Justice Committee on May 17th, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order. Welcome to meeting number 18 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.

I'd like to welcome our two witnesses today. We have Matthew Taylor, general counsel and director, criminal law policy section, and we have Andrew Di Manno, counsel, criminal law policy section. They are both here to answer any questions any of the members have as we do clause-by-clause.

I'd like to start with the clause-by-clause consideration of Bill C-5. I would like to provide the members with some instructions and a few comments on how the committee will proceed with this.

As the name indicates, this is an examination of all the clauses in the order in which they appear in the bill. I will call each clause successively, and each clause is subject to a debate and a vote. If there is an amendment to the clause in question, I will recognize the member proposing it, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on. Amendments will be considered in the order by which they appear in the bill or in the package each member received from the clerk. Members should note that amendments must be submitted in writing to the clerk of the committee.

The chair will go slowly to allow all members to follow the proceedings properly.

Amendments have been given an alphanumeric number in the top right corner to indicate which party submitted them. There is no need for a seconder to move an amendment. Once moved, you will need unanimous consent to withdraw it.

During debate on an amendment, members are permitted to move subamendments. These subamendments must be submitted in writing. They do not require the approval of the mover of the amendment. Only one subamendment may be considered at a time, and that subamendment cannot be amended. When a subamendment is moved to an amendment, it is voted on first. Then, another subamendment may be moved or the committee may consider the main amendment and vote on it.

Once every clause has been voted on, the committee will vote on the title and the bill itself. An order to reprint the bill may be required if amendments are adopted, so that the House has a proper copy for use at report stage.

Finally, the committee will have to order the chair to report the bill to the House. That report contains only the text of any adopted amendments as well as an indication of any deleted clauses.

Are there any questions? Are we all good to start?

We're fine. Okay, I will begin.

(On clause 1)

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Some of these clauses are similar, but I'm just wondering if the department can give us a brief description of the effect if we choose as a committee to adopt clause 1.

[Andrew Di Manno, Counsel, Criminal Law Policy Section, Department of Justice]

Subsection 84(5) of the Criminal Code directs that a conviction for certain offences in an earlier offence for the purpose of triggering increased mandatory minimum penalties applicable to second and subsequent offences.... This is for the offences of section 85, using a firearm, or imitation firearm, in the commission of an offence; section 95, possession of prohibited or restricted firearm with ammunition; section 99, weapons trafficking; section 100, possession for purpose of weapons trafficking; and section 103, importing or exporting knowing it is unauthorized.

Clause 1 would remove the references to subsections 85(3) and 95(2) from subsection 84(5), because these subsections will no longer have escalating MMPs. Clause 1 is a consequential amendment to clauses 2 and 4 of the bill.

[Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice]

I'll just add, Mr. Chair, for your consideration that, because it is consequential to other clauses in the bill, the decision on those other clauses would have an impact on this clause as well. For example, if you decide to pass some of the clauses that propose to repeal MMPs, then you would need to make this consequential amendment. If you choose to retain those MMPs, you would have to revisit whether this amendment is necessary as well.

[The Chair, Liberal, Randeep Sarai]

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Chair, I want to just flesh this out a little bit because, frankly, in the context of the committee meetings we've had.... We haven't had a ton of them. I think we had seven where we heard witnesses, and today's meeting is our eighth. Just for clarification, when we talk about the mandatory minimum penalties in these sections, this is on someone who has already been convicted of the same offence, so now they've been convicted twice of, for example, weapons trafficking or possession for the purpose of weapons trafficking.

Frankly, a lot of the discussion that happened and witness testimony at committee were couched in the terms that this was someone who got caught up in an unfortunate incident or someone who had a few drinks and shot the side of a barn. For this section, are we talking about, for sections 85, 95, 99, 100 and 103, someone who has this as their second offence? Is there a minimum on their first offence? Do any of these...? This says, “second or subsequent”.

I guess I'm a bit familiar. In a previous government, when there was a mandatory minimum penalty of four years for certain gun crimes and because of the issue of recidivism, which is basically the same person committing the same types of crimes over and over, we brought in a change to the law that meant that, on your subsequent offence, it would be five years and then after that, seven. I think that's where it kind of landed. I think originally it was four, seven and 10, or something like that, but eventually it landed at four, five and seven, I think.

I just want the committee to be 100% clear, because I don't think it ever came up in our witness testimony. Are we only talking in this clause about someone who's already been convicted of a prior offence in the same section of the Criminal Code?

[Matthew Taylor]

This is a clause that really provides guidance to the courts as to when they're considering whether to impose a higher MMP because the conviction is a second or subsequent conviction. The offences listed in paragraphs 84(5)(a), (b) and (c) constitute a first offence for the purposes of determining whether the higher MMP would trigger.

Currently section 85 is use of a firearm in the commission of an offence, and section 95 is possession of a prohibited restricted firearm. Sections 99, 100 and 103 are trafficking and smuggling offences. If an individual has been convicted of one of those offences, the court would look to this provision. If they have a previous conviction, it's a broader list, sections 85, 95, 96 and 98. If they have a previous conviction for those offences, there would be a higher MMP imposed by virtue of this provision.

[Rob Moore, Conservative, Fundy Royal, NB]

I should be asking these through you, Chair, but I want to flesh out a couple of things here.

The list of offences that are subsequent is broader than the list of offences that predicate the triggering of the mandatory minimum. On those offences, for the first offence, is there a mandatory minimum attached to each and every one of those first offences? I think there is on some of them, but is there a mandatory minimum penalty at first offence for weapons trafficking and for possession for the purpose of weapons trafficking?

[Matthew Taylor]

Section 85 has a mandatory minimum.

[Rob Moore, Conservative, Fundy Royal, NB]

Can you go through it, if you have it in front of you?

[Matthew Taylor]

Sure. Section 85 does have mandatory minimum penalties. Section 95—

[Rob Moore, Conservative, Fundy Royal, NB]

Is the mandatory minimum in section 85, at first instance, one year?

[Matthew Taylor]

It's one year, and the subsequent is three years.

Section 95 did have mandatory minimum penalties, but they were found unconstitutional—

[Rob Moore, Conservative, Fundy Royal, NB]

They were struck down.

[Matthew Taylor]

—by the Supreme Court in Nur. Section 99 has mandatory minimum penalties of three and five years, I believe, for first and second or subsequent offences with firearms, and a one-year MMP for other things like prohibited or restricted weapons.

Section 100 is the same. It's possession for the purposes of trafficking, so it follows the same sentencing structure as section 99: three and five years for firearms, and one year for prohibited or restricted weapons.

Section 103 is the firearms smuggling offence—three and five years again, with one year for things other than firearms.

[Rob Moore, Conservative, Fundy Royal, NB]

This legislation touches on a lot of different offences. There are different offences, different impacts and, I would argue, different levels of seriousness. Obviously, they're all Criminal Code offences, but, no doubt, we as a committee may feel that some of them are more serious than others. Of those five you've been speaking about—85, 95, 99, 100 and 103—is it possession of a prohibited or restricted firearm with ammunition? I remember this case.... Is that the only one of the five that has been challenged and the mandatory minimum found unconstitutional?

To follow up, could you walk us through why this discussion isn't moot? While the mandatory minimum in this narrow case was struck down, it remains a trigger for the escalation for subsequent offences. Is that why this conversation isn't moot, since the court, in that case, struck it down? While we know.... The government's own backgrounder suggested that, I think, mandatory minimums were struck down in 48% of cases, meaning that, in 52% of cases, they were upheld. We acknowledge there are cases where they've been struck down and there are cases where they've been considered and upheld.

Could you walk us through the effect of that one offence being struck down, and why it still matters in the context of this clause?

[Matthew Taylor]

In the Nur decision, the Supreme Court struck down the two MMPs for section 95, so there are no MMPs, currently.

To go back to an earlier question that was posed, there is constitutional jurisprudence on the other offences listed, with varying results. In some cases, provisions were upheld by the courts. In other cases, they were found unconstitutional. In terms of section 85, there have been appellate decisions where the MMPs were upheld. I should caution, though, that those decisions occurred before the Supreme Court's decision in Nur and its subsequent decision in Lloyd, which adjusted the interpretation of section 12 and constitutional jurisprudence.

On section 99 on weapons trafficking, there have been cases where it has been struck down as unconstitutional, as with section 100, Quebec Court of Appeal in 2019, and section 103, Quebec Court of Appeal in 2019. None of those cases went to the Supreme Court of Canada, but there is jurisprudence, as described.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for answering all those questions really thoroughly.

Mr. Chair, on this, and I'm going to ask the committee.... All of us as members have an opportunity to vote on this clause. I look at these offences, and we are talking about recidivists with these offences. No one is arguing that we shouldn't do everything, our level best, at the federal level, with our provincial counterparts and at the municipal level. No one is arguing that we shouldn't do everything we can to help people and help them reintegrate into the community.

We have to recognize that at some point people are going to be back in the community and we should do our best to reintegrate them, but when I look at this list of offences, it's like they're pulled from the headlines of what we're dealing with right now in this country. Police chiefs.... We had witnesses at the committee who spoke about their own jurisdictions. Some of them were major municipalities. Some of them were the most rural places imaginable, and some of them were urban, suburban or first nations policing.

We heard from a variety of witnesses in policing. The evidence they gave us is that the types of firearms they're seeing, in both urban and rural settings, are not those of John Q. Duck Hunter, farmers and sport shooters. They're weapons and firearms that have come in largely from the U.S. They've been trafficked in. I see weapons trafficking as one of these offences. They are largely prohibited weapons or restricted weapons. The people using them are not licensed. They're unlicensed.

What we have in these offences—and I'm speaking specifically of the offences in this clause—is that we're dealing with people who at no point have tried to comply with Canada's laws. All of us have people in our ridings who have complied. They're law-abiding firearms owners. First, they have a licence. They're licensed owners. Second, they've gone through proper channels. They didn't necessarily buy a handgun out of the trunk of someone's car. They went to a dealership and purchased a firearm legally.

The testimony we've heard over and over again at committee is that those are not the individuals who are creating the problem. Even while we were in committee, we heard—again, ripped from the headlines—stories of people using drones to take a bag of handguns from the U.S. and bring it across into Canada, presumably to be picked up by the criminal element here and distributed and sold and, at some point, very possibly used in a crime against an innocent Canadian.

We can have a debate about the role for mandatory prison sentences, and we've done that. We've gone around and we've heard from a lot of different witnesses, and we've heard from members of the committee, but I want us to look really carefully at this particular clause, because to me it's dealing with scenarios right now where Canadians are calling out for action. We're seeing it in New Brunswick, in Ontario and in Quebec. We're seeing it in every province. They're saying, “We need help.” Rural crime is an issue, and urban crime is an issue.

We just saw that Mitch Marner, for Pete's sake, of the Maple Leafs, was robbed. I don't know all the details, but from what I read about the armed assailants, I will guarantee you that the people who robbed him didn't drive away in a pickup truck wearing fluorescent orange, with the shotgun they use for duck hunting. This is a criminal element.

I will also guarantee you that it probably wasn't their first offence. These are individuals who knew exactly what they were doing, and they carjacked Mitch Marner the same way that they've probably carjacked other people, and, yes, eventually someone's going to get killed in the process.

It's that kind of recidivism. It's that kind of wanton disregard for other Canadians, for innocent individuals. That's the reason these laws are in here.

We have to start from the premise that we have a Criminal Code in which we, as Parliament, have said that these are things that are bad. These are things that we don't want to happen in society, and there's a reason why some offences are dealt with summarily. Some offences are seen as less serious. For some offences in Canada you receive a monetary penalty, a fine. If you're speeding in New Brunswick, the fine might be $168.

But if you have possession for the purpose of weapons trafficking, if you have importing and exporting, knowing it's unauthorized, if you're involved in weapons trafficking or using a firearm in the commission of an offence, these are the offences Canadians want us to deal with.

I'll leave it at that, Mr. Chair. I just want us to really take a sober look at these offences before we vote on them.

I do thank you again, Mr. Taylor, for very thorough responses to all those questions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Seeing no other debate, it will be a recorded vote, I assume.

[Rob Moore, Conservative, Fundy Royal, NB]

Yes. Can we get a recorded vote, please?

(Clause 1 agreed to: yeas 7; nays 5)

(On clause 2)

[The Chair, Liberal, Randeep Sarai]

On clause 2, we have a CPC-1. Are there any comments, or shall we go to the vote?

[Rob Moore, Conservative, Fundy Royal, NB]

Yes, I'll speak to amendment CPC-1 quickly, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Sure, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Recognizing that it seems to be the will of this committee, I don't want to be presumptuous, but based on the last vote it would appear that the mandatory minimums that are in place are at risk of being struck down, which, in my view, puts our communities at risk, particularly when there is a recidivist element and repeat offenders who are committing the same crimes and the same types of crimes over and over.

What our CPC-1 would do, in an effort to compromise, is reduce the mandatory minimum penalty from one year to six months. For virtually all of the minimums we deal with in Bill C-5 and Bill C-22, which came before it, I think the lowest minimum is one year. I don't think there were any that were below one year. Some of them were more than a year, but the majority of them were a year.

What this would do is acknowledge what appears to certainly be the will of this committee to deal with mandatory minimums but also acknowledge the cry from the public right now that there be real consequences for serious crime. This amendment would be an effort to extend the olive branch and say, if one year is too much, then six months would take someone off the streets, hopefully get them some of the help they need and also show that there is a level of confidence in our justice system that if you commit some of the serious firearms offences and other offences contained in Bill C-5, we as a Parliament say that if you commit an offence like that, there needs to be some period of incarceration.

This amendment would lower the mandatory minimum penalty from one year to six months for using a firearm in the commission of an offence.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Mr. Garrison.