Justice Committee on May 17th, 2022

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

Thank you very much, Mr. Chair.

I have to say, Mr. Moore, by your own logic, this would make the Conservatives soft on crime, because you have always argued that the mandatory minimums do something to affect crime.

What we heard repeatedly from witnesses, and what we know from all of the peer-reviewed literature in criminology, is that mandatory minimums do nothing but increase jail time. They do not have a deterrent effect. They do not, by increasing jail time, make people less likely to offend. In fact, if anything, the literature shows that it makes people more likely to reoffend.

I think you're right in identifying that everybody around the table is interested in keeping the community safer and preventing more victims in our society. What we disagree on is whether mandatory minimums [Technical difficulty—Editor].

In this case, I'm of course going to vote against your amendment, because it restores a mandatory minimum that Bill C-5 would [Technical difficulty—Editor].

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

I have Ms. Brière, and then we have Mr. Morrison and Mr. Brock.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

I agree with Mr. Garrison. It is not because we are removing the mandatory minimum sentences that the alleged offences will be taken less seriously and that the sentences will be less significant. In fact, we are giving judges greater judicial discretion.

We will therefore vote against the amendment.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Brière.

Next, we go to Mr. Brock.

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

Actually, it's Mr. Morrison.

[The Chair, Liberal, Randeep Sarai]

I couldn't see who I had first.

Mr. Morrison, go ahead.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair.

When we talk about the witnesses we had, I think there were two groups of witnesses. We had people supporting offenders, which we need to look at, and I just gave a speech about that recently because I think that's very important. However, when we had the victims come in, it was certainly a black-and-white picture. The victims were certainly extremely upset, and they were upset with the whole bill.

I'm looking at the victim side of it. If we just drop the offenders, because victims should be first in my opinion and then we should look after the offenders, a period of six months, which is reasonable, still demonstrates to Canadians looking at public safety that we, as a government, are still interested in keeping our streets safe and supporting victims.

These are pretty serious offences. I would think, in a lot of cases, our judges would be handing out more than six months. It gives them the discretion to do more when the offence warrants it, but it also gives them the discretion to do the six months.

From what we had from witnesses, especially the victims, I feel we're missing the point of where Canadians stand if we start thinking that these violent offences are something we should be completely removing the mandatory minimum penalties for.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Morrison.

Mr. Brock.

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

I want to start off by highlighting the talking points that the government repeatedly used when this bill was introduced at first reading and at second reading, what we've heard from the government committee members in their questioning of witnesses and, in particular, how the Attorney General, the highest legal officer in this country, has said that the whole purpose behind Bill C‑5 is to make a significant step to once and for all address the overincarceration of indigenous offenders and other marginalized individuals in the country.

My colleague Mr. Naqvi, in his previous capacity as the Attorney General of Ontario, was my boss, and certainly in his tenure would give us instructions from time to time to be ever-cognizant of that particular fact and to look at ways in which prosecutors in Ontario—I can speak only for Ontario—would be afforded the additional tools to exercise the appropriate discretion. As Crown attorneys, we are vested with an enormous amount of power when we receive a case. When we receive a case, there's a Crown brief. There's an indication of what the accused's name is and what the offence is and perhaps a summary of the salient facts, but apart from a particular Crown attorney such as me being familiar with a surname that could be the same as that of an indigenous offender in my community or unless someone has experience as a prosecutor and knows repeat offenders, they may not know whether or not that particular accused falls within the class of individuals who this bill is designed to assist.

We take a position. We take a screening position as to what we believe the offence is worth, but through the process of the prosecution for an offence such as a section 85 offence.... For the non-lawyers on this committee, section 85 offences are most often committed in an armed robbery scenario. They are extremely violent offences that impact community safety. They're quite often committed as a result of an addiction someone has as a quick scheme to acquire money to feed that addiction, quite often targeting convenience stores and vulnerable members of our community. We take a very stern approach that this cries out for a significant denunciatory sentence. However, the process could take upwards of a few years to resolve. Quite often individuals charged with this offence will acquire defence counsel, and defence counsel will bring to the attention of me or other Crown attorneys some of the other factors that we should be considering when we exercise our discretion.

This is a long, roundabout way of my saying to this committee that something no one has spoken about in the House, and something I have tried unsuccessfully many times to bring up, is that it completely ignores the discretion that Crowns in Ontario—and, I would like to think, across this country—have reflected and are doing in their work to ensure that we are addressing the overincarceration issue. When you're dealing with an offence like the ones in subsection 85(3), the serious nature of which I have highlighted—and this is to Mr. Garrison's point—with all due respect to Mr. Garrison, I completely disagree with his interjection, because a message must be sent to like-minded offenders. The sentencing provisions in the Criminal Code mandate principles that a judge must consider.

This is over and above factoring in the indigenous background or taking a look at the court of appeal decision in Morris, when you take at look at the impact of being a Black Canadian in an urban centre and whether or not that can be taken into consideration by a judge.

The fact of the matter is that there is much jurisprudence, and I'm sure my colleagues at the DOJ will back me up when I say that the predominant sentencing principles for this type of offence is denunciation, general and specific deterrence and, most importantly, separation from society. These are individuals who will not be getting a conditional sentence. These are individuals who, regardless of an indigenous or a Black background, will end up in jail. In my view, this sets the appropriate bar, sending out a message to like-minded individuals that should you engage in this activity, you're not going to “pass Go”, to use the Monopoly metaphor. You are going to jail, no ifs, ands or buts. However, with Crown discretion, there are ways of adapting and taking a look at the overincarceration issue.

The last thing I want to highlight—and my DOJ colleagues can confirm this—is that this particular offence has been charter-proofed by the Ontario Court of Appeal 2013 decision of Meszaros, post-Nur, and the Al-Isawi decision by the British Columbia Court of Appeal in 2017. Both cases stood for the proposition that this particular section and the mandatory minimum penalties did not infringe upon section 12 of the charter.

Thank you, Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Mr. Cooper is next.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much, Mr. Chair.

I wish to speak in support of this amendment. I have to say that if it were a choice between maintaining the status quo or going where the Liberals and NDP want to go, which is to eliminate mandatory jail time for some pretty serious offences, including the very serious offence of using a firearm in the commission of an offence, I would prefer the status quo.

That is where I hope we arrive at, but looking at the submissions that were made by certain individuals who came before the committee, by the Liberals and the NDP, and hearing some of the comments made by my colleagues throughout the rather limited number of meetings that we have had, I'm not optimistic that we're going to go there.

Instead, it seems that, blinded by ideology, the Liberals and the NDP want to move full steam ahead and simply eliminate these mandatory jail times, despite some very compelling testimony from witnesses, witnesses who were victims of offences, including firearms offences, and from law enforcement.

So much testimony came before the committee calling on the members of this committee to put a pause on rolling back mandatory jail time for, specifically, firearms offences that I think it would be helpful to remind committee members of some of that testimony. There's a lot. It's tough to know, frankly, where to even begin.

For example, André Gélinas is a retired detective from the intelligence division of the Service de police de la Ville de Montréal. He said this in general about Bill C-5: “There will be no deterrence.” He said, “The message this sends to the police who confront these criminals”—the criminals he's speaking of are criminals who go out and commit offences with firearms—“will only fuel discouragement and disengagement from these police officers.”

Mr. Gélinas also said:

This does not bode well for our collective security. As a society, we are facing an abdication and a retreat that is certainly not a solution to the overrepresentation of the communities [supposedly] targeted by this bill.

He said, “People who live in neighbourhoods where gangs and organized groups are very active feel totally abandoned by Bill C‑5.” He also stated:

Just imagine how you would feel if you were the victim of an assault with a firearm.... I don't think you would feel any safer in your community knowing that this person would not be subject[ed] to...minimum...sanctions.

That was Mr. Gélinas, who has very extensive experience in law enforcement on the front lines, dealing with perpetrators who go out, who commit serious crimes with firearms, who undermine public safety and who terrorize communities and leave victims in their wake. He certainly said, as a starting point, don't go where you want to go, where the Liberals and NDP want to go. I agree with him.

Anie Samson is a municipal elected official and represents an ethnically and culturally diverse area in Montreal that has been hit hard by firearms crimes perpetrated by criminals who use illegal firearms. She said before our committee that, “[These] weapons have destroyed families, friendships and lives.” She also said, “The message being sent at present is that because certain mandatory minimum sentences have been abolished, a criminal can commit a crime and get a reduced sentence, while the victim may be traumatized for the rest of their life.”

Stéphane Wall, another retired police officer, again from the city of Montreal, said—again, generally about Bill C-5 as it pertains to firearms offences—that Bill C-5 would “trivialize” the possession of arms for further use in criminal activities. It would give the “wrong message” to these criminals. She said, she didn't think this would coincide with the reality as we find it in the streets.

Members of street gangs already feel completely immune prepassage. They are going to be supported in a number of crimes. They are already laughing at the justice system. They just mock it

Then there is Sergeant Michael Rowe, who came before the committee representing the Canadian Association of Chiefs of Police. I saw the Minister of Public Safety earlier today, or perhaps it was yesterday, citing the Canadian Association of Chiefs of Police in answer to a question in question period. Sergeant Rowe said:

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 that regard he spoke and raised serious concerns about mandatory jail sentences being rolled back by Bill C-5.

As Mr. Brock noted, when we're talking about individuals who are charged under this particular section, we're not talking about folks who are going to walk away with a conditional sentence. We're talking about folks who are going to be spending some time behind bars in most cases.

Having regard for the evidence that came before our committee about the prevalence of illegal firearms and the fact that crimes are being committed by people who are often involved in gangs and organized crime.... Having regard for the fact that these witnesses told us that, as it currently stands, there is a need to provide for denunciation, and having regard for the impact that these types of offences have on victims and on the collective sense of security in communities, particularly communities that have a wide array of social issues, this is not where I'd like to go, but again, it is a matter of saying there should be at least some maintenance, some assurance that if someone goes out and commits the crime using a firearm in the commission of an offence, there ought to be, at the very least, a mandatory jail time, at least some preservation of that, and that's what this amendment does.

On that basis, given where this committee appears to be going, I think it's.... I hate to use the word “compromise”, but that's essentially what it is, to maintain at least some level of accountability in place.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Cooper.

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Just quickly on this, in the context of the debate on Bill C-5 and Bill C-22 before it, this is not to be partisan in any way, but to illustrate that the idea of the concept of Parliament sending a clear message to Canadians, to victims, to criminals and, yes, to the judges presiding over sentencing, is not a Conservative notion in some way exclusively.

Before we take what I think is a drastic step and possibly eliminate a mandatory prison sentence for some of these section 85 offences on using a firearm in the commission of an offence, I want to quickly note that the minimum was first introduced as far back as 1976. In 1976 and forward since then, some of these have been on the books. That doesn't mean we can never make changes—I get that—but some of these sections have lived on through Liberal governments, Conservative governments and so on, all of them agreeing to keep these provisions in place, and all the while, these provisions, although challenged, many of them were upheld.

I think it's important to contextualize that, because if you listen to the debate, you would think that all of these mandatory minimums—I'm kind of lumping a bunch of them together here—somehow came from the previous Conservative government when, in fact, I've taken the time to look at all of the mandatory minimums being eliminated, and virtually all of them pre-existed the previous Conservative government.

In fact, on the mandatory minimums that we brought in under the Safe Streets and Communities Act or previous legislation, the current government has chosen to keep those on the books, to not eliminate them.

It's important, before we make a change like this, to recognize that some of these have been on the books for the better part of 50 years. It's not something that just is a recent invention but something that we should really consider really very weightily as we deliberate on each of these clauses and on removing what could amount to the only barrier between someone who has committed a serious offence and their being right back out on the street.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Shall Conservative amendment number one carry?

[An hon. member]

I ask for a recorded vote.

[The Chair, Liberal, Randeep Sarai]

(Amendment negatived: nays 7; yeas 4 [See Minutes of Proceedings])

(Clause 2 agreed to: yeas 7; nays 4)

(On clause 3)

[The Chair, Liberal, Randeep Sarai]

For clause 3, we have amendment CPC-2.

[Rob Moore, Conservative, Fundy Royal, NB]

I will speak to that really quickly.

For this section of the code, what our amendment would do, again, is replace the one-year mandatory minimum with a six-month mandatory minimum.

Mr. Cooper reminded me of something that I think is important that I put on the record. In no way, shape or form would I want anyone to think that I think the mandatory minimum should be reduced in these serious firearms cases. What we're attempting to do is to salvage some form of statement from Parliament denouncing the very serious firearms offences we're talking about here.

These are current in the case of a first offence under Section 92(3):

Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

(a) in the case of a first offence, to imprisonment for a term not exceeding ten years;

(b) in the case of a second offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; and

(c) in the case of a third or subsequent offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of two years less a day.

I think we are talking here about some of the serious firearms offences that we're seeing in the headlines today. Just to be clear, we're talking about the commission of an offence with a firearm and these are some of the more serious offences. Not all of these are exactly the same. There's not just a series of mandatory minimums that this Bill C-5 eliminates. We have to put each and every one of them into context.

We have seen two clauses carry. I'm hopeful that on some of these clauses we might take a look at what the impact is, and we might give that some thought and say, “Do you know what? In this case, we should maintain a clause that perhaps has been in the Criminal Code for half a century.”

I'm going to ask a question of our witnesses to walk us through the process under this particular section, because I want to draw to the attention of the committee the fact that the minimum punishment in the present section is only triggered on a subsequent offence. The escalated minimum punishment, a term of imprisonment for two years less a day, is only triggered by a third offence.

We heard testimony from police, from community members and from victims' groups that their concern is not with the one-time offender, the person who innocently got caught up with a bad crowd and committed an offence. What we're talking about here is an individual who is deeply involved in serious crimes that, by definition, cause harm to their fellow Canadians.

It's bad enough to be charged and found guilty of one offence, but even at that threshold, it's not until you get to a second offence.... You have committed a crime under this section. Now you have gotten out. You have committed the same crime. You victimized another Canadian, and only now are we saying, “Okay, now you need to serve one year in prison.” It's one year in prison, and that's not after the first offence. That's after the second offence.

Now, picture that same individual. They have been found guilty twice of a serious firearms offence that involves the victimization of fellow Canadians in our communities, whether rural or urban. They were out again on the street, having been afforded the opportunity for rehabilitation and course correction. Now there's a subsequent third offence, for which they have been found guilty under our Criminal Code with the full benefit of our Charter of Rights and the full benefit of a fulsome defence under our charter. They've been found guilty a third time, and all we are saying as a Parliament is that for a serious firearms offence involving victimizing other Canadians, there should be a minimum of two years. Even that is being stripped from our Criminal Code by Bill C-5.

The reason I'm speaking about this, Mr. Chair, is that I think it's really important for committee members to think about it, because I know not all of us dwell on each of these clauses every day. We're all busy. We all have constituents. We have people who are calling in because the passport they went to get back in February still hasn't arrived. The point is that we're all busy people and we all have diverse challenges, and I think this is that moment—when we're at this table—when we draw our attention to the really profound impact that we have on Canadians' lives through the Criminal Code.

We heard witness testimony from victims. It was bothersome sometimes when some witnesses came and spoke for their introduction but they never mentioned victims. In virtually all of these cases, there's a victim involved. When we listen to the victims, of course.... I will not deny that when we listen to the criminal defence bar, they say, “Get rid of these mandatory minimums that are so troubling to my client. We don't want them.” However, when we listened to victims, they said it's an absolute affront to them that we would reduce the mandatory sentence that the person who victimized them would receive.

The question I have, through you, Chair, to our witnesses, is to distinguish subsection 92(3) from some of the others, so that the minimums we're dealing with here are not for first-time offenders, but for repeat offenders who, in some cases, are on their third offence.

The other thing I'll say.... I throw this out to committee members. I mentioned the case that we just heard about with NHL star Mitch Marner and the carjacking that happened. Do you know what? He's no more important than every other Canadian. The only reason we're talking about that is because we all know who he is. He's famous. What about the people who aren't Mitch Marner who had their car jacked from the same parking lot the week before? They're important too. They're Canadians too.

The point I'm going to make, and I'm guessing it's 100% true, is that if someone was convicted a first time, they committed an offence. They were caught by the police, had a trial, were found guilty and sentenced, and then there was a second time and a third time. If I asked every one of these committee members if they truly believe that those are the only three significant Criminal Code offences that this individual had committed, I don't think anyone would say they believe that.

These are the ones people are caught doing. It's one thing to get caught. It's another thing to get convicted under our system. They've been caught and convicted not once, not twice, but three times. Those are the minimums we're talking about.

Through you, Chair, to our witness, could you walk us through this clause and its application a bit? What are the triggers at each stage and the consequence of those triggers?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Chair, I have a quick point of clarification.

I'm getting a little confused here. I'm wondering if we could separate the questions from the debate. If there is a question, maybe we could pose that first and then debate, or vice versa. Going into a discussion and then a question makes this confusing. Frankly, it may not be the best way to move forward.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Anandasangaree.

Thank you, Mr. Moore.

You're able to ask questions however you want. However, I think when you're making statements, then asking a question and then making a statement, it might be confusing for the witnesses just to make the statement at the other—

[Rob Moore, Conservative, Fundy Royal, NB]

Next time I'll ask a question, make a statement, then go back to the question and then a statement.

[The Chair, Liberal, Randeep Sarai]

We'll go over to the witness.

[Matthew Taylor]

I'll be very quick. Mr. Moore accurately described the sentencing implications. On a first offence, there is no mandatory minimum penalty prescribed. On a second offence, there is the mandatory minimum penalty of one year, and on a third offence, there's a term of two years less a day mandatory minimum penalty.

This offence targets, in short form, illegal possession of certain things. With respect to firearms, where somebody possesses a firearm and they know that they don't have the necessary paperwork to possess it, that's the offence that's targeted here. It also targets things like possession of prohibited or restricted weapons, and those are itemized in regulations enacted under the Criminal Code. It could be things like butterfly knives or ninja stars and things like that. That's the purpose of section 92.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

My question part is over. You've answered it thoroughly and I appreciate the answer. Now, I'll go back to my point.

Every day in the House of Commons for the last number of weeks, the subject of gun crime has been coming up. No matter what newspaper you read, radio station you listen to or social media you engage with, you're hearing about firearms crime in Canada. We're dealing here with individuals who are in illegal possession of firearms, not by mistake but because they're engaged in criminal activity.

I should remind the committee that this deals with the very issue that Canadians are asking us to grapple with, which is illegal firearms in Canada and the possession of those illegal firearms by criminal elements. It's not duck hunters, sport shooters nor the poor guy who maybe inherited a firearm from his grandfather. They've jumped through hoops to get licensed, do safe storage, have a licence if they have to buy ammunition and are subject to the full weight of the law. We're talking about people who are flooding our streets with illegal firearms.

We know they come in vehicles across the border. We know they get smuggled across the border otherwise. I hadn't thought of this, but the law's always playing catch-up with criminals: We know, in fact, that they've used a drone to drop a bag of handguns from the U.S. into Canada.

That's how some of the people who are going to be convicted under this section will have come into possession of these illegal firearms. By definition, these people are in illegal possession of the firearm, meaning they're not licensed and they're restricted in Canada.

Gary, I guess there's a bit of argument, but you used to have to have a registration on a non-restricted firearm. That was called the long-gun registry. It was supposed to cost $2 million. I think it ended up costing $2 billion. This is important because a previous Conservative government ended the long-gun registry because it was targeting the exact wrong people.

It is my philosophy—and I think it's the philosophy of those on this side— that if you have a crime problem, you go after criminals. When I saw in my own riding senior citizens lining up to get their firearms licence, I thought to myself, “How is this making Canada a safer place?” If someone's going to line up for an hour to get a firearms licence so they can possess a firearm—a shotgun or a rifle that they inherited—how on earth is that making Canada safer?

That was the gun registry legislation. We committed to ending the long-gun registry. We did that and Canadians are better off for it. We're all better off for it because in spite of all the money that's spent globally right now with the pandemic and everything, there are finite resources. Dollars that we spend at the federal level chasing good guys are dollars that can't be spent chasing bad guys. We heard all kinds of witness testimony on this from police that said they're under-resourced. They don't have the resources sometimes to go after the bad guys.

I want to juxtapose what I just said about legislation that goes after the good guys. This legislation that we have before us, subsection 92(3) of the Criminal Code, is all about the bad guys. These are people who haven't got it right the first, second and now third time.

In light of everything, I would urge real caution. Think about what we're saying. We're saying that we, as parliamentarians, think that you can be in illegal possession of a handgun in Canada—a restricted, not licensed weapon—you can be found guilty of that, and you could possibly not go to jail. A month later, you could do the same thing and go before the courts, be found guilty and not go to jail. Then, a month after that, theoretically, you could do the exact same thing.

What I'm starting to hear is a message—and it's the message we heard from witnesses, which they didn't want us to send—that you can get away with crime in Canada. You can get away with gun crime. Illegal guns are part of gun crime, and this section is all about illegal guns.

I'm urging extreme caution before we vote on clause 3. Think about the message we're sending not only to the criminal element—they're getting the message loud and clear that you can do whatever the heck you want and not face a consequence under this bill—but also to the people who have been victims of gun crime. I don't need to explain this to you. It's in every one of our newspapers. There are victims of gun crime every day now in Canada.

I would strongly urge members to vote against clause 3.

[The Chair, Liberal, Randeep Sarai]

Go ahead, Mr. Brock, followed by Mr. Morrison and Mr. Cooper.