Justice Committee on May 4th, 2026

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Everything is possible.

I listened to you very carefully, Ms. Burt, and with all due respect, it may snow tomorrow. It's quite possible.

All I'm hearing from my Liberal colleagues is, “Could this result in increased charter challenges?” Since when are we, as parliamentarians, so concerned about the potential for charter challenges? When are we going to do our damn jobs and protect Canadians and ensure that we provide justices with the appropriate tools to do their damn jobs of holding offenders accountable and keeping communities safe? That is our role.

Our role is not to go into the minds and shoes of a jurist. Let's face it: This is what's going to happen, folks. Mr. Housefather raised this issue numerous times. “Could this result in increased litigation?” Absolutely. Name one accused or defence counsel who will not look for every opportunity, when faced with a mandatory minimum penalty, to argue for a deviation from that.

With all due respect, Mr. Taylor, I disagree with you. It should be reserved for those outlier cases, but it's not going to stop a defendant from at least trying.

One thing that I did not highlight, and this is to your point, Ms. Burt, is that my amendment, CPC-22, talks about financial hardship and specifically excludes the issue regarding loss of housing or employment as not being a relevant circumstance.

Let's take a look at mandatory minimum penalties that currently exist in the Criminal Code for impaired care and control and operation of a conveyance. That's the term they use now instead of “vehicle.” We have mandatory minimum penalties in terms of fines and, where there are subsequent convictions, jail. Again, name one accused who has not used the argument, “Oh, Your Honour, I can't go to jail. I'm the breadwinner of the family. My family is going to suffer. I'm going to lose my job. I can't go to jail for 90 days on my third, fourth or fifth impaired driving charge because I haven't gotten the message yet.”

I want that door to be closed as tightly as possible. I think we should be doing the same thing as legislators, because Pandora's box is wide open on this issue.

To you, Ms. Burt, Mr. Taylor, Ms. Levman and Ms. Sigouin, can you name one particular case in which there has been a successful challenge to the mandatory minimum penalty where financial hardship, in and of itself, constituted cruel and unusual punishment? Can you name one case? I certainly can't.

[Leah Burt]

Thank you for the question.

No, we wouldn't have that information at our fingertips at the moment.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

I could give you a whole year to look into that matter, and I dare say at the end of one year you still wouldn't be able to find anything.

That's my point exactly. We are inviting a whole spectrum of legal arguments to be used every single day in courts across this country if we don't give our jurists some direction. That's the problem, folks, and I'm urging you seriously to consider my amendment.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Brock.

Mr. Baber, go ahead.

[Roman Baber, Conservative, York Centre, ON]

It's actually considerably worse, I think, Mr. Brock, because what the safety valve will do is say that you no longer even need to bring a charter application to say that the mandatory minimum penalty would be cruel and unusual. The safety valve eliminates the requirement for a charter application.

Am I correct, Mr. Taylor? Every single time an accused was sentenced, a judge would give consideration to whether the sentence was cruel and unusual.

[Matthew Taylor]

Would you mind repeating the question, please? Thank you.

[Roman Baber, Conservative, York Centre, ON]

Right now the practice is that if an accused wants to challenge a mandatory minimum penalty as cruel and unusual, they have to bring a charter application. It's a step in the process. What the safety valve does is that it eliminates that step. Every single time an accused is up for sentencing, the judge would essentially be directed by Bill C-16 to consider whether a sentence is cruel and unusual.

[Matthew Taylor]

Thank you for the clarification.

In my answer last week, I articulated our expectation that at the sentencing stage, or perhaps during the trial, the defence counsel representing the accused at the trial stage, or the offender at the sentencing stage, would indicate their intention to seek a sentence that is less than the mandatory minimum penalty on the basis that vis-à-vis their client—the offender, in this case—it would be cruel and unusual.

We do still expect, not as a constitutional argument but as part of the sentencing process, a step taken on the part of the accused's or offender's counsel in the sentencing.

[Roman Baber, Conservative, York Centre, ON]

Thank you, Mr. Taylor. I think you're agreeing with me in that, essentially, an allegation of cruel and unusual punishment would be almost part of standard operating procedure as opposed to a constitutional challenge.

Members opposite to me must understand this. In and of itself, this weakens the mandatory minimum penalty, but wait, there's more. I mean, what are we talking about when we talk about cruel and unusual punishment? At the end of the day, the court does a weighing exercise in terms of what's reasonable or not. That's all it is when it comes to mandatory minimum penalties being cruel and unusual.

I have to be honest. Throughout our political careers, we often try to reach out across the aisle. I'm proud of my professional relationship with Mr. Housefather. We often see eye to eye on many issues. It's a necessary bridge in committees such as this when you can approach your friend on the other side of the table and try to be reasonable with each other. Mr. Housefather responded to my contention that there is no intention to strengthen mandatory minimum penalties, because an exception is made for treason and murder, which, on the scale of moral turpitude, are probably at the top of all evils. Then why do we pretend we're going to be strengthening the mandatory minimum penalties for all other offences?

Mr. Housefather's suggestion, and I think Mr. Taylor sort of alluded to it, was that they're generally not as susceptible in that they are so evil, generally courts try not to depart from them. Well, then, I would ask Mr. Housefather this: How about possession of child pornography or access to child pornography? How about sexual assault? Do those offences not rise to the level of turpitude where we should strengthen them as opposed to weaken them?

Here we are, by our own admission, saying there are greater evils that we don't want to depart from, because it's not about the strengthening but it's about departing from the mandatory minimum penalties. For murder and treason we will not, but for sexual assault or possession of child pornography we will.

This is an absurd result we are now arriving at. I've been waiting for this for months now. I think my Liberal friends are understanding this. Do you know what will happen? We will be here again in a couple of years. In a couple of years, we'll have a government, an attorney general and a justice minister saying that we need to address crime on our streets. We'll do this all over again. We've been through this with Bill C-5 and Bill C-75. We've done very comparable work on Bill C-14, which came short. I think Bill C-16 is now undermining the administration of justice.

[The Chair, Liberal, James Maloney]

Mr. Baber, I have to interrupt you for one second.

We're under 10 minutes now. Does anyone intend to go to the House to vote, or will everyone vote here?

[An hon. member]

We're voting here.

[The Chair, Liberal, James Maloney]

Okay. I'll stop with five minutes to go.

[Roman Baber, Conservative, York Centre, ON]

I submit that, for Naud, who was the other applicant in the Senneville case, who was holding 250 videos of children being raped, we should approach that case with the expectation that courts will not depart from the mandatory minimum penalties, just like we do with treason and murder. By the way, I can see everyone's brains moving when it comes to murder and treason, but it might not be as cut and dried as people think here.

Think about Edward Snowden, an example that I often use when I instruct on the charter or civics. Edward Snowden blew the whistle on national security, on Homeland Security, on the NSA and on the CIA as collecting metadata—something that is proposed in Bill C-22—indiscriminately, on everybody.

I ask an ordinary civics class, or a grade 12 law class, or a grade 11 law class or even first-year law students this question: Would you convict Mr. Snowden for treason, for coming out, leaving for Hong Kong and saying the United States administration and the security apparatus are violating search and seizure? Would you convict? Nine out of 10 say they would not convict.

It's a very interesting proposition that I'm advancing here. None of this is certain. What needs to be certain is sentencing. The Criminal Code says that this is the minimum for this evil of the possession of child pornography. That should be the sentence as opposed to weakening the mandatory minimum sentences, which is what this bill is, unfortunately, doing.

Thank you.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Baber.

I don't have any other names on the list.

Shall CPC-22 carry?

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

I request a recorded vote.

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

[The Chair, Liberal, James Maloney]

I am going to suspend now—we have six minutes—rather than starting something new, and then we'll come back right after the vote.

[The Chair, Liberal, James Maloney]

My intention is to continue until about 10 minutes to two and then suspend again so people can attend question period.

We were just about to start CPC-23. Once CPC-23 is moved, CPC-24 cannot be moved as they are identical.

Mr. Brock, I believe you are going to address this.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Mr. Baber will.

[The Chair, Liberal, James Maloney]

I'm sorry. Go ahead, Mr. Baber.

[Roman Baber, Conservative, York Centre, ON]

Thank you, Chair.

I move amendment CPC-23 to accomplish what Bill C-16 is meant to accomplish according to the government. It is to eliminate the use of reasonable hypotheticals when courts consider whether punishments are cruel and unusual. We heard from the Minister of Justice and Attorney General that this is a concern.

To explain this to the viewers at home, an accused shows up before a judge for sentencing and pleads that a sentence, a minimum mandatory sentence, is cruel and unusual, not because of their individual circumstances and not because of the circumstances of their offence or the circumstances of their life, but because what defence lawyers do is come up with a reasonable hypothetical that would render the minimum mandatory penalty absurd.

This is what happened in the Senneville decision that struck down mandatory minimum sentences for access and possession of child pornography. The accused in that appeal, Senneville and Naud, did not plead that they should not receive the mandatory minimum of one year—no. One of them possessed 300 images. One of them possessed 250 videos of children being raped.

The Supreme Court considered a reasonable hypothetical. One teenager sends a picture that's not too modest to another teenager and that would lead to absurdity, and because of that, the mandatory minimum penalty was struck down. We've been sitting here, working in good faith on this bill, trying to strengthen our sentencing system, and the Liberals have come up with the safety valve, saying that the safety valve will now enable the court to look at the individual circumstances of whether a sentence is cruel and unusual, without looking at reasonable hypotheticals.

I take my Liberal friends at their word. If that is the purpose of the bill, if that is the linchpin of this bill, Bill C-16, then let's eliminate the ability of judges to refer to reasonable hypotheticals on sentencing when they decide a minimum mandatory is cruel and unusual and is therefore contrary to the charter. Let's eliminate this practice where judges do not look at the case before them, but look at a completely different case that is not before them to strike down mandatory minimum penalties.

If the Liberals are serious about the intent of the safety valve, they will vote for this amendment, and in connection with the same, we'd like to sharpen up some language. I'll yield to Mr. Brock.

[The Chair, Liberal, James Maloney]

Go ahead, Mr. Brock.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Yes, I'd like to propose an amendment to CPC-23, to the third line down, where it references “punishment for the offender, the court shall”. I wish to delete the entire phrase “for the offender”.

[Roman Baber, Conservative, York Centre, ON]

It's three words.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Yes, it's just those three words.

[Roman Baber, Conservative, York Centre, ON]

It's “for the offender”.