Justice Committee on May 20th, 2022

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you. I have a quick question for our witnesses.

As I recall, the mandatory minimum penalty for this offence was four years. It was raised to five years for a first offence. The amendment that the government is proposing would eliminate the mandatory minimum entirely, so I do see some merit in Mr. Fortin's amendment.

Can you clarify for the committee that this would be reducing the minimum from five years to four years, but still maintaining a mandatory minimum, in fact the mandatory minimum that existed previously?

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

As I understand the amendment, it would provide an escape clause for the four-year mandatory minimum penalty, but not with respect to the five- and seven-year mandatory minimum penalty that exists where a prohibited and restricted firearm is used in a first offence or where it's linked to organized crime.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Seeing no other hands, I'm going to double-check with Mr. Garrison if he's able to hear what I'm saying, because I'm going to be calling a vote. If he can nod.... I still can't hear you, Mr. Garrison.

Would we be able to patch him in by phone at least?

[Lena Metlege Diab, Liberal, Halifax West, NS]

He's indicating that he can hear you, but unfortunately, we can't hear him.

[The Chair, Liberal, Randeep Sarai]

I'll go to the vote, and we'll see thumbs up or thumbs down with him. We'll go—

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

Mr. Chair, my hand is up.

[The Chair, Liberal, Randeep Sarai]

Go ahead, Mr. Brock.

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

Thank you.

While I appreciate the spirit in which the amendment has been brought forward, and I congratulate my colleague Monsieur Fortin for addressing the issue that's pertinent to our discussion—that is the overincarceration issue—I want to highlight to the committee that our Conservative amendment number 11 also speaks to the spirit of this particular amendment.

The only concern that I have, and why I cannot support it, is that, in criminal law, and particularly in my previous career, I demanded clarity with respect to the law. I guess an argument could be made that much of the litigation that flows from criminal law is the result of confusing terminology and different interpretations.

Wherever possible, I look for clarity. I look for definitions of clauses. The reason I cannot support Monsieur Fortin in this particular amendment is that I don't know what he means by “exceptional circumstances”. I don't know if that is what was contemplated by Monsieur Fortin. I think the spirit behind it captures what we're trying to do, but Bill C-5 is premised, again—at least with some of the narrative of the government—on reducing litigation. In my view, this creates more confusion. That's why I cannot support it.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

We'll go to Monsieur Fortin.

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

Thank you, Mr. Chair.

I'd like to thank Mr. Brock for his comment. Perhaps he will allow me to round out my explanation on the issue of exceptional circumstances. I asked myself the same question, because I too like to see legislation that is clear and not confusing. I spoke with other legal experts before proposing the amendment as worded.

The problem is that it is virtually impossible to predict all the exceptional circumstances that may occur. By definition, if circumstances are exceptional, it's because they are uncommon and can't be defined in advance.

However, we still want to trust the courts. I'm sure Mr. Brock would agree with me that judges are usually able to make wise and informed decisions, and determine what is exceptional and what is not.

Again, I trust the courts on this issue, and I also trust our appellate courts to overturn and amend decisions that would be frankly unsound on the issue of waiver.

Defining too much in advance under what circumstances a waiver would be permitted would lead us down a blind alley, because we are absolutely unable to imagine all the circumstances that might arise. Other countries have already adopted the same wording to define what is meant by “exceptional circumstances”. We would have to go back to Professor Julie Desrosiers's testimony on this, but I think she mentioned New Zealand or Australia, I'm not sure. I know that two or three countries have adopted the same wording and that it works quite well.

I think we can let the court decide, as long as the judge has to explain what an exceptional circumstance is. If the judge doesn't justify it, then obviously their judgment will be appealed. The judge cannot waive the mandatory minimum sentence without first announcing the presence of exceptional circumstances. The judge will have to explain why the circumstances are exceptional. If the judge is mistaken, the Court of Appeal can correct the decision.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

I don't see Mr. Garrison on the screen. Okay, he is back.

We'll have a recorded vote, please, on Bloc amendment 1.

(Amendment negatived: nays 10; yeas 1 [See Minutes of Proceedings])

[The Chair, Liberal, Randeep Sarai]

Next, we'll go to Conservative amendment 7.

Mr. Moore, did you want to speak to this?

[Rob Moore, Conservative, Fundy Royal, NB]

Just quickly, our amendment number 7 maintains a minimum sentence for discharging a firearm with intent in order to send a message that we don't tolerate drive-by shootings and that we don't want to have a revolving-door recidivism, where the same individuals are committing serious crimes, getting out and recommitting. It would maintain a mandatory minimum of two years where the government is seeking to make the minimum zero years of incarceration for discharging a firearm with criminal intent.

Thank you, Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Shall Conservative amendment 7 carry?

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

(Clause 10 agreed to: yeas 6; nays 5)

(On clause 11)

[The Chair, Liberal, Randeep Sarai]

Next, we have clause 11. Our first amendment is Green Party amendment 18, on page 27 of the package. Again, if Green Party amendment 18 is adopted, Bloc amendment 2 and Conservative amendment 8 cannot be moved, as they amend the same line.

Hearing no questions on this, and as the Green Party member has already I think mentioned what he had to say, shall Green Party amendment 18 carry?

(Amendment negatived: nays 11; yeas 0 [See Minutes of Proceedings])

[The Chair, Liberal, Randeep Sarai]

We are going over to Bloc amendment 2. I'll remind members again that if Bloc amendment 2 is adopted then Conservative amendment 8 cannot be moved, as they amend the same line.

Monsieur Fortin, would you like to say anything on this?

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

I could talk about that, but it would be akin to filibustering, because I would be repeating much of what I said to you a few moments ago about BQ‑1.

Again, we are simply proposing a compromise to maintain mandatory minimum sentences while allowing judges to waive them in exceptional circumstances. This is the offence of discharging a firearm recklessly.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Shall Bloc amendment 2 carry?

(Amendment negatived: nays 10; yeas 1 [See Minutes of Proceedings])

Next is Conservative amendment 8 on page 29 of our package.

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

[Rob Moore, Conservative, Fundy Royal, NB]

For the same reasons as stated earlier, this is an attempt to maintain a mandatory penalty for this offence. The government's proposal is to eliminate it entirely. Our proposal would maintain a two-year mandatory minimum.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Shall Conservative amendment 8 carry?

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

(Clause 11 agreed to: yeas 6; nays 5)

Next, I've made rulings for Green Party amendments 19 to 29. They've all been deemed out of scope as they breach the parent act rule. They amend other codes of the act, so they are deemed inadmissible.

(On clause 12)

We have Green Party amendment 30. If it is adopted, Bloc amendment 3 and Conservative amendment 9 cannot be moved, as they amend the same line.

Shall Green amendment 30 carry?

(Amendment negatived: nays 11; yeas 0 [See Minutes of Proceedings])

[The Chair, Liberal, Randeep Sarai]

Next we have Bloc amendment 3.

Again, if BQ-3 is adopted, Conservative amendment 9 cannot be moved as they amend the same line.

Mr. Fortin, are you okay with me proceeding, or would you like to say something?

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

The reasoning is the same as for the two previous amendments, BQ‑1 and BQ‑2. The idea is to maintain the mandatory minimum sentence to indicate the seriousness of the offence, while allowing judges to waive it in exceptional circumstances.

This is what I think is most appropriate, especially since we're talking about robbery with a firearm. I find it peculiar that we would decide to abolish the mandatory minimum in such circumstances. It's a pretty startling message that we would be sending to gangs and the general public. The RCMP expects us to get tough on these crimes and stop these shootings, not to lessen the seriousness of them or to allow the courts to waive heavy sentences in such cases.

We believe that the minimum sentence should be maintained, while allowing a judge to waive it in exceptional circumstances, which the judge would then have to explain.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

(Amendment negatived: nays 10; yeas 1 [See Minutes of Proceedings])

[The Chair, Liberal, Randeep Sarai]

I'm just going to suspend for five minutes for Mr. Garrison. He's been advised by IT to reboot his system, so we'll take a short suspension and resume at 2:13.