JUST Committee Meeting

     Welcome to meeting number 11 of the House of Commons Standing Committee on Justice and Human Rights.

    Pursuant to the order of reference of Thursday, March 31, the committee is meeting to study Bill C-5, an act to amend the Criminal Code and the Controlled Drugs and Substances Act.

    Today's meeting is taking place in a hybrid format, pursuant to the House order of November 25, 2021. Members are attending in person in the room and remotely using the Zoom application. The proceedings will be made available via the House of Commons website.

    I would now like to welcome our witness, the Honourable David Lametti, Minister of Justice and Attorney General for Canada, who's appearing in person in the committee room.

    I would also like to say that I don't have my flash cards today, so I'm going to rely on the minister and my colleagues to stay within the time. I will have to interject when needed to let you know your time has run out, but I ask that you stay within the time. Thank you.

    I give the floor over to you, Honourable Minister Lametti.

    Thank you, Mr. Chair.

    It's an honour for me to be with you this morning on the unceded land of the Algonquin Anishinabe people here in Ottawa.

    I am accompanied by Deputy Minister François Daigle and subject matter experts from the Department of Justice: Matthew Taylor, who is in the room with me, as well as Carole Morency and Andrew Di Manno, who are participating in the meeting via Zoom.

    Good afternoon to everyone in the room and to my colleagues online. Welcome to this meeting.

    I'm pleased to appear today before this committee to speak about the important amendments proposed in Bill C-5, an act to amend the Criminal Code and the Controlled Drugs and Substances Act.

    This bill is part of an effort by our government to combat systemic racism and discrimination. These realities are experienced by too many people who come into contact with the criminal justice system, from their initial interactions with police to sentencing.

    Bill C-5 includes three categories of reforms. First, it will repeal mandatory minimum penalties for all drug offences, some firearm offences and one tobacco-related offence. Second, it will allow for greater use of conditional sentence orders, or CSOs. The third reform will require police and prosecutors to consider other measures for simple possession of drugs, such as diversion to addiction treatment programs.

    These reforms have been long in coming. Indigenous persons, Black Canadians and members of marginalized communities, particularly those dealing with mental health or addiction problems, are over-represented at all stages of the criminal justice system, but especially in Canada's correctional institutions. This simply cannot continue.

    An examination of the factors that exacerbate these disturbing issues reveals that some mandatory sentencing measures that limit judicial discretion have undeniably had a disproportionate impact on the members of those communities. These measures, which were intended to reduce crime by deterring offenders and isolating them from society, have proven ineffective, costly and harmful.

    Between 2007 and 2017, indigenous and Black adults were more likely than other Canadians to be admitted to federal custody for an offence punishable by an MMP. Their admission to federal custody with an offence punishable by an MMP almost doubled during those years. For example, Black Canadians comprised 43% of individuals admitted for exporting or importing drugs in 2016-17, and indigenous people comprised 40% of adults admitted for a firearm-related offence that same year.

    The sentencing reforms that we propose are consistent with the recommendations that social and criminal justice stakeholders have been making for many years.

    The Truth and Reconciliation Commission noted the issue of overrepresentation of indigenous people in correctional institutions and called for its elimination over the next decade. The National Inquiry into Missing and Murdered Indigenous Women and Girls also called for the government to evaluate the impact of MMPs on the overincarceration of indigenous women, girls and 2SLGBTQQIA people and to take action to address the problem. The parliamentary Black caucus has also called for the elimination of MMPs.

    The government is listening and taking appropriate measures. This bill would repeal certain mandatory minimum penalties, or MMPs, but not all. We propose to focus on repealing MMPs that have had the greatest impact on the communities in question, while guaranteeing that the courts can continue to impose harsh penalties for violent and serious offences.

    Let me be clear on this last point: these reforms will have no negative impact on public safety and will not signal to the courts that the offences concerned are not serious.

    MMPs will be retained for serious offences such as murder, sexual assault, all sexual offences against children and certain offences involving restricted or prohibited firearms or that involve a firearm and are related to organized crime.

     As for the second category of reforms, Bill C‑5 will increase the use of suspended prison sentences, also called conditional sentences, or CSs.

     A CSO is a sentence of incarceration of less than two years that is served in the community under strict conditions such as a curfew, house arrest, treatment and/or restrictions on possessing, owning or carrying a weapon. CSOs will increase access to alternatives to incarceration for low-risk offenders while also furthering the sentencing goals of denunciation and deterrence.

    The evidence is clear. Allowing offenders who do not pose a risk to public safety to serve their sentences under strict conditions in their community can be more effective at reducing future criminality. Offenders can keep a job and maintain ties with their family and community. These measures bring back flexibility in sentencing by allowing judges to help people, not just jail them. For example, a judge can impose a CSO for an offender to serve their sentence at home while receiving appropriate mental health and rehabilitation supports.

    The measures allow communities to take on the responsibility for the rehabilitation of their members through a community justice program that we are funding. Experts in the field and in the communities themselves tell us that this is the best way to move the community forward, to move society forward and to help everybody, including victims, heal while maintaining public safety. That is what CSOs do.

    The reforms in Bill C-5 will remove many limitations on CSO eligibility, but not all. CSOs will be available only for sentences under two years for offenders who do not pose a risk to public safety. I want to emphasize this part, as I believe there is some misunderstanding that CSOs will become available for all offenders. I repeat: They will be available only where public safety is not at risk.

    CSOs will also not be available for some offences, including advocating genocide, torture and attempted murder, as well as terrorism and criminal organization offences when they are prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.

    Finally, while it is important to enact sentencing measures that aim to reduce recidivism and overrepresentation, it is equally essential to ensure that there are adequate off-ramps at the earliest stages of the criminal justice process. This is especially true for conduct that could more appropriately be treated as a health concern.

    To this end, Bill C-5 will require police and prosecutors to consider alternatives to laying or proceeding with charges for the simple possession of drugs. Alternatives will range from taking no action at all to issuing a warning or, if the individual agrees, diversion to an addiction treatment program. These measures are in keeping with the government's public health-centred approach to addressing substance use and the opioid epidemic in Canada.

    The damage caused by this failed criminal justice policy is not simply a Canadian problem. I was in Washington last month and met with a number of bipartisan groups and think tanks working on criminal law reform. The message from all of them was that incarceration has failed. Many states, both Democratic and Republican, have abandoned MMPs because they simply do not work. The reforms we are proposing are the reforms they are advocating, repealing MMPs, bringing greater flexibility to sentencing, and diverting offenders out of the criminal justice system in the first place. These are solutions that will address the problems we face.

    In addition to the reforms in Bill C-5, our government remains committed to working with our partners in the provinces and territories, as well as with Black, indigenous and marginalized community leadership in order to eradicate the overrepresentation of these communities in the criminal justice system.

    Community safety is what we want. These reforms will help make that happen.

    I look forward to answering any questions you have.

    Thank you.

     Thank you, Minister Lametti. We really appreciate your presence here today.

    Dear members, I'll use a green folder to show when there are 30 seconds left, just so I don't interrupt your train of questioning. I'll use that and give you the grace of those 30 seconds to end your time.

    The first round of questioning is to Mr. Moore for six minutes.

    Thank you, Mr. Chair.

    Thank you, Minister, for appearing. It's good to see you again virtually, as well as the officials who are appearing with you.

    Minister, I know you and I agree with each other from time to time. Bill C-5 is not going to be one of those times. I can tell you from the testimony that we've heard in our deep consultations with witnesses and communities, both rural and urban, as well as various victims groups, that this bill could not be more breathtakingly out of touch at the time we find ourselves in in Canada.

    Removing mandatory minimum penalties for serious gun crime, house arrest for serious offences against a person, Controlled Drugs and Substances Act trafficking, production and distribution minimums being eliminated for serious offences that are plaguing our communities.... This bill, quite frankly, flies in the face of those who are calling for safer streets and communities, and it is an affront to victims.

    I heard in your opening remarks—it's quite heartening and I'm sure Canadians will be relieved—that you're maintaining the mandatory minimum penalty for murder. I guess that sets the bar fairly low, Minister. We're interested in making sure we have a justice system that's balanced, protects the rights of victims and keeps communities safe.

    I want to jump right into questioning.

    According to Statistics Canada, women were violently victimized at a rate nearly double that of men in 2019. We know part of this is due to the fact that, according to Statistics Canada research, women were five times more likely than men to be victims of sexual assault. At your appearance at committee on March 10, 2020, you stated that, “despite the robustness of our legal framework in this area, there are still extremely low rates of reports, charges and convictions in sexual assault cases.”

    With your Bill C-5, Minister, both sexual assault with a weapon, threats or causing harm, and the offence of sexual assault under section 271 would have mandatory jail time removed, and an offender could serve their sentence from their home community.

    Did you consult with victims of sexual assault before making the decision to allow the perpetrators to serve their sentence from home?

    I thank the honourable member for his question. Thank you, Rob, if I may.

    Yes, we are going to disagree quite strongly on this. I think what is an affront is the continuation of a so-called “tough on crime” policy that has so clearly failed in Canada. It has so clearly failed in the United States. It has so clearly failed in countries like Great Britain. It is being abandoned everywhere. It would be an affront to keep going with that without looking at the evidence and without assessing the impact that these minimum mandatory penalties and the lack of conditional sentence orders are having on the system.

    That's what we're trying to do. I don't know where you're—

    Thanks, Minister. I don't have a lot of time. My question is, did you consult with victims of sexual assault?

    I'm not sure where you're getting the information that we've removed mandatory minimum penalties for sexual assault. That's simply wrong.

    Let me point out two things. First of all, conditional sentence orders, as I have said, will be available to a judge only when the sentence would have been less than two years. Obviously, they won't be used in a case where there's a minimum mandatory penalty that's higher than that. In no case will they be allowed when there's a threat to public safety. That's the sine qua non of what we're doing here.

    The kinds of situations that you're referring to simply don't exist. Serious offences will always be punished seriously. Sentencing judges will always take the context and circumstances into account, and they will go towards the other end of the sentencing spectrum when it is merited.

    What we're doing here is giving the flexibility back when there's some other contextual reason that means that the best thing for the victim, the best thing for the person and the best thing for the community is not to incarcerate the person.

     Thanks, Minister.

     Where I'm getting the information around sexual assault is....

    I'm sorry, Mr. Chair. I'm getting the French translation into my headset. I'll continue—

    I think it's been corrected, Mr. Moore. I believe got the same.

    Thank you, Mr. Chair.

    Where I'm getting the information, Minister, is directly from Bill C-5. Offences for which a conditional sentence would be available include sexual assault with a weapon, threats or causing harm, trafficking or exporting, fraud over $5,000, robbery, breaking and entering, and robbery to steal a firearm. These are offences that are taking place in all of our communities. Under your bill, the perpetrators will now be able to receive a conditional sentence, otherwise known as “house arrest”, rather than jail time.

     Minister, I'd like an acknowledgement on the source of many of these mandatory minimums that you say are for not serious offences. Do you know the origins in the Criminal Code of the mandatory minimum for using a firearm in the commission of an offence, for example, and for weapons trafficking? On those mandatory minimums, do you know when they were introduced?

    Answer very briefly, please, Minister.

    Thank you.

     I believe those were introduced under a Liberal government. Correct me if it was under Prime Minister Martin or under Prime Minister Chrétien, but the fact—

    One of them was introduced under Prime Minister Pierre Elliott Trudeau in 1976, and the other under Prime Minister Jean Chrétien in 1995, the point being, Minister, that these are serious offences.

    Thank you, Mr. Moore.

    We'll have to go to the next panellist.

    The point, Mr. Moore, is that there was a rapid increase—

    Minister, I'm going to have to ask you to answer that in the next question or, hopefully, perhaps the next member will allow you some time to answer that.

    Madame Brière, you have six minutes.

    Thank you, Mr. Chair.

    Minister, I'll give you an opportunity to finish your answer to Mr. Moore.

    Thank you.

    Even though some mandatory minimum penalties were imposed under the regimes of prime ministers Trudeau senior, Chrétien and Martin, the vast majority of those penalties were introduced by Mr. Harper's government, which also did away with the conditional sentence option. That clearly led to an at times excessive over-representation of certain groups, particularly indigenous persons, in Canadian prisons and to over-incarceration, a problem we want to correct.

    However, these penalties must be repealed because they don't work. Consequently, we have selected some 20 mandatory minimum penalties whose removal would not endanger public safety. For some of the offences that Mr. Moore mentioned, such as those involving a prohibited firearm, a restricted firearm or the use of a firearm by organized crime, mandatory minimum penalties will remain. We're really targeting offences involving the use of a gun.

    Minister, you haven't told us about your visit to Washington. As you know, many organizations in the United States are striving to right wrongs caused by the failure of decades of criminal justice policies.

    Would you please tell us a little more about your visit to Washington and what you learned from those organizations?

    Thank you for your question.

    I met some experts from the Brennan Center for Justice, the Sentencing Project and the Council on Criminal Justice. These are bipartisan organizations whose subject matter experts have examined the scope of the over-representation of certain groups in U.S. prisons as well as the effectiveness of incarceration.

    They're making the same recommendations we're discussing today: the reduction or elimination of mandatory minimum penalties, flexibility in sentencing, inluding the use of conditional sentences, and the decriminalization of cases resulting more from a health problem.

    According to the government's backgrounder on Bill C‑5, the repeal of mandatory minimum penalties is part of an effort to promote judicial discretion for sentencing.

    However, the bill would not remove all mandatory minimum penalties.

    If judicial discretion in sentencing is important for some offences, why isn't it for others?

    We wanted to remedy a quite specific problem, the over-representation of indigenous peoples and Blacks in the judicial system. We therefore targeted offences associated with that sort of over-representation.

    We aren't saying that other measures couldn't be evaluated, but we'd like to move forward cautiously and really attack this specific problem. That's why we selected these offences.

    We talked about over-representation earlier.

    Bill C‑5 would grant significant discretion to police officers and prosecutors in criminal cases.

    How would the changes made by the bill prevent the over-representation of certain populations in the correctional system?

    Consider people suffering from addiction, for example. We think it would be preferable to treat this type of problem as a health problem. Trying these individuals, bringing them before a judge or sending them to prison aren't the most effective ways to improve their situation or that of their communities and families.

    Other solutions can be considered. We could reduce the number of people in the justice system by directing them to the resources they need, particularly health resources.

    Once people are in the system, we can also use conditional sentences to determine penalties that would allow them to stay with their families, keep their jobs, find the necessary support to improve their situation and reach some form of reconciliation with the victims. The victims are also very important.

     Thank you, Minister.

    I'll next go to Monsieur Fortin for six minutes.

    Thank you, Mr. Chair.

    Good afternoon, Minister. Thank you for being with us today.

    I almost want to start with the same warning as my colleague Mr. Moore gave you. I'm not sure we're going to agree on Bill C‑5, even though, on the merits, the Bloc Québécois has historically disagreed with mandatory minimum penalties and will continue to do so.

    We do think it's preferable to allow judges to determine the applicable penalties in most cases, but not all. On the matter of decriminalizing the use of small quantities of drugs, we think that's more a health problem than a legal problem.

    So perhaps we could agree on substance, but we have some reservations with Bill C‑5 as drafted.

    You told us at the outset that the bill was designed to combat systemic racism. I'd say you're stretching a point. Systemic racism is a major problem that obviously must be addressed, but first we should determine what it is. I'm not sure that systemic racism, in the sense the present government intends, actually exists. However, that's another issue that we won't be addressing today.

    To my mind, reducing the applicable penalties for certain crimes in order to prevent racialized individuals from winding up in prison is an odd way to address racism

    Having said that, I'm going to ask you some more specific questions because I only have six minutes, and I can't have more than five left. As you'd expect, we won't be able to address the entire issue in five minutes.

    However, I want to validate a point with you.

    You say that mandatory minimum penalties would remain in force for serious crimes.

    Do you think that weapons trafficking is a serious crime or not?

    It's a serious crime. That's why the vast majority of offences involving the use of a firearm…

    Minister, my question was…

    I'm going to answer your question, Mr. Fortin.

    I can't let you speak for two minutes because I only have five minutes of speaking time.

    Yes, but I have to answer your question.

    I understood that you think it's a serious crime.

    Consequently, it's not included in the bill.

    Mr. Fortin, you should read the bill more closely.

    Mr. Chair, I'm entitled to use my speaking time to ask questions.

    Aren't I?

    Yes.

    Yes.

    Minister, do you think it's a crime to discharge a firearm with intent?

    If it's serious in view of the circumstances, the penalty will be harsh.

    So the act of discharging a firearm with intent is necessarily serious.

    Is my understanding correct?

    That's not necessarily the case in some court cases.

    All right.

    If someone…

    Armed robbery…

    Mr. Fortin, you're going to have to allow the witness a reasonable time to answer.

    The witness has the time to answer my questions, Mr. Chair. My questions are simple, and he can answer them with a yes or a no. I don't need any further explanation.

    I only have five minutes of speaking time.

    It's not up to you to determine the answer, Mr. Fortin.

    I'd like to speak with the minister at greater length, but my speaking time is limited.

    Minister, do you think armed robbery is a serious offence?

    Mr. Fortin, the bill would repeal certain minimum penalties in cases…

    That's not the point of my question.

    We want to repeal minimum penalties in cases where judicial flexibility is needed.

    That's not the point of my question, Minister.

    Mr. Chair, it would be good if someone explained to Mr. Lametti…

    That doesn't mean that, if the circumstances are serious…

    On a point of order, Mr. Chair, the last three or four minutes have been very difficult to understand. The interpreters are speaking over each other. Quite frankly, I could not follow the line of questioning or the responses.

    Mr. Fortin, I would ask that once you ask a question you allow the witness to respond, and then let them know you're asking the next question. When there is crosstalk, it's very difficult for translation services as well. The echoing also overlaps on that.

    On a point of order, though, Mr. Chair, I think that Mr. Fortin asked a question, got a response, and was good with that, and the minister kept talking. If we are limited to five minutes, and we get one answer and we want to carry on with another question.... Otherwise, the minister could likely continue to talk for the entire five minutes, and I don't think that's correct either.

    I have a point of order here as well.

    I have a point of order, Mr. Chair.

    Yes. I believe Ms. Diab spoke, and then Mr. Anandasangaree.

    Chair, we need some respect in the line of questioning.

    Mr. Fortin, the reason why the minister doesn't have the time to answer your questions is that you've spent all your speaking time asking your questions. If you really want an answer, you absolutely have to allow him a few seconds to answer the question.

    Committee members must show respect for the witnesses.

    Mr. Chair, allow me to say that I entirely agree with…

    Thank you.

    Mr. Fortin, let me just get to Mr. Anandasangaree, and then I'll return to you.

    Thank you, Mr. Chair.

    I think there's a general convention in Parliament that the response time equates very closely to the time for the question. When Mr. Fortin asks a question, he needs to give adequate time for a response. He cannot cut off the minister and go to the next one.

    We all recognize time limitations. I think we've all generally been very much in adherence to these conventions. I hope we can continue the meeting and give adequate time for a response, without interruption, so we can actually hear both the question and the answer, and understand. It is a bit more difficult, especially, for our interpreters, who have been working around the clock.

    Mr. Fortin, over to you.

    Thank you, Mr. Chair.

    I entirely agree with the remarks we've just heard, particularly those of Ms. Diab. I have a great deal of respect for Minister Lametti. He is both a gentleman and a scholar, a justice expert. I know it would be a pleasure for me to chat with him all day long. However, I have only five minutes to ask my questions, and I've already lost time as a result of the interpretation.

    We've often discussed this situation, and I've suggested more than once that speaking time be extended when questions aren't asked in the language of the witness. The idea is to allow everyone a fair amount of time. I'm having that problem. As I previously said, I agree with Ms. Diab. As a result of this situation, I'm asking the minister specific questions to which he can answer with a yes or a no.

    I'm asking him if he thinks that firearms trafficking is a serious crime, if armed robbery is a serious crime and if discharging a firearm with intent is a serious crime. These are questions that he can answer with a yes or a no. If every question results in a four- or five-minute speech, I won't have time to ask more than one or two questions over the entire afternoon, and I'll have lost my time on this committee.

    I believe we're entitled to clear answers. The minister had five minutes for his opening remarks and to tell us how he viewed his bill. We took note of that. That's not the problem. Now it's time for members to ask the minister questions. However, with all due respect to him and the citizens watching us, I think we're entitled to expect short answers when the question asked is short and can be answered with a yes or a no.

     I have a point of order, Mr. Chair.

    Thank you, Mr. Fortin.

    I'll go to Mr. Naqvi next.

    Mr. Fortin, I'll ask you to respect the amount of time you take to ask a question and give at least the same amount of time to answer the question. I know you're expecting perhaps a yes or no, but if you have a 10-second or 15-second question, at least give the witness 15 to 20 seconds. Because of interpretation, it takes a few seconds longer, and it goes both ways with interpretation. We all want to listen to your questions and have them on the record.

    Go ahead, Mr. Naqvi, and then I'll try to resume after this.

    I just want to make one point, and this has been on my mind for some time. We're dealing with some complex criminal justice and legal issues here. There is no such thing, as Mr. Fortin knows, as a yes-or-no answer. These are nuanced issues that require thoughtful, nuanced answers, and I think time should be given to all our witnesses, not just the minister, to articulate their thoughts properly.

    Thank you, Mr. Naqvi.

    I will—

    I have a point of order. I'm sorry, Mr. Chair, but all this discussion about how we ask questions and how we answer questions is taking up a lot of question time. We get the minister here only so often, so I'm hopeful the minister can stay for maybe an extra 15 minutes to make up for some of the delays we're experiencing by debating how questions are answered and asked.

    Thank you, Mr. Moore.

    I can't control the minister's schedule or itinerary. We are here as members, but I'll leave that to him. Hopefully, we'll be able to get in a round of questions for everyone. This committee has done a very good job in the past, and even though this is the first time the minister is coming here and I know we're all excited, I'll ask that we stick to decorum. I think we should be okay.

    Mr. Fortin—

    Mr. Chair, on a point of order, in furtherance of my colleague Mr. Moore's commentary, and in reflection on my colleague Mr. Naqvi's commentary that these are nuanced questions and, more importantly, nuanced responses, perhaps the committee can consider inviting the minister back for a further hour at a future date. Obviously there are a lot of questions that all members from all parties wish to ask the minister, and he has lengthy responses, so perhaps a further one hour might be warranted in the circumstances.

    Thank you, Mr. Brock.

    I think we'll look at that afterwards. We still have an hour of department officials who have a high level of expertise on this, and we should listen to them.

    I'm going to resume, so Mr. Fortin can continue his questioning.

    I've added some time for you, Mr. Fortin, for the disruption. You have about two and a half minutes.

    Thank you, Mr. Chair.

    Thank you, Minister, for your previous answers. I'd like to reiterate my respect for you, but we are unfortunately limited in terms of time. I accept the chair's decision about allowing the same amount of time for the answer as it takes to ask the question.

    So, I'll go back to where I left off.

    Do you consider robbery with a firearm to be a serious offence?

    The seriousness of the offence is determined by the judge. It could be serious or less serious, depending on the circumstances.

    Okay.

    Is extortion with a firearm serious or not, in your opinion?

    The seriousness of the offence is always determined by the judge, and it can vary with the circumstances.

    The commission of an offence with a firearm, trafficking in firearms, possession with intent to traffic firearms, discharging a firearm with intent, robbery with a firearm, extortion with a firearm; according to you, none of that is necessarily serious, if I have understood you correctly. It all depends on the facts and the circumstances.

    Is—

    I apologize for interrupting you.

    That's why judges are given a degree of latitude, so that they can determine the appropriate penalty, in accordance with the seriousness of the circumstances.

    Minister, you and I are aware of the increasing amount of violence with firearms, particularly in the Montreal area, but just about everywhere in Canada in recent years.

    Do you think that doing away with mandatory minimum penalties for the offences I just listed would send the right message to the public?

    That raises a different problem, Mr. Fortin.

    I was very pleased to see you publicly support this very bill in the House of Commons when it was initially introduced.

     As was promised during the election campaign, my colleague, Minister Mendicino, is currently addressing the firearms trafficking problem, particularly in Quebec.

    I won't go on at length, because I don't have enough time left.

     Thank you, Mr. Fortin. Your time is up.

    Mr. Chair, these rounds of questions are almost useless when the amount of time is limited.

    Thank you, Minister.

    The next round will go to Mr. Garrison for six minutes.

    Thank you very much, Mr. Chair, and I thank the minister for being here today.

    I know that one of the motivations behind C-5 is to address systemic racism in the justice system, but I want to ask about something I think is very closely related. That's the overdose crisis in Canada.

    In 2021, in British Columbia, 2,224 people died from an overdose and a poisoned drug supply. That's at least 2,224 families who lost fathers, mothers, sisters, brothers, kids, cousins and neighbours. This is a rapidly increasing problem.

    One way that you've talked about it in this bill is with diversion and reducing mandatory minimums, but the First Nations Health Authority in British Columbia reported that indigenous British Columbians are five times more likely to experience an overdose crisis and three times more likely to die from that overdose crisis.

    Minister, my question to you is, wouldn't it be better simply to eliminate the criminal offence of possession of small amounts of drugs for personal use?

    Thank you, Randall, for that question. I certainly share the concern that there's an opioid crisis, not only in Vancouver and in British Columbia, but across Canada. It is one that is serious.

    I'm trying to attack a specific problem with sentencing reform. I would be open to other ways of attacking that problem, particularly working with experts on the ground, with the governments of British Columbia and Vancouver and with my colleagues, the Minister of Health and now the Minister of Mental Health. I don't think we should close off any possibility for solving those problems.

    I would also be open to other criminal law reforms. I am certainly investing in community justice centres in British Columbia, particularly in the indigenous communities. They are indigenous-led and actually work with indigenous offenders, many of whom have problematic addiction and opioid challenges.

    That's another way I can do it, but I'm willing to work with other colleagues across the board and I'm open to ideas.

    Minister, my colleague from Courtenay—Alberni, Gord Johns, has a private member's bill, C-216, that would do exactly that. It would decriminalize personal possession and make a lot of other changes around the possession offences, which would get people into treatment rather than into the justice system.

     Are you saying today that your government is prepared to consider that private member's bill?

    I'm not going to pre-empt a decision that might be made down the road, but I would certainly consider it with Mr. Johns, as well as with my ministerial colleagues and others who are interested.

     Thank you very much, Minister.

    One of the other criticisms that I and others have of this bill is that it picks out only some mandatory minimums. While I agree with you and I support maintaining them for some of the most serious, violent crimes, there are a lot of other mandatory minimums that could be removed.

    There has been in a bill in the Senate several times. It's now Bill S-213, which aims to restore discretion for judges even where there's a mandatory minimum in place. If a judge found that there were extenuating circumstances, they could ignore those mandatory minimums. I wonder what your opinion is on that approach.

    It is an approach that I evaluated in the conception of this particular bill. You know that I'm always open to working in good faith with colleagues around this table and in the House of Commons across the aisle to make any bill that I'm proposing better. I'm always open to that.

    I didn't go with that approach for a variety of different reasons. I think the bill I have tabled is attainable. I think it's feasible. I think it will be effective in targeting systemic overrepresentation.

    Thank you very much, Minister.

    Yes, of course, we've had a good relationship, dialogue and all of these things. I'm going to ask you about something we've talked about privately so you can say it publicly. That's the question of expungement.

    Those who get involved in the justice system for personal possession end up with criminal records that often make employment and housing difficult to find. This bill doesn't deal with expungement for previous convictions. I wonder what your answer is, even though I know it.

    It falls under the domain of my colleague, Minister Mendicino, the Minister of Public Safety.

    We did have expungement for the so-called LGBTQ “crimes” for members of the public service when we made that apology. We expunged those “crimes” because we wanted those crimes to be treated as never having been a crime.

    We introduced pardon reform after cannabis...using the word “pardon” and creating an expedited pardon process because those were illegal activities before we legalized cannabis. That was the distinction.

    It's for my colleague to look at pardon reform. I know he is thinking about it. I know his predecessor, Minister Blair, thought about it as well. I understand the impact that pardons have. It's also something that I heard in Washington from bipartisan reformers in the United States.

    We and the Democrats often talk about automatic expungement. We've seen, in the previous attempts for expunging records or having expedited pardons, that an expensive or convoluted process is one that the very people we are trying to help here have the most difficulty accessing. They don't have resources to hire a lawyer or pay fees. They don't have access to the Internet on a regular basis.

     I guess I would urge you in any discussions with your colleague to remember that the people we are trying to help here have a very tough time accessing those kinds of processes.

    Thank you, Mr. Garrison.

    Next is a five-minute round to Mr. Brock, please.

    Thank you, Mr. Chair.

    Thank you to the minister and department officials. Thank you for your attendance.

    It's my first opportunity to talk directly to you, Minister. Hopefully I'll get a number of questions in.

    The first one I want to bring to your attention is the timing of your introduction to this particular bill. I remember that day very clearly, because, less than 24 hours removed from your presenting Bill C-5 in the House, we stood in solidarity as members of Parliament, and the entire House commemorated the École Polytechnique massacre from several years ago. We stood for the message that the government would stand strong against all forms of gun violence and to inform Canadians in very clear terms that we would take immediate steps to curb the ever-increasing tide of that criminal behaviour.

    I think you'd agree with me, Minister, that the number one responsibility of a federal government is to keep its citizens safe. Do you agree with that?

    Look, I'm a Montrealer. I know Polytechnique. I've been to the building; I've been in the room. I know graduates of that program. I remember the devastating impact and where I was when I got the news. I remember that very well.

    We take gun violence very seriously. We as a government have reinstituted investing against gun violence across Canada. We have banned assault weapons, the kinds that were used to perpetrate these kinds of crimes, the kinds of weapons that have a place only on the battlefield.

     Thank you, Minister. I have only a few minutes—

    We are also fighting trafficking. We've invested historic sums—

    Minister, thank you.

    —and reversed the lack of spending that the previous Harper government failed to do.

    Thank you.

    Continue, Mr. Brock.

    Thank you.

    The same day that you introduced Bill C-5, you were quoted as saying that this was not aimed at “hardened criminals” but at first-time, low-risk offenders. Specifically, you said this:

    With all due respect to you, Minister, that tone-deaf response was not what Canadians wanted to hear one day removed from the commemoration, one day removed from our standing in solidarity against gun crime. You know that gun crime is on the rise across all of Canada, and particularly in my riding of Brantford—Brant.

    Minister, this week, April 6, you then did not respond directly to a question posed by the Conservative member for Kamloops—Thompson—Cariboo. He brought to your attention the situation of a drive-by shooting, which this legislation captures. He asked you specifically how that is not a threat to public safety. The government could put into place a constitutional “safety valve” and have mandatory minimum penalties, with exceptions, to address the problems of over-incarceration. This could provide a perfect middle ground. Why wouldn't the government consider that?

    Your response, sir, was that the “fallacy” of the member's argument was “clear”, and that you were eliminating MMPs to eliminate the bottom range for all offences. Then you drew another example and said that what you were talking about here was “where a person perhaps has a few too many on a Saturday night and puts a couple of bullets into the side of an empty barn”.

    My question to you, Minister, is this. The discharge of a firearm with intent, or recklessly, deserves jail time. Would you agree with that or not?

    The seriousness of the offence under all of these Criminal Code offences—you know this, as a former Crown—depends on the circumstance. We are talking about sentencing here. It's up to the judge to determine, according to all of the facts in front of the sentencing judge, the seriousness of the offence in question.

    It's still the same offence in terms of actus reus and mens rea, but there are different degrees of seriousness. Serious offences will always be punished seriously. A drive-by shooting is going to be punished seriously. There is going to be serious jail time associated with that. It is an affront to Canadian people to try to mislead them otherwise.

    In terms of the offences we're talking about, I based that example on a real case. The person who did that one night had a job. He had a girlfriend. He was going to school. He had a few drinks too many that evening. He put a few bullets with his shotgun into the side of an empty barn. There was nobody around, but a neighbour heard it and called the police. He was charged with a minimum mandatory penalty. He got four years. He lost the job. He lost the girlfriend. He lost the education. When he left prison, he ended up moving into the same house with the people he had served time with, so that's the education he got.

    That's what we're doing here. That wasn't a serious set of circumstances that deserved jail time, whereas a drive-by shooting certainly would.

    Thank you, Minister. In the interests of time, I have to move on.

    Next we have Mr. Naqvi for five minutes.

    Thank you very much, Mr. Chair.

    Minister, it's good to see you here today.

    I'm interested in learning more about the conditional sentencing orders that are also part of Bill C-5. When I had the honour of serving as the Attorney General of Ontario, we introduced a similar notion dealing with bills, introducing bill.... That's in the province. In fact, I recall making a certain announcement with Mr. Brock when he was a Crown prosecutor. He was quite supportive of that initiative.

    It was an opportunity to allow people who had some serious mental health or addiction challenges.... Instead of being remanded and incarcerated while they were waiting for their trial, they were allowed to be in a community setting, under strict conditions, where they could get support services. There was ample evidence to demonstrate that this would be far more beneficial to them and to society in general.

    What evidence and benefits have you seen in terms of the use of conditional sentencing orders that have compelled you to reintroduce them through Bill C-5?

    It's wonderful to have two former attorneys general around the table with me here this afternoon.

    There is a mountain of evidence on conditional sentence orders and this kind of flexibility in sentencing, which shows a positive impact, not just for the rehabilitation and reintegration of the offender, but for victims and communities. Having conditional sentence orders allows us to attack the real problem, be it problematic addiction, intergenerational trauma in the case of racialized communities, poverty or a lack of housing. Those are the problems we need to attack.

    What a conditional sentence order allows us to do, instead of sending a person to jail—and oftentimes, in the case of a woman, then having to take her kids into custody—is to keep that person at home and getting the treatments they need, perhaps keeping their job and staying around the community supports they have.

    I would also add that it enables us to realize the potential of the investments we are making for indigenous people with Gladue reports, which allow a sentencing judge to craft a sentence based on what is in that Gladue report.

    We have started a pilot project on IRCAs—impact of race and culture assessments—in Nova Scotia, in Montreal and in Toronto. An IRCA allows, in the sentencing of Black offenders, a similar kind of sentencing report to a Gladue report. Again, a conditional sentence order allows for the potential there—without a minimum mandatory penalty, with no harm and no public safety threat to the community—for the judge to actually craft a sentence that will be beneficial to everybody in the community: the victim, the offender and everyone around them. It also allows communities to take charge of sentencing and rehabilitation in a very positive and proactive way. This is something that expert groups, particularly across North America, are recommending.

    Thank you.

    I thought it was quite harmful or devastating when they were taken out of the Criminal Code. I think this opportunity given to a judge to look at the overall circumstances, especially as they relate to indigenous people, Black people and racialized people, is extremely important.

    When you were talking about MMPs, you alluded to their broader impact on indigenous, racialized and Black people. Can you talk about some of the data you have seen that demonstrates how MMPs have been overly utilized in relation to the indigenous peoples of Canada, Black folks and racialized people?

    There are certainly a number of studies and statistics with respect to overrepresentation, and with respect to MMPs in particular. You know the statistics. Indigenous people represent a tiny percentage of our population but 30% and higher of people who are in federal incarceration. The number is even higher for indigenous women. The Black population, at approximately 3% of the population, I believe, represents, again, close to 9% of all offenders.

    With respect to MMPs themselves, of all admissions to federal custody between 2010 and 2020, 53% of Black offenders and 36% of all indigenous offenders were admitted for an offence punishable by an MMP. Those are shocking statistics. It is simply inexplicable, for any reason other than systemic racism, that those numbers are that high. Therefore, we need to attack the problem at all levels. Sentencing is one of them, but there are other places, too, where we need to attack this.

    Thank you, Minister.

    Thank you, Mr. Naqvi.

    Next, a two-and-a-half minute round goes to Monsieur Fortin.

    Thank you, Mr. Chair.

    I agree with what you said earlier, Minister. A judge will usually sanction an offence linked to a serious crime with a sentence of imprisonment, whether or not a mandatory minimum penalty is prescribed for that offence.

    I also agree with the example you gave, about the fact that someone should not be sent to prison for four years for discharging a firearm into a wall on a side street.

    But it might have been useful to break this type of offence down into its components. Discharging a firearm with intent and pointing it at an inanimate object is one thing, but discharging a firearm with intent while pointing it at people requires a mandatory minimum penalty. You have not taken this aspect into consideration, but that's perhaps what I would have done. We might put forward an amendment of this kind in the committee's report.

    Now, Minister, I'd like to draw your attention to two things.

    First of all, legislation changes over time. The current Criminal Code is not the same as the one we had 10, 20, 50 or 100 years ago. Laws change because the legislator needs to legislate in a way that reflects the concerns of people at the time it is being drawn up.

    Then, Minister, if you agree with this statement, why is legislation being prepared today to repeal mandatory minimum penalties for the use of a firearm with intent to commit an offence?

    There is, at the moment, an increase in firearm violence, and people are worried about it. We hear mothers saying that they are hesitant about sending their children to school because firearms are circulating in the schools and it's dangerous.

    Do you, Minister, feel that the timing on this is bad?

    The proposed amendments to the mandatory minimum penalties in this bill are not aimed at assault weapons or the kinds of firearms used by street gangs in Montreal and elsewhere.

    Our government is currently working to combat trafficking in weapons of that kind and to deal with street gangs. It is doing so in a way that will go down in history.

    We are listening to people's concerns and are reacting by implementing some measures, in coordination with the provinces, including Quebec, and with municipalities.

    The purpose of this bill is to address another problem—the overrepresentation of Black and indigenous people in the judicial system. It's a real problem and we are addressing it now.

    The crimes are serious, but this bill means that criminals won't go to prison. It's a curious sort of reasoning.

     Thank you, Mr. Fortin.

    Thank you, Minister.

    We'll to Mr. Garrison for two and a half minutes.

    Thank you very much, Mr. Chair.

    I know that Bill C-5 is targeting systemic racism, but there's another impact of mandatory minimums that has been a concern for me—since everyone's citing their past—as a criminal justice instructor for 20 years, and that is the situation of women who are in abusive or controlling relationships. They often end up in the justice system as a result of the activities of their partners, particularly around drugs that they are quite often forced to deliver or hold on behalf of a coercive partner. Therefore, they end up under mandatory minimums.

    I wonder if the Minister has any comments on how the bill will impact women who come into conflict. Again, because of systemic racism, a lot of those women are Black women and indigenous women.

    There's absolutely no question that this is one of the situations that we're attacking here. It's for women who, through no fault of their own, are drawn into a relationship in which they are controlled, or have a problematic addiction within the context of a relationship, or have an addiction that forces them to seek out a relationship in order to maintain that dependence. They end up becoming a mule or being charged with possession or other things. We're trying to keep those women out of the criminal justice system. We're trying to give those women sentences that fit the crimes and that will allow them to seek and get the help they need, while remaining safe.

    All of that is part of this package. We think it will have a great deal of success, particularly with the interaction of the minimum mandatory penalty and the conditional sentencing order working together.

    One of the things I've often heard, from both defence attorneys and prosecutors locally, is that mandatory minimums actually contribute to court delays by making a lot of cases go to court that might not otherwise if they were able to reach a deal in the absence of those mandatory minimum penalties being on the table.

    I wonder whether the department has looked at that problem.

     Very much so; they cost us a massive amount of money. The minimum mandatory penalties reduce the amount of plea bargaining in the system, so more cases go to trial. They increase the number of charter challenges; over a third and possibly even higher of all the charter challenges in the system are on minimum mandatory penalties, and about half of them actually succeed. These clog up the system and they cost us money. When other people walk free on serious crimes because of a Jordan ruling, it's in large part caused by the massive logjam that is being caused by minimum mandatory penalties. If you look at the introduction of MMPs under the Harper Conservatives and the taking away of CSOs, the number of court cases go up and the delays go up, so we're attacking that too.

    I want to thank the minister for his time and staying over. I think we're about three minutes into the intervention, but I've used my liberty to go over seven minutes.

     Thank you, Mr. Lametti, for appearing before our committee. You're always most welcome to come back.

    I'll now suspend for a few seconds so you can leave. Then we'll resume with your officials, who will remain for the remaining hour and the next round of questions.

    Thank you, Mr. Chair.

    Thanks to everyone.

    Most of the next panel is online, so I'll introduce them.

    From the Department of Justice, we have François Daigle, deputy minister of justice and deputy attorney general of Canada, who I believe is appearing in person. We have Carole Morency, director general and senior general counsel, criminal law policy section. Also from the criminal law policy section, we have Paul Saint-Denis, senior counsel; Andrew Di Manno, counsel; and Matthew Taylor, general counsel and director.

    I'll resume questioning, if everyone's ready to take answers.

    I'll begin with Mr. Morrison, for six minutes.

    Thank you, Mr. Chair.

    I have a question, and anyone on the panel can answer this. Do you believe that there is an overrepresentation of indigenous, Black and other marginalized communities who are victims?

    In fact, what the available data shows is that indigenous persons, Black Canadians and members of marginalized communities are sometimes overrepresented both as victims and as offenders in the criminal justice system.

    When we talk about long-term solutions, and this is short-sighted in my opinion, we look at crime prevention. We look at how we tackle the fact that we have.... For example, let's go to the opioid crisis, which is part of this bill. How do we resolve the issue of the opioid crisis in a crime prevention versus crime reduction way, which of course is putting people in jail?

    I am way soft on that; I believe we need to have a crime prevention program. I'm wondering if you or anyone in your area has discussed how we can have a long-term solution here.

    What I can say about Bill C-5 is that it's just one of the mechanisms that the government has put in place, not only to reduce criminality but also to impose fairer sentences that will serve the communities themselves. Some of the measures in Bill C-5 with respect to mandatory minimum penalties restore judicial discretion, and the same thing with conditional sentences of imprisonment: They allow judges to impose sentences with a community-based sanction when appropriate. With respect to the Controlled Drugs and Substances Act, again, there are mechanisms there that allow the criminal justice system to keep individuals outside of the criminal justice system and to get the help they need.

    Do you support, and have you budgeted for, the increase in policing, for example, that will be required, especially under the CSOs that they're not doing today? Is there a plan? I didn't see that in the budget yesterday. Is that there, and are you anticipating supporting law enforcement agencies that will need that support under the CSO program?

    It's reasonable to expect that the reforms to CSOs will place a greater demand on treatment programs at the outset. However, mandatory minimum penalties are extremely costly in the criminal justice system, and they increase charter challenges. What ends up happening is that if we implement the reforms in Bill C-5, we expect that over time, while there will be an initial increase in requests for treatment and programs, we'll see long-term reductions in recidivism and more efficient ways of dealing with crime.

     I wonder if you can talk about the research you did to come up with this plan that you have in picking these particular sections for reducing mandatory minimums, and also, when you brought in victims who were associated with these offences, how the victims responded to your plans to remove penalties.

    For example, I think about an abduction of a person like, say, my daughter, who's 14 years old, and about her being assaulted and held against her will. How happy would I be that the individual would qualify for a CSO and would be coming right back to that community?

    The Department of Justice did conduct public opinion research. It initially showed that Canadians are supportive of MMPs at the outset, but once they're informed about the negative impacts on the criminal justice system, they overwhelmingly support an approach that's more nuanced and that's currently permitted under the law.

    I don't want to purport to speak on behalf of all victims, because they're not a homogenous group; however, as part of the 2017 national justice survey conducted by the Department of Justice, most Canadians responded to a survey that they were not supportive of MMPs, with 91% indicating that Canada should give judges flexibility to impose sentences that are less than the MMP.

    Yes, and you know, that's part of our committee's job. We'll be bringing in witnesses who have been victims. We'll hear first-hand exactly how they feel about removing some of these mandatory minimums.

    I was, though, happy about one thing that the minister said, and that was that organized crime, gang activity, is not in this particular reduction of sentencing. Did I hear that correctly?

    You are indeed correct. Many of the mandatory minimum penalties that will remain after Bill C-5 is adopted are five- and seven-year mandatory minimum penalties for offences in which a restricted or prohibited firearm is used, when the offences are in connection with organized crime. The mandatory minimum penalties that are targeted, let's say, for firearm offences in this bill are the ones in the “in any other case” category, which particularly relates to the use of firearms like long guns.

    Thank you, Mr. Morrison. Your time is up.

    Next I will go to Madam Diab for six minutes.

    Thank you very much, Mr. Chair.

    Thank you very much to the witnesses for being here this afternoon. This is very important research—or meeting—that we are doing here. I look forward to all the presenters who will come forth.

    In my time in Nova Scotia, when I was involved in the justice portfolio.... In Nova Scotia, we have a ridiculously high number in terms of overrepresentation in our correctional facilities of Black and indigenous Nova Scotians. I would say that overwhelmingly the research and the evidence are clear now, from the many people who have spoken on it since those years. There's clearly a problem in our system. Can you speak to me in relation to that?

     What consultations informed the development of Bill C-5, specifically with groups representing racialized groups and indigenous people or provinces like Nova Scotia? What have you heard and can you tell me the impact that MMPs would have on that overrepresentation?

    I look to whoever is able to answer that.

    I can start by saying that there haven't been specific consultations on Bill C-5, but there were consultations done at the criminal justice system round tables in 2016, and the mandatory minimum penalties that are being targeted in this bill are the ones that are particularly associated with negative disproportionate impacts on indigenous people, Black Canadians and members of marginalized communities.

    As the minister noted earlier, indigenous persons are overrepresented with respect to certain firearm-related offences, and the same goes for Black Canadians, who are overrepresented with respect to import/export offences. I can also say that there's one in five indigenous women who are serving a sentence for a serious drug offence or conspiracy to commit a serious drug offence, and that by repealing the mandatory minimum penalties in those cases, the government is restoring judicial discretion to impose fit sentences in all cases.

     I think part of the bill, and I'm not sure exactly where it is, would give more discretion to prosecutors and to police. Is that correct? Do you see that as a concern for marginalized communities, being in a system like that? Can you comment on that for me?

    I can say that the reforms to the Controlled Drugs and Substances Act enact a declaration of principles for the first time in that federal legislation, and those principles are based on former a private member's bill, Bill C-236, which treated drug-related offences, the use of drugs or simple possession of drugs as a health and a social problem rather than a criminal one.

     Where the police officer fails to exercise their discretion to divert at the first point of contact, Crown prosecutors have to apply the exact same principles. Those principles are also informed by the August 2020 guidelines of the director of public prosecutions, which tell us to focus on the more serious, drug-related offences, the ones that endanger public safety, and to redirect those cases that are less serious out of the criminal justice system at the first point of contact.

    Thank you for that.

    We've heard and my experience tells me that conditional sentence orders allow offenders to remain embedded in their communities while serving their sentences when, of course, the offence and the crime are such that it's appropriate for them to do that. We know that community support is vital to the process of managing mental health and addiction challenges, which are extremely difficult to treat when people are incarcerated.

     I know the minister talked about this, but I would like to know more about what the data shows regarding the difference in the outcomes here for offenders and the community.

     To be frank with you, when I was justice minister and attorney general in Nova Scotia, we started the mental health court system. It takes the individual and gives them a wraparound service. In my time, we had a five-year anniversary, and the results that came out of that were that it was unbelievably helpful to the individual, to the community and to everyone involved.

     I'm going to give you the time, whatever I have remaining, to elaborate a little on that.

    Unfortunately, Ms. Diab, you don't have time. You are a few seconds over. Hopefully the witness will be able to answer next.

    I believe Mr. Fortin is having some power troubles, but if he reconnects, we'll give him his time afterwards.

     I'm going to skip and go over to Mr. Garrison for six minutes.

    Thank you very much, Mr. Chair, for keeping me on my toes.

     I want to start by asking a question about the number of mandatory minimum penalties that will remain on the books after Bill C-5 passes, if you have that figure. My recollection was that there were probably around 73 or 75 existing mandatory minimums or something like that.

    There are currently 67 offences in the Criminal Code that are punishable by a mandatory minimum penalty. Of those, 13 related to firearms will be repealed by this bill. One of them will be repealed in relation to a tobacco-related offence, so that would be 67 minus the 14 in the Criminal Code.

    With respect to the Controlled Drugs and Substances Act, they will all be removed. There are currently six offences that are punishable by an MMP in the Controlled Drugs and Substances Act.

    “Never do math in public” is one of my rules, but that means about 40 mandatory minimums would remain.

    It's 47.

    It's 53.

    Some hon. members: Oh, oh!

    We have three or four numbers on the other side.

    We have 47. Okay. How many of those are currently subject to appeals in the court system? You may not have that, I know. Our court system is quite decentralized, but I know that a lot of these are regularly challenged on constitutional grounds. Do we have any idea of how many of those cases are taking place now?

     As of March 30, 2022, the Department of Justice was tracking 245 charter challenges to MMPs. This represents 35% of all charter challenges to the Criminal Code that are being tracked by the department.

    There are 27 challenges to MMPs for firearm offences, seven at the appellate court level and 20 at the trial court level. There are also two challenges to MMPs for drug offences, including trafficking, import, export and production, and both of those are at the trial level. Of all cases that were tracked by Justice Canada in the last decade and where a decision was rendered, 69% of the charter challenges to MMPs for drug offences were successful, and almost half of the charter challenges to MMPs for firearm offences were successful, at 48%.

    The reason I ask these questions is that I'm one of those people who would like to see the court spend its time on the more serious violent crimes that really threaten communities. From what you're telling me now, if we pass Bill C-5, it will take a significant number of future challenges out of the court system completely.

    Indeed. One of the trends we've seen over the last 10 years is that mandatory minimum penalties have, as the minister said, increased the number of successful charter challenges, reduced the number of guilty pleas, which often require victims to testify more often in certain cases, and increased the amount of imprisonment of shorter duration, sometimes at the expense of more effective and longer community-based sentences. By reviewing these mandatory minimum penalties, resources can be redirected towards measures that are more effective and will promote lowering recidivism rates.

    Thank you for that. I think it's an important point to remember when we're considering this that there are not only costs but savings from removing the mandatory minimums. We might get better outcomes for a cheaper price when it comes to the court system.

    I want to switch and ask a question on a concern I have about increased discretion for the police in this bill in the absence of serious reform with regard to systemic racism in the police. I know the justice department is not responsible for that, but there are two provisions in the bill around which I'm concerned that in the absence of reform, there aren't safeguards to prevent systemic racism from continuing to operate.

    The first of those is allowing police additional powers of discretion at the initial level of contact. My concern, as we've seen with too many police forces, is that discretion will benefit upper-middle-class white people who come in contact with the police, and not racialized and indigenous Canadians. The second has to do with record-keeping. Bill C-5 says that the police may keep records. Again, my concern in the absence of police reform is that those records will be kept on indigenous and racialized Canadians and will not be kept on others who come in contact with the police.

    I wonder if the department has any comment on my concern about police discretion and record-keeping discretion in the absence of that serious police reform.

    What I can say about record-keeping is that the purpose of the section is to allow police officers to keep records of warnings and referrals so as to avoid confusion and ensure consistent application of the provisions. These records are inadmissible per the bill. It's indicated that they're inadmissible for the purpose of proving prior offending behaviour in any court proceeding.

    I can also say that the bill provides an overlapping system of checks and balances. Where the police officer fails to exercise their discretion at the first point of contact, lays the charges and refers the matter to the Crown, the Crown is obligated to follow the principles that are laid out in the Controlled Drugs and Substances Act, but also prosecutorial guidelines, which exist at the federal level and at the provincial level and essentially say that criminal charges should be kept for the most serious drug offences that endanger public safety.

    Thank you, Mr. Garrison.

    Mr. Fortin is back.

    Mr. Fortin, I'm glad you have your power back. Your round was skipped, and I'm going to give it back to you for six minutes.

    Thank you, Mr. Chair.

    Mr. Di Manno, the minister explained that the main reason for this bill was to combat systemic racism and the overrepresentation of racialized people in our prisons, if I've understood correctly.

    Can you tell me whether any research has been done into the reasons why the racialized people are overrepresented in our prisons?

    Is it because they commit more criminal offences, which I would imagine is not the case? Is it because the police and the judges deal more harshly with them?

    Is it because there aren't enough legal support services in these communities?

    Are there other reasons?

    That's a very complex question, because the reasons are complex. In fact they go beyond the scope of Bill C‑5.

    According to our data, some offenders, including indigenous people, Black people and people from marginal communities, are overrepresented for certain offences, including firearms and drug offences.

    People who have committed offences sanctioned by mandatory minimum penalties are overrepresented in the criminal justice system.

    So if I have I understood you correctly, you're saying that the reason why racialized people are overrepresented in our prisons possibly or probably has nothing to do with the issue of mandatory minimum penalties.

    In which case, is it not somewhat surprising that the Department of Justice should react by saying that it is going to do away with these mandatory minimum penalties?

    According to several studies, the mandatory minimum penalties have different, and negative, effects on racialized communities. Various sources of evidence confirm that denying judges the discretionary power to identify risks with respect to procedural equity means that these people end up in the criminal justice system more often.

    And yet the government has also made strategic investments to counter these problems, including in community justice centres.

     The government has also established—with the endorsement of the Supreme Court —the famous Gladue reports that allow a social study to be carried out when a member of an indigenous community is charged[Technical difficulty—Editor].

    People who work in the field tell me that there are not enough resources in the indigenous communities to prepare the Gladue reports. The judges ask for them, but the defence lawyers claim that they don't have the resources needed to prepare a Gladue report.

    Would that not have been a better way of attacking the overrepresentation of indigenous people in our prisons, for example?

    If I may, I'd like to answer that question in English so I don't have to stumble over my words.

     In fact, the government made several investments in budget 2021 and the fall economic statement that supported Gladue writing at sentencing.

    The same thing goes with respect to the impact of race and cultural assessments. They assist the judge in considering the disadvantages and systemic racism that have contributed to racialized Canadians' interactions with the criminal justice system.

    There clearly appear not to have been enough of them yet.

    I briefly mentioned the matter of discharging a firearm with intent. The minister told us that it was not necessary to send someone who had fired a gun into a wall to prison if, for example, that person had drunk too much alcohol, or whatever the reason. I can understand that.

    However, as I told the minister, if this offence were to be broken down into its parts, we could consider treating the case of a person who fired a weapon at an inanimate object differently from a person who aimed the firearm at someone else.

    Do you feel that it would have been possible to split up this offence in a way that would allow for different treatment depending on the circumstances?

    The nature of any offence is determined by the courts and this offence is very broad in scope. In other words, the crime may have been committed under a variety of circumstances.

    If a mandatory minimum penalty is applicable, a judge cannot take all the circumstances into consideration in determining the penalty, even if that judge wanted to impose a sentence that was less severe than the minimum penalty. As the Supreme Court determined in the Nur decision, one of the solutions to the issue of the constitutionality of mandatory minimum penalties is reducing the scope of the offence.

    Precisely. Don't you agree with me that a person who discharges a firearm—

     Thank you, Mr. Fortin. We're out of time, unfortunately.

    Mr. Brock, we'll go over to you for five minutes.

    Thank you, Chair.

    To all the participants, thank you for your attendance. I will not be asking questions specific to anybody. Anybody can respond.

    The first point I want to address is the latter point from my colleague Mr. Garrison, who left the committee with the impression that there is some benefit to passing Bill C-5 because there's going to be an ultimate savings to the criminal justice system, first, in terms of cost, and second, in terms of expediency.

    I can explain—hopefully, the panellists will also agree with me—that that is a complete fallacy. Eliminating mandatory minimum penalties will not decrease substantially the amount of charter litigation. As a member of the Ontario bar who has prosecuted in the Ontario courts for the better part of 30 years, I can inform you that there are charter challenges for just about every offence in the Criminal Code. It's not necessarily confined to gun offences.

    Is the department prepared to acknowledge that there will not be a direct correlation, a substantial correlation, in the reduction of charter litigation if we eliminate these 14 mandatory minimums? Yes or no.

    From what I understand, the trends over the last 10 years or so demonstrate that the enactment of these mandatory minimum penalties have contributed to an increase in charter challenges.

     Mr. Chair, if I might add, in 2016 the federal, provincial and territorial ministers responsible for justice determined, as part of their deliberations over how to address the Supreme Court of Canada's decision in Jordan and to find efficiencies to address and prevent delays, agreed that one of the important measures that could be advanced and that would help address the issue of delays more generally would be to address mandatory minimum penalties.

    In general terms, I think there is certainly the expectation, and as my colleague has outlined, we are tracking quite a number of charter challenges that have moved in this direction. We hope to see some of the benefits coming from this down the road, and, of course, we will work with our existing federal, provincial and territorial counterparts to monitor and assess the impacts of the amendments if—

    Thank you, Ms. Morency. I want to move on now.

    I want to address the whole concept of still maintaining the 14 mandatory minimums but putting into place a constitutional exemption that would give the flexibility to judges across this country to exempt the outliers for whom the mandatory minimums would constitute cruel and unusual punishment. Did the departments consider this, and, if so, why has it been rejected in the form of the draft bill?

    I can try to answer that.

    As the minister said, he looked at a number of options with respect to addressing the negative impacts that my colleague has discussed from mandatory minimum penalties. His decision was that the approach proposed in Bill C-5 was achievable and contained, and could move in the short term.

    Thank you.

    I want to move on now to conditional sentences. I think we all agree that it is a condition precedent within the code itself that a justice must be satisfied that serving a sentence at home would not endanger the safety of the community.

    We also have section 752 in the Criminal Code, which is completely absent in Bill C-5. Section 752 defines what a “serious personal injury offence” is, and a serious personal injury offence can be any indictable offence involving:

    In my opinion, for the offences of sexual assault, criminal harassment, kidnapping, human trafficking, arson and abduction of a person under 14, for which, pursuant to Bill C-5, conditional sentences would now be available, this would run contrary to section 752, which would then increase the amount of litigation within the courts.

    Has the department considered the impact of section 752? Judges across this land have consistently ruled, particularly at the appellate level, that any time you have a serious personal injury offence, the whole concept of a conditional sentence does not qualify.

     Mr. Brock, you're out of time, but I'll give Mr. Di Manno a few seconds, if he has a quick answer.

    What I can say is that under Bill C-5, there are certain conditions that would be required for a CSO to be imposed—the first one being a sentence of less than two years—that it respects public safety; that it is consistent with the purpose and principles of sentencing; and that it is not an offence of advocating genocide, torture or attempted murder or a terrorism or criminal organization offence of 10 years or more prosecuted by indictment.

    Thank you, Mr. Brock.

    Mr. Zuberi, it's over to you for five minutes.

    Thank you, Mr. Chair, and thank you to the witnesses for being here.

    I want to continue on the theme of CSOs, or conditional sentence orders. We heard the minister explain them. We just had a series of questions on them. I'd like to open up the floor for more elaboration, if you would, please, around how CSOs would actually work in practice. How often are they currently imposed?

    We've seen with the enactment in the last 10 years of further restrictions on CSOs a diminishment in their being ordered, because they weren't available for as many cases. In terms of community-based sentences like CSOs, according to Statistics Canada, data shows that in 2019-20, CSOs were imposed in 6,720 cases across Canada. By contrast, in 2004-05, prior to the reforms that restricted their availability, CSOs were imposed in 11,545 cases across Canada.

    The purpose of a CSO, as the Supreme Court of Canada has noted in Regina v. Proulx, is a sentence that can have two components to it. It can have a punitive aspect to it, which involves strict punitive conditions like house arrest, curfew and prohibitions on owning firearms, which all go to the public safety component of the sentence. It can also have rehabilitative aspects, and components of it that go to restorative justice.

    By imposing these sentences in appropriate cases, it shows that you can get significant reductions in recidivism. Imprisonment in the wrong cases can sometimes strengthen gang affiliation and contribute to stigmatization that actually endangers public safety.

    Certainly.

    At the end of that, you really touched on a point that I'd like you to elaborate on further. Has there been any research done in terms of the impacts of utilizing CSOs effectively, and how that bears better results than mandatory minimum penalties? If there has been any research done, can you share that with us?

    We have a bibliography of research that we'd be happy to provide to the committee.

    I think that would be really interesting. For example, for somebody who is addicted to opioids, I would suggest that CSOs would be better than MMPs to help this person get back on their feet and fully contribute to society in the way they would probably like to. Can you share any insight on how CSOs would be better than MMPs for people who are, for example, addicted to opioids or other drugs?

    One of the contributing causes to the opioid crisis is stigmatization. Several studies demonstrate that the overreliance on incarceration is actually associated with an increase in reoffending, and produces particularly negative effects on lower-risk offenders. Moreover, studies show that recidivism rates for CSOs have actually been relatively low. CSOs are effective in appropriate circumstances, because they provide offenders with the ability to access treatment and continue their employment while simultaneously decreasing incarceration rates.

    In the minute I have left, can you talk a bit about the minutiae of how conditional sentence orders work? The justice minister gave us some examples. Can you elaborate with a few other examples for the understanding of our committee?

    A community-based sentence like a CSO will be imposed when the judge is of the opinion that a sentence of less than two years is appropriate. What's particularly effective about this sanction is that it can be coupled with mandatory treatment. When a person serves a sentence of imprisonment, the judge cannot order that offender to undergo treatment. Therefore, the sentence is one that allows the court to help the offender attack the root causes of offending. When you attack those causes, you get significant reductions in recidivism.

     Yes, 100%.

    Thank you.

    Thank you, Mr. Zuberi.

    Next, for two and a half minutes, is Monsieur Fortin.

    Thank you, Mr. Chair.

    I'd like to return to Mr. Di Manno, and resume our discussion from where we left off earlier.

    In your view, Mr. Di Manno, wouldn't discharging a firearm with intent at people always deserve a sentence of imprisonment?

    Do you feel there are situations in which that would not merit imprisonment?

    What I can tell you is that, depending on the circumstances, the offence may be broader in scope. It's up to the court to decide on a penalty appropriate to the circumstances.

    For these offences, Bill C‑5 maintains the minimum penalties of five years and seven years of imprisonment if a prohibited or a restricted firearm was used and the offence is linked to organized crime.

    We are talking about paragraph 224(2)(b) of the Criminal Code, which sets the mandatory minimum penalty at four years for discharging a firearm with intent.

    Earlier, the minister said that if someone fired into a wall, it would not necessarily mean that person would be sent to prison. I agree with that, and concede it.

    However, if a person intentionally fires towards one or more individuals, does that not always deserve imprisonment?

    In fact, the court, in determining the sentence, will always take the circumstances in which the offence was committed into account. When a crime committed with a firearm endangers public safety, the principles for assessing the penalty and the charge are what the court will use in sentencing.

    I agree with you. The judge will surely Impose a sentence of imprisonment in a case like that. That's a problem for me, because in Bill C‑5, the population is being sent a message that says we, the legislators, do not believe these offences are serious and that the mandatory minimum penalties can be dropped.

    I am convinced that in a situation like the one I described, the judge will assess a sentence of imprisonment. I have no fear of that. I can't believe that the judge would assess a fine of $100 to someone who shot at someone else. The problem is that we, the legislators, have a responsibility to the people—

    Thank you, Mr. Fortin—

    —and it seems to me that the message is somewhat dubious.

    Thank you, Mr. Fortin.

    Next is Mr. Garrison, for two and a half minutes.

    Thank you very much, Mr. Chair.

    I, too, want to go back to where I was the last time, but I have to say, since Mr. Brock made a comment about my position, my position on this is not that we save money for efficiency reasons, but that we save court time and court money to be applied to the most serious offences, which are the most threatening to the community. We need to ensure that people aren't released in very serious cases because of court delays, when we're taking up court time with things that I don't believe belong in the court system to start with.

    It's not just about efficiency; it's about the use of our resources efficiently in the court system to better protect the community.

    I'd rather be talking about decriminalizing the personal possession of drugs, but we're not, so I am going to talk about the discretion that's given, again, to police and prosecutors. That's where I left off.

    There doesn't seem to be a clear criterion set out in Bill C-5 for how that discretion by prosecutors and police would be applied. I think it's an increase in discretion for police. I'm not sure it's really an increase for prosecutors, but there don't seem to be clear criteria on how to apply discretion.

    It's not really an increase in discretion for police or prosecutors, Mr. Garrison. It's an acknowledgement of the discretion that they already have, and the bill itself seeks to nudge them to use their discretion in a way that addresses the concerns in the bill.

    To go back to some of your earlier comments about concerns around the use of discretion, that's a concern we've heard consistently with respect to the bill. It's something the minister has acknowledged, as well, in terms of the importance of not just proposing legislative reforms, but also looking at those other, larger systemic issues: the government's commitment, for example, to an indigenous justice strategy and a Black justice strategy. We're very much looking at those broader systemic issues.

    However, legislation in and of itself and the federal government on its own can't address these larger issues.

     There doesn't seem to be a requirement in Bill C-5 to keep any record of the use of that discretion. I'm wondering how we're going to check on whether that's being used fairly and whether we're meeting the goals of anti-racism. If we don't keep any records at all about the use of that discretion, how will we know it's being effective?

    It's a good question. The use of discretion in the criminal justice system exists already in terms of the ability to dig into the improper use of discretion. There is recourse available in the context of prosecutorial discretion, abuse of process and complaints to police bodies—things of that nature—but you're right, the bill itself doesn't speak to that issue.

    Thank you, Mr. Garrison.

    The last five-minute round will go to Mr. Moore. Right after that, we will have some budget issues to deal with.

    Thank you, Mr. Chair.

    Thank you to our witnesses for appearing today on what I think is an important bill.

    There's a myth that's being perpetuated out there, and I want you to quickly confirm something. We've heard many of these mandatory minimums referred to as “Harper-era mandatory minimums”. While it's true that under the Safe Streets and Communities Act the Conservative government removed the application of conditional sentences for such crimes as arson, trafficking in persons for material benefit, sexual assault and criminal harassment, I want to speak specifically on the mandatory minimum penalties for gun crime. I'm going to list some of them: using a firearm in the commission of an offence, possession of a prohibited or a restricted firearm with ammunition, possession of a weapon by a commission of offence, possession for the purpose of weapons trafficking, weapons trafficking, robbery with a firearm, extortion with a firearm and discharging a firearm with intent.

    I know you're all familiar with those provisions, but could you confirm for the committee that all of those mandatory minimums that were put in place predated the previous Conservative government and were, in fact, brought in by Liberal governments?

    I think we'd have to confirm the list with you, Mr. Moore.

     Certainly there were a number of firearms MMPs that predated the previous administration. As you likely recall, a number of those MMPs were increased during that period of time, the five- and seven-year MMPs, for example, involving prohibited or restricted firearms, or organized crime.

     We'd have to circle back, though.

    Could you do that, and provide it to the committee? I've taken the liberty of checking on all those. I can confirm that they were all brought in by previous Liberal governments. However, if you could confirm that and get back to the committee, I would appreciate it. I don't expect the other members to take my word for it, but they'll take your word for it.

    I'm a little alarmed to hear that there was no specific consultation. I heard about polling on mandatory minimum penalties, but specific consultation with specific groups who are more likely than others to be victims of criminals, and their feelings about a response to what's being proposed in Bill C-5....

    Just quickly, Statistics Canada reports that those who identify as lesbian, gay or bisexual are at greater risk of being violently victimized. Now, this legislation—and I asked the minister about its impact on women—provides for conditional sentences for some serious crimes, as well as the removal of mandatory minimums. Were there specific consultations with various communities on how they would be impacted, from the perspective of a victim, if this legislation were to pass?

    I'll elaborate on what Mr. Di Manno said earlier.

    The government did fairly extensive consultations on the ideas, the areas of reform reflected in Bill C-5. I'd point you to the Justice Canada website. There's a publication there that summarizes the consultations they did on the criminal justice system review, the round tables that were held by the Minister of Justice and the parliamentary secretary.

    Yes, there was fairly extensive consultation and input sought on issues such as conditional sentences and mandatory minimum penalties. The earlier question was, were those groups consulted specifically on the reforms as drafted in the bill? They were not.

     Mr. Taylor, thank you for that. I guess that concerns me because we're talking about different identified groups. We're talking about first nations and indigenous people. We're talking about the Black community. We're talking about lesbian, gay and bisexual people. What we've found out is that these communities were not consulted even though they are more likely to be the victims of the very crimes that the government is going soft on in this legislation. That's obviously concerning, and we'll be bringing forward witnesses at committee to further explore that. I—

    Thank you, Mr. Moore. We're out of time.

    Thank you, Mr. Chair.

    I want to thank all the witnesses for their very valuable testimony and their time today. I want to thank all the members today as well.

    We have a brief budget matter. We have to approve the budget for this report.

    Witnesses, by the way, you're dismissed. You're more than welcome to leave if you like, but you can stay on and listen as well.

    I believe all members have received the budget. I want to warn you that the budget may have to change, as there has been a new House decision. I believe in-person witnesses are permitted after we come back from the break, so budgets may have to be changed to adjust for travel and accommodation for them. Keep that in mind.

    Are we all in favour of the budget?

    (Motion agreed to)

    The Chair: Thank you. Have a great weekend and constituency break. We'll see you back when the House resumes.