Hon. Claude Carignan (Acting Deputy Leader of the Opposition): Honourable senators, I rise at second reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

Bill C-5 includes the following measures, which I will address in order in my speech. First, it increases the number of offences for which a judge may sentence an offender to a term of imprisonment to be served in the community. As the legislative summary for the bill states, and I quote:

A conditional sentence is one where an offender is sentenced to a term of imprisonment of less than two years, to be served in the community subject to particular conditions. . . .

Second, Bill C-5 repeals a number of minimum sentences of imprisonment. Third, it proposes diversion measures for simple possession offences involving drugs other than cannabis.

One of the objectives of Bill C-5 is to comply with the Ontario Court of Appeal ruling in R. v. Sharma. That ruling declared paragraph 742.1(c) of the Criminal Code unconstitutional. That paragraph prohibits the use of imprisonment in the community for offences punishable by a maximum term of imprisonment of 14 years or more. It also found subparagraph 742.1(e)(ii) to be unconstitutional. This subparagraph prohibits imprisonment in the community for indictable offences punishable by a maximum term of imprisonment of up to 10 years and involving the importation, exportation, trafficking or production of drugs.

However, Bill C-5 goes further than the findings in the Sharma case, because it also proposes to allow imprisonment in the community for a range of offences that involve the use of a weapon or result in bodily harm, including the offences of sexual assault and criminal harassment.

There is a disconnect, or even a failed approach, in Minister Lametti’s decision to introduce Bill C-5 to comply with a ruling that is currently being appealed before the Supreme Court by federal prosecutors from the Public Prosecution Service of Canada.

I would point out that this case has been under consideration before the Supreme Court of Canada since March 23, so the court should be handing down its ruling in the next few months.

Either Minister Lametti’s decision to introduce Bill C-5 was premature, given that the Supreme Court could have handed down a ruling during our study of the bill that would have struck down the appeal court’s declaration of unconstitutionality, or the federal prosecutors filed an unnecessary and no doubt costly appeal to the Supreme Court at Canadian taxpayers’ expense.

I want to note that the previous version of Bill C-5 was Bill C-22, which died on the Order Paper because of the last election. During the study of Bill C-22, federal prosecutors sent a letter to the Supreme Court of Canada on March 8, 2021, asking the court to postpone the appeal hearing. In that letter, the federal prosecutors promised to drop the appeal if Bill C-22 came into force, since they felt that this would render the appeal moot.

After the election was called, the federal prosecutors decided to pursue their appeal after all. However, I note that their arguments in appeal contradict the need for the measures proposed by Minister Lametti in Bill C-5 regarding community-based sentences. I will come back to this later.

I remind senators that this bill proposes to give judges the discretion to impose community-based sentences, meaning offenders serve their sentence at home rather than in prison. Those sentences would be allowed even for offences that are practically the most serious in the Criminal Code, those punishable by a maximum term of imprisonment of 14 years or more.

To convince you, I will cite a few examples of criminal acts that are inherently dangerous but for which Bill C-5 would allow community-based sentences: manslaughter without the use of a firearm; hostage taking without the use of a firearm; trafficking of fentanyl or certain firearms; sexual assault with intent to wound, disfigure or endanger the life of an individual 16 years of age or older, provided that the assault is not committed with a firearm; robbery with a firearm, unless committed for the benefit of a criminal organization. I am of the opinion that there is no logic in allowing community-based sentences for such serious offences that pose such a danger to the safety of Canadians.

[English]

My argument can be based on the federal prosecutor’s brief to the Supreme Court in their appeal proceedings of the Sharma decision, which I mentioned. Their brief provides a compelling review of excerpts from Hansard, supporting the idea that the government’s intention was always that community imprisonment be reserved for less serious Criminal Code offences. On this point, their brief quotes the following statement by former MP Robert Goguen, who spoke as parliamentary secretary to the Minister of Justice on September 21, 2011:

(2050)

This government is addressing the concerns of Canadians who no longer want to see conditional sentences used for serious crimes, whether they are violent crimes or property crimes.

[Translation]

In their brief, the prosecutors could have also cited another statement made by Mr. Goguen on the same day, and I quote:

Conditional sentencing came into effect in 1996, when the government wanted, among other things, to reduce excessive use of incarceration for less serious crimes. I repeat: less serious crimes. . . .

However, in the years following the creation of this type of sentencing, there has been a complete lack of consistency when it comes to determining when conditional sentencing is appropriate.

At the time, many court decisions gave a conditional sentence for serious and violent crimes. This contributed to the public’s loss of faith in the justice system. Clearly, many people, and some provinces and territories, wondered whether the limits on conditional sentencing set out in the Criminal Code were sufficient.

The problem that Mr. Goguen described in 2011 is one that I believe will recur if Bill C-5 is passed. It is one of the major reasons I oppose this bill. By allowing the courts to sentence offenders who have committed an inherently serious and dangerous offence to serve their time at home instead of in a provincial jail, I am concerned that this bill will trivialize these crimes. I am concerned that it will be more difficult to protect the public from the people committing these offences and that, consequently, Canadians’ confidence in the criminal justice system will be undermined over the coming years.

[English]

I share the same concern about another important measure in the bill, namely repealing a series of minimum prison sentences. For example, it proposes to abolish several minimum sentences for the offences of using, importing and trafficking firearms. What a bad time for the federal government to propose these measures, which would reduce the severity of sentences imposed by judges at a time when there is a striking increase in gun‑related crime, particularly in Montreal. It is therefore not surprising that the Government of Quebec has officially expressed its serious concerns to Ministers Lametti and Mendicino regarding this bill.

[Translation]

Quebec’s ministers of justice and public safety wrote a letter to their federal counterparts on May 4, 2022, in which they asked the federal government to remove the repeal of minimum sentences for gun crimes from the bill:

Taken together, the amendments in Bill C-5 will impact Quebec’s responsibilities with respect to the administration of justice and policing matters on its territory.

Repealing mandatory minimum sentences for certain gun-related offences could contradict initiatives that the Government of Quebec adopted recently to tackle gun violence. We believe that the approach in Bill C-5 also contradicts actions that your government has taken to combat this kind of violence.

We note that the situation in Quebec is unprecedented. In Montreal, offences involving firearms and other weapons have increased markedly over the past year.

Clearly, the federal government’s actions must be consistent with provincial and territorial realities. Quebec is therefore requesting that the bill not repeal mandatory minimum sentences for the gun-related offences identified therein.

On another note, the bill proposes diversion measures for individuals who commit the offence of simple drug possession.

I recognize the importance of the spirit of the principles set out in the law to justify diversion measures. For example, the bill sets out the following principle:

It also states:

That said, I’m opposed to the rather vague nature of the existing wording in the bill regarding the application of the diversion measures. For instance, the bill states that:

A peace officer shall . . . consider whether it would be preferable . . . to refer the individual to a program or to an agency or other service provider in the community that may assist the individual.

What does “other service provider in the community that may assist the individual” mean, and what kind of assistance does that refer to? Does that mean a drug treatment centre offering several months of closed therapy? If so, how is a police officer who arrests a heavily drug-intoxicated person in the street at 3 a.m., in a remote region, supposed to find a therapy centre that is prepared to immediately assess the person and admit them for therapy, assuming the person agrees? If this is the kind of diversion measure that Bill C-5 is intended to allow, I can well imagine that it will be very difficult to enforce, particularly in remote communities that too often lack access to substance abuse prevention and treatment resources.

I’m also wondering whether the diversion measures proposed in Bill C-5 take precedence over the diversion measures that are currently allowed under the Youth Criminal Justice Act for those under 18. This question is worth asking, considering that the text of Bill C-5 does not provide for any incorporation by reference of the two acts.

As a final point, I am concerned that Bill C-5 does not require the provincial government to select and authorize the community or therapeutic organizations or the type of services that will be offered as diversion measures. In my view, the province’s agreement is essential in order to prevent the federal government from interfering in provincial jurisdictions in the areas of health care and social services under the guise of its jurisdiction over criminal law. The language used in the principles set out in Bill C-5 shows, in my view, that the diversion measures in the bill seek primarily to achieve objectives that promote health and not solely criminal law objectives.

For all these reasons, I urge you to vote against this bill. Thank you.

Hon. Claude Carignan (Acting Deputy Leader of the Opposition): Honourable senators, I rise today in support of Bill C-14, An Act to amend the Constitution Act, 1867, in relation to electoral representation. My comments today will be brief, for I intend to go into greater detail at the third reading stage of Bill C-14. I hope my observations will answer Senator Julie Miville-Dechêne’s questions in particular.

Bill C-14 basically amends the grandfather clause in the electoral boundaries formula. Currently, this grandfather clause, referred to as the “1985 clause,” sets out that no province will have fewer electoral districts when the electoral map is redrawn than it had in 1985. The amendment in Bill C-14 updates that clause for the Forty-third Parliament. In other words, it states that no province will have fewer electoral districts when the electoral map is redrawn than it had in the Forty-third Parliament.

This provision is ultimately intended to ensure that Quebec does not lose a seat, as the Chief Electoral Officer of Canada’s new projection called for.

As you know, colleagues, section 51(1) of the Constitution Act, 1867, requires that the electoral map be readjusted every 10 years. The introduction to section 51(1) reads as follows:

The number of members of the House of Commons and the representation of the provinces therein shall, on the completion of each decennial census, be readjusted by such authority, in such manner, and from such time as the Parliament of Canada provides from time to time. . . .

Canada has been changing immensely since its creation in 1867, and successive governments take advantage of the decennial census to adjust the representation rules in order to adapt to the contemporary realities of our society, including on a demographic level.

For this reason, in 1986, Parliament passed Bill C-74, the Representation Act, 1985. The two objectives of this bill were to limit the growth of the number of elected members that the formula used back then would have caused, as a way to save money, but also to prevent Parliament from becoming too big, which would have limited the privileges of each member.

At the time, it was predicted that if nothing was done, the House of Commons would have 369 members after the 2001 census. Let’s not forget that we have 338 members today, after the last boundaries readjustment process, which was done after the passage of the Fair Representation Act in 2011. I will come back to that.

The second objective of Bill C-74, which was passed in 1986, was to introduce a grandfather clause providing that a province’s number of MPs could not decrease even if the provincial population decreased slightly. This is what is now known as the 1985 clause, and it is directly affected by Bill C-14.

Then, after the 2011 census, Prime Minister Harper’s Conservative government passed the Fair Representation Act, as I mentioned earlier. This bill was intended to correct a certain imbalance in the representation of the provinces in the House of Commons. Two of the “whereas” clauses in this bill read as follows:

Whereas the principle of proportionate representation of the provinces must balance the fair and equitable representation of faster-growing provinces and the effective representation of smaller and slower-growing provinces;

Whereas the populations of faster-growing provinces are currently under-represented in the House of Commons and members of the House of Commons for those provinces therefore represent, on average, significantly more populous electoral districts than members for other provinces;

(1910)

After this bill was passed, the number of seats in the House of Commons increased from 308 to 338. However, the 1985 grandfather clause was not amended by the Fair Representation Act that was assented to on December 16, 2011.

Following the last census of the population of Canada by Statistics Canada, which was tabled in the fall of 2021 and updated in February 2022, the Chief Electoral Officer of Canada has to readjust the electoral map to reflect the country’s changing demographic, as required by section 51 of the Constitution Act, 1867.

The most recent count would increase the number of MPs in three provinces, with Ontario getting one more MP, Alberta three more and British Columbia one more. However, given its slower population growth, Quebec would lose one seat, going from 78 MPs to 77. Parliamentarians in the House of Commons unanimously denounced this situation and proposed various solutions. The Bloc Québécois introduced a bill to ensure that Quebec never has less than 25% of the seats in the House of Commons. This bill is still being examined in the other place, but I wouldn’t bet on its chances of moving forward. Then, the government introduced Bill C-14, which we are beginning to examine today. It was passed in the other place on June 15, 2022.

When we debate this bill at third reading, I will talk about the formula for changing the electoral map, the concept of effective representation, the role of the Senate, and the importance of the new 2021 grandfather clause.

I therefore invite you to vote in favour of this bill at second reading.