical harm, dispelling the false dichotomy that continues to be raised around perpetrators and survivors of violence. It is also in these prisons where, overwhelmingly, we meet women and gender-diverse people who are simply trying to survive poverty for themselves and for their families. They often cannot afford food, electricity, clothing for their children and their vital needs.

Lack of judicial discretion to depart from required sentencing has put them there. Legislation that does not recognize the discrimination impacting their social histories has put them there. We presently have a system that punishes through a debunked perspective: Increased punishment for certain crimes, through mandatory minimum penalties, will deter people from participating in those crimes. Yet, the implicit social messaging we are given in Canada, through the adverse impacts created by mandatory minimum penalties, is that, if you are poor or from a marginalized community, you are undeserving of a fair chance and undeserving of rehabilitation.

[Emilie Coyle]

Going back to the brief we submitted, I will point out the five solutions we have proposed.

First, we recommend removing all mandatory minimum penalties. If that cannot be done, at least remove those that have already been found to be unconstitutional by courts across this country.

Second, we recommend removing the bar on conditional sentences for any offences with mandatory minimum penalties.

Third, we recommend fulfilling the Truth and Reconciliation Commission of Canada's call to action 32 to “allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.” We refer you to Senate Bill S-213 for suggested language on this amendment, which I believe you've already heard about.

Fourth, we recommend amending paragraph 718.2(e) of the Criminal Code so that sentencing judges have the information required to pass appropriate sentences, not only for indigenous defendants but also for Black defendants.

Fifth, we recommend, at the very least, fully decriminalizing simple drug possession as a step toward the recommendations made by the group behind “Decriminalization Done Right”. Provide for automatic expungement of criminal records for simple drug possession, which is certainly a step toward the spent record regime. We, along with 84 other organizations and people, are members of a coalition called the Fresh Start Coalition.

That is what we are recommending.

In conclusion, I think you have all seen how the breadth of evidence demonstrates that incarcerating people, especially women and gender-diverse people, in the name of deterrence is not only a demonstrably failed model, but actually produces harm, especially by adversely impacting Black, indigenous and low-resource women and gender-diverse people.

[The Chair, Liberal, Randeep Sarai]

Thank you.

[Emilie Coyle]

I think it would be irresponsible to ignore the clear evidence on these impacts.

I will just finish now.

We remind you that behind each devastating statistical figure you've been hearing about, attributed to racial and socio-economic overrepresentation in our justice system, is a human being. This is a human being with a family, with a community, all who are being adversely impacted in ways not contemplated within this law.

We know those individuals. We know their stories. We know their histories. We know their pain.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Coyle.

You're going to have to finish off in one of the questions. I apologize for that.

[Emilie Coyle]

It's fine. Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Our first round of questions will begin with Mr. Brock for six minutes.

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

Thank you, Chair.

Thank you to all the witnesses, but in particular to Ms. Bui.

Ms. Bui, thank you so much for accepting my invitation to attend this particular study. Like the chair, I offer my sincerest thoughts about your background and what you had to go through. It brought me back to the day that I met you for the first time and heard your story.

Thank you for that very powerful message and the strength you have shown in attending here today.

Beth, Bill C-5 eliminates the mandatory minimum penalties for 14 very serious firearms offences and drug offences, such as trafficking, importing and production for drugs such as fentanyl and crystal methamphetamine.

As it's apparent that there has been no reduction in the number of offenders who are committing these offences across this country while there are still mandatory minimum penalties, as a resident of the GTA who is married with children, do you feel that this bill will compromise your sense of safety and that of others members of your community?

[Beth Bui]

The answer is yes. The reason being is that I live beside a park, and ever since the law has been lax on marijuana, there has been a rise in criminal activity in the park. From my window, I see people using and dealing drugs. I see them speeding away while impaired, and this is happening during broad daylight when children are outside playing. The world has become dark and scary.

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

Thank you, Beth.

Bill C-5 eliminates the barriers of conditional sentence considerations for some very serious offences, such as kidnapping, human trafficking, criminal harassment and sexual assault. Adult offenders who commit these heinous crimes can now argue, post-conviction, that they should serve their denunciatory sentences in the comfort of their own homes.

As I described to you from my capacity as a former Crown attorney, prosecutors have a very low success rate in securing criminal convictions in this area. Coupled with the significant and long-lasting, if not permanent, trauma associated with this crime, it's no small wonder that there is under-reporting to law enforcement.

What kind of message does this send to victims of sexual abuse? Had you not come forward when you did and reported your experiences, would you have done so if Bill C-5 was now the law in Canada?

[Beth Bui]

If Bill C-5 became law, I do not think I could report my sexual abuse, because I would feel that my fight would be futile. For example, the offender in my second case was free to live his life, while I felt like I was in prison because my choices were limited in the same community where I lived.

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

Thank you.

Beth, your opening statement describes a very tragic and difficult time in your young life. Bill C-5 makes no provision for the rights of victims in the criminal justice system.

How would you describe your experience as a victim in the system, from the perspective of your relationship with the police, the Crown attorneys, victim service agencies and the judiciary?

[Beth Bui]

Overall, I feel that I did not have a positive experience. The female detective that was on both cases was not empathetic to my trauma, and the Crown attorney in the first case seemed distant and uninvested. The victim services were helpful, but I had so many different workers. It took almost 10 years for the matter to be resolved. The judge seemed to not consider my trauma and the harm caused.

My saving grace was you, Mr. Brock. For once I felt heard. I felt like I mattered, and I felt like I could trust someone.

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

Thank you.

Mr. Rudin, it's good to see you again. As a member of the Crown attorney system in Ontario, I've enjoyed your presentations in the past. You have identified that this is a small step in the overall impact of over-incarceration.

The numbers are real. There is still an extremely high percentage of indigenous offenders—adult and youth, male and female—who are committing the types of offences that Bill C-5 attracts.

In addition to this type of legislation, are there other areas that the federal government ought to be considering in terms of reducing that number?

[Jonathan Rudin]

There are a number of initiatives. I know that the submission from the Elizabeth Fry Society, for example, talks about information available to judges to come up with proper sentences.

The Gladue reports, which you, Mr. Brock, will be familiar with, are one of the challenges faced by indigenous people across Canada. They're very familiar in Ontario, but in Manitoba and Saskatchewan, for example, they are not available at all. While the provision of those reports belongs to the province as part of the constitutional rules for the administration of justice, the federal government could do more and is starting to do more to provide funding to allow for these sorts of reports to be prepared by indigenous organizations.

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

Thank you, Mr. Rudin.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

The next round of questions will be from Ms. Brière for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much, Mr. Chair.

I'd like to thank all the witnesses for being here today.

Ms. Bui, thank you for your testimony.

My question is for Ms. Coyle or Ms. Kish, from the Canadian Association of Elizabeth Fry Societies.

Although indigenous people represent only 5% of the Canadian adult population, in 2020, they accounted for 30% of all federal inmates. Recent statistics also show that half of female federal inmates are indigenous.

What factors have contributed to this over-representation? Would you agree that mandatory minimum sentencing policies and restrictions on the use of conditional sentences have led to this situation?

[Emilie Coyle]

I will take this question. Thank you very much.

The reasons for the over-incarceration of indigenous people in our prisons, particularly indigenous women and gender-diverse people, are multi-faceted. Certainly, the justice system has its role to play. We must go back hundreds of years to look at the assimilation practices of the state, including residential schools, the sixties scoop, the millennial scoop, our current practices around child protection services and the many ways that indigenous communities are over-surveilled by police, by social workers and by schools.

All the way up until they reach the justice system, they are already underserved and over-surveilled or over-policed. However, certainly, once we reach the justice system, mandatory minimum penalties and the lack of availability of conditional sentencing, as Mr. Rudin pointed out—all of the arguments that were made in Sharma—have contributed to the over-incarceration of indigenous women and girls.

I have to tell you: If you go to the prisons in the prairies and particularly to where people spend most of their time, which is in the provincial jail system, upwards of 90%—up to 98%—of the people there are indigenous. It is a failure, and it is extremely shameful. We need to consider them when we are thinking about the word “public” in “public safety”.

Thank you for your question.