Senator Boisvenu: Would the honourable senator accept a question?

[English]

Hon. Pierre-Hugues Boisvenu: Therefore, honourable senators, in amendment, I move:

That Bill C-5 be not now read a third time, but that it be amended in clause 14, on page 3, by replacing lines 19 to 21 with the following:

Hon. Pierre J. Dalphond: Would Senator Boisvenu agree to take a question? Since we’re repeating the debate a bit and we already had it in committee, Senator Boisvenu, I understand that the list of offences that you propose adding that will make a release in these conditions impossible, isn’t exactly the same list that currently exists in the Criminal Code. What led you to remove some of the offences that were in the Criminal Code and add others in their place?

Senator Boisvenu: Yes, that’s right.

Senator Boisvenu: I have another question. The last three or four rulings of the Supreme Court in matters of domestic violence, and those of the Quebec Court of Appeal in particular, found that judges need to impose harsher sentences. We need to send Canadian society a clear message. Does Bill C-5 send a tough message regarding domestic violence?

[English]

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.

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. Kim Pate: Honourable senators, I rise today to speak to Bill S-238. I thank Senator Boisvenu for his ongoing commitment to support those who are victimized.

My work with women and children who have experienced horrendous violence, have received virtually no protection and then experience the full force of the criminal legal system when they act to repel or otherwise respond to the violence perpetrated against them give me another perspective on the intricacies of this issue. While I understand the intention behind this bill and recognize the importance of Senator Boisvenu’s objective of protecting victims from harm being posted online, this is unfortunately not all this bill is doing.

Senator Boisvenu in his speech said that this bill:

. . . amends the Criminal Code to prohibit any offender or accused from posting images or information about their victim or keeping existing images of their victim on social media either during legal proceedings or after being convicted.

However, that is not what the bill says.

The bill gives the broad-stroke removal of the entire right to free speech and removes the right for an accused person to publish, distribute, transmit or make accessible on the internet “any information concerning the victim of the offence in question.”

Provisions for this purpose, and the purpose that Senator Boisvenu has, already exist. For example, when it comes to bail, in the provision on judicial interim release, paragraph 515(4)(g) of the Criminal Code states:

. . . the justice may direct the accused to comply with one or more of the following conditions specified in the order:

. . . comply with any other specified condition that the justice considers necessary to ensure the safety and security of any victim of or witness to the offence . . . .

While I am confident it is not the intent of the bill as drafted, it could also preclude women who after years of abuse, defend themselves or their children and end up charged, convicted and imprisoned. This bill could preclude them from seeking justice when — but for the day — they were the victim. There is nothing in this legislation to protect women who were victims themselves of abuses and who are now imprisoned for fighting back.

We have seen many instances where women who speak about their abusers are already vilified. This legislation could also further silence and punish them.

Some of you might be thinking, “Surely not, such provisions won’t be used that way.”

There are many examples of this where women — especially Indigenous women — after years of abuse, are criminalized themselves for using force, sometimes lethal force, in response to the violence they experience. Perhaps the most egregious being the case of Yvonne Johnson as an example of how the application of this bill could be overly broad and can actually be used against women who were victims themselves. Yvonne Johnson spent nearly two decades in prison for first-degree murder of a man who was accused of sexually abusing her infant daughter. In 1998, she co-wrote a book about her troubled past, history of sexual abuse, the experiences of colonialism, residential schools and intergenerational trauma that she experienced that culminating in her being in prison.

Her co-author, well-known author Rudy Wiebe, decided that the book should also include a review of her role in the homicide because he wanted to expose the systemic biases as well as the sexist and racist myths and stereotypes that contributed to Yvonne being held more culpable than her three co-accused. Her experience of childhood sexual abuse and the fact that she was the mother of the infant child were used to attribute more motive to her than even to her husband — the father of the same child — and to the two other co-accused.

The book, Stolen Life, was used against her, and, in addition to delaying her conditional release, has effectively re-silenced her.

We don’t need another bill that attempts to treat one symptom of the problem with a broad stroke and therefore creates numerous problems in the process. Instead, let’s address the ideas and attitudes that fuel all forms of violence — especially misogynist and racist violence — in all facets of our criminal legal system while simultaneously implementing the sorts of robust social, health and economic support systems that can truly assist women to escape and ultimately help us to end all violence.

Meegwetch, thank you.