Debates of June 14th, 2022

Criminal Code

[Ted Falk, Conservative, Provencher, MB]

Mr. Speaker, yes, I said during my speech that I absolutely agree that people with addictions should be treated more from a health concern perspective than from a criminal justice perspective. I also made it very clear that of the folks who are being incarcerated right now under various drug charges, 89% of them are in there for trafficking. They are the ones providing this poison to individuals who are addicted.

Absolutely, if people need help, I think we need to turn the conversation to how we can provide help and initiate actions in this House that will give people the help they need to be freed from those various addictions.

[Luc Thériault, Bloc, Montcalm, QC]

Mr. Speaker, during the debate on Bill C-5, I often heard colleagues from all parties state that they were in favour of diversion and preventing addicts from being criminalized. However, the problem with this bill is that it combines two completely different issues.

Can my colleague tell me why he thinks the government combined these two issues into one bill?

[Ted Falk, Conservative, Provencher, MB]

Mr. Speaker, that is a great question. I think that is a question we ask ourselves over and over again: Why do they always mix the good in with the bad? It was something that I talked about in my speech earlier.

It is just like with Bill C-21. There are aspects of that bill that we as Conservatives strongly believe are good and we would like to have further discussion on. I think we can see ourselves supporting those ideas. Then again, the Liberals put aspects in there that are absolutely not palatable which we will need to debate further and come to a better resolution. It is disappointing that two separate ideas and concepts are put into the same bill, because it makes it unsupportable.

[Judy Sgro, Liberal, Humber River—Black Creek, ON]

Mr. Speaker, I will be splitting my time with the wonderful member for Lac-Saint-Louis.

I am pleased to speak to Bill C-5. I have to reference the previous speaker's speech. All of us come to the House to make life better. We have different opinions on how we achieve that goal, but after listening to the previous speaker, so much of what is on this side of the House is on all sides of the House. We all care very much about trying to make a difference in the lives of so many people. In some areas we agree, and in other areas we do not agree, but clearly we all feel that some changes need to be made, and we are moving in a direction we hope will improve public safety and make life easier for people.

As parliamentarians, we have specific causes that we all want to champion, and one of the most important for me, of course, is public safety and how we can not only better protect Canadians but also prevent young people in our society from getting themselves into a complete downward spiral, going in the wrong direction. When mandatory minimum sentences of incarceration were initially introduced, I was here, and I thought they would help us and that they would deter crime. People would know that, if they were to commit a certain crime, they would end up with a minimum of two years, four years or 10 years. They knew that we would throw the book at them.

That was very much how I thought, but seeing how mandatory minimum sentences have played out since 2007, especially in ridings like mine, I see that it did not help. They proved to be unjust at the end of the day in the eyes of many, contributing to systemic racism, the overcrowding of correctional facilities, delays in the justice process and people reoffending. It is very different from what everybody thought it would be when they were initially brought in.

Since the introduction, the Supreme Court of Canada has seen an influx of charter challenges due to these mandatory minimum sentences. In fact, as of December 3, 2021, the Department of Justice indicated that 217 charter challenges exist due to mandatory minimums and account for 34% of all constitutional challenges to the Criminal Code. Of those challenges, 69% related to drug offences were successful and 48% of firearm-related challenges were successful.

As far as I am concerned, anybody who uses a firearm in the process of any kind of unlawful activity, should have the book thrown at them. When they use firearms, it is a very different thing than some of the other issues we are talking about today, so why are these challenges successful? It comes down to an inequality of justice. They subject those facing charges to a punishment that may not fit their crimes and take nothing into account for the situations that led to the committing of those crimes.

Removing mandatory minimums would allow judges to do their job. Going before a judge is not just about facing consequences; it is about allowing judges to use their judgment in a case. Mandatory minimums do not allow for this and, therefore, hinder judges from fulfilling the role they have been assigned.

Mandatory minimums also contribute to the overrepresentation of indigenous and Black Canadians, and other groups of colour. Of federal offenders, 23% are indigenous, even though only 4.3% of our population is indigenous, and 9% are Black or another group of colour, while they only represent 2.9% and 16.2% of the population. There is something clearly wrong with those numbers.

Mandatory minimums mean mandatory time in a correctional facility. We know that, and we have seen from past practices, as much I sometimes support the theory of locking them up and throwing away the key so they can never get out, this does not deter crime. Much to my disappointment, it actually increases the likelihood of someone reoffending.

A person going through the Canadian justice system, including correctional facilities, is at particular risk of reoffending, and we have seen it time and time again. It is very disappointing, but that is the reality of what happens. Once they are incarcerated, they do not come out better for it, they come out worse for it. The prevalence of recontact with the police is even higher with youth. A 2019 Statistics Canada study found that “62%...of individuals who went through the full justice system into correctional...had re-contact with the police”, and this rate was 77% for youths.

In my riding of Humber River—Black Creek, it is the youth numbers that are particularly troubling. They made me stop and question the whole issue of mandatory minimums, which I indicated earlier that I was very supportive of at the time, but I have seen that it is just does not work, much to my dismay and the dismay of others.

Many youth in my riding are considered part of the at-risk community and subject to guns, gangs and pressures that many youth outside of condensed urban settings do not necessarily face. Mandatory minimums put them at risk of having their future completely destroyed, and this is not just at-risk youth, those who would be charged as juveniles. I mean those age 12-25, half of whom would be considered adults in being charged.

Mandatory minimums can cause a mistake to ruin the rest of their lives and statistically send them on a completely different path. We still believe in serious consequences for serious crime, which is why some mandatory minimum sentences will remain in place, such as the ones for murder, high treason, sexual offences, impaired driving and serious firearm offences, as I indicated earlier.

However, we do believe that cases with a sentence of two years or less, and certain other offences, would be better suited to move from mandatory minimums to conditional sentencing orders, except for instances of advocating genocide, torture, attempted murder, terrorism and serious criminal organization offences.

Again, we are talking about continuing with the mandatory minimums for the very serious crimes and anything involving a firearm. These orders will allow judges to look at all aspects and assign a sentence that fits the crime, the person and the circumstances. These allow for those sentenced to remain in their communities, contributing via work, and to still be around their support systems. For some groups, such as indigenous people, remaining within that community is essential.

Conditional sentencing orders allow for the consideration of other measures for simple possession of drugs, such as diversion to an addiction treatment program. This means that, instead of facing prison, those suffering with addition can receive help, not punishment. We have seen how the opioid crisis is impacting Canadians. People of all demographics are struggling with it. In what way does putting them behind bars help them or society? The only way to help them is through addressing the trauma and addictions through treatment.

Conditional sentence orders would allow courts to focus on real rehabilitation and can ensure someone struggling with an addiction does not have their future destroyed by a criminal record. This is also vital for youth, as I have stated before. As mandatory minimums were introduced, our court systems became further backlogged. We saw fewer people taking plea deals and a forced an overreliance on correctional facilities.

Prisons were designed not as the only means of punishment for a crime, but as a way to keep communities safe. This is why we need to see reforms to our entire justice system, allowing for a more holistic and restorative approach. A 2018 report by the Ontario Ministry of the Attorney General says, “The criminal justice system in Ontario is struggling to address the high needs of vulnerable...individuals”.

I am thankful to say a few words on an issue that I know we all care about very much in the House. We are all trying to do the best that we can do.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I know how hard the member works and how much she loves this country, but I would reject the notion that mandatory minimums are racist. By definition, regardless of the colour of one's skin or ethnicity, one gets a mandatory minimum.

Because there is no rehabilitation and there is such a high rate of recidivism, would it not be better to address the root causes of this overrepresentation, such as poverty, abuse, mental health and addictions? Would the member not agree?

[Judy Sgro, Liberal, Humber River—Black Creek, ON]

Mr. Speaker, I absolutely agree. Those are the areas we are trying to work in.

When there is an imbalance and we look at the fact that 9% of people who are in prison are indigenous, we have to ask why and look at the root cause. I agree with my colleague completely.

That is why I said, in response to the previous speaker, that we could be sitting down, quite possibly around this beautiful table, figuring out how to solve some of these problems, doing it together. All of us in this House are looking for the same answers to find a solution to decrease the crime in our communities.

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I want to commend my colleague, the chair of the Standing Committee on International Trade, and thank her for her speech.

We agree on a number of points, including the fact that minimum sentences are utterly ineffective. They do not work, and all of the studies have shown that. However, we are questioning the timing of abolishing such sentences for gun crime, given the problems on the streets of Montreal right now.

What do we say to our constituents and fellow citizens who are concerned about gun violence in Quebec's largest city?

[Judy Sgro, Liberal, Humber River—Black Creek, ON]

Mr. Speaker, I am very pleased that Bill C-21 has been introduced and very soon we could be dealing with the issues of firearms.

As I indicated earlier, anyone who uses firearms in any kind of circumstances should receive much more of a penalty, not less.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, in a younger life, my wife and I lived and worked with men coming out of prison, and we worked with people on the streets.

What we saw was the enormous amount of public money that gets wasted when police sit all night in an emergency ward with people who should be in detox or when people were jailed over the weekend. There is a failure to deal with the mental health issues we see in people on the street and in marginalized communities.

We talk time and time again about fixing this, but it always thrown at us that we are being soft on crime or that we are hugging the thugs. I would like to ask the hon. member about the larger sociological issues of a society that treats people as disposable, locking them away in places such as the jail in Thunder Bay, without the support networks to actually get people off their addictions and back into civil society?

[Judy Sgro, Liberal, Humber River—Black Creek, ON]

Mr. Speaker, we have put millions of dollars into the issues of addictions and mental health in the last several years. I think we are finally recognizing that arresting people and putting them in jail is not going to help.

I was recently in Vancouver and was absolutely blown away by the number of people I saw living on the street, suffering from mental illness. The other day I was on King Edward Ave. here in Ottawa, and I saw the exact same thing. There are so many people suffering from addiction who should be getting help, not sleeping on the streets of our cities. We are going ahead to find ways to continue to do the investments our government is doing to help these people.

[Mark Gerretsen, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate)]

Mr. Speaker, I really appreciated the beginning of the member's speech when she talked about the fact that she was here decades ago, although she must have first gotten elected when she was six years old, and was part of the parliamentary process when these mandatory minimums were brought in. However, she has since had time to reflect on that and come to a different conclusion.

That is what this place is all about. It is about continuing to evolve. I am wondering if the member could just expand on that slightly.

[Judy Sgro, Liberal, Humber River—Black Creek, ON]

Mr. Speaker, we are all doing what we are doing with the best of intentions, and in 2007, when mandatory minimums were introduced, many people thought they would really help to reduce crime and improve public safety. What we have seen is that they have done far more damage than good.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I am pleased to stand and speak to this bill.

As I was preparing my speech, I was thinking back to the 1990s, when I came to Ottawa as a legislative assistant. It was after the 1993 election. The winds of change had swept through this place. The Bloc Québécois was the official opposition and the Reform Party had a big presence, with around 50 members. I remember following question period, which was part of my job. I do not mean to be partisan, and this is not a partisan tone, but I remember that in question period member after member of the Reform Party would get up and ask questions about criminal justice. They would talk about specific cases and describe these cases in great detail. The message in every question was that one could not trust the courts. The questions were intended to impugn the courts and to make people believe that judges were not approaching issues with an objective framework but just injecting their own personal biases into the decisions they made. I think that is very dangerous.

I think we are heading in this direction more and more in our political culture. That is very unhealthy for our democracy. I am looking more toward the United States right now, where I think people are starting to view the courts as an extension of the political system. When people start doing that, they just lose faith in the constitutional democracy.

I read something in the paper the other day and I was just flabbergasted. The state legislature of Ohio passed a motion. It came down to party lines. It is a Republican-dominated state legislature. The Republicans voted for it and the Democrats voted against it. The motion was that Canada should be put on the watch-list of states that suppress religious freedom, ignoring the fact that we have a constitutional democracy and that we have courts that defend charter rights and so on. I think this is a very dangerous thing. It is a kind of new populist relativism and it is not healthy for democracy.

Let me get more specifically down to the bill.

There is unconscious bias in sentencing, for sure. This bias is embedded in the long-standing practices of sentencing. It is embedded in the system. For example, according to Canada's prison ombudsman, Ivan Zinger, whom I had the opportunity to meet when I was the public safety critic in opposition, indigenous women now account for half of the female population in federal penitentiaries, whereas only one out of every 20 women in Canada is indigenous. Similarly, recently the Auditor General found that Black and indigenous prisoners are more frequently placed in higher-security institutions at admission, compared to their white peers, and that they are not paroled as often as others when they first become eligible.

Personally, and this is not a partisan statement, I believe the Harper government's approach to sentencing reinforced and aggravated this bias. At the time when the Harper government was introducing tough-on-crime legislation, one after the other, to my knowledge those bills did not have to be accompanied by a charter statement the way they have to be today. That meant that the Harper government really pushed the limits on this issue. That is why so many of the bills that have been struck down by the courts were passed between 2006 and 2015. I am referring to a document from the Library of Parliament, a multiple-page document.

That said, sentencing has been used intentionally to suppress racialized groups, not to my knowledge in this country, but it can happen. Someone said before in the House that the same sentence applies to everybody regardless of creed, colour or whatever, but sentencing has been used to suppress particular groups.

I want to read a quote. As I said, I am not attributing anything to any Canadian politician I know, but it is interesting to see that it can be used deliberately. John Ehrlichman, counsel and assistant to Richard Nixon and a Watergate co-conspirator, is quoted as saying:

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people.... We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

Of course, that was a particular period of American history, one that was extremely divisive.

What about Bill C-5? It is not about being soft on crime. It is about having sentences that fit the crime and the circumstances. It is about law reform, a work in progress that draws on evolving and accumulated wisdom. It is about removing an approach to sentencing that has proven not only discriminatory but also costly and, in many cases, futile and ineffective.

It is costly because minimum sentences clog up the courts. There is no incentive to plead guilty. It is ineffective because they involve a greater use of prosecutorial discretion. For example, a research paper by Doob, Webster and Gartner, from the University of Toronto and the University of Ottawa, stated:

On 1 April 1995, a sentencing referendum (Measure 11) brought in by the voters in Oregon resulted in long mandatory minimum sentences.... [I]t was found that there was a decrease in the prosecution of Measure-11-eligible cases and an increase in the prosecution of “alternate” cases (typically lesser degrees of the same offences which did not attract the mandatory penalty). Trial rates for Measure-11-eligible offences also increased in the first two years after implementation, and then reverted to their former levels. But the nature of pleas changed: there was an increase in the number of cases in which the accused decided to plead to lesser included offences, and a decrease in pleas involving the original charge.

It is futile because a slew of Harper-era minimum sentences have been struck down by the courts, and I just referenced a document from the Library of Parliament a moment ago. There is something called “deterrence through sentencing”, and this is the policy that was adopted in the Harper years. Again, Doob, Webster and Gartner state:

At this point, we think it is fair to say that we know of no reputable criminologist who has looked carefully at the overall body of research literature on “deterrence through sentencing” who believes that crime rates will be reduced, through deterrence, by raising the severity of sentences handed down in criminal courts.

We need to realize that there is nothing objectively true about minimum sentences. They are not something handed down by Moses. Those who advocate for minimum sentences do so based on an accepted but false intuition whose appeal is a simple but misleading logic: The greater the penalty, the greater the deterrent. However, intuition is often wrong. This is why we invest in research and analysis.

Even without the benefit of science, there are some who possess uncanny insights at different times. John A. Macdonald, Canada's first Prime Minister, is quoted as saying, “Certainty of punishment, and more especially certainty that the sentence imposed by the judge will be carried out, is of more consequence in the prevention of crime than the severity of the sentence.”

Doob, Webster and Gartner said:

We suspect that what Macdonald meant by “the certainty that the sentence imposed by the judge will be carried out” is simply the certainty that there will be a criminal punishment. But whatever John A. Macdonald meant by that phrase, clearly he did not think that “severity” of sentences was very important. He was almost certainly correct in this.

They also said, regarding the assumption about minimum sentences, “An additional problem is that people really don’t have much of an idea about what the sentences are likely to be for ordinary crimes.... Most offenders do not meet the relevant 'thought' requirements—that is, believing they might be caught”.

There are a lot of misconceptions and a lot of policies in the last few years that have been based on a sort of intuition. We know that intuition can sometimes be correct, but sometimes it can be extremely misleading.

Bill C-5 is about reaffirming trust in our judicial system, and this is fundamental to a healthy constitutional democracy. I know that is something that everyone in this House desires. The Conservatives used to believe that our institutions needed to be respected because they evolved organically and contained the inherited wisdom of our forebears. Those values seem to be from a bygone Conservative era, long ago, before the party veered into hard-right politics.

[The Deputy Speaker, Conservative, Chris d'Entremont]

The hon. government House leader is rising on a point of order.

Business of the House

[Mark Holland, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, pursuant to order made on Monday, May 2, I request that the hour of daily adjournment for the next sitting be 12 midnight.

[The Deputy Speaker, Conservative, Chris d'Entremont]

Pursuant to order made on Monday, May 2, the motion is deemed adopted.

The hon. member for Central Okanagan—Similkameen—Nicola is rising on a point of order.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Mr. Speaker, this is a question on the point of business that was just referred to by the government House leader. The Conservatives would like to know which opposition House leader was consulted, because it certainly was not the Conservatives. I believe the government owes Canadians and the House a little more transparency and openness.

[The Deputy Speaker, Conservative, Chris d'Entremont]

I thank the member for his intervention. As the Chair has previously pointed out, the motion adopted on May 2 simply states that a minister must have had the agreement of another House leader. It does not require that the parties to the agreement communicate to the House. In making the request, the minister implicitly acknowledges that there is an agreement. There is a long-standing principle that takes members at their word. There is therefore no reason to doubt the existence of an agreement at this time.

Returning to questions and comments, the hon. member for South Okanagan—West Kootenay.

The House resumed consideration of the motion that Bill C-5, an act to amend the Criminal Code and the Controlled Drugs and Substances Act, be read the third time and passed, and of the amendment.

Criminal Code

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Mr. Speaker, I think Bill C-5 is a remarkable missed opportunity to make some really good progress in Canadian justice. We have an opioid crisis. People are dying by the hundreds and the thousands through a poisoned drug supply, and they are being held back from the services they need and the medical attention they need by the fact that they are considered criminals.

We should be decriminalizing simple possession of drugs, and yet the Liberals and the Conservatives voted against Bill C-216, which asked for that. They could have put it in Bill C-5, but they did not.

Why are the Liberals refusing to make real progress and save the lives of Canadians?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, the member knows that our government has come to an agreement with the Government of B.C. to decriminalize. However, decriminalization without a proper framework that involves the forces of the law and that involves those who work on the front lines in mental health and addiction, that kind of simple decriminalization would just lead to more problems. We need a comprehensive, multi-dimensional approach. That is what I believe is going to be taking root in B.C., but I am not at all certain that the situation has evolved to that point in other provinces. I believe the government has said that if other provinces request this, it will consider that request for decriminalization.

[Monique Pauzé, Bloc, Repentigny, QC]

Mr. Speaker, I want to thank my colleague for his speech.

When I spoke with the member for Rivière-du-Nord, who is the Bloc Québécois critic on this issue, he began reading me the list of offences for which mandatory minimum sentences would be repealed, including using a firearm in the commission of an offence, possession of a firearm or weapon knowing that its possession is unauthorized, possession of a prohibited firearm, possession of a firearm obtained by the commission of an offence, and weapons trafficking. When he read all this to me, I must admit that I felt worried.

Will the bill we are discussing this afternoon make the public feel safer, or will it make them feel worried?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I personally believe that the bill should make Canadians feel safer, unless doubts are put into people's minds.

Unfortunately, that is what is happening in the House, as the opposition reads out a whole list of crimes and tries to lead people to believe that judges will be obliged to impose house arrest.

This is not the case. Judges have the choice, if the sentence is less than two years. It is judges who are in the best position to determine whether offenders pose a danger to society or whether they have a better chance of rehabilitating in a context of community supervision.

It will depend on the judge, and judges will know more than we do here in the House of Commons, where we can only speculate on hypothetical situations when it comes to the Criminal Code.

[Mike Morrice, Green, Kitchener Centre, ON]

Mr. Speaker, I appreciate the member for Lac-Saint-Louis sharing how mandatory minimum penalties contribute to systemic racism. He made many important points in his speech. However, Bill C-5 only repeals mandatory minimums from 14 of the 67 offences in the Criminal Code that currently carry them.

The Black Legal Action Centre is the only legal clinic in Ontario that focuses specifically on anti-Black racism. I wonder if the member is aware that the Black Legal Action Centre, among many other organizations, has been calling for the removal of all mandatory minimum penalties to more fully realize the government's stated commitments to racial justice and indigenous reconciliation.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I understand that stakeholders often make requests that are quite broad and far-reaching. The role of the government is to consult, yes, but also to use the best judgment possible with access to the best experts possible, legal and otherwise. These are the crimes with minimum sentences that have come up in the bill, and I trust the Minister of Justice and others in the government on this. I believe they are doing the best they can at the moment.