Senator Gold: Of course.

Hon. Mobina S. B. Jaffer: Senator Gold, will you answer a question?

Hon. Julie Miville-Dechêne: Would Senator Dawson take a question?

Senator Dawson: Certainly.

Hon. Donna Dasko: Would Senator Dawson take another question?

Senator Dawson: Yes, madam.

Senator Dasko: Will you take a supplementary question, senator?

Senator Dawson: Yes, Senator Dasko.

Senator Batters: Senator Gold, since you did reference that particular mandatory minimum being used for pepper spray in your speech, could you please get us that number and provide it to this chamber when you have it?

Hon. Paula Simons: Would the Government Representative in the Senate take one more question?

Senator Pate: Senator Gold, would it be possible to provide that information? My last discussions with officials from the Department of Justice indicated that a full 34% of all Charter challenges they are dealing with have to do with mandatory minimum penalties, and they hope that this will have a significant impact but they cannot produce figures to shore up that hope. Would it be possible for you produce those figures for us, please?

Hon. Dan Christmas: Thank you, Senator Gold, for your remarks. I appreciate the many examples of individuals who could benefit from the removal of mandatory minimums.

Senator Gold, my question is similar to other senators’. If these mandatory minimum sentences were removed, do we have any projections or studies as to what the anticipated reduction of federal incarceration rates will be for Indigenous people as a result of this bill?

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:

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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.

Senator Gold: Sure, one more.

Senator McCallum: Can a personal laptop be considered intellectual property, and not a good?

Some Hon. Senators: Hear, hear.

(On motion of Senator Duncan, debate adjourned.)

[English]

Hon. Peter Harder: I rise today in support Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

I do so, however, with reluctance given the substantial amendment regarding threshold of search made to the bill at committee stage and endorsed in this chamber at report stage.

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In my view, this amendment will create an unnecessary risk for the importation of obscene and dangerous material to our nation, the victimization and revictimization of children depicted in such material and an added burden on border security officials at protecting those children as well as Canadian society.

Moreover, I believe this amendment runs counter to the specific and clear intentions of a duly elected government. It is, in a sense, an overreach on our part.

As you are all aware, the bill before us creates a new and higher standard that must be met before border officials can lawfully examine personal digital devices, or PDDs, of travellers that may contain prohibited material. The need for a standard is required, given the decisions, as we’ve heard, from the Alberta and Ontario courts. The issue before us is what the proper balance should be and, in my view, who is most entitled to set it.

The case for the original unamended bill was ably made by its sponsor, Senator Boniface, in her second reading speech this past April, and further in her report stage speech last week. I agree with her that the original bill struck the right balance between safeguarding travellers’ privacy while providing border officers the needed enforcement capability to interdict prohibited goods that include child pornography and other obscene material.

Like Senator Boniface, I was also against the amendment made in committee, which raises the threshold from the original bill prescribing under what conditions a PDD can be examined. Simply put, the government believes that the new ceiling for examination which is being put forward in this amendment — which provides for a PDD examination on “reasonable grounds to suspect” rather than on a “reasonable general concern” — is too high. I share that fear.

In my view, the amendment will risk making it more difficult to interdict the importation of dangerous material, which includes child pornography, images of sexual abuse, hate literature or evidence of drug smuggling. If the government agreed with this amendment, it would have adopted it in the legislation in the first place.

A good part of the debate over this bill has centred around the need for striking a balance between the rights of privacy and the protection of Canadian society. That’s as it should be. I would add, however, that the issue of balance also needs to be considered in the context of harm done to victims. Their right to safety and not to be exploited by the recurrent circulation of harmful images ought to be part of this balance.

In her appearance before the committee, the general counsel for the Canadian Centre for Child Protection, Monique St. Germain, noted that between the years 2010 and 2020, Statistics Canada reported a 488% increase in the number of images and videos of child sexual exploitation. This is a number of deep concern. To quote Ms. St. Germain:

In the study of this bill so far, there is a lot of focus on the privacy interests of individual travellers. What has not yet been discussed is the safety, privacy and security interests of the children who are depicted in child sexual abuse material. We live in a world where this horrific material can be easily stored and hidden on a device you keep in your pocket and share to a worldwide audience via websites, encrypted apps and the dark web.

The children who are exploited in these images rely on us to protect them. When the material such as this is smuggled across the border, the children in the images have no power to stop it.

The surfeit of this type of material demands that border officials be given the maximum amount of flexibility that the law will allow. As an example, one of the individuals whose case has prompted the need for the creation of a threshold was found to have had a total of 4,411 pictures and 53 videos of child pornography on his devices. As it happens, his conviction and that of another man at the centre of this case was upheld, even though the Charter rights had been infringed.

Let me offer a couple of examples of how CBSA officers operate.

In one case conveyed to our office, a Canadian male citizen returned to Canada after a one-day trip to the Philippines, where he had been denied entry after having been placed on a sex offender registry due to a prior incident in the U.S. An examination ensued and an image of child pornography was found. The RCMP was called.

In another case, an individual arrived home from Thailand and was referred to a secondary officer due to his lengthy stay in a country known for sex tourism. The individual exhibited nervous behaviour that included stuttering, perspiration and swaying as his bag was searched. When he refused to answer questions about the contents of his digital devices, officers searched the PDDs and found images and videos depicting child pornography. Would these examinations still have been made under the amendment? If the answer is no, then it needs to be reconsidered.

It is instructive to know that, while CBSA may examine PDDs for a large variety of contraband ranging from an undervaluation of goods to messages on human trafficking, narcotics and money laundering, a full 40% of found contraband involves seizures of child pornography.

Somewhat overlooked in the debate we’ve had over this bill is its role in furthering the overall objectives of the CBSA. According to the mandate page of Public Safety Canada, one of the chief roles of the CBSA is — among others — to stop people and goods at the border that pose a potential threat to Canada. I fear that adopting a higher threshold will make it more difficult to achieve this mandate which, after all, is what this bill was intended to accomplish.

Indeed, as the CBSA is forced to use the higher threshold in Alberta and Ontario while it awaits the new law, enforcement has been affected. Both Minister Mendicino and departmental public servants testified to this at committee. It is early days, but according to CBSA vice-president Scott Millar, examinations in those two provinces have dropped approximately 60%. One could conclude from these numbers that, had the higher threshold been in place before the court cases were decided, at least some of the individuals who were previously caught would have passed through customs unexamined with their contraband intact.

The passage of the summer will give us a better understanding of whether these lower numbers reflect a pattern and whether a reduction in examination equals a corresponding reduction in the interdiction of contraband.

I would like to turn briefly now to privacy issues raised by some of our colleagues, who have argued for the amendment by saying the original bill will not pass constitutional muster, dooming it to a constitutional challenge in very short order that could take years to adjudicate. With due respect, my learned colleagues, an opinion even from our august body isn’t necessarily indicative of how the Supreme Court of Canada would rule, and we shouldn’t assume we know what the courts will say. I’m not comfortable when we put our views against the opinions of government, which relies on its own battery of constitutional expertise. I’m not a constitutional expert, so it seems wiser to me to let the courts decide while the legislators defer to the very clear intent of the government.

We may disagree with the balance that the government has struck and prefer to use a threshold that errs more on the side of privacy, but the government has overtly rejected that option by adopting a threshold that is not as stringent as the one the Senate committee wants, albeit stronger than what was in place.

The Alberta court itself said there appeared to be room for this middle approach:

. . . in our view the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act.

Colleagues, this at the very least indicates that the courts will consider something less than “reasonable suspicion” when they themselves hear arguments in the future.

I might also want to add that other amendments put forward by Senators Dalphond and Wells on solicitor-client privilege and network connectivity, as well as the government’s regulatory proposal, will in and of themselves make decisions about border interventions more rigorous. Perhaps changes such as these are what the court had in mind when leaving open the possibility that something less than “reasonable suspicion” would be acceptable.

I would also note that the original bar in this bill is higher than the level which exists in many jurisdictions with similar legal systems to our own, including the United States, Australia and the United Kingdom. The fact that the bill will almost certainly be challenged should provide some succour to those who believe it goes too far in either direction.

Nonetheless, I acknowledge our role here is made somewhat more difficult by the fact that the bill started in the Senate rather than the other place. As a chamber of sober second thought, I would prefer that bills of this import come to us after colleagues in the other place have dealt with them and made their own changes if need be. This could have guided us.

Despite my concerns, I do believe this bill needs to pass, for no less a reason than we have two competing enforcement processes being administered in our country today. This creates an inequality in law that needs to be rectified as soon as possible.

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Furthermore, the issue is one of significant concern for our relationship with the United States. It has long been a goal of our nation to pursue policies that enhance and streamline cross-border traffic. The thickening of the Canada-U.S. border is an issue that should be top of mind for all legislators. That becomes more difficult if we are seen as unable to get our act together.

I would also add that our border security is challenged daily by new digital technologies that require significant dexterity on the part of the CBSA. This bill underscores the challenges we face. It may well be time for a new and wider policy discussion on an updated security plan. The tragedy of 9/11 was a long time ago, and we haven’t had a comprehensive discussion of these issues since then.

Allow me to conclude by saying that, despite the understandable concerns expressed for privacy and the threats posed by criminal activity, like the importation of child porn, I believe our border officials conduct themselves for the most part with restraint and will continue to effectively do their jobs while we await what will hopefully be a prompt and well-considered passage of this bill. Thank you.

Senator Gold: Yes, of course.

Hon. Mary Jane McCallum: Senator Gold, would you take a question?

Senator Gold: My hearing wasn’t so good. Of course.

Senator Simons: I wish I could say one last question, but I cannot make you that promise.

Senator Gold: Thank you for that. I’m aware of that testimony. What we do best in the Senate, as we often say — but it is true — is the rigour of our committee work.

The point we need to remember, however, is that the CBSA has been operating for some years now with a set of policies governing how these devices would be searched. The court found that it failed the constitutional test because these policies were not prescribed in law.

The government’s position is that by legislating the rules and procedures, some in law and some in regulations, they were satisfying the constitutional requirements as set out by the court.

If I may venture an explanation, I think that explains why Bill S-7 does not necessarily change on the ground the ways in which border officials will determine whether to conduct a search. That was my understanding of the response to the question about additional resources.

Hon. Marc Gold (Government Representative in the Senate): Thank you for your question, senator. The government believes that contractors and subcontractors in the construction industry deserve to be paid promptly. Regarding the specifics of your question, I will have to make inquiries with the government and report back to the chamber.