Madam Speaker, I rise to speak to Bill C-16, omnibus legislation brought forward by the government.
There are some measures in the bill that are supportable to the extent that they strengthen Canada's criminal justice system and take into account and strengthen the interests of victims. Many of those measures were literally copied and pasted from private members' bills introduced by Conservative members. If the government wants to take good Conservative ideas, we welcome it doing so. There are also some additional measures in the bill that we wholeheartedly support.
That is where my compliments to the government end, because there are serious concerns and problems with the bill, starting with how the government has responded to the troubling and problematic Supreme Court decision in Senneville, which struck down the mandatory minimum sentencing law for the distribution and possession of child pornography.
The facts in Senneville are truly appalling and horrific. They involve two sadistic sexual predators who had hundreds of images of small children, made from the sexual brutalization and defilement of these innocent children. The Supreme Court, in its infinite wisdom, applying a so-called reasonable hypothetical, determined that the one-year mandatory minimum for the distribution and possession of child pornography was grossly disproportionate and therefore contravened section 12 of the charter, which prohibits cruel and unusual punishment.
While the Supreme Court thought it was cruel and unusual punishment to impose a measly one-year mandatory jail term for child sexual predators, I think most Canadians find the sexual exploitation, rape, brutalization and defilement of children to be cruel, unusual, evil and sadistic.
It should be noted that the Senneville decision was far from a unanimous decision of the court. There was a strong dissenting opinion written by Chief Justice Wagner and a five-four split on the court. The dissenting opinion by Chief Justice Wagner laid out, in very clear terms, the constitutionality of the mandatory minimum with respect to the distribution and possession of child pornography specifically. More broadly, in no uncertain terms, it reaffirmed Parliament's constitutional authority to pass laws with respect to sentencing, including fashioning mandatory and maximum jail time.
In the face of a problematic and unjust decision by the Supreme Court, a strong dissenting opinion written by Chief Justice Wagner, and the Supreme Court specifically pronouncing that child sexual crimes are among the most immoral, Conservatives called on the Liberals to do the right thing and invoke the notwithstanding clause to override the decision and reinstate the mandatory minimum with respect to the distribution and possession of child pornography. Not surprisingly, given their soft-on-crime record, the Liberals did not do that.
Failing to invoke the notwithstanding clause, they could have come back with a bill that brings in a modified mandatory minimum sentence by clarifying the definition and the application of the offence, but the Liberals did not do that either. Instead, they endorsed and gave the green light to the Supreme Court's Senneville decision, completely washed their hands clean of responding legislatively and, once again, surrendered the law-making power of this place to the courts.
Even worse, the Liberals have very conveniently and very deliberately used a divided court decision as a pretext to dismantle virtually every other mandatory minimum law in the Criminal Code, save for murder and treason. They have done so with a so-called escape valve that would apply to every mandatory minimum in the Criminal Code except murder and treason.
The escape valve, as it is drafted, is broadly worded. It is not targeted. It does not contain, for example, an exceptional circumstances provision. It does not clarify or provide direction to the courts on how Parliament believes mandatory minimums should be treated. Instead, it invites judges to disregard mandatory minimum laws that, I would add, have not been found to be unconstitutional. Therefore, what this will almost certainly result in is that mandatory minimums and their application at sentencing will be litigated as a matter of course. This bill completely eviscerates mandatory minimum sentences.
The Liberals will say they had no choice as they have these court decisions. They had a choice. No court has said that, writ large, mandatory minimums are unconstitutional. Certainly, the Supreme Court has not said that. Indeed, mandatory minimum penalties have been on the books since the 1890s, when the Criminal Code was passed. Mandatory minimums reflect the constitutional authority of Parliament to make laws with respect to criminal justice, including sentencing, and reflect Parliament's judgment that certain offences are sufficiently serious to warrant a minimum floor, while having regard for long-standing sentencing principles, including denunciation, deterrence and the need to separate certain offenders from society.
Indeed, Justice Cory wrote, as recently as 2010, in the Supreme Court Nasogaluak decision, that mandatory minimums are “a forceful expression of governmental policy in the area of criminal law.”
Back in 1990, the same Justice Cory held that a mandatory minimum sentence would only be disproportionate as to violate section 12 on “rare and unique occasions”, and that the test would be “stringent and demanding.”
It is true that in recent years we have seen that mandatory minimums have been subject to greater constitutional challenge in the face of the Nur decision, for example, of 2015, which constitutes, in my opinion, judicial overreach. I say that because the first time the Supreme Court struck down a mandatory minimum was in the Smith decision in 1987. For nearly 30 years, until 2015, not a single mandatory minimum had been struck down by the Supreme Court. It was not until 2015. Therefore, a government worth its salt, a government that was committed to standing up for victims and putting away violent offenders, would have reasserted Parliament's constitutional authority in this domain, including in egregious instances such as in the Senneville decision and the Bissonnette decision, which struck down the discretion afforded to judges to impose mandatory consecutive parole and eligibility periods to mass murderers, and invoked the notwithstanding clause.
Of course, the current government has not done that. It has refused to do that. Now, through the back door, it has brought in this bill on the pretense of saving mandatory minimums, when in fact what it is doing is completely dismantling them. It demonstrates that the government is blinded by ideology. It is a government that time and time again puts the rights of criminals ahead of public safety and the rights of victims. This bill is a total disgrace in that regard.