Hon. Marc Gold (Government Representative in the Senate): Let me answer the very end of your question first. The Senate has already played an important role in its study of UNDRIP and at least in some quarters — a majority of this Senate is certainly in support of UNDRIP moving forward. I think the Senate, through the Indigenous Peoples Committee, statements and inquiries can continue and should continue to shine a light on the progress that still needs to be made so that the government knows that parliamentarians are watching and holding them to account.

To your question, the government is working, as you’ve mentioned, in consultation and cooperation with First Nations, Inuit and Métis, to ensure the consistency of federal law, to develop the action plan to which you have referred and develop annual reports on progress critical to making sure that we don’t falter.

On this last item, I note that these reports are intended to be submitted or tabled in Parliament so that we have a role in overseeing it as well. I’m advised that early work has been concentrated on supporting the participation of Indigenous partners in the UN Declaration on the Rights of Indigenous Peoples Act implementation process, including support for Indigenous-led consultations in this regard. The collaborative work to close the socio-economic gaps — which we are aware of and are too great — to advance reconciliation and renew relationships remains a priority of this government.

I have been reassured that, as it was reiterated by the government on the fifteenth anniversary of UNDRIP, the action plan will be completed within the timeline.

Senator Klyne: I am reassured; thank you.

[Translation]

Hon. Marc Gold (Government Representative in the Senate): No, the immigration minister doesn’t lack compassion. He set that target for the well-being of Canadian society and the future of our economy.

As for the matter of housing challenges for Canadians or those moving to Canada, the government has taken a lot of measures to do its part to try to increase the construction of new housing units in partnership with the private sector, the provinces and the municipalities. That includes, among other things, a $4-billion investment in a fund for new housing, the Housing Accelerator Fund, in Budget 2022 to help municipalities speed up construction and build 100,000 new housing units.

Budget 2022 also provides for an investment of $1.5 billion to continue the Rapid Housing Initiative to create thousands of affordable housing units. There is also a $2.9-billion advance as part of the National Housing Co-Investment Fund to build and repair 22,000 housing units. Lastly, the budget also includes a $1.5-billion investment to promote and expand cooperative housing.

Hon. Mary Jane McCallum: Honourable senators, I rise today to speak to Bill C-31, An Act respecting cost of living relief measures related to dental care and rental housing.

I would like to thank Senator Yussuff, Senator Seidman, Senator Omidvar and Senator Simons for their previous speeches, which have increased our awareness and knowledge about dental care in Canada.

As many of you will know, I have been invested in the provision of dental care for 48 years of my life. Dental care is near and dear to my heart, and through my work I have given dentistry the worth that it deserves.

As it pertains to this bill, colleagues, I have concerns regarding the lack of adequate responses to questions raised by me and by other dental health professionals. I’m concerned about this short‑term approach when the effective prevention and management of most dental disease requires a long-term view. Moreover, we have provincial models of public health dentistry that provide care already. These clinics need to be better supported and funded to enable them to provide continuing additional care.

Most dental care systems are still structured around acute care service delivery, including emergency care such as pain relief. This traditional approach based on high-risk individual treatment is costly and research has proven its weak effectiveness.

Honourable senators, I have witnessed the children’s dental programs that existed in the provinces of Manitoba and Saskatchewan in the 1970s and 1980s. They were successful in completing school-based dental care on school-aged children, mainly in rural areas. The majority of children in the rural towns in Saskatchewan were eventually placed on maintenance, costing the government and taxpayers approximately $80 a year per student. Despite the success stories in these two provinces, the programs were phased out due to pressure from the provinces’ dental associations. Here, we can see the struggle between the public health model of dentistry and the business model. Which model will be encouraged to flourish in the proposal before us?

Colleagues, I further noticed in the bill that dental therapists are not included in the bill’s definition of “dental care services.” The dental therapists both federally and provincially trained in Saskatchewan and Manitoba are licensed health professionals who today provide the majority of services to children in dental offices. However, there are some federally trained dental therapists in Manitoba who are not recognized by the Manitoba Dental Association, or MDA. They continue to work on reserves without licences and without malpractice insurance, to their detriment. These federally trained therapists were trained through the dental faculty at the University of Toronto. I approached the MDA to question why the licensing of these two groups differed, but I did not receive an answer.

There are also Children’s Oral Health Initiative, or COHI, workers hired under a federal program who are trained at the community level but work without a diploma. They are allowed to provide treatment of fluoride application even though trained dental assistants are forbidden to do so through their provincial standard of care. It’s unimaginable that we have unrecognized, unlicensed providers without malpractice insurance permitted to work on children simply because these children live on-reserve. This is what we call geographic and systemic health racism.

As such, one big question lingers: Will this act be amended to include dental therapists, especially since they license and regulate their own profession in Saskatchewan and are looking at doing the same in Manitoba?

Honourable senators, one example of the fallout from decommissioning the children’s dental program was the closing down of the federal dental therapy school in Prince Albert, Saskatchewan, in 2011. The federal dental therapy school, supervised by dentists from U of T, was originally situated in Hay River, Northwest Territories. Yet, because the dental therapists had successfully completed treatment of all the citizens in the town, they had to move the school in Prince Albert. I understand that a new dental therapy school will be ready to start in La Ronge through the faculty of the University of Saskatchewan. I also understand that there are talks ongoing with different schools about dental hygienists who will be trained to be dental therapists.

This issue of a sustainable workforce continues with the other dental health professions. There are existing challenges with the recruitment and retention of oral health clinicians to provide care. When I was in Winnipeg, I asked dentists how they would be able to absorb the influx of children that this bill will result in, and who would be advising these children which offices would provide care. There are over 650 offices in Winnipeg but adequate infrastructure is not in place to handle this increased workload, which they are expected to absorb. I also do not know who would head such an initiative. Many dentists are already booking with their own patients months in advance. Will dentists be willing to displace some of their own patients for an interim program with unknown levels of bureaucratic involvement?

Colleagues, under the heading “Application” in section 8, it states that the application must include the name, address and telephone number of the dentist, denturist or dental hygienist — this is where dental therapists are missing — the applicant intends to have provide dental care services for the person for whom the application is made. The application also requires the month during which the services were provided, or when the applicant intends to have the services provided.

Based on what I have seen working in the field, I can say that very few dentists will provide care while expecting payment at a later date, despite what was said last night at the Finance Committee meeting. Furthermore, many First Nations are refused service due to an inability to prepay.

There are other situations at certain times where insurance companies will inadvertently send cheques to the patient instead of the provider, and then the provider has no recourse to payment when the patient doesn’t return the cheque to the office.

What happens if the applicant chooses to go to another provider — which is their right — or if they receive that cheque but don’t spend it on the intended care? This is a very profound possibility, as many of these individuals may have to decide if the money they receive is better spent on food or clothing so that their children can have basic living needs.

As we saw, the same situation occurred with the CERB where ineligible individuals sought the benefit because they needed it to meet basic needs. These are profound concerns to be addressed.

Honourable senators, I would like to speak to another successful dental program that is offered for children in Grades 2 to 6 at participating schools in the Winnipeg School Division, which has a high proportion of low-income households. This program is delivered by dental students in the college of dentistry at the University of Manitoba in concert with Variety, the children’s charity of Manitoba.

The third- and fourth-year dentistry students, who number 70, work with dental hygienists, dental assistants and supervising dentists to educate and screen children at school. Typically half of those screened require treatment. I was one of the instructors in the early 2000s, and I saw first-hand the extensive needs of children in these urban populations.

In their 2021-22 report, 17 schools were involved and 2,053 students were screened with 21% treated. Dental students administered 733 treatments, improving the lives of 199 children altogether.

Marsha Missyabit, the vice-principal of the Niji Mahkwa School stated:

This year, our school felt very supported by the dental outreach program. Students that attended the program were very comfortable and had pleasant things to say. Communication was effective and we were accommodated with respect. Thank you for all your support!

In 2019, Variety began supporting SMILE plus, a partnership between the University of Manitoba and the Winnipeg Regional Health Authority that provides free dental care for children in kindergarten and Grade 1 at select schools. These are done through private donations.

Honourable senators, I call attention to these successful programs as they can be used as models for implementation. The universities themselves are great sites for public health model delivery of dental care.

Yet, colleagues, a large concern I have with Bill C-31 arises from discussions I have held with various groups and individuals who are concerned about the inadequate amount of $650. It was quoted these children only require $650 worth of treatment. This amount would allow for an exam, radiographs and only two to three restorations. If this is all they require, then truly these children do not need a lot of work, but I don’t believe this to be the case. These children will need full-mouth comprehensive care, especially for groups that have had very little to no access to oral care, as has been stated by some senators.

When I appeared as a witness at the House of Commons Health Committee back in 2003, the committee looked at the amount offered in the Non-Insured Health Benefits program. At the time, it was $800. The committee indicated that this was inadequate, and they were instrumental in raising that amount to $1,000, a number that was still indicated to be inadequate.

Many health professionals have acknowledged that dental care is out of reach for many, including all age groups across the country. Who is most at risk and what is going to be done to provide some equality and equity to these groups?

Many people don’t have appropriate and timely dental care for reasons stated by the college of dentistry at the University of Manitoba, which include accessibility, availability, accommodation, awareness and acceptability.

I have said this before: That span between the $70,000 and $30,000 income brackets is huge and has the possibility of negative implications for the $30,000-to-$40,000 income group. In this group, they lack resources like the internet, phones, child care, transportation and the skills to navigate the new, incoming bureaucratic system, which already limited access to care when I was delivering dental care 20 years ago. It still continues to limit access today.

To add to the bureaucracy, the Canada Revenue Agency will be yet another major obstacle, especially if they do not have direct deposit accounts or access to computers.

What I heard in yesterday’s speech is that for Canadians to be able to receive their benefit payments swiftly, they will receive an upfront payment. That alleviates some of the burden for those who cannot prepay.

However, how will we assist those parents who do not have bank accounts or financial literacy? How will the government further ensure that this group will be able to access dental benefits equally with the $70,000 income group, who will have more resources?

Honourable senators, I would like to state my serious discomfort with the rushed manner with which this critical bill has proceeded. Is this because there has been a threat to trigger an election if this bill is not passed by December, or that the Canada Revenue Agency wants it passed by November 18?

It needs to be said that working under duress is no way to start this public health dental program. Spending public funding is a responsibility that we must consider diligently, not hastily.

[Editor’s Note: Senator McCallum spoke in Cree.]

Thank you.

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)

[Translation]

Hon. Marc Gold (Government Representative in the Senate) moved third reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

He said: Honourable senators, I rise to begin third-reading debate of Bill C-5, which will make important changes to the Criminal Code and the Controlled Drugs and Substances Act.

[Translation]

I’d like to begin by thanking the members of the Standing Senate Committee on Legal and Constitutional Affairs for their thoughtful and in-depth study over the course of nine meetings in five weeks. I also want to thank the support staff who made the committee’s work possible and the dozens of witnesses who appeared before and submitted briefs to the committee. Even though Bill C-5 is relatively short, it is very important, as evidenced by the level of interest of stakeholders and senators alike.

[English]

Its central objective is to bring us closer to having a criminal sentencing regime in which penalties are consistently well suited to the offender and the offence, rather than being a blunt instrument that lands with disproportionate force and frequency on Indigenous people, Black people and members of other marginalized communities.

The bill has three main elements.

First, it changes the way Canadian criminal law deals with simple drug possession, both by requiring police and prosecutors to prioritize alternatives to criminal charges and by having criminal records for drug possession automatically expire after two years.

Second, it removes restrictions imposed in 2007 and 2012 on the use of conditional sentence orders, which are non-custodial sentences that allow some offenders who do not pose a risk to public safety to remain in their communities, subject to conditions like house arrest or mandatory counselling, to mention but two.

Third, the bill repeals a number of mandatory minimum penalties including for all drug-related offences, certain firearms offences, offences related to the importation of weapons like brass knuckles or pepper spray and one offence involving contraband tobacco.

These measures will not solve all the problems of our criminal justice system; colleagues, no single piece of legislation could. But as witness after witness testified at committee, Bill C-5 is a meaningful step in the right direction.

In fact, practising criminal lawyers, including a representative of the Canadian Bar Association, urged us at committee to adopt this bill as soon as possible because there actually are cases currently in the system where the resolution is being delayed in the hope that Bill C-5 will pass soon.

In my previous address to the chamber, I went into detail about the content of the bill — and I’d be happy to do so again in response to your questions — but I’m going to focus my remarks today on the testimony that we heard at committee about the three main parts of the bill.

First, on the subject of diversion for drug possession.

With regard to alternatives to criminal charges for drug possession, there was strong support at committee from The John Howard Society. Its Executive Director, Catherine Latimer, noted the similarity between this aspect of Bill C-5 and a comparable section of the Youth Criminal Justice Act, which she said has been shown to “lead to fewer people coming into the criminal justice system for less serious offences.” According to Ms. Latimer, these provisions “allow for individuals with substance abuse issues to be referred to community programs where real assistance may be available.”

[Translation]

The John Howard Society, the Canadian Association of Chiefs of Police and the National Police Federation, which represents RCMP officers, all underscored the need to increase the resources available for treatment and diversion programs in Canada’s communities so that this section of Bill C-5 can reach its full potential. The committee report includes similar observations, which were suggested by Senator Dalphond and which I was pleased to support. As Senator Simons pointed out in the clause-by-clause study, and I quote: “We can’t divert people if there’s no place to send them.” The government agrees and that’s why it increased its support to send people to community justice centres, for example.

[English]

In his testimony, the minister gave the example of an agreement reached in British Columbia earlier this year between the federal government, the province and the BC First Nations Justice Council to support and expand Indigenous-led community justice programs. The government’s intention is to continue supporting these kinds of programs, in conjunction with provincial, territorial and Indigenous partners in British Columbia and across Canada.

The committee also heard from witnesses who argued that nothing short of full decriminalization of all drugs would constitute meaningful change. On this point, I would note that decriminalization of simple drug possession is going to happen in British Columbia early next year, due to an agreement between the province and the federal government. No doubt, we’re going to learn a lot from that experience, some of which may be applicable in other parts of the country or, in the future, at the federal level.

The key point is that this change in British Columbia has been preceded by extensive consultation, cooperation and planning, with the province fully on board. We’re not there right now in the rest of the country. But what we can do, immediately, is to direct police and prosecutors in every province and territory to avoid laying criminal charges for drug possession in most instances, and that’s what Bill C-5 proposes.

I know that some senators have raised concerns about the way police discretion is used, given the reality of systemic discrimination. Again, this is something that the committee emphasized through its observations. It’s a fair point, and that’s why the bill specifically envisions that records related to diversion, with personal identifiers removed, can be provided to researchers for the purpose of assessing and evaluating police use of discretion.

That work will be facilitated by the government’s recent investments in the collection of disaggregated data, particularly in the criminal justice space. The more we understand about how diversion options are used and whether diversion is happening more or less in certain parts of the country or with members of certain communities, the better equipped we will be to identify and address inequities.

Next, to conditional sentence orders.

With regard to the second part of the bill, which proposes to remove restrictions to conditional sentence orders, we heard enthusiastic testimony from a number of stakeholders. Criminal lawyer Michael Spratt gave this part of the bill “straight A’s.” Tony Paisana, speaking on behalf of the Canadian Bar Association, told the committee that this part of Bill C-5 would be “one of the most important reforms in the criminal law over the past decade, if not the most important.”

According to a written brief from the Native Women’s Association of Canada, the enhanced access to conditional sentences enabled by Bill C-5 “will immediately begin” decreasing Indigenous women’s over-incarceration rates.

[Translation]

Conditional sentences have existed in Canadian criminal law since they were introduced in the 1990s by Allan Rock, the then Minister of Justice. For sentences of less than two years, when a judge determines that there’s no threat to public safety, offenders can serve their sentence in the community, under certain conditions. Doing so may result in better rehabilitative outcomes since the offender can maintain employment, family and community support ties.

This is particularly important in remote and northern communities, where the closest prison may be hundreds or thousands of kilometres away. It is all the more important when there are children involved who could end up in the care of child protection services if their parent goes to prison.

Raphael Tachie, president of the Canadian Association of Black Lawyers, or CABL, pointed out that conditional sentences are essential tools for combatting recidivism as they can allow for offenders to maintain familial ties and employment and school commitments, while still being held accountable for their crime.

Colleagues, I’d like to take a moment to recognize the opinion expressed in committee, namely by Senator Boisvenu, that conditional sentences can enable dangerous offenders to stay at home or in their community. Honourable senators, I know that that opinion is based on a real concern for the safety of the community and particularly for victims of gender-based violence, and I thank Senator Boisvenu for raising this issue.

Like Senator Boisvenu and others, including Senator Dupuis, we reminded the committee that it’s important for women to have confidence in the criminal justice system so that they feel safe when they ask for help.

I also note that the Criminal Code only allows conditional sentences when there’s no safety risk. Bill C-5 doesn’t change that. What’s more, it’s important to keep in mind that many people who might benefit from broader access to conditional sentences are themselves victims of gender-based violence.

The Supreme Court of Canada is currently dealing with a case involving an Indigenous woman who helped her husband move drugs under duress, under threats to herself and her daughter. Under current legislation, that woman has to go to prison; she argued that the judge in this case should at least have the option to impose a conditional sentence and that’s exactly what Bill C-5 would allow.

[English]

Ultimately, colleagues, conditional sentences serve the interests of public safety. It is not a risk-free proposition to send people needlessly to prison. Cutting someone off from their family, friends, employment, education and social supports, and forcing their kids into foster care, can make homes and communities less stable, less safe and can perpetuate cycles of criminality.

Where it is possible and safe to hold people accountable for breaking the law without incarcerating them may not only be the more compassionate thing to do but the safer thing to do. That’s why this section of Bill C-5 is so important.

Finally, to the question of mandatory minimum penalties: As I said at the outset, the third part of the bill would repeal a number of mandatory minimum penalties, including all mandatory minimums for drug offences; certain offences involving non‑restricted firearms — essentially, hunting rifles; offences involving the trafficking of weapons other than firearms; and one offence related to contraband tobacco.

These types of provisions establish a minimum amount of prison time that sentencing judges must impose for a given offence. They restrict judges’ discretion, limiting their ability to take mitigating factors into consideration and to engage more meaningfully with sentencing guidelines, including the need to consider what are known as Gladue principles related to the particular circumstances of Indigenous offenders.

Most witnesses strongly supported the repeal of these mandatory minimums. Janani Shanmuganathan of the South Asian Bar Association of Toronto called it “an important step.” Criminal lawyer Michael Spratt called it “a very positive step . . . .” Sarah Niman, speaking for the Native Women’s Association of Canada, said that the repeal of these mandatory minimums “. . . empowers trial judges to meaningfully engage Gladue principles . . . .”

In other words, there was very little disagreement about whether repealing these provisions would be a good thing. The consensus was that, yes, it’s a very good thing. The question that came up was: Why does Bill C-5 repeal these mandatory minimums but not others? And should the bill go even further and repeal more, or even all, mandatory minimum penalties, perhaps even including the one for murder?

Colleagues, Canadian criminal law currently contains around 70 mandatory minimum provisions. Bill C-5 would repeal 20 of them.

At committee, the minister’s explanation was that, according to government data, the 20 mandatory minimums repealed by Bill C-5 are amongst those that are used most often and that apply disproportionately to Indigenous, Black and other marginalized people. Indeed, according to statistics from Correctional Service Canada, from 2010 to 2020, of all admissions to federal custody where the most serious charge carried a mandatory minimum penalty, over half were for 1 of those 20 offences covered by this bill. That includes 11,630 people who received a mandatory minimum for a drug offence, and, amongst them, over 1,600 Indigenous people and over 1,000 Black people.

That’s just federal custody. Sentences of less than two years are served in provincial and territorial institutions, which incarcerate more people than federal prisons, often with higher rates of overrepresentation.

As we heard from University of Ottawa criminologist Cheryl Webster, reliable numbers about provincial and territorial sentences are less readily available. Late in our study, though, we did get an estimate from Statistics Canada that the repealed mandatory minimum penalties in Bill C-5 could affect an average of 9,123 cases across Canada every year.

Ultimately, this is another area where we could benefit greatly from better data, including better disaggregated data. Again, I’m hopeful that the government’s recent investments in this area will make an impact. But what is clear is this: The repeal of mandatory minimums proposed by Bill C-5 could help a lot of people.

Finally, one of the proposals made at committee was something that is often called a “safety valve” or “structured discretion.” Basically, it’s the idea that the law should allow a sentencing judge to deviate from the mandatory minimum in a particular case if the judge determines that imposing it would be somehow unjust.

A number of witnesses recommended this, and an amendment to this effect was considered at committee. As I said at committee, I largely share the values that underpin this idea, and I think it was very important that committee members gave it due consideration before ultimately deciding not to proceed with that amendment. We had a thoughtful discussion at committee, and valid points were made both for and against this notion.

The government opposes this proposal for two main reasons.

First, credible stakeholders, including the Canadian Bar Association and the Criminal Lawyers’ Association, cautioned that this approach could have negative unintended consequences — namely, incentivizing the proliferation of mandatory minimums by shielding them from constitutional challenges.

Second, the government agreed with Raphael Tachie from the Canadian Association of Black Lawyers, who urged us to get Bill C-5 off the Order Paper and into real life as soon as possible. His advice to us was, “We can’t let the perfect be the enemy of the good.”

Colleagues, it certainly has been a long and challenging journey to get to this point — not just this past year and a half of Parliament dealing with Bill C-5 and its predecessor, Bill C-22, but the last decade, since many of the previous government’s so‑called “tough on crime” measures were first put in place. We’re so close to passing this bill and making a real difference in people’s lives. Better to bank the win than to toss politically challenging legislation back into the uncertainty of a minority House of Commons.

[Translation]

Again, I want to thank the members of the Standing Senate Committee on Legal and Constitutional Affairs for having seriously considered the content of this bill and making proposals to support its objectives, including by making formal observations in their report, and for having decided to move forward with Bill C-5 as is — not because it’s a panacea, but because it’s a significant step forward.

The time has come to take this important step.

[English]

In a letter to the committee, the Criminal Lawyers’ Association called Bill C-5 “an integral piece of legislation in justice reform” and urged us to “move Bill C-5 through the Senate as soon as possible.” In the view of the Canadian Bar Association, “It’s critical that this bill pass, and pass with haste.” The Canadian Association of Black Lawyers said, “. . . we encourage you to work expeditiously to pass this bill so we can start implementing on the ground.”

Even witnesses who wanted Bill C-5 to go much further acknowledged it capacity to make a difference. Emilie Coyle, the Executive Director of the Canadian Association of Elizabeth Fry Societies, called this legislation:

. . . a step toward the goal of seeking to reduce the crisis of structural racism, systemic discrimination and inequality in the justice system.

University of British Columbia law professor Debra Parkes said, “I absolutely agree that lives could be changed by this bill . . . .”

That is the critical point, colleagues. Those are real people who will be unnecessarily imprisoned or imprisoned for longer than is necessary if we don’t pass this legislation, and pass it soon.

By way of example, I’ll close with something we heard from Janani Shanmuganathan of the South Asian Bar Association of Toronto, whom I mentioned before. She notably argued one of the landmark cases related to mandatory minimums at the level of the Supreme Court of Canada. She told us about a client of hers, a 26-year-old man with an alcohol addiction but no criminal record who used a pellet gun from Canadian Tire to hold up a convenience store for $100 so he could buy some beer. He was caught and he confessed within hours.

Between the time of his arrest and the time of his sentencing, he turned his life around. He enrolled in university, started a meaningful relationship and not only began attending Alcoholics Anonymous but actually became an AA facilitator.

He arrives for sentencing. The sentencing judge expressed deep regret at having to impose a one-year mandatory minimum sentence, saying, “It’s heartbreaking to send this person to jail, but I have no choice.” According to Ms. Shanmuganathan, that unnecessary incarceration imposed significant psychological and financial consequences on her client. He suffered a mental breakdown while in jail.

That’s why she spoke passionately in favour of Bill C-5 at committee and urged us to pass it fast. She told our committee:

I have clients who are hanging on to this bill passing . . . . I have actual clients for whom this bill would change their lives.

Colleagues, the government is not proposing to pass Bill C-5 and then hang a “mission accomplished” banner on the criminal justice system. There remains a great deal of work to do to make our justice system more effective and more just. That will include legislation, investments and many other policy tools to address the underlying causes of criminality and the social alienation that plagues our society. But this bill, as it is, will do a lot of good. Colleagues, please, let’s turn it into law.

Thank you very much.

Hon. Kim Pate: Senator Gold, so many of us support the objectives of Bill C-5 to repeal mandatory minimums and decrease the overrepresentation of Indigenous and Black people and members of other marginalized communities in prisons.

Just this week, the Office of the Correctional Investigator released their 2021-22 report, confirming that Indigenous women continue to be the fastest-growing federal prison population and that they are now 50% of federal prison populations, two out of three of those classified as maximum security and 76% of those in structured intervention units, the supposed replacement for solitary confinement. Of the incarcerated Indigenous women, 86.2% are assessed as high-risk and high-need. The majority are incarcerated for violent offences and serve long sentences, largely as a result of their responses to violence first perpetrated against them.

The incarceration of Indigenous women most often results in their children being apprehended by the state, as you have indicated, which further contributes to cycles of institutionalization for Indigenous children, families and communities.

Could you please explain how this bill in its current form will not implicitly defeat its own objective by continuing exponential increases in incarceration of Black, Indigenous and racialized or otherwise marginalized people, especially Indigenous mothers?

Senator Gold: There are a lot of people who get charged, convicted and sentenced to the mandatory minimum for illegally importing a prohibited weapon. However — thank you for your question; I would like to answer it, please. The data we have doesn’t distinguish between various types of weapons, so we don’t know whether any of those instances involve pepper spray. You’re quite right.

The point, though, is a broader one. It’s that the offence of trafficking in a prohibited weapon could contain a broad range of behaviour and degrees of culpability, from organizing illicit shipments of switchblades to driving across the border with a can of pepper spray in your glove compartment. Not all of this behaviour merits the mandatory one-year jail term that the Criminal Code currently provides. Again, this allows judges in such circumstances, whatever the actual prohibited weapon might be, to consider the exercise of discretion when it is warranted, when public safety is not otherwise at issue.

Hon. Pierre-Hugues Boisvenu: I rise today, honourable senators, to speak to the third reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

Current statistics show that crime in Canada — that is, violent crimes against the person — is rampant and increased by 5% in 2021 and in recent years. The scourge of domestic violence, sexual assault, femicide, missing persons and human trafficking is only getting worse and we need urgent and immediate solutions. Lives depend on it and too many lives are being lost when they should be protected.

Unfortunately, instead of proposing legislative measures to fight these crimes, the Liberal government prefers to take a lax approach by proposing laws that will further lighten the sentences of the most dangerous criminals.

Let me give you a few examples to support my arguments. In 2018, the Auditor General’s report identified numerous flaws in Correctional Service Canada’s release and community supervision process, flaws that led to the death of a 22-year-old woman. I’m sure you remember Marylène Levesque, who was murdered, stabbed 30 times, by a repeat offender in 2020. Instead of addressing the problems identified by the Auditor General, Justin Trudeau’s government chose to introduce Bill C-5.

My second example is the many gun crimes that are wreaking havoc in cities like Toronto, Montreal and Vancouver. In recent months, several young people under the age of 18 have died in shootings involving illegal weapons. The year 2021 was the darkest year in decades in the city of Montreal. Instead of responding to the families of the victims and taking action to stop this wave of violence, the Liberal government prefers to introduce a bill that will eliminate 11 minimum sentences involving firearms.

Taking steps to obtain a firearm with the intent to commit a crime is an intentional and premeditated act. Minimizing the gravity of a criminal act committed with a firearm is dangerous. I’d like to read you a quote from Justice Harris:

A person with a gun in their hands has a god-like power over life and death. Virtually all that is necessary is to point at another person and to apply a few pounds of pressure on the trigger in order to end a human life. . . . The ease of killing with a gun . . . is an exigent danger to us all.

He added, “Such immense power with so little reason must be opposed with everything at our disposal.”

My third example relates to the fact that, for years now, Canada has been dealing with an urgent drug problem, one of the worst aspects of which is the increasing number of people addicted to fentanyl, an opioid that kills at least 20 Canadians every day. Instead of cracking down on drug dealers and implementing measures to help people overcome their addiction, the Liberal government has opted to eliminate all minimum sentences in the Controlled Drugs and Substances Act, including those associated with drug trafficking, exporting and production. Honourable senators, do you honestly believe that eliminating these minimum sentences will fix Canada’s opioid problem? The answer is obvious.

I’d just like to quote from a speech by my colleague, MP Larry Brock, who was a Crown prosecutor in Ontario for 18 years:

I invite members to think about that for a moment. This soft‑on-crime, ideologically driven Liberal government believes that those who traffic and produce fentanyl, the most deadly and lethal form of street drug, which is being sold to millions of addicts, is causing an opioid crisis, and results in daily overdoses and deaths, should not expect to receive a minimum period of incarceration. It is utterly shameful and dangerous.

Honourable senators, the part of this bill that concerns me the most is the increase in conditional sentences. The Minister of Justice wants to give judges the opportunity to use conditional sentencing for certain types of crimes by repealing paragraphs 742.1(e) and (f) of the Criminal Code. Nine of these offences are offences against the person including sexual assault, which has increased by 18% since 2021; criminal harassment, which increased by 10% in 2021; and human trafficking, which has increased by 44% since 2019. The most recent statistics indicate that 80% of men who assault women receive a conditional sentence and these crimes have been increasing for years.

This bill is dangerous for women. The government also wants to expand eligibility for conditional sentence orders to offenders who have been found guilty of crimes such as kidnapping, abduction of persons under 14, being unlawfully in a dwelling-house, causing bodily harm by criminal negligence and assault with a weapon or causing bodily harm. These are not small, trivial crimes. They are serious, disturbing crimes.

All of these crimes against the person are often committed in situations of domestic violence. As I’ve often said, the victims of this scourge, those who are killed, are most often women and children, and the numbers keep rising year after year.

In 2021, intimate partner violence increased by 3% for the fifth year in a row. One hundred and seventy-three women were murdered; 55% of those killings were the result of intimate partner violence. This scourge accounts for about 30% of crimes against the person since 2009. In Quebec, intimate partner violence increased by 28%; in New Brunswick, by 39%. Any move to expand conditional sentences for these crimes would pose a major risk to women who are victims of intimate partner and family violence because fewer victims of intimate partner violence and sexual assault would report these crimes. That is unacceptable, considering the fact that we regularly use the media to encourage them to report their attacker.

Lastly, expanding conditional sentencing would encourage people to reoffend. Bill C-5 would allow a significant number of criminals to serve their sentence at home. That puts victims at risk, particularly those from Indigenous communities, where everybody knows everybody and people live in close proximity.

According to data on conditional sentences from the early 2010s provided by the Syndicat des agents de la paix en services correctionnels du Québec, CSN, 44% of criminals who receive conditional sentences don’t comply with their conditions. I want to quote testimony in the House of Commons from Jennifer Dunn, Executive Director of the London Abused Women’s Centre, on April 29, 2022. Ms. Dunn is opposed to this part of the bill:

Women and girls are five times more likely than men to be victims of sexual assault, and sexual assault is a violent crime on the rise in Canada. With conditional sentencing, many women will be stuck in the community with the offender, which places them at even higher risk.

That’s why, honourable senators, I wish to propose an amendment to Bill C-5 that wouldn’t allow conditional sentences to extend to crimes against the person and crimes potentially committed in the context of spousal or domestic violence. While I was unable to convince the majority of my colleagues on the Standing Senate Committee on Legal and Constitutional Affairs to vote in favour of this amendment, I’m confident that this place will take another moment to reflect.

Colleagues, considering the statistics that are available and that show an increase in sexual assault and domestic violence, and given the strong social disapproval of such crimes, I believe it is dangerous and unfair to sentence a sexual abuser, kidnapper or stalker to house arrest rather than imprisonment. The Senate must be cautious and wise. However, if it were to accept the government’s intention to expand conditional sentences, it would have to look closely at the sentence conditions.

To conclude, honourable senators, this bill is dangerous for women, because the government has not included any conditions that a convicted person who receives a conditional sentence for domestic violence or sexual assault should be subject to, such as therapy. With Bill C-5, what the government is offering to women victims of domestic violence is an enhanced “810.” However, as we know, according to the University of Montreal study conducted in 2019, 50% of abusers don’t abide by the “810,” which is the order directing them to stay away from victims. What you’re offering victims today with Bill C-5 means they will continue to live in fear. Victims expect more from you.

Senator Boisvenu: The ones we were looking at are the ones that are in the bill. As I said earlier, these are the most common offences and they go hand in hand with family violence. I’m adding them because according to the data I obtained on conditional sentences, currently 80% of men who assault a woman serve a conditional sentence. On average, that sentence is six months. Removing crimes from the Criminal Code or adding even more domestic violence crimes to the Criminal Code will ensure that fewer men will be incarcerated and that more men will be released. When we see that in many cases the conditions are not respected, especially orders to stay away from the victim, I think that we’re putting women’s safety at even greater risk.

Hon. Paula Simons: Honourable senators, I want to begin by expressing my deep appreciation for the work that Senator Boisvenu has done over many years to support the rights of women who are living in situations of domestic violence. Just today, at the Standing Senate Committee on Legal and Constitutional Affairs, we heard about his Senate public bill that is also dealing with some of these same issues. I don’t think anyone in this chamber would want to deny to Senator Boisvenu the kudos he rightly deserves for his long-standing commitment to this question of social justice.

In the last few days in this chamber, we have heard remarkable speeches from our colleagues, including Senator Boniface, Senator Hartling and Senator Manning, dealing with this same issue. The scourge of domestic violence, whether intimate partner violence or violence between parents and adult children in this country, is a tremendous burden on the soul of the nation and on our criminal justice system. As a journalist working at the Edmonton Journal, I covered countless heartbreaking stories of families destroyed by the domestic violence. I had the privilege of being able to interview Dr. Alan Benson, the very proud husband of Senator LaBoucane-Benson, who dedicated much of his career to working in this field and serving on the Family Violence Death Review Committee in the province of Alberta that dealt with some of the most horrific incidents.

I don’t want anyone in this chamber to mistake me as somebody who is soft on domestic violence. It is true that conditional sentences need to be applied extremely carefully in cases where a domestic abuser is in the same community as the victim. That should be obvious. You obviously don’t want to have a catch-and-release system where you let someone — who is a very present danger — out on the street so that he can harass, stalk, assault and kill victims in the worst incidents.

That being said, I believe that the list contained in Senator Boisvenu’s amendment is far too broad and casts far too wide a net for offences that we would wish to exclude from the potential of a conditional sentence.

I want to go through some of them. The first one listed in the amendment is section 221: causing bodily harm by criminal negligence.

In my years covering court cases in Alberta, I saw an extraordinary range of cases that involved criminal negligence. In some cases, that criminal negligence is so atrocious, so thoughtless, so selfish and so mean-spirited that it rises to the very highest standard of an atrocious crime.

But, in other cases, criminal negligence can be something far less morally repugnant. Before we would add something like criminal negligence to a list, we need to understand that there’s a continuum. There is a spectrum, and this kind of criminal negligence may be perfectly well-suited to a conditional sentence, while other kinds of criminal negligence call out for jail time.

Section 264 touches upon criminal harassment. Now, anyone who is a politician in public life, anyone who has lived in Ottawa through the last 10 months, knows what criminal harassment can be at its most minor, and potentially at its most dire.

We can all imagine a case where criminal harassment is an outrageous shock to the conscience, and the person involved is rightly deserving of jail time. We can all also imagine that the best thing for someone found guilty of criminal negligence might be to leave them under house arrest and take all their computers away.

Again, we don’t want to cast so broad a net that we deny judges the discretion to use a conditional sentence where warranted.

Section 267 relates to assault with a weapon or causing bodily harm. If someone is shot, or attacked with a knife, and caused that kind of bodily harm, clearly a custodial sentence might be the right solution. You can also imagine assault with a weapon being somebody who is hit — I’ve seen some things in the courts, and I would think, “That’s a weapon?” But the court considers it a weapon, and that might include Senator Gold’s favourite, pepper spray, or it might include hitting somebody with a garden implement.

Section 270.01 relates the same, specifically for assaulting a peace officer, which should outrage the conscience of the nation. We can all imagine a situation where someone who assaulted a peace officer should go away to jail for a very long time. We can also imagine police officers trying to break up some scuffle, or melee, and being hit over the head with a placard, and maybe we would not consider that something that needs custodial time.

I don’t want to bore us by going through the list, but I will go to the last one. Section 349 relates to being unlawfully in a dwelling-house. If you have trespassed into someone’s home to assault them, absolutely, but being unlawfully in a dwelling‑house can also be a Criminal Code offence if you are squatting in a home, squatting in an abandoned building to use drugs, or taking shelter in an abandoned home to protect yourself while living on the streets.

When my daughter was at law school, she had an imaginary case where someone got lost while camping on the beach and broke into somebody’s summer cabin to stay warm. I believe she was acting for the prosecution in the moot court and demanded the maximum penalty, but I suggested to her that if somebody was really in distress and lost in the woods, breaking into a cabin for the night was not the worst of offences.

I take notice of Senator Boisvenu’s completely correct point that we must not be frivolous in the use of conditional sentences, especially in cases involving domestic violence and domestic harassment. But, with the greatest of respect, I would ask us not to support this amendment, because I do not think it will accomplish what Senator Boisvenu wishes it to do. It will, instead, deny the judges autonomy, discretion and responsibility to apply conditional sentences when warranted and where necessary.

Hon. Denise Batters: Senator Simons, you started to go through the list of some of the offences. The first one you listed was criminal negligence. You didn’t mention that it is causing bodily harm by criminal negligence.

Then you said you didn’t want to go through them all because that would take too long, potentially, but you skipped over sexual assault, kidnapping and human trafficking. Don’t you think those are the ones where there may be fewer examples of situations where it would be appropriate to have conditional sentences — where those particular offenders would be back in the same communities as the people that they victimized?

Senator Simons: Senator Batters, you’re a lawyer, and I am not; I’ve been an observer in courtrooms for a long time.

In terms of sexual assault, it’s my understanding — and please correct me if I am wrong, because I don’t have your legal background — that a sexual assault can be anything from a violent, heinous rape to someone exposing themselves in the park. I think we need to understand that sexual assault covers a whole spectrum of the human condition and of human sin. It’s really important that we not impose a cookie-cutter solution, because the sexual assault committed by a rapist who jumps out at you in the parking lot and assaults you viciously is quite different, I think, from the kind of sexual assault when a guy who feels you up in the bar. I don’t care to be felt up in the bar. Actually, it has been a long time since it happened. Sorry — I went for low-hanging fruit. That was not a tasteful joke, and I apologize.

My point is there is a wide variety of offences that can be deemed sexual assault.

For kidnapping, there is a difference between a kidnapping for ransom and for custodial interference, which is often charged as kidnapping. Again, I’m not excusing a parent who abducts a child in violation of a custody order, but, again, that is a different thing from an armed ransom attempt.

These are all very difficult questions, and I, in no way, want to minimize the dangers that criminals pose in our society. I, in no way, want to minimize the dangers in domestic situations where people are often trapped by economic and social circumstances. And when justice finally steps in, they need the courts to be there to protect them. I just feel that this particular amendment casts too wide a net.

Senator Simons: I don’t know the source of that figure. If it’s true, it curls my hair, and I’ve got curly hair.

I agree with you. I don’t think that men who have been a violent menace to their spouses should just be — as I said, I used the phrase “catch and release” before. It’s very important, especially when a man is showing the signals that his behaviour could escalate, that we deal with that properly. I just don’t think this particular amendment gets to the heart of what you are trying to do, and I absolutely agree with what you’re trying to do.

[Translation]

Senator Simons: I think a clear message does need to be sent to society that we will not tolerate domestic violence and we will not tolerate the minimizing of domestic violence. I think Senator Manning’s speech the other day was profoundly moving. The stories he told from his own community — I don’t want to say they should inspire us — should move us to stand with you, with Senator Boniface, with Senator Hartling, with Senator Audette and with all the senators who have dedicated their lives to fighting domestic violence. I think that this is a time on this topic when we can wisely put aside any kind of ideological or party/partisan politics and speak with one voice in this Senate that this is something we will not condone and will not tolerate.

(On motion of Senator Duncan, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Duncan, seconded by the Honourable Senator Clement, for the third reading of Bill S-236, An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island), as amended.

And on the motion in amendment of the Honourable Senator Ringuette, seconded by the Honourable Senator Petitclerc:

That Bill S-236, an Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island), as amended, be not read a third time, but that it be referred back to the Standing Senate Committee on Agriculture and Forestry to hear from the Parliamentary Budget Officer concerning his office’s fiscal analysis on the bill; and

That the committee report to the Senate no later than November 15, 2022.

And on the subamendment of the Honourable Senator Black, seconded by the Honourable Senator Dagenais:

That the motion in amendment be not now adopted, but that it be amended by:

1.adding the words “additional witnesses, including” between the words “to hear from” and “Parliamentary Budget Officer” in the first paragraph; and

2.by deleting the final paragraph.

Hon. Pat Duncan: Honourable senators, I rise today to speak to Senator Black’s subamendment to refer Bill S-236 back to the Agriculture and Forestry Committee for further study.

Listening carefully to former Senator Griffin’s speech as she moved this bill on the eve of her retirement, I acted upon instinct and proposed to take on the sponsorship of the legislation. Honourable senators, may I take a few moments to elaborate on that instinct, especially as it relates to this subamendment?

Serving as a member of the opposition in the Yukon Legislative Assembly, I was made aware of a situation with the Yukon Health Care Insurance Plan Act. Babies adopted from out of country were required to fulfill a three-month residency before being granted health care. Everyone in this chamber, especially in light of the discussions about the shortage of Tylenol, can appreciate that no parent with an ill child in Canada wants to be told they will have to wait three months or pay for that visit to the doctor or the hospital. The situation was blatantly unfair to those newly adopted children. The then health minister endured my questions in the legislature as I pestered the government to make a change.

Following my retirement from the legislature, I worked in health care registration and saw from the public servant level how complicated changes to rectify a situation can become when lawyers and legal draftspeople get involved, as described by our colleague Senator Cotter. Ultimately, the changes to the legislation to provide these adopted babies with health care, when they were finally passed, required references to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

As if health care registration was not complicated enough, especially when you have expectant mothers awaiting the processing of their application for immigration, which was taking forever — and they were trying to prove that they were legally entitled to be in Canada — I went on to manage the adjudication of workers’ compensation claims and then to serve as the workers’ advocate.

The preamble to the Yukon Workers’ Compensation Act, as the legislation was called until this year, reads in part:

. . . believing that improvements to the workers’ compensation system are desired to ensure that the workers’ compensation system continues to meet the changing needs of workers and more adequately reflects the true costs, in both human and economic terms, of injuries arising out of the workplace and enable a wholistic approach to the rehabilitation of injured workers;

And, again, in part, the act reads:

And whereas the government has confidence in continuing to delegate to the Workers’ Compensation Health and Safety Board the trusteeship of the compensation fund to manage it in the best interests of its main stakeholders, namely workers and employers;

This understanding that government can delegate to a board that funds be managed in the best interests of the workers and employers, a sense of fairness and the understanding of Senator Griffin’s representation of a smaller region is what motivated me to instinctively stand.

Those who have worked with me know that I believe very strongly that as a servant of the public, whether elected, hired or appointed, my raison d’être is, “How can I help you today?” That was and is why I sponsored the bill.

As part of my work at the Yukon Workers’ Compensation Health and Safety Board prior to becoming the workers’ advocate, I also received Foundation of Administrative Justice training.

Honourable senators, after my initial review of the Parliamentary Budget Officer’s costing note, which was released in September, I interpreted that the passage of this specific P.E.I. matter would devolve to a money matter, which is beyond the Senate. We cannot authorize the expenditure of money. From the work at the National Finance Committee, which also reviewed the issue that this legislation tries to fix, I surmised that this question would be resolved by the House of Commons and that, at a minimum, us adopting this bill would prompt the government to act to resolve the specific situation described in the bill. The government did resolve this situation during the pandemic, when all Islanders were able to receive the same benefits. That expired in September.

Honourable senators, just as legislation is interpreted differently, there are differing views throughout this chamber and elsewhere on the Parliamentary Budget Officer’s report. I have the utmost respect for every honourable senator in this chamber. The overwhelming opinion views the Parliamentary Budget Officer’s report as new evidence that has not yet been reviewed by the committee. The Foundation of Administrative Justice training guides us that with new evidence, the case should be heard again.

This subamendment recommends that the Agriculture and Forestry Committee review the new evidence and that they be the master of their proceedings to determine how and when the committee should do this.

I thank Senator Black, who proposed the subamendment, and Senator Ringuette for the amendment. I offer my support for referring the bill back to committee without imposing restrictions, should the Senate so wish.

Thank you, honourable senators.

Hon. Dennis Glen Patterson: Honourable senators, I rise today on Senator Black’s subamendment to the motion that would return Bill S-236 to the Standing Senate Committee on Agriculture and Forestry for further study. Being that I am a lawyer, and given Senator Cotter’s speech on Tuesday, maybe I should stay out of this debate, but I won’t.

I am not an expert on P.E.I. Employment Insurance and the impact that one zone versus two would have on the working poor, who have been central to our conversations on this bill to date. I am, however, somewhat knowledgeable about how our committees work.

I have found that our committees do excellent work when they have the ability to hear all sides of an issue and the time to thoughtfully consider those viewpoints as they decide how to move forward with new information. For studies, that means thoughtful and impactful recommendations. For bills, it can mean amendments or observations.

I’ve sat in this chamber and listened carefully to the debate on this bill. I’ve noted the Parliamentary Budget Officer’s report, but I’ve also noted the letter sent to all senators and addressed to one senator in particular, which takes a different view. Senator Ringuette addressed this letter in her speech on Tuesday.

I’m not an expert on this matter. I’ve certainly not spent a week researching it, but I do believe that committees should be masters of their own destiny, and that includes being able to choose witnesses that they feel are credible and that they feel will give compelling testimony.

Unless we’re calling in a minister to answer pointed questions on something, I’m loath to support only calling one witness on anything. Much like there are two sides to every coin, there are multiple facets to every issue. Whether that means calling in labour groups and/or poverty groups from P.E.I. in this case, I will leave that to the committee to decide, but that is why I support the first part of Senator Black’s subamendment, which would clarify the ability of the committee to call other witnesses as they deem necessary.

As a former chair, deputy chair and member past and present of several steering committees, I also appreciate how difficult it can be to organize a committee schedule and get witnesses confirmed in a timely fashion. I also recognize that today is the Thursday before a break week, and it might well take some time to get the necessary agreements to issue invitations, et cetera, making the original reporting deadline of Senator Ringuette’s motion difficult — and by this I mean nigh impossible — to meet. That is why I support the second part of Senator Black’s subamendment, which would give the committee more time to do its work.

I’ll be voting in favour of Senator Black’s subamendment, and I would encourage colleagues who believe that committees should keep control of their witness lists and timelines to do the same.

Thank you.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion in subamendment?

Hon. Senators: Agreed.

(Motion agreed to and bill read second time.)

Hon. Senators: Agreed.