Justice Committee on May 20th, 2022

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

Thank you, Mr. Chair. I want to thank Mr. Moore as well.

These amendments were put forward by the different parties, including amendments that were put forward by the Conservative Party. As a government, we reviewed them extensively. I think that, from the outset, we've said that we would engage and make sure we accommodate and strengthen the bill as much as possible within the framework of the committee process.

On the subamendments that we've provided, I do want to speak to the one with respect to Mr. Garrison. It stems from the amendment that was already tabled by Mr. Garrison. We feel that the wording we provided strengthens the amendment and the bill overall.

As with Mr. Moore, I know there's an amendment there that we want to work with him on supporting as well. It does work on all three opposition parties that are represented here. We're working in good faith to really strengthen the bill and have it move forward.

Having said that, if Mr. Moore wants additional information on the amendment provided, I can speak to it. I do think that, at the outset, we support in principle the intention brought forward by Mr. Garrison in his amendment NDP-2.1. We have just added language that I believe provides some safeguards on the record-keeping to provide some transparency and ensure that the information that is gathered is not used in a way that is adverse for the individuals. I think it's paramount that we are driven by data.

To your point, Mr. Moore, on the Conservative amendment that will be forthcoming on review, I believe data is so critical to the kind of review that's likely to take place.

It's in that spirit that we brought this forward. I believe that we forwarded the other ones, which I'll speak to separately, with the intention of strengthening the bill.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Anandasangaree.

We'll go to Mr. Fortin and then Mr. Garrison.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

I agree with what Mr. Moore said. Yes, we did receive NDP‑2.1 a few moments ago, and right after that we received an amendment to it. In fact, it is a well‑drafted amendment to the amendment. We can see that it wasn't drafted on a corner of the table. So it's probably been available since this morning, or even for a few days. I'm a little surprised to receive it at the last minute. It's really not easy to work like this. I find it regrettable.

If we want to work properly, with all due respect for democracy and the intelligence of the people sitting at this table, we would have to postpone this until after break week. That being said, I also understand that this will not be accepted. Mr. Garrison is obviously going to oppose it, along with the Liberals, and this meeting is going to drag on for an unknown amount of time. I don't like this situation. I want to work seriously, and I see that it's rather difficult to do so under the conditions imposed by the Liberal Party and the NDP—perhaps I should say “the New Democratic Liberal Party”, I don't know.

Having said that, Mr. Chair, if we are to continue the meeting, I will have questions for the two witnesses who are here today so that they can enlighten me on some aspects of the motion.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Go ahead, Mr. Garrison.

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

Thank you very much, Mr. Chair.

I do want to point out that the subject matter of 2.1 was in the original package of amendments. Amendments 2 and 2.1 were simply separated to allow us to vote separately on the two parts. This subject matter has always been in the package of amendments.

Having said that, like everyone, I have had a chance to look at the wording of the subamendment. I've been a member of Parliament for quite a while. It's quite normal for subamendments to come up in the discussions of bills without much notice, especially if we're trying to work collaboratively to improve bills. I had a look at the proposed Liberal changes. I think they respect the principle of what I was trying to accomplish. I just didn't have a staff of lawyers on my team to do the drafting who are obviously available to some of the other members.

I'm very much in support of the subamendments. I think they still do the same thing that we were trying to do, and that is make sure that we can have accountability on the use of discretion without endangering those who get diversions and who might have that used against them in future legal proceedings. I think the wording that the government has worked out accomplishes that much more eloquently and much more carefully than my original wording did, so I'm in support of the subamendment.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Just to reiterate, I think all the amendments were.... I want to thank all the parties for giving them well in advance. We have a pretty robust package here of amendments in good order.

Mr. Garrison amended his amendments, breaking them into two parts.

Mr. Fortin, the clerk has assured me that they were circulated to all members of the committee yesterday. The NDP-2 and NDP-2.1 amendments were circulated yesterday. The Liberal subamendment to 2.1 was done just now, which you did receive.

As Mr. Garrison also stated, it does happen in committees that in the process there are amendments that can come from the floor. They were presented and, at your request, we also suspended so that we could look at them. I think they're all in order.

Just to let Mr. Moore know on his point of order, I don't foresee any others—at least that are given to me ahead—so this would be the last one that I know of, unless something else comes up that I'm not aware of. I cannot answer to that. It's the will of the committee to bring anything up, but as far as I know, I think these were the only two that were brought in and they were circulated yesterday.

I have Mr. Anandasangaree.

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

Mr. Chair, if I may just confirm, there are a couple more that we've already sent to the opposition parties.

[The Chair, Liberal, Randeep Sarai]

There you go. There are two more subamendments that have been circulated to you, so I'll let you look at them.

Mr. Brock, is this another point of order?

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

It is, Mr. Chair.

Can you provide some explanation for why there was no motion to extend?

[The Chair, Liberal, Randeep Sarai]

It seemed to be the will of the committee to keep going. There are only motions to adjourn. There are no motions to—

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

That's completely incorrect, Mr. Chair, with all due respect.

I think you owe it to every committee member to respect our outside commitments. This meeting was scheduled for two hours. There was no discussion this past Tuesday that we would extend indefinitely, and I think procedure must be maintained. There is a procedure for a motion to extend, and I'm rather disappointed that you, as chair, did not raise that at three o'clock.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock, but unless you have a motion to adjourn, I will continue to proceed.

Next we had Mr. Fortin, who wanted to have a question to the witnesses before we cast our votes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

I would actually like to ask the witnesses a question.

My question is about NDP‑2.1, which is about a subamendment proposed by the Liberal Party.

I will wait for the two witnesses to read the text of the subamendment before asking my question.

Can anyone tell me if they've read it?

[Andrew Di Manno]

We've read it.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

What I understand from this text is that the diversion measures that would be taken for an offender would be recorded on the relevant police force register. However, the offender's name would be known only to the judge presiding over the trial of the offence in question.

If, later on and on different dates, the individual reoffends by committing the same type of offence, this can never be presented to the court, whether or not the individual has complied with the conditions proposed as part of the diversion measures.

For example, we couldn't tell the judge that we tried to use diversion measures three or four times, but that the person didn't comply with the conditions imposed. Diversion measures are not judicial proceedings.

Perhaps the person was complying with the conditions imposed, but still reoffended. You couldn't tell the judge that this is the fifth offence of the same type, for example.

If the measures applied were diversion measures, you couldn't tell the judge that the individual is a repeat offender, even though diversion measures have been used three, five, 10 or 20 times.

Have I understood correctly?

[Andrew Di Manno]

As I understand the amendment, it only relates to records that are kept in relation to warnings and not offences. Where the police officer issues a warning or makes a referral to a treatment program, the uses that would be permitted would be limited to proceedings with respect to the offence to which the record relates.

If, for instance, a police officer makes a warning or a referral in one case and that person doesn't successfully complete that treatment program, that warning or referral would not be able to be used in an additional case afterwards, only with respect to the offence to which the warning relates.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

So you could never tell the court that the individual has reoffended five or 10 times.

[Andrew Di Manno]

I'll just clarify.

When you say reoffend, do you meant when a person is again subject to a warning or referral?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I'm referring to the same offence. I understand the individual would not have been convicted of the other offences, as they would have been subject to diversion measures. We agree on that point.

I want to make sure that I understand the motion. Proposed subsection 10.4(2) would involve the judge or the court being made aware of a warning or referral only for purposes related to the prosecution of the specific offence.

As I understand it, let’s say an offence was committed on January 1, 2019. That's the only one that can be mentioned, regardless of the rate of recidivism or compliance with conditions of police orders. The judge will not be advised that, for instance, they tried everything, that the individual was ordered to get therapy, but that they failed to do so and reoffended, that is to say they committed the same crime again.

I understand the individual was not convicted for the other offences, but if it’s for the same offences, that is, repeat offences, the judge cannot be made aware of it.

Have I understood that correctly?

[Andrew Di Manno]

To the extent that the person was warned and later on needed to be warned again or referred again, proposed paragraph 10.4(2)(a) would limit the record of that warning to the initial proceedings where the person was warned. There are other paragraphs that would permit the use of those records, for instance, proposed paragraph 10.4(2)(b). The record could be released to a police officer for any purpose related to the administration of the case, but again, it would be limited to that to which the record relates.

If you go a little bit further, under proposed subparagraph 10.4(2)(c)(ii), the record could be used for instance in a presentencing report, but again, it would be limited in respect of the offence to which the record relates.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Shall the Liberal subamendment to NDP amendment 2.1 carry?

(Subamendment agreed to: yeas 6; nays 5 [See Minutes of Proceedings])

Before we vote, I just want to remind you that, if NDP 2.1 as amended is adopted, Green Party amendment 44 and Liberal Party amendment 2 cannot be moved as they amend the same line.

(Amendment as amended agreed to: yeas 6; nays 5 [See Minutes of Proceedings])

We now go to NDP amendment 3.

Mr. Garrison, would you like to say anything on this?

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

Yes, thank you, Mr. Chair.

Bill C-5 addresses the problem of over-incarceration of indigenous people, Black Canadians and other racialized Canadians in some modest steps, I would say. Over-incarceration carries with it another obstacle for those who have been incarcerated to reconnect with their community, their family, employment and housing. That's because, once you've been incarcerated, of course you come out with a criminal record.

Criminal records quite often have large effects on child custody cases and access to social housing—access to any housing, as landlords quite often insist on criminal record checks. Perhaps most importantly, criminal records can make it very difficult to get re-employed. All those things make it hard for those who have already been incarcerated to reform and get back in contact with their community.

What this amendment essentially proposes is an automatic removal of all criminal records for personal possession of drugs that have taken place in the past. This would take place within two years. The second thing it does is ensure that future records for convictions for personal possession that result in a record would be removed two years after the completion of the sentence.

It does so without requiring an application process. We all know that application processes for pardons or suspension of records, as they're called, are quite often very difficult to get and quite often very expensive. Even more importantly, lots of times people don't even know that they need to have a criminal record removed. Landlords certainly don't phone people back and say, “Oh, by the way, you didn't get the place because you have a criminal record.” Employers quite rarely say, “Well, I chose someone else because you have a criminal record”, so people may not even be aware of the ways in which they're being disadvantaged by criminal records.

Remember, this is only for personal possession of drugs, not for trafficking or involving violence. This would remove those records.

There are other things I personally would rather see. We know that Bill C-216, a private member's bill calling for the decriminalization of all personal possession of drugs, had its second hour of debate in the House today. We don't know the fate of that bill. We will be voting on that as a House, as a whole, when we come back.

What we have today is an opportunity to do something more than just reduce the mandatory minimum penalties, and that is to contribute to the reintegration and rehabilitation of people who have been imprisoned for personal possession, by making sure that those criminal records don't affect their families, housing or employment. I'm urging members to support this amendment, which takes this bill a little bit farther in attempting to repair the damage from the over-incarceration that indigenous people, Black Canadians, other racialized Canadians and many poor Canadians have already suffered as a result of incarceration for personal possession of drugs.

The bill reduces mandatory minimums. This would take away some of the stigma that goes along with that by removing those criminal records.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Go ahead, Mr. Fortin.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

I understand the intent behind Mr. Garrison's motion, and on several fronts, I agree with him. However, I take issue with rewriting history. We’re talking about convictions that occurred before the legislation came into effect. I don't see how we can pretend they never happened. We may wish they hadn’t, but they did.

Back in the day, people were hanged for murder. That’s not the case anymore. When hanging was abolished, there was no attempt to resurrect the people who had been hanged. They had been hanged. It's sad, but true. It's kind of the same here. Again, I am uncomfortable with the idea of erasing or hiding prior convictions. In fact, I wonder if that would even be possible.