Mr. Speaker, I rise in opposition to Bill C-16 because it is legislation that would completely eviscerate mandatory minimum penalties, virtually every one on the books, other than murder and treason. The bill would eviscerate them with a so-called safety valve that would give judges wide ambit to bypass virtually every mandatory minimum penalty set by Parliament, regard for Parliament's judgment that certain offences are sufficiently serious to impose a minimum sentencing floor, and regard for long-standing sentencing principles, including denunciation, blameworthiness and so on. It would give them the ability to instead apply a lesser sentence.
The Minister of Justice will claim that this is about saving mandatory minimum penalties in the face of certain recent jurisprudence. He has a point up to a certain point, which is that, yes, there has been some recent jurisprudence in which the courts have been more ready to strike down mandatory minimum penalties due to an expansive application of the reasonable hypotheticals doctrine following the Nur decision of 2015. In that decision, the court lowered the threshold in which the reasonable hypotheticals doctrine could be applied, to include hypotheticals that are not merely remote or far-fetched.
What that has led to in some cases is the courts' applying reasonable hypotheticals that are in fact remote, far-fetched and unreasonable. One clear example of that was the Supreme Court's Senneville decision. It was a divided, five-four, decision, but the majority, in its infinite wisdom, struck down the mandatory minimum penalty for the possession of child pornography. The facts in the Senneville case were grotesque. It involved two offenders: violent, sadistic sexual predators who had in their possession hundreds of images of child sexual abuse and torture.
The court applied a completely remote hypothetical, that of a 17-year-old boy who received a sexually explicit image from his 17-year-old girlfriend, which he then passed on to his 18-year-old friend. It is a completely remote hypothetical, but the court said that because it hypothetically could apply, the sentence was cruel and unusual punishment and violated section 12 of the charter, no matter how far removed that hypothetical was from reality and from the facts in the case.
In the face of a decision that constitutes, frankly, naked judicial activism, the only appropriate course of action for the government to take is to use the constitutional tool it has at its disposal, which is to invoke the notwithstanding clause to reassert parliamentary supremacy and Parliament's law-making powers, but the Liberals did not do that. Instead, they accepted the Senneville decision. Not only did they accept the Senneville decision, but they used the Senneville decision as a pretext to bring the so-called safety valve, which is an escape valve, into the bill.
What about the Nur decision and the cases that have followed? I say that, yes, it is an issue, but this is not the solution. The solution, when faced with decisions such as Senneville and Bissonnette, I restate, is to invoke the notwithstanding clause.
Seeing that the Liberals have absolutely no appetite to ever invoke the notwithstanding clause, there is another path, which is to introduce legislation to bring in new mandatory minimum penalties that would clarify and narrow the application of the offence as the mandatory minimum would apply to. However, that would take hard work, and the Liberals have not availed themselves of doing that. Instead what they offer is the broad escape valve. The Liberals have characterized it as a modest safeguard. They have claimed that it would, in effect, apply only in exceptional circumstances.
If that is the case, if it is not about totally eviscerating mandatory minimum penalties, which the Liberals are on the record as consistently opposing, by the way, over the past 10 years, then at the very least what is required is reasonable guardrails. Guardrails are completely missing from the legislation. There is no direction to the courts, no exceptional circumstances clause, no direction on how Parliament would demand or assert that the courts apply mandatory minimum penalties, and no direction with respect to the circumstances in which the escape valve could be used.
Conservatives brought forward at the justice committee multiple amendments to provide guardrails, including a guardrail that could apply only when the accused does not have a prior criminal record, a guardrail that the mandatory minimum penalty could be cut only by half, a guardrail that the escape valve would not apply in cases of child sexual offences, and a guardrail that the crime not include weapons trafficking, armed extortion or aggravated sexual assault. The Liberals voted against all those guardrails.
If in fact this is a modest safeguard and would apply only in exceptional cases and circumstances, then why is it that the Liberals were so reticent to define what those exceptional circumstances would be? Could it be because this is the same Liberal government that has the dubious record of being the only government in Canadian history to bring in legislation, Bill C-5, that repealed mandatory minimum penalties, by choice, involving serious crimes, including serious gun crimes and drug offences? I am not talking about minor possession; I am talking about trafficking and producing schedule I drugs, such as fentanyl, that have killed tens of thousands of Canadians over the past 10 years.
Could that be the reason why they were so reticent, so opposed to defining safeguards or guardrails around the escape valve? Could it be that the bill is not as advertised but that, despite the protestations of the Minister of Justice that it is about saving mandatory minimum penalties, the true intent of the bill is to eviscerate them? Make no mistake about it; mandatory minimum penalties would be eviscerated. They would have no meaning. The floodgates of litigation would be opened.
It begs the question, what good are mandatory minimum penalties if they can be disregarded on an ad hoc basis? For that reason, I and my Conservative colleagues cannot support this soft-on-crime bill from the soft-on-crime Liberals.