Bill C-5

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act

This enactment amends the Criminal Code and the Controlled Drugs and Substances Act to, among other things, repeal certain mandatory minimum penalties, allow for a greater use of conditional sentences and establish diversion measures for simple drug possession offences.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you.

I know we're getting very short of time today. I want to go back to Mr. Rolle for just a moment.

In Bill C‑5, there's an increase in discretion proposed for police and prosecutors in how they would proceed with cases of personal possession of small amounts of drugs. I'm just wondering, given the existence of systemic racism in the system and the absence of serious police reform, if you have any concerns about this increase in discretion and how it would be applied.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

I'd like to stay with Ms. de Kiewit for a moment.

We're talking about Bill C-5 here, but we have another bill before Parliament. It's a private member's bill, Bill C-216, which proposes not to take away mandatory minimums but to take away the offence of personal possession of drugs and to establish a regime for safe supply.

I don't know whether you've actually seen the bill, but my question for you is an obvious one. In order to attack the opioid crisis, don't we need a lot more than what's in Bill C-5?

[Deputy Commissioner Rick Barnum, Executive Director, National Coalition Against Contraband Tobacco]

Thank you, sir.

Good afternoon, committee.

My name is Rick Barnum, and I am the recently appointed executive director of the National Coalition Against Contraband Tobacco.

I most recently served as deputy commissioner of the Ontario Provincial Police and had an over 30-year career in law enforcement. During my career, I spent most of my time combatting organized crime. I saw first-hand how lucrative the contraband tobacco trade can actually be.

The Criminal Intelligence Service of Canada estimates that contraband tobacco and cannabis have a cost of over $12 billion in health care, lost productivity, criminal justice and other direct costs.

The RCMP estimates that there are over 175 criminal gangs involved in the illicit trade of contraband tobacco. These gangs make millions of dollars a day off contraband tobacco, which they use to fund their other illicit activities, including illegal firearms, drugs such as fentanyl, and human trafficking.

To combat this important funding source for organized crime groups, in 2014 the government passed Bill C-10, which introduced a Criminal Code offence for the trafficking of contraband tobacco and also a mandatory minimum penalty for the same offence. Both of these tools have been used by law enforcement across Canada since that time to dissuade individuals from participating in the contraband tobacco trade.

Prior to this, many of those charged and found guilty under provincial tobacco tax laws would simply be fined, but the fines would never actually get paid. The Criminal Code offence and penalties associated with this offence have made trafficking of contraband tobacco less attractive for some people.

However, Bill C-5 proposes to eliminate the mandatory minimum penalty for the trafficking of contraband tobacco while keeping the Criminal Code offence. By eliminating the mandatory minimum penalty, the government is removing a tool used by law enforcement to dissuade possible contraband tobacco traffickers.

The government of late has also helped to fuel the contraband tobacco trade by continuous increases in tax on tobacco. History shows us, as was also reported by the Parliamentary Budget Officer, that tax increases without action against contraband tobacco result in a larger black market that directly funds criminal gangs. This is why, after removing one of the law enforcement tools, the government must add another.

First, the contraband tobacco trade continues to grow across Canada without concerted federal action. Illegal cigarettes, manufactured mostly in Ontario, can be found from British Columbia to Newfoundland. To curb the illicit trade, we recommend that the government create a contraband tobacco enforcement team within the RCMP that would help to coordinate enforcement across the provinces. Provinces like Quebec have seen great successes in such a model, in which municipal and regional law enforcement have been coordinated.

Second, further increased taxation on tobacco without action against contraband tobacco will only help to further grow the illicit trade. We recommend that the government resume a prudent approach toward tobacco taxation until contraband tobacco is addressed across the entire country.

Lastly, Ontario continues to be the epicentre of contraband tobacco in Canada. One in three cigarettes purchased in the province is purchased illegally. Criminal gangs make millions of dollars every day from this illicit trade.

To address this core issue, we recommend that the government partner with Ontario in taking action against contraband tobacco. By supporting law enforcement through countrywide coordination and a prudent taxation approach, the government can begin to effectively address Canada's growing contraband tobacco problem. With the removal of one law enforcement tool, the government must add another.

We hope we can count on your support in taking action against contraband tobacco and also against organized crime.

Thank you for your time. I'll be happy to take any questions.

[Dr. Jean Robert, Medical Specialist in Public Health and Medical Microbiology and Infectious Diseases, Professor, Université de Montréal and Université du Québec en Outaouais, The DISPENSARY Community Health Center]

Thank you, Mr. Chair.

It's an honour to be invited to appear before the committee.

I will be speaking from the heart much more than from the head.

I am a physician, and my first specialty is infectious diseases, which I've practised in university hospital centres. I also have extensive experience working under a community health model. This year marks my 46th caring for patients. I say “caring” because I don't necessarily treat them. I provide support to individuals who are part of a culture that carries a systemic stigma; they are oh so cruelly referred to as “addicts”.

Given my years of experience, I was deeply troubled and saddened when I read Bill C‑5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, because it appears to put guns and drugs in the same category. Keep in mind that guns kill other people, whereas drugs kill the person who takes them. Guns are a safety issue, but drug use is not a justice issue; it is a health issue. That is very important.

This is something I am extremely concerned about. I completely agree that it is finally time to get rid of mandatory minimum sentences for individuals who, for lack of proper care, treat themselves using substances that are available around them. That is the first point I want to make.

My second point has to do with people who die as a result of substance abuse or overdose. A unique feature of people who try to treat themselves using substances is that they are totally unaware of what is in the substances being sold to them. For example, as a physician, I am required to inform users of what this residue contains. I have here a minuscule amount of a substance, smaller than a match head. It's heroin that was recently brought to me by users, and it contains 12 different substances. What kills people is not knowing what they are actually taking. That is why it is important not to prevent these substances from being handled. I am able to do it because it's part of my job and because it's necessary in order to care for people. That is a crucial issue.

The bill sets out exemptions for simple drug possession offences. The third point I want to make is how vital it is that an exemption be added so that people like my team members and I can have access to these substances. There needs to be an exemption for professional use. That way, when our outreach workers, who are professionals, cross the street with a bag containing a small amount of powder residue, they won't have to fear being arrested or thrown in jail.

That is my only recommendation. I have other ideas, of course, especially when it comes to the terminology, but those are my own personal observations. I have spent 46 years working in this field. I've worked with inmates, and I am very familiar with the issue. Residue analysis can save lives. We also do urine analysis to determine what people have taken. That is the basis for the care we provide.

We, ourselves, applied for an exemption exactly a year ago, and we are still waiting. We haven't gotten it.

Now I will turn the floor over to my colleague, Ms. de Kiewit.

[Brandon Rolle, Senior Legal Counsel, African Nova Scotian Justice Institute]

Thank you, Mr. Chair.

Good afternoon. My name is Brandon Rolle, and I'm the senior legal counsel at the recently established African Nova Scotian Justice Institute.

I'm pleased to speak today in support of Bill C-5, which we see as a necessary step towards justice.

African Nova Scotians are a distinct people who descend from free and enslaved Black planters, Black Loyalists, Black refugees, maroons, and other Black people who inhabited the original 52 land-based Black communities in that part of Mi'kma'ki known as Nova Scotia.

The African Nova Scotian Justice Institute is a provincially funded—but importantly, community-led—infrastructure developed in response to systemic anti-Black racism faced by African Nova Scotians in the justice system. We acted as intervenors in the Anderson case, a Nova Scotia Court of Appeal decision that affirmed the use of impact of race and culture assessments, IRCAs, as a valuable sentencing tool when sentencing people of African descent and provided a framework for applying systemic and background factors related to race and culture.

There can be no serious dispute that systemic anti-Black racism exists in the criminal justice system. In R. v. S. (R.D.), a well-known case from Nova Scotia that went to the Supreme Court of Canada, the Supreme Court endorsed comments from another Nova Scotia case and put it very bluntly:

[Racism] is a pernicious reality. The issue of racism existing in Nova Scotia has been well documented in the Marshall Inquiry Report (sub. nom. Royal Commission on the Donald Marshall, Jr., Prosecution). A person would have to be stupid, complacent or ignorant not to acknowledge its presence, not only individually, but also systemically and institutionally.

The evidence is also very clear that one of the ways that systemic anti-Black racism has manifested is through the over-incarceration of African Canadians.

The committee has the data from the Department of Justice about the disproportionate impact of mandatory minimums on custody rates for Black people, but I would suggest there are some contextual factors that we can look at to help us understand why MMPs disproportionately impact people of African descent.

First, we know that Black communities are subjected to over-policing and over-surveillance. Since Black people are more likely to be arrested and charged with an offence, they are subject to a disproportionate risk of criminal liability for offences carrying a mandatory sentence.

Second, Black accused are disproportionately detained before trial. The research is increasingly clear that accused persons who have been denied bail feel greater pressure to plead guilty.

Third, African Nova Scotians and African Canadians at large have experienced the legacy of slavery, colonialism, segregation and racism that has led to this historic pattern of disadvantage, which includes overrepresentation in custody, involvement in certain offences, being denied bail and receiving longer jail sentences, and subsequently serving harsher time while in custody.

We submit that to truly address systemic anti-Black racism, the approach has to be multi-faceted and must include the type of legislative reform being proposed by Bill C-5. We suggest that has to be done in combination with efforts further upstream in the justice system that address the root causes of offending behaviour, which is the type of infrastructure we're trying to build here at the African Nova Scotian Justice Institute.

We endorse the comments of Justice Derrick in R. v. Anderson, that case I mentioned earlier, when she was discussing this exact type of legislative reform. At that time it was called Bill C-22, but we know that was the earlier version of this bill. She said, and I quote:

It speaks to what the Supreme Court of Canada noted in Gladue: “Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament”.[29] Its proposed reforms would enhance the discretionary powers of judges in sentencing Black offenders. The increased availability of conditional sentence orders would afford judges greater scope in imposing sentences that better serve the principle of proportionality, thereby better serving the community and the offender, with systemic factors and historical disadvantage taken into account.

We agree that MMPs do not effectively address recidivism. Longer and harsher jail sentences have been shown to actually increase recidivism, and as such MMPs can work to decrease public safety. Mandatory minimum sentences do not accord with the fundamental sentencing principle of proportionality, because they remove that discretion of the sentencing judge to consider the moral blameworthiness of the offender and provide no opportunity to account for not only the personal circumstances of the accused but also those systemic and background factors that may come into play.

When it comes to African Nova Scotians and Black Canadians, we suggest that judicial discretion should always be informed by tools like impact of race and culture assessments to better address overrepresentation. This type of legislative reform is an important part of the answer. It's not the complete answer, but we suggest it is a step towards substantive equality.

Thank you, Mr. Chair.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

I want to go back to Mr. Paisana and his comments on the application of CSOs in the cases of drunk driving causing death or bodily harm. You quickly passed over the normal sentences for those, so I'm drawing a conclusion that what you said is that passing Bill C-5 in its current form would have relatively little effect on cases of drunk driving causing death because the sentence is almost always more than two years.

Is that correct?

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

When Bill C-5 is passed into law, what opportunity do you see as it relates to CSOs being available as a way of sentencing?

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Thank you.

I want to ask the Canadian Bar Association a question. I think both Tony and Jody were talking about “non-violent” and how you could see the mandatory minimums being removed from “non-violent”, but would that mean that you don't agree that robbery with a firearm, extortion with a firearm or discharging a firearm with intent are violent? To me, all the firearm offences are pretty violent.

Even when we get into the expansion of conditional sentencing, there are some of these that would apply to kidnapping. Would you not consider that violent? In the case of an abduction of a person under 14, imagine telling the parents of that individual, “Oh yes, we're going to CSO because we're reducing some mandatory minimums.”

I just wonder if you do agree that some of these offences that are listed in Bill C-5 should remain because they are violent, and that in fact Bill C-5 could be amended.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Thank you, Chair.

Thank you to the witnesses for coming today.

Sometimes when we talk about offences and offenders, I don't think we ever forget the victims, but sometimes a victim's rights are not really at the forefront when it gets to sentencing.

I'm going to ask one question to either Eric or Steve. If you have spoken with victims, especially about Bill C-5, how will they feel if Bill C-5 repeals mandatory minimums for impaired driving causing death?

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

If we proceed with Bill C-5 as it's written, we could expect within a fairly short time a major impact on delays in dealing with more serious cases in the court system. Is that correct?

[Janani Shanmuganathan]

What mandatory minimum sentences do is handcuff the ability of trial judges to give what they feel is the appropriate sentence for a particular offender.

What we know from the empirical evidence is that members of racialized communities are overrepresented in the criminal justice system. They are arrested disproportionately to their representation in their community. They're convicted. They're sentenced for longer periods of time. What mandatory minimum sentences do is force judges to send these particular members of the community to jail, even when, outside the mandatory minimum sentence, they wouldn't have to go to jail.

The reality is that these members of these marginalized communities may not have the resources to fight mandatory minimum sentences and the challenges in the courts, so they end up getting a sentence that they otherwise would not have received.

Bill C-5, through introducing discretion to trial judges, will hopefully alleviate the problem of overrepresentation.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Sullivan.

In your brief, you stated that many of the individuals with whom MADD Canada works feel that sentences for impaired driving-related deaths do not reflect the harm that was caused. In a September 2020 letter to the Prime Minister, you stated that, “in too many cases, we are the only support victims and survivors have”. We've heard, in this justice committee, about the need for support for victims and their families.

Since impaired driving is often not a priority for government-funded victim services, could you share what, if any, consultation MADD Canada had with the federal government on Bill C-5? I know you were consulted widely on Bill C-9 when some of these changes were first put into effect. These are changes that will impact the families of victims of impaired driving and put impaired drivers back on the street rather than in jail. Could you talk about consultations you've had with the federal government on this?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you to our witnesses for the testimony they provided. It is good to see some of our witnesses here in person, because that's a first for our committee. I hope to see more of that in the future.

We heard the characterization of Bill C-5 as some offenders just needing an opportunity to “give back to the community”. As someone who was involved in the drafting of Bill C-9, which ended the practice of giving conditional sentences such as house arrest for crimes like criminal negligence causing death, manslaughter, impaired driving causing death, aggravated assault, aggravated sexual assault, sexual assault with a weapon, kidnapping and torture, I can tell you that these are serious offences. To pretend that somehow someone who's committed these offences should immediately be given a chance to go back into the community so they can “give back” is absolutely ridiculous.

Every case before a judge is different and every one of them brings its own unique challenges. Mandatory minimum penalties and house arrest have their place, but for serious offences, we need to make sure that our communities are protected and that offenders can get the help they need.

Using a firearm in the commission of an offence, weapons trafficking, robbery with a firearm and extortion with a firearm are things we hear about every day as parliamentarians. We hear about gun violence. These are currently offences that require someone who's been found guilty to serve jail time, as they should. This bill would end that. Obviously it should be a concern for all Canadians, whether they live in rural or urban areas.

As I mentioned, as parliamentary secretary to the minister of justice at that time, I was happy to work with organizations such as MADD Canada, which supported Bill C-9. They were looking at these offences from the perspective of the many victims they represent, as well as protecting Canadians from impaired driving. It's hard to believe, in fact, in my opinion, that we're back here discussing some of these offences after the hard work that went into correcting the imbalance in our justice system.

I will pose my question to MADD Canada.

Could you tell us how the legislation from 2007 impacted victims of impaired driving, and why victims of impaired driving and their families were calling on changes to the legislation as it was?

[Janani Shanmuganathan, Director, South Asian Bar Association of Toronto]

Thank you to the standing committee for the invitation to present today.

I'm a board director of the South Asian Bar Association, the largest diversity organization in the country. I'm also a criminal defence lawyer.

Almost seven years to the day, the Supreme Court of Canada released R. v. Nur, a decision in which the Supreme Court, for the first time in 30 years, struck down a mandatory minimum sentence. I had the privilege of being counsel for Mr. Nur at the Supreme Court and I have worked on several challenges to mandatory minimum sentences since then. I come before the standing committee today with the benefit of litigating these challenges and with the stories of my clients who actually faced the mandatory minimum sentences that Bill C-5 would repeal.

There is one particular story that I want to share today. It is the story of my youthful client who, with no criminal record, walked into a convenience store holding a BB gun he previously bought from Canadian Tire, showed it to the store clerk and stole $100.

He was an alcoholic at the time and extremely drunk when he committed the offence. He used the $100 to buy even more beer. He was caught within a couple of hours and immediately confessed. In the time between his arrest and sentencing, he completely turned his life around. He enrolled in university, got into a relationship, regularly attended Alcoholics Anonymous and became a facilitator for Alcoholics Anonymous. The last sip of alcohol he had was on the day he committed the offence.

This client, this real person, received a 12-month jail sentence because that's what the mandatory minimum sentence demanded. No one in that courtroom—not the lawyers, the judge or the court staff who heard his story—thought that this person should go to jail for 12 months and be stripped from the prosocial life he had developed only to be locked up in a jail cell, but they had no discretion or choice. In the trial judge's words, it was heartbreaking to send this person to jail, but she had no choice.

What Bill C-5 would do is introduce discretion into the criminal justice system again, the discretion to consider the circumstances surrounding the offence and the moral blameworthiness of the offender and to ask, “What sentence does this person actually deserve?”

I also come before the standing committee today as a director of the South Asian Bar Association and a racialized lawyer who represents the racialized accused. When I walk into a courtroom or a jail and look at the faces of the accused whom I see, they resemble my own. So often, they are racialized. The empirical evidence backs up my lived experience. Study after study has revealed that Canada has a problem with the overrepresentation of indigenous and Black offenders in jail.

If this problem of overrepresentation matters to us as a country, then we need legislation like Bill C-5. We need to give trial judges the discretion to let people serve their sentences in the community or to shorten their jail sentence to only what's necessary. Without such discretion, judges don't have the ability to consider the systemic factors that contribute to the commission of crime: colonial legacy, residential schools, poverty, over-policing of certain communities.

Bill C-5 is not about being soft on crime. Offenders who deserve long jail sentences will continue to get those sentences. Bill C-5 is about proportionality and giving judges the discretion they need to ensure justice is done.

Thank you again for the opportunity to present today.

[Eric Dumschat, Legal Director, Mothers Against Drunk Driving]

Thank you very much.

Mr. Chair, members of the committee, we appreciate the opportunity to speak with you about Bill C-5 today. My name is Eric Dumschat. I am the legal director for Mothers Against Drunk Driving Canada. I am pleased to be sharing my time today with my colleague, Steve Sullivan, who is our director of victim services.

Much of the information we will discuss today here is expanded upon in the written brief that we've submitted to the committee, and this includes the appropriate reference information.

MADD Canada is a national charitable organization with the mission to stop impaired driving and to support victims and survivors of this violent crime. We have volunteer-led groups in over 100 communities across the country, and indeed many of our volunteers are themselves victims and survivors of impaired driving.

Our work is aimed at providing support to victims and survivors, raising awareness about the dangers of impaired driving and saving lives and preventing injuries on Canada's roads. We are here today to talk about the provisions of Bill C-5 dealing with conditional sentences and how they would impact victims and survivors of impaired driving.

If the bill is enacted in its current form, it would allow for the return of conditional sentences for any first-time impaired driving offender who met the eligibility criteria, including those convicted of impaired driving causing death or the associated refusal offence.

To put this in context, in 2018, as part of Bill C-46, the government repealed, revised and re-enacted the Criminal Code transportation offences. As a result of this, conditional sentences were allowed for some new impaired driving offences that were previously ineligible for them, so long as they were now tried by summary conviction. However, impaired driving causing death was excluded from eligibility for a conditional sentence, presumably because it was deemed sufficiently egregious to remain a purely indictable offence that carried a maximum sentence of life in prison. This decision is in line with the unanimous Supreme Court of Canada case of R. v. Proulx, which held that conditional sentences should not be imposed when the need for denunciation and deterrence is so strong that incarceration is the only way to express society's condemnation of the conduct or to deter similar acts in the future.

MADD Canada believes that impaired driving causing death and its associated refusal offence meets this criterion. We recognize that it would be uncommon to seek a conditional sentence for someone convicted of impaired driving causing death; however, any chance of this happening is too high when a life has been taken by the actions of another.

MADD Canada does not believe that a conditional sentence for impaired driving causing death should be an option at all. To allow the possibility for an impaired driver who has caused the death to serve his or her sentence outside of a prison would undermine the seriousness of the crime and adversely affect many victims and their families. We need to remember that this is a completely preventable crime that continues to occur despite years—decades—of advocacy and education efforts by MADD Canada, other organizations and indeed the Government of Canada, yet Canadians still make the decision to get behind the wheel of a car while impaired by alcohol or drugs, and in doing so, they take the lives of numerous Canadians each year.

We understand that the changes contained in Bill C-5 are made in part to address the systemic racism inherent in Canada's criminal justice system and we support this goal. However, the government has determined that some restrictions on conditional sentences are in line with this objective and are constitutional and that certain offences should remain ineligible for conditional sentences under Bill C-5. With this in mind, MADD Canada strongly recommends that impaired driving causing death in section 320.14(3) and the associated refusal offence in section 320.15(3) of the Criminal Code be added to the list of offences ineligible for conditional sentence in any circumstance, as has been outlined in clause 14 of Bill C-5.

Thank you for the time and the opportunity to present to you today. I'll now turn things over to Steve Sullivan, MADD Canada's director of victim services.