Evidence of meeting #28 for Justice and Human Rights in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
Liberal
The Chair Liberal James Maloney
Shall NDP-18 carry?
(Amendment negatived [See Minutes of Proceedings])
We're on G-31.
Go ahead, Ms. Khalid.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
It's a technical amendment.
It would basically amend clause 59 to expand proposed section 715.56 so that the records regime in the new part on alternative measures and restorative justice processes would also apply to records of warning and referrals made by prosecutors, in addition to those made by the police.
Liberal
The Chair Liberal James Maloney
Thank you.
Shall G-31 carry?
(Amendment agreed to [See Minutes of Proceedings])
(Clause 59 as amended agreed to)
(Clauses 60 to 62 agreed to)
(On clause 63)
For clause 63, we'll start with NDP-19.
If NDP-19 is adopted, CPC-22 cannot be moved because of a line conflict.
Ms. Kwan.
NDP
Jenny Kwan NDP Vancouver East, BC
Thank you very much, Mr. Chair.
This NDP amendment reflects concerns raised by a range of experts and stakeholders about the Liberals' reinstatement of mandatory minimums, which have repeatedly been struck down by the courts for violating charter rights. This change would ensure that Bill C-16's safety valve would include the Gladue principles in order to consider non-carceral options for indigenous people and the protection of their charter rights in all cases.
This would mean aligning this legislation with the government's commitment to implementing call to action 32 of the Truth and Reconciliation Commission and to upholding equality for those overrepresented in prisons, including racialized people, victims and survivors of abuse, and those dealing with mental health and addiction issues.
This committee has heard from several legal experts who have recommended amendments to broaden the safety valve in Bill C-16, including the National Association of Women and the Law, the Women's Legal Education and Action Fund, the Canadian Bar Association and Quebec's bar association.
Elected representatives have a duty to uphold our charter and our commitments to reconciliation, so I strongly urge my colleagues to follow the recommendations of legal experts and vote in favour of this amendment.
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
Thank you, Chair.
To the officials, am I correct in my interpretation?
After Bill C-16 receives royal assent, wherever in this country a judge finds that the application of an MMP would result in cruel and unusual punishment, it would still avail that particular justice to consider section 718 in the context of the Gladue principles as they relate to an indigenous offender. That would happen regardless. Is that correct?
Leah Burt Counsel, Criminal Law Policy Section, Department of Justice
Yes, that's correct.
Liberal
The Chair Liberal James Maloney
Shall NDP-19 carry?
(Amendment negatived [See Minutes of Proceedings])
Now we go to CPC-22.
Conservative
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
Thank you, Mr. Chair. I never know what to expect.
Conservative
Larry Brock Conservative Brantford—Brant South—Six Nations, ON
I'm very happy to speak to CPC-22.
Colleagues, I come to this with the realization that notwithstanding our overarching concerns regarding the applicability of safety valves, for the reasons I have articulated far too many times about the built-in residual discretion that already exists, I'm addressing another elephant in the room with this particular amendment.
The preferred language of the Liberal government sees the criminal justice system through, I believe, an artificial lens—that every particular judge in this country will do the right thing and that there is consistency in sentencing. I couldn't disagree more with that general proposition.
We're all lawyers. Most of us in this room are lawyers, and some of us have done some trial work. We will all agree that great discrepancy exists, even within a judicial district. In terms of sentencing, differences exist in western Canada versus eastern Canada. I can cite numerous examples.
The point I'm trying to make here is that if we want to ensure consistency, there's an opportunity for all of us here at the justice committee to put some guardrails in place. Bill C-16, as drafted, does not provide any direction whatsoever to a justice, with the exception that they shall not deviate for murder and they shall not deviate for treason. There is no instruction on how the possibility of deviating from an MMP can be brought to the attention of a judge, whether by that judge on his own or her own, by application by the accused, by application by the accused's representative or by a friend of the court.
What better opportunity is there for us as parliamentarians to strengthen a bill that, on its face, has a glaring weakness? That weakness is that there is no direction, no base direction, to a sentencing justice.
I've used language such as.... Well, let's look at factors. If the offender has no prior criminal record, that could be a factor to deviate. Is there any evidence of mitigating circumstances? Is there evidence that the offender co-operated with law enforcement officials or pleaded guilty very early on in the process?
By no means is this list exhaustive. I didn't, on my own, come up with an exhaustive list, because the list was not intended to be exhaustive. However, what I did in my own research into the drafting of this particular amendment was make a comparison with other jurisdictions that do provide their jurists with some degree of instruction on a deviation from an MMP. That exists in the U.K., in Australia and in a number of states in America. If Bill C-16 passes and receives royal assent, our country will be an outlier in the criminal justice field.
That's one aspect of that particular amendment. The second aspect is something we all need to accept as reality.
If you recall, colleagues, on the last occasion, which was Wednesday, I asked a question of the officials.
Mr. Taylor, you took responsibility for answering the question about there currently being nothing in Bill C-16 to prevent a justice from imposing a one-day sentence, because the only instruction that Bill C-16 provides is that when you deviate, you still must impose a custodial sentence. I use as an example a one-day sentence. It could be deemed to be a legal sentence, under Bill C-16, as a deviation. A “time served” disposition can be deemed to be an acceptable sentence under Bill C-16.
Take a look at the examples that exist out there. I used this one as an example last Wednesday, if you recall, colleagues. Senneville, that pervert who received the benefit of our Supreme Court of Canada's wrong decision, was originally sentenced, notwithstanding the size and depravity of the collection of child sexual abuse material, a 45-day weekend sentence. If anything, that one-year mandatory minimum penalty should be increased, because there has been no abatement of the creation of this filth in this country and around the world. There is such a growing appetite for this abuse material. Here is an opportunity for us here in Canada, as parliamentarians, to take an appropriate stand. If anything, if I had some ability to direct policy in this country, I'd increase it to three years without any hesitation whatsoever. It is a sickening offence.
I asked myself, how best can we at least reassure victims? How can we establish some degree of accountability and deterrence and denunciation? A one-day sentence, in my view, is tantamount to a fraud on our criminal justice system.
I won't waste too much time here, but I'm going to use one example. I think this example is appropriate. In my old life—I think we all can experience this in our various jurisdictions—some judges were harsher than others. In my jurisdiction, I had a female justice. I was in her guilty-plea court one day. I looked at the case file and said to myself, why on earth is an offender from Kapuskasing, Ontario, some eight, nine or 10 hours away from the Brantford jurisdiction, waiving in his guilty plea when he's already in custody and could have proceeded with his guilty plea in that jurisdiction? I was curious. This female judge in Brantford was curious and asked the question. The offender, if anything, was extremely honest in what he said: “Your Honour, you have quite the reputation in Ontario, and I heard that we can easily pull on your heartstrings.” He laughed. The judge laughed. Guess what happened: It worked. She gave him a sweetheart sentence. He thanked her profusely. He got the job done.
That is what happens every single day in our criminal justice system. We have accused and defence counsel who routinely play games. It's called judge shopping. For anyone who says it doesn't exist, I have a plot of swampland in Florida to sell them, because unfortunately, folks, it does exist.
I said to myself, how can I put some limitation on that? What I did, in a second aspect of CPC-22, was to suggest that where there is evidence that a mandatory minimal penalty could result in cruel and unusual punishment, you are forbidden as a jurist from undercutting that sentence by more than 50%. In my view, that provides a little bit more control and consistency in our justice system.
That was my rationale for invoking the amendment contained in CPC-22.
Thank you, Chair.
Conservative
Roman Baber Conservative York Centre, ON
Sometimes I wish the viewers at home understood what actually happens in this committee, the legislation that comes before this committee and what this Liberal government is doing. The whole premise of Bill C-16 is to address a number of offences that should have been addressed a long time ago, but most importantly mandatory minimum sentences that are being struck by judges every day. We all know basic Criminal Code language. If you commit offence X, then you shall be sentenced to a minimum of Y or a maximum of Z. We have seen, time and time again, judges strike down the mandatory minimum sentence.
Here come the Liberals with the attorney general and justice minister to say, they're going to fix the fact that judges are striking down mandatory minimum penalties every day, and they're going to do it with the so-called safety valve. That, in my view, is the most critical piece of this Bill C-16 legislation.
What the justice minister says and what the Liberals would have us believe is that the safety valve allows judges not to look at a reasonable hypothetical, a non-existent scenario before them and then go ahead and strike down a mandatory minimum sentence for being cruel and unusual when it's applicable to that hypothetical scenario. Instead, they look at the accused before them and say that under the circumstances it would be cruel and unusual to impose the mandatory minimum sentence. The Liberals say that, by virtue of the existence of this safety valve, mandatory minimum penalties will actually be preserved.
Now I want to go to the officials.
Mr. Taylor, am I correct that the policy of the justice department and of the government is that the safety valve put before us is going to strengthen mandatory minimum penalties, yes or no?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
The proposed safety valve is a policy proposal of the government, not a proposal of the Department of Justice. In explaining how it operates, the idea is to, as I discussed last week, reinforce and reanimate MMPs that have been found unconstitutional by different levels of the court in Canada. It provides an ability to depart from the imposition of the MMP in a specific case where that MMP, in relation to the specific offender, would amount to cruel and unusual punishment.
Conservative
Roman Baber Conservative York Centre, ON
Mr. Taylor, the premise that the government is operating under is that this will actually preserve mandatory minimum penalties, except for instances where judges believe that under the circumstances before them, the penalty would be cruel and unusual. Is this correct?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
That's correct.
Conservative
Roman Baber Conservative York Centre, ON
The government is saying that the safety valve means stronger mandatory minimum penalties. Is this correct?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
It means that MMPs will remain in place.
Conservative
Roman Baber Conservative York Centre, ON
Excellent. However, the safety valve has two notable exceptions for two notable offences. One is murder. The other one is treason. The Liberals say we're going to use the safety valve to strengthen mandatory minimum penalties, but the safety valve will not be available to strengthen, supposedly, offences of murder and offences of treason.
Mr. Taylor, can you tell me why these two very serious offences—maybe the most serious offences in the Criminal Code—were left out from the application of the safety valve?
Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice
Certainly from the perspective of the penalty imposed, the mandatory penalty of life imprisonment, they are the most serious offences from a sentencing perspective because they carry the most significant penalty of imprisonment. Unlike other areas of criminal law and sentencing law in particular, these mandatory penalties have not been the subject of significant charter litigation. They have been upheld in the context of murder. I'll check with my colleague whether treason has ever been challenged constitutionally. I don't think it has.
To pick up on a comment I made earlier in response to a question, we have not seen, in respect of those specific offences, the same kinds of concerns around trial delay, guilty pleas and things of that nature in that context as compared to the other types of offences.
Liberal
The Chair Liberal James Maloney
I'm sorry. I'm just going to interrupt you for a second, Mr. Baber. The bells are ringing so we'll need unanimous consent to continue.