- Member of Parliament
- Member of Parliament
- NDP
- Esquimalt—Saanich—Sooke
- British Columbia
- Voting Attendance: 67%
- Expenses Last Quarter: $148,586.11
- Government Page
Madam Speaker, I am pleased to rise in support of Bill C-316 at second reading. This is a bill that would amend the Department of Canadian Heritage Act to require the minister of heritage to maintain the court challenges program. In other words, it would simply take an existing program and entrench it in legislation.
Why do we have to have something to entrench an existing program in legislation? It is because the Conservatives, twice before, have eliminated the court challenges program. I do not necessarily believe there will be a future Conservative government, but the fear is that a future government would be able, in the absence of this legislation, to simply eliminate this program without coming back to Parliament. Therefore, this is an important change.
As always, the Liberals have done the minimum here. There are some other things we could have done to support the court challenges program. As a Parliament, we could expand its mandate because, right now, it is severely limited to only minority language rights and equality rights under section 15. There have been many calls from the legal community to expand the mandate of this program so it could apply to other cases where, frankly, the government has not taken leadership in protecting rights but where people lack the resources to bring these cases themselves. Court challenges can take years. They can cost literally hundreds of thousands of dollars.
What this program does is level the legal playing field for those who want to defend their rights against the government or against abuse by others in Canadian society. This program has been in existence, off and on, for 30 years, but it has played a very important role in helping defend women's rights, indigenous rights and the rights of other marginalized Canadians, so it is important that we make sure this program endures.
The program was created in 1978 on the issue of minority language rights. When the Charter was adopted, it was expanded just a tiny bit to add equality rights. The program was cancelled by the Conservatives in 1992 before being brought back by the Liberals in 1994, only to be cut again by the Conservatives in 2006. Then we had a big gap. In 2015, both the Liberals and the New Democrats campaigned to restore the program. The justice committee, in 2017, recommended not only that this be entrenched in law, but also that the mandate be expanded. That part is missing from this bill, but in 2018, the program was restarted.
Let me give some examples of kinds of things this program has done. It financed the case that resulted in ending discrimination related to access to what we used to call “maternity benefits” under what was then the UI act. It helped establish what is now known as the rape shield law, which prevents the accused from using the sexual history of a sexual assault complainant as a defence.
The program funded the cases that resulted in restricting access to victims' personal records, such as counselling records, in sexual assault cases. Again, this ruling would not have happened otherwise because women who have been the victims of sexual assault do not have the resources to bring forward this kind of case and fight it through court. Therefore, the Women's Legal Education & Action Fund, LEAF, applied to the program and received funding, which resulted in this very important decision.
One more example is that sex-based discrimination under the Employment Insurance Act for part-time employees who are women was ended as a result of the case. Again, it was brought by LEAF with funding from the court challenges program. We have a very strong history of defence of women's rights.
There are a couple more cases I could provide, but a favourite of mine, as a gay man, is Egan v. Canada in 1995, where two gay men who had been in an intimate relationship for 30 years were denied old age security benefits because they did not fit the definition of a spouse. There was a case, this time by the Metropolitan Community Church of Toronto, taken to court to say that this was unfair because they had been a couple and Egan had paid into these benefits, including to old age security, Canada pension and things like that. This established equal spousal rights in the time before equal marriage.
In one last case, Daniels v. Canada in 2016, it was established that the status of Métis and non-status Indians under the Indian Act were protected. This was brought by the Congress of Aboriginal Peoples, who, again, did not have great resources to spend literally hundreds of thousands of dollars on lawyers.
What is really clear is that there is broad support in the legal community for this program, including and especially in the advocacy of the Canadian Bar Association. There are certain precedents, as I mentioned, about the mandate not being broad enough. Cindy Blackstock and certain disability advocates have demonstrated why we need to expand that mandate so that cases of people with disabilities and of aboriginal women could more easily get into court.
I am going to take a minute to talk about recent events, which I think point to upcoming challenges to the rights of the 2SLGBTQI+ community and particularly to those of transgender and gender-diverse Canadians, who are among the most marginalized Canadians and those with the fewest resources.
Hate crimes against what I like to call the queer community, in reclaiming language, are up. They are up shockingly high. The official figures of those reported to the police show a 64% increase in one year in hate crimes directed against the community. Hate crime data from the police does not actually separate out crimes against trans folks, but a sampling that has been done by academics found that, first of all, hate crimes against the queer community, and particularly the trans community, are more likely to be violent. In the case of gender-diverse people, 80% of hate crimes involve violence. This is where government policies, particularly of certain provincial governments, are fuelling the hate, which has direct results of violence in the community.
I want to talk about the anti-trans school policies in Saskatchewan and New Brunswick for just a minute, because I think the trans and gender-diverse communities are going to want to make sure there is a court challenge to these policies. Without a program like the court challenges program, this would not happen. In August, Saskatchewan announced policy changes requiring parental consent for trans students under the age of 16 to be called by their chosen name and pronoun at school. We do not ask parents whether “William” can be “Billy”, but somehow when it comes to trans kids and their identity, we are creating in Saskatchewan a special bar to using names and pronouns that reinforce the student's identity. The policy was quickly challenged by the University of Regina's pride centre. After a hearing, an injunction was granted that paused the implementation of the policy. The same day, Premier Scott Moe announced he would invoke the notwithstanding clause, and he called an emergency session of the Saskatchewan legislature to enact Bill 137, which amends the education act and includes the notwithstanding clause.
A government used what was really the nuclear option in law to take away rights from kids. It falls into the category of what I would call the spillover of American rhetoric into Canadian politics. It talks about parental rights instead of what we have in Canadian law of parental responsibilities and children's rights. Parents have a responsibility to nurture their kids and to affirm their kids. We know that school peers who use their chosen name and pronouns experienced 71% fewer signs of severe depression, a 34% decrease in reported thoughts of suicide and a 65% decrease in suicide attempts. Therefore, this is a policy that causes great harm. The government could do more to provide leadership in fighting this rising tide of hate, in particular by implementing the 29 recommendations in the white paper on trans rights tabled last June. In fact, e-petition 4666 went up today, asking it to do just that.
In conclusion, New Democrats support Bill C-316, even though we would like to see more from the government to support the court challenges program. It is still important to entrench the program in law in order to make it harder for any future government to eliminate the program. As I said, the court challenges program could use an expanded mandate to be able to fund cases beyond minority language rights and section 15. The program could use increased funding to ensure that it can fulfill its purpose in levelling the playing field on rights in the courts, so that not just those who are already rich and privileged can defend their rights and seek fairness in the courts. Even in the absence of these further improvements, we hope to see expeditious passage of the bill through all its remaining stages.
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- Jun/16/22 11:53:32 a.m.
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- Re: Bill C-9
Madam Speaker, I will turn to the substance of Bill C-9 in a moment, but first I want to talk about how we got here, a process that for me illustrates disarray on the government's side in this 44th Parliament. Some days it still seems almost as if the Liberals really did not expect to have to govern after the last election.
Certainly, the bill was essentially ready to go well before the pandemic hit. For unknown reasons, the government decided to have it introduced in the Senate on May 25, 2020, as Bill S-5, and it died there when the unnecessary 2021 election was called. Then it was reintroduced by the government leader in the Senate as Bill S-3 on December 1, 2021. After a dispute over whether the bill could actually be introduced in the Senate as it would require a royal recommendation to allow expenditures by the Judicial Council under the bill, the bill was withdrawn from the Senate on December 15, 2021, and reintroduced as a government bill, Bill C-9, in the House on December 16, 2021, if members can follow that bouncing ball.
Despite the disarray on the government side, the bill still seemed to be a priority for the Liberal government as it was included in the December 2021 mandate letter for the Minister of Justice. There, the Prime Minister directed that the Minister of Justice, “Secure support for the swift passage of reforms to the judicial conduct process in the Judges Act to ensure the process is fair, effective and efficient so as to foster greater confidence in the judicial system.”
That's fair enough, and no doubt there is important work for us to do on improving the process by which complaints against federal judges are handled. However, here we come to the question of priorities of the Liberals and their effectiveness when it comes to addressing, in a timely manner, the pressing crises in our justice system and, of course, the question of the persistent obstructionism of the Conservatives, as the official opposition, in this sitting of Parliament.
While I remain disappointed that the government chose to ensure the defeat of private member's Bill C-216 from the member for Courtenay—Alberni, which would have decriminalized personal possession of small amounts of drugs, we have made some progress on the opioid crisis. Pushed into action by the impending vote on the private member's bill, the Liberals, after months of delay, finally granted an interim exemption to the provisions of the Controlled Drugs and Substances Act for British Columbia, in effect decriminalizing personal possession for small amounts of drugs for the next three years.
That's a good thing, yes, but it only raises the question of why wait another six months. This delay seems likely to ensure that 2022 will eclipse the appalling record set in 2021 in British Columbia for the greatest number of overdose deaths in B.C. Also, why only British Columbia? The epidemic of deaths from toxic drug supply continues unabated across the country and in all corners of the country, both urban and rural. Passing Bill C-216 would have allowed us to begin to apply the tools we know that work right now: decriminalizing the personal possession of small amounts of drugs and guaranteeing a safe supply of drugs for those suffering from addictions. Bill C-216 would have brought a permanent change to the law to guarantee that addiction is dealt with as a health matter and not a criminal matter.
The crisis that demands urgent action is, of course, systemic racism in our criminal justice system. The most prominent evidence of the reality of this crisis is the over-incarceration of indigenous and Black Canadians in this country. All members by now are familiar with the shocking facts that indigenous people are more than six times as likely as other Canadians to end up incarcerated and that Black Canadians are more than twice as likely. Most shocking I think to all of us is the fact that indigenous women make up 50% of women incarcerated in federal institutions when they are less than 5% of the population.
Of course, injustice does not end with incarceration, as there is the legacy of the resulting criminal record. Not only have indigenous and racialized Canadians been disproportionately targeted for investigation, prosecution, fining or imprisonment, the most marginalized among us then end up stuck with criminal records. These are criminal records that make getting a job almost impossible, criminal records that often restrict access to affordable housing or even ordinary rental housing because of criminal record checks, criminal records that make volunteering with kids and seniors impossible, criminal records that restrict travel and criminal records that even make it difficult to get a bank loan or a mortgage.
The good news is that we have taken some steps to address the systemic racism in our court system with the passage of Bill C-5 yesterday. As soon as the Senate acts, we will see the elimination of 20 mandatory minimum penalties, most importantly those in the Controlled Drugs and Substances Act, which fell very heavily on indigenous and racialized Canadians and have been a major contributor to over-incarceration.
Again, we would have liked to see bolder action here with the expansion of the existing Gladue principles to give judges discretion to waive all remaining mandatory minimums when it would be unjust to impose them on indigenous or racialized Canadians due to their circumstances. Unfortunately, this was not in the bill. One may ask why I am going on so long about this. It is judges' discretion that will make a big difference, so people have to have confidence in the judiciary.
Despite the public image that we never co-operate in Parliament, we had good co-operation in the justice committee. That co-operation allowed the passage of my amendment to Bill C-5, which will see the elimination of criminal records for personal possession of drugs within two years through a process called sequestration. What this means in practice is that these records will no longer show up in criminal record checks.
Today, we are moving on to debate Bill C-9 and finally, some members may say, I am coming to the substance of this bill. This is a bill to reform the process for handling complaints against federal judges. As I said, it is important in our system to maintain public confidence in those judges. Is this a crisis? Clearly it is not. Is it as urgent as decriminalizing drugs or removing systemic racism in our justice system? Clearly it is not. Is this as important? I would argue that in fact it is, because trust in the integrity of our justice system is integral to the fate of our democracy, especially in these trying times. We have to have faith in the integrity of the justice system and that means in the judges themselves, so we have to do better when it comes to holding the judiciary accountable, but we have to do so in ways that respect their fundamental independence and protect the system against government and political interference.
Bill C-9 suggests ways in which we can do this and, as I mentioned at the outset, measures have been ready to go on this for a very long time. Can we do better on holding judges accountable? Yes, we can, but it took well over two years for the government to get this bill before the House today and many of the ideas in it were first proposed in Canadian Bar Association reports as early as 2014. Some appeared in private members' bills tabled in the House as early as 2017, so it is past time to get to work on this bill.
Let me distinguish just for a moment what we are actually talking about. We are not talking about mistakes in law that occur from time to time in the federal courts. There is a clear remedy for these kinds of mistakes, and it is the appeal process. Instead, we are talking about the failure of federally appointed judges to meet the high standards that have been set for them and that we naturally should demand of them. That is either when it comes to personal conduct or to maintaining impartiality on the bench.
I should say from the outset that the Canadian record is remarkably good when it comes to cases of serious misconduct warranting removal from the bench. In the history of Canada, the Canadian Judicial Council has recommended removal for only five federally appointed judges. Four of those resigned before Parliament could deal with their cases, and the fifth before Parliament could act on the case. Whether these judges resigned before being removed solely to protect their pensions, which has been alleged, or simply to avoid the stigma of being the first federal judge ever removed by Parliament, I leave for others to judge.
Leaving the process in the hands of judges themselves is probably necessary, as this is both a key and crucial feature of our current system. It is the one that guarantees governments cannot influence the decisions of judges by threatening to remove them from office. Complaints about federally appointed judges are handled by the Canadian Judicial Council, which is made up of the 41 chief justices and associate chief justices of federally appointed courts.
The Canadian Judicial Council is chaired by the chief justice of the Supreme Court of Canada, who appoints a committee to examine complaints. If a complaint is initially found to have merit, a three-judge panel examines the complaint and either decides to dismiss it, to recommend no further action because the misconduct does not warrant removal from the bench, or to hold a public inquiry. Again, this is relatively rare, with only 14 inquiries held over the past 40 years.
If there was an inquiry, the committee would then forward its findings to the full Judicial Council, along with a recommendation on the possible removal. If removal is recommended, the judge has the right to appeal to an appeals panel and, if needed, further appeal beyond that. The Supreme Court of Canada can choose to hear the appeal directly, but the current process is that the case would be heard at the Federal Court and the Federal Court of Appeal before the Supreme Court of Canada could hear the case. This seems unnecessarily complicated and provoking of unnecessary delay. Bill C-9 would address the problem, but while the current system does work in the most serious cases of judicial behaviour, the process is long and drawn out.
Bill C-9 would also address the major gap in the current process, which is that it has proved largely ineffective in dealing with cases of misbehaviour that would not be serious enough to warrant removal from the bench. This is the fact: There is only one possible remedy in the current process, which is removal from the bench. Serious misbehaviour, though rare, is not hard to spot as it always involves law-breaking by the judge concerned or outright corruption.
Less serious complaints about misbehaviour are almost always about the question of impartiality. What would an example be of this less serious misbehaviour? A case in Saskatchewan in 2021 is a case in point. Five complaints were received about a judge who appeared in pictures with a group indirectly connected to a case on which, though he had finished hearings, he had not yet delivered judgment.
The judge in this case agreed this was a serious error on his part and that it could reflect negatively on perceptions about his impartiality in the case before him. The complaints did not proceed, as almost no one thought the judge should be removed and he had promised it would never happen again. Under the current provisions, no action could have been taken, if the judge had disputed the allegations, other than to recommend his removal from the bench for appearing in a photograph.
Bill C-9 would allow for additional remedial options other than the current sole option of recommending removal. The bill proposes the referral of complaints to a three-judge review panel, which might find removal to be warranted, and then the review panel could refer the complaint to a larger five-judge hearing panel. At the review stage, however, the review panel could still dismiss the complaint or impose remedies other than removal.
What would Canadians get out of these changes? Most importantly, they would get confidence in the judiciary that would be better maintained by having a process that was both more timely and could deal more effectively with less serious complaints. This should help prevent the judicial system from falling into disrepute and help preserve the very important trust in the impartiality of the judiciary.
Bill C-9 might actually save some taxpayer money on cases involving allegations of misconduct by federal judges, as the current process can stretch out for years. Cases involving serious misconduct now often take up to four years to resolve. Bill C-9 would expedite that process by removing the two levels of court appeals that I mentioned.
At the same time, there also may be an increase in costs for dealing with less serious allegations as there would be more options available that are currently dismissed early in the process. The benefit here is that less serious cases would no longer simply be dismissed, and instead sanctions for remedies would be possible.
In the end, and after hearing debate today, I believe Bill C-9 should prove to be relatively uncontentious. The Canadian Bar Association was part of the consultations that were held by the judicial council when Senate Bill S-5 was being drafted in the previous Parliament. There was a broader consultation that dealt with measures to clarify expectations on what constitutes “good behaviour” for federal judges that are largely set in regulations. Bill C-9 simply reforms the process for dealing with judges who fail to meet those standards.
Bill C-9 would also require more transparency with regard to how complaints are handled. The Canadian Judicial Council is responsible for administering this process, and Bill C-9 would require the council to include the number of complaints it received and how they were resolved in its annual public report.
In conclusion, New Democrats support modernizing the process for complaints against federally appointed judges, and we support adding alternative remedial options behind the current sole option of removal from the bench. The bill would allow for varied sanctions such as counselling, continuing education and other reprimands. New Democrats are supportive of streamlining and updating the process to handle complaints against federally appointed judges. This process has not been updated for 50 years. It is time for a modern complaint system for a modernized judiciary, and one that will help increase public confidence in federal judges.
The bill provides an opportunity for parties to work together to get an important reform in place, as it is yet another example of things that did not get done earlier because of the unnecessary 2021 election. We should get this done so that we can then turn our attention back to tackling the serious issues in our justice system that remain, and to confronting the opioid crisis that is better dealt with as a health matter than a judicial matter. I hope to see Bill C-9 advance quickly through the House and in the other place.
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- Jun/14/22 11:55:24 a.m.
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- Re: Bill C-5
Madam Speaker, I am happy to rise virtually to speak to Bill C-5 at third reading, but I have to say that I look forward to the day when circumstances do not force me to give speeches through pinhole cameras, with all the technical problems that go with it.
I want to start today by talking about what Bill C-5 is and what it is not. I want to say clearly, as we approach third reading of this bill, that I am happy to speak in support of it because of what is actually in it.
Though modest, Bill C-5 is an important contribution to tackling the systemic racism in our justice system. All we have to do is take a brief look at the statistics, which show that despite no more involvement with drugs by certain communities and no more involvement in criminal activities, certain members of Canadian society, indigenous people and racialized Canadians, end up in prison far more often, far out of proportion to other Canadians.
The correctional investigator pointed out that indigenous people make up less than 5% of the population, but over 30% of the people in Canadian prisons. Canadians who identify as Black are about 3.5% of the population and over 7% of those who are in prison. The situation is worse when it comes to indigenous women and women who live in poverty. These women make up over 50% of the population in women's prisons. Again, if we look at Black Canadian women, they are about 3% of the population but make up over 9% of the inmates in correctional institutions. Clearly, we have a problem with systemic racism in our justice system.
Bill C-5 would also make a modest contribution to the fight against the toxic drug poisoning crisis in our country. Removing mandatory minimums for drug offences and increasing the ability of police and of judges to divert those who are struggling with addiction from prison to treatment will obviously help.
Is there more we can do on both systemic racism and the opioid crisis? Clearly there is.
Let me talk at the outset about what Bill C-5 does not do, because we have heard many outrageous claims, from the Conservatives in particular but sometimes also from the Bloc, about what the bill does. The bill does not in any way reduce sentences that judges will hand out for serious crimes. Removing mandatory minimums does exactly what it sounds like: It removes the minimum penalty for an offence, not the maximum, not the average, not the normal penalty, but the minimum.
The evidence we heard at committee, as well as the evidence in criminal justice, is quite clear. The mandatory minimums do not deter crimes. There are very few criminals who thumb through the Criminal Code to decide which offence offers them the best deal, obviously. We know from research what the real deterrent is, and that is getting caught. All criminals tend to think that they are the smartest in the bunch and will not get caught, but it is that fear of enforcement that is actually a deterrent to crime.
The evidence shows us that mandatory minimums, if anything, actually increase the likelihood of recidivism and that in fact their existence makes the public, if anything, less safe rather than more safe. We should pay no attention to those who tell us that Bill C-5 is soft on crime. Instead, let us look for a moment at what it actually does.
It removes 20 mandatory minimum penalties: 14 from the Criminal Code and six from the Controlled Drugs and Substances Act. There are many more mandatory minimum penalties that could be removed, but we heard from experts that these 20 will make a significant difference when it comes to the overrepresentation of racialized and indigenous people in our correction system.
New Democrats do support maintaining mandatory minimums for the most serious, violent crimes, where there is evidence that longer times of supervision may make a difference and may be necessary for public safety, but we acknowledge that all mandatory minimums can and do have disproportionate impacts on indigenous people and racialized Canadians.
That is why we attempted to amend Bill C-5 at committee to add a waiver restoring judicial discretion in offences with mandatory minimums when it would be manifestly unjust to apply those mandatory minimums. This is in line with the Gladue principles, which require judges to consider the circumstances of aboriginal people when it comes to sentencing. Unfortunately, in the laws that exist right now, the Gladue principles do not apply where there is a mandatory minimum.
I do have to point out that I think the member for Rivière-du-Nord, from the Bloc, misremembered what happened at committee. There were several attempts by several MPs and parties to add this kind of waiver to Bill C-5, but due to the narrow drafting of the bill, unfortunately, they were ruled out of order, outside the scope of the bill, so no one voted against adding this waiver.
Again, New Democrats do support adding a parallel provision to the Gladue principles requiring judges to take into account the circumstances when it comes to sentencing racialized Canadians as well. This kind of waiver would be a further improvement to our attempts to attack the systemic racism that exists in our justice system.
Again, what is actually there? There are 20 mandatory minimums, most of which specify terms of imprisonment of less than two years, that would be removed. What this means is that if there is a mandatory minimum of less than two years, generally not much time would end up being served. When we take into account time that may have been served before the trial process, and when we take into account provisions for earlier release for good behaviour, which is essential for maintaining discipline within our corrections system, then the time served under these mandatory minimums would be very, very short in most cases.
It also means that the time would be served in provincial institutions, and those provincial institutions generally do not have extensive rehabilitation programs, due to the short time most offenders spend there. Obviously, if people are in custody only for a few months, they cannot really complete an addictions treatment program. They cannot really get training that might allow them to get a better job when they leave the corrections system. They cannot even complete literacy training, which is often important for those who have come into the criminal justice system, in that very short period of time. There is not enough time spent in custody, under these mandatory minimums, to get any real help that would allow people to be rehabilitated back into society and make them less of a threat to public safety.
What there is under these mandatory minimums is a guarantee that the offenders would serve just enough time to lose their job, their housing and often the custody of their children. These are pretty heavy additional penalties that I do not think were ever intended for things like personal possession of drugs. It is just enough time to make it more likely that the offenders would return to the behaviour that got them into trouble in the first place, rather than become successfully reintegrated into their community.
Instead of mandatory minimums, Bill C-5, and this is important, would grant additional access to conditional sentences, so judges may choose conditional sentences over those mandatory minimums right now. This means that judges may assign penalties like serving time on weekends or serving time under house arrest. This is important, because the Conservatives are again distorting what the bill would do. Judges are allowed to use conditional sentences only in those cases where the penalty being assigned is less than two years in custody. The kind of extreme examples the Conservatives are giving of things that would be subject to conditional sentences simply are not in this bill.
What a conditional sentence might do, if people serve time on weekends, is allow them to keep their job and be able to continue supporting their family. Time served under conditional sentence in house arrest might allow people to be the primary caregiver of their children and remain in the home so their kids do not go into custody. It could allow them to keep their family together. We have all seen the terrible impacts on both indigenous Canadians and racialized communities of kids ending up in care in a system that has just as many problems with systemic racism as our justice system does.
Again, Bill C-5 does nothing that would reduce the amount of time judges hand out for serious crimes, nothing at all. Judges' discretion and sentencing guidelines mean that serious crimes would continue to get serious time in custody even after Bill C-5 passes.
The third aspect of Bill C-5, the third major thing it would do that is actually in the bill, is that it would increase the ability of police and prosecutors to use warnings and diversions instead of charges when it comes to drug possession offences. The use of alternative measures, like warnings and referrals to counselling for low-level criminal offences, not only avoids wasting expensive court time and evades further delays in our court system, but there is the obvious connection made to diversion and avoiding future involvement in criminal activities. The obvious benefit of diversion is that it allows people to get drug treatment and get out of the addiction problems that led them into conflict with the criminal justice system.
All of these aspects of Bill C-5 would increase public safety and not, as opponents of the bill would have us believe, put public safety further at risk. No one denies that there are many crises in public safety we need to address, but what Bill C-5 does is create room in our criminal justice system to address the most serious crimes by taking the less serious crimes out of the justice system and allowing judges to apply penalties that would be the most appropriate, not just for the offender, but for making sure that offenders do not reoffend, thus helping defend or protect public safety in the community.
These three things, the elimination of 20 mandatory minimum penalties, increasing access to conditional sentences and increasing access to diversion, are why New Democrats said we would support the bill at second reading. Frankly, we were not that excited about this bill, because we had hoped the Liberals would be bolder when it came to tackling the problem of systemic racism in the criminal justice system. People may often hear that Parliament is dysfunctional and that we do not co-operate, but what we proved at the justice committee is that there can be co-operation to improve bills. At committee, we proposed four amendments, two of which were adopted, and I can say that personally I am now a lot more excited about the bill.
The first amendment adopted requires that records be kept on the use of discretion when it comes to diversion. That is important because keeping records on diversion will open up the use of police discretion to study and accountability. It will ensure that we can check that discretion is not just being used to favour those who are already the most privileged in society, but is being used fairly when it comes to indigenous people and racialized Canadians. The amendment also guarantees that warnings and diversions cannot be used in further court proceedings. That is an important factor in that it guarantees there is a real incentive to complete things like diversion.
The final amendment that was adopted tackles the question of criminal records for the personal possession of drugs. Bill C-5 would now guarantee that within two years all of these records will disappear, so that those who are often denied housing, employment, the ability to travel, bank loans and mortgages or the ability to volunteer with seniors or children will actually have those criminal records removed and be able to pursue rehabilitation into society that would allow them to make their way forward in life, just like other Canadians.
The Liberals previously set up a record suspension process for marijuana when it was legalized, but I have to point out that that process cleared the records of only 484 of the hundreds of thousands of people with records for simple possession. Bill C-5 will now clear them all. It will clear them all without an application process and without a fee.
Our amendment also dealt with future conditions for the personal possession of drugs, which is still possible after the government ensured the defeat of Bill C-216, the private member's bill of the member for Courtenay—Alberni, which would have decriminalized the personal possession of drugs completely. Since those convictions are still possible, what Bill C-5 now does, with our amendment, is guarantee that any new convictions will disappear from criminal records two years after the end of any sentence resulting from those convictions, and not result in a lifelong criminal record that has all those negative impacts I just talked about. This process, which the government is calling the “sequestering of records”, will make sure those criminal records do not show up in criminal record checks, and 250,000 Canadians will benefit directly.
Let us not listen to the naysayers who are trying to stir up public safety fears about Bill C-5. It is more than a little frustrating, when the bill will actually do so much more to help make our communities safer. It is frankly maddening to see opponents of this bill ignore its real impact in beginning to address the systemic racism that afflicts our justice system and makes the lives of so many indigenous and racialized Canadians that much harder.
Is this bill everything that community advocates hoped to see? No, it is not. The Liberals could have been bolder, as I said before, in addressing both systemic racism and the opioid crisis, but is Bill C-5 a significant step forward in addressing these concerns? I believe it is, and that is why New Democrats are happy to support Bill C-5 at third reading today.
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- Dec/13/21 12:32:49 p.m.
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- Re: Bill C-5
Madam Speaker, let me start by thanking the voters of Esquimalt—Saanich—Sooke for sending me back to the House once again, this time for a fourth mandate. In particular, I would like to thank my partner for more than 20 years, Teddy Pardede, for his constant and enduring personal and political support. My role as an MP is now taking up more than half our relationship and I will never be able to repay him.
As I said during the campaign, I very much wanted to come back to the House to be able to deal with unfinished business from the last Parliament. Indeed, there were lots of things we made progress on that were cut short by the early and unnecessary election. That is why I was pleased to see the quick passage of the ban on conversion therapy, Bill C-4, unanimously no less, both here and in the other place.
There are other examples of bills on which this House had held hearings, had achieved a broad consensus on moving forward and is now able to do so. Those include my Bill C-202, to make coercive and controlling behaviour and intimate partner relationships a criminal offence and Bill C-206, which would remove self-harm from the military code of conduct as a disciplinary offence and instead make sure that self-harm is treated as the mental health challenge that it truly is. I hope we can find a way to move forward on both of those bills that were left undone in the last Parliament.
Today, here we are debating Bill C-5. I am frankly surprised to be up on Bill C-5 so soon because its predecessor was not one of those bills which had been to hearings and it was not of those bills where we had lots of discussions about how to come to a consensus on what needed to be done. Normally, I would be glad to see the House moving quickly to get stuff done that sat on the back burner for far too long. That would be especially true of the issue of systemic racism in the justice system and it would be even more true of the opioid crisis on our streets today.
However, Bill C-5 is a virtual carbon copy, to date myself with an archaic phrase, of Bill C-22, which the government introduced at the eleventh hour in the last Parliament. At that time, we New Democrats clearly told the government we found Bill C-22 to be weak sauce. After its introduction, there were only very limited discussions before Bill C-22 was reintroduced in this session as Bill C-5. In those brief talks I made it clear that New Democrats wanted to see a bill with a few more teeth. We have a crisis of over-incarceration, we have a crisis of opioids on our streets, and the bill is not strong enough.
I am not sure how happy I am to be rushing forward on a bill that remains a half measure, especially when it is not even very clear what it is a half measure of. Here is the first and most important question I have for the government about Bill C-5: Is this a bill to address systemic racism in the Canadian justice system? If so, why is its focus so limited? We know mandatory minimum sentences are one of the causes of the over-incarceration of racialized Canadians and indigenous people. Then why does the bill restrict itself to only removing mandatory minimums for some offences, namely personal possession of drugs and some firearms offences?
We have years of experience now with mandatory minimums. We know they do nothing to reduce crime. We know that they only result in the incarceration of people who have no place in the prison system.
As the over-involvement in the justice system is a real problem for indigenous and racialized Canadians every day, I still have my doubts of some of the provisions in Bill C-5, like introducing those diversion programs instead of more fundamental reforms. In the absence of tackling the thorny question of reform of the RCMP, again I still have some doubts about increasing police discretion in drug cases as Bill C-5 proposes.
If Bill C-5 is actually about racism in our justice system, then there is surely much more it could do. I will return to this question later in my remarks. If Bill C-5 is not about tackling the broad issues of systemic racism in the criminal justice system, then is it really about something else? In fact, the heavy focus on removing mandatory minimums for drug crimes might lead us to believe that Bill C-5 is actually about the opioid crisis. If that is the case, then once again, it makes it hard for me to be excited about quick action on the half measures to confront the opioid crisis that we have in the bill, especially when we have known for so long what is needed.
As an elected official, I first spoke in favour of decriminalization of personal possession of all drugs more than a decade ago as a city councillor in Esquimalt. At the time, I argued that decriminalization provided the most effective path, along with safe injection sites, to tackle the emerging problem of deaths from drug overdoses in my community.
Even then, I was able to point to early signs of success in Portugal where decriminalization was adopted in 2001. Since then, Portugal has seen an 80% reduction in overdose deaths. It has seen the proportion of people who use drugs fall from 52% to 6% when it comes to new HIV and AIDS diagnoses. It has seen a decrease of incarcerations for drug offences by over 40%. Instead, in Canada over the last decade, we have seen so many preventable deaths and now this problem has accelerated into a full-blown crisis across the country.
Last month the Province of British Columbia announced a record number of people had died so far this year from overdoses. There were 201 deaths in the month of October alone, the highest ever in a single month. Think of all the families we are talking about, all 201 families affected by the loss of loved ones in a single month in a single province. This is a crisis.
Numbers released by the B.C. Coroners Service show a death toll in the first 10 months of 2021 in British Columbia being 1,782, surpassing the 1,765 deaths recorded in all of 2020. B.C.'s chief coroner, Lisa Lapointe, was direct in her assessment of the situation in B.C., a situation no different than any other jurisdiction. “Simply put, we are failing,” she said. With six people dying every single day in British Columbia, the status quo cannot be accepted.
That is why recognizing the stark reality of the opioid crisis, the City of Vancouver, the Province of British Columbia and now the City of Toronto have all three applied to the Minister of Health for an emergency exemption from the provisions of the Controlled Drugs and Substances Act that criminalizes personal possession of small quantities of illegal drugs. They are asking that we recognize that criminalization only adds more harm to the toll addiction takes on its victims.
Where are the Liberals on decriminalization of so-called “hard” drugs, either as a temporary exemption or permanent strategy to shift our response to addiction from punishment to health care? One might be surprised to learn that decriminalization is the official policy of the Liberal Party, endorsed more than three years ago at its 2018 convention in Halifax. Perhaps some will be even more surprised to learn that the government was advised to move on decriminalization of personal possession of drugs before the last election.
The previous Minister of Health appointed a commission of experts to advise on drug policies well before that election. Don MacPherson, executive director of the Canadian Drug Policy Coalition at Simon Fraser, was part of the task force that simply said that charging people with simple possession and seizing their drugs makes no sense.
In a CBC Radio interview, MacPherson said, “There's mountains of evidence that show it's a bad thing. It's harmful, it hurts people and there is not really an upside to it.” He continued saying, “So the task force...came fairly quickly to the conclusion that the federal government should immediately start work on putting forward a plan to decriminalize simple possession of drugs across the board.”
The task force submitted that report before the election and has since followed up with the new Minister of Health and the new Minister of Mental Health and Addictions, but MacPherson reports they have yet to hear anything back.
Since we returned to Parliament last month, MPs have been increasingly vocal in raising their concerns about the opioid crisis. Certainly, my leader of the New Democratic Party, the member for Burnaby South, has repeatedly called on the government to commit to moving quickly on decriminalization. This call has come from all parties and all parts of the country, urban and rural.
Last August, during the election campaign, even the Conservative leader added his voice to those calling for shifting our approach from punishment to treatment as the way to respond to the opioid crisis, though he did not go quite as far as decriminalization.
Last week, the new member for Yukon, who was previously the Territories' medical health officer before running for the Liberal Party, rose in this Commons to acknowledge that the Yukon has the highest rate of opioid deaths in the country. The new Green MP, the member for Kitchener Centre, made a moving statement in this House on the scourge of opioid deaths in his community.
Indeed, when the new cabinet was appointed, we saw the appointment of the first Minister of Mental Health and Addictions at the federal level, which many of us took as encouragement and acknowledgement of the urgency and seriousness of the opioid crisis.
Therefore, when we know the severity of the problem and we know the solutions, it surely becomes incumbent upon all of us in the House to ensure that we act. Therefore, where is that action? It is not in Bill C-5.
Unfortunately, when it comes to the three emergency decriminalization applications from Vancouver, B.C., and Toronto, we have no indication that things are moving quickly. Under the leadership of Mayor Kennedy Stewart, a former member of the House, Vancouver submitted its preliminary application for an exemption on March 3, and its final application June 1. British Columbia's application was submitted November 1 and Toronto's December 1. It is not like the government has been taken surprise by these requests, yet all the Minister of Mental Health and Addictions is reported to have said is, “We are looking at these proposals very, very seriously.”
At the same time, the minister refused to set a timeline for a decision on these applications. Instead, the minister veered off into an argument that decriminalization alone would not solve the opioid crisis, as if anyone ever thought decriminalization by itself was a solution to addiction rather than an important measure of harm reduction.
The minister said that other options were being considered, including establishing a safe supply of opioids to give injection drug users an alternative to the increasingly toxic fentanyl now on the streets. She indicated the federal government was also looking at setting up more safe injection sites and making more counselling available. Yes, that it is all good, but there is no need to wait on decriminalization while putting together a more complete package.
What was especially disappointing to hear was the minister in one interview referring to these ideas as “innovative”. She should know that these are not new ideas, but rather tried and true harm reduction strategies with a track record of nothing but success.
When it comes to the temporary decriminalization applications, the B.C. minister of mental health and addictions, Sheila Malcolmson, also a former member of this House, told reporters last week that Health Canada staff had identified no barriers to speedy processing and approval of B.C.'s decriminalization application.
Where are we? On the one hand, we see no real sense of urgency on the short-term exemption applications and, on the other hand, that leaves us with Bill C-5, which reflects none of that necessary urgency to move toward permanent and complete decriminalization of personal possession of drugs. The narrow scope of Bill C-5, as drafted, certainly means that, for technical reasons, we cannot likely add decriminalization through amendments at the committee stage.
That brings me back to the question of what is Bill C-5 really about. It seems that in the government's mind, this must be a bill primarily about tackling systemic racism in our justice system. If that is the goal of the bill, is there enough there to support?
Clearly removing mandatory minimums for drug offences would be a step forward. Even better would be removing mandatory minimums for all but the most serious violent offences. That is not there, not in Bill C-5. The frustration with the ineffectiveness of mandatory minimums has gone so far as to see a provincial court judge in Campbell River last week substituting probation for a mandatory jail sentence for a woman convicted of dealing fentanyl to support her own addiction. The judge said that she could see no positive impact of a jail sentence in that case.
Not only does Bill C-5 fail to address cases like the Campbell River case, but as well Bill C-5 is missing other elements that would help right the wrongs caused by systemic racism in the justice system. Let us make no mistake about how serious this problem is.
Correctional investigator Ivan Zinger reported in 2020 that while indigenous people made up 4.9% of the total population of Canada, they made up just over 30% of the people in Canadian prisons. Approximately 3.5% of Canadians identified as Black in the last census, yet Black Canadians make up more than 7% of those in prison.
When we look at indigenous and racialized women, the figures are even more stark. Zinger reported that Black women made up just over 9% of women incarcerated and indigenous women made up a shocking 42% of the population in women's prisons. This is the result of mandatory minimums.
The injustice does not end with incarceration as then there is the legacy of a criminal record. Not only have indigenous and racialized Canadians been disproportionately targeted for investigation, prosecution, diversion, fining and imprisonment, the most marginalized among us then end up stuck with criminal records, criminal records that make getting a job almost impossible, criminal records that often restrict access to affordable housing. Bill C-5 lacks any provision for automatic expungement of criminal records for drug possession, something for which the NDP has been calling for more than two years.
Automatic expungement is clearly what is needed after seeing the failure of the government's program for expedited pardons for marijuana convictions, a program that has granted pardons for less than 500 people of the estimated 10,000 eligible in the two years it has been operating. We need something better; we need automatic expungement of these records.
Again, the narrow drafting of Bill C-5 means, for technical reasons, we likely cannot add those elements we really need to tackle racial injustice to the bill. Certainly we cannot add expungement. It is likely we cannot even add additional offences where mandatory minimums now apply to the removal list.
Therefore, I have a question for the government, one I had already been exploring with it before we rushed into this debate. Is there not a way we can make this bill do more to address both racial injustice and the opioid crisis?
The New Democrats are ready to talk, but we probably need to do so before we reach the conclusion of this second reading debate. There is one possibility I will put forward right now to get the ball rolling, and I have to credit the work of the Truth and Reconciliation Commission, which put forth the following recommendation in call to action 32 more than six years ago. This call to action states:
We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.
This proposal would allow judges to ignore mandatory minimums where there are good reasons to do so, including the good reason that mandatory minimum sentences are, in and of themselves, most often unjust. This call to action to restore discretion to judges over sentencing for offences where mandatory minimums have been imposed is clearly doable, it is just not in Bill C-5.
A way to put this call to action into legislation has been provided in what is now Bill S-213. Again, it is probably not possible to add restoring discretion for judges when it comes to mandatory minimums to Bill C-5 in committee, because this idea is far beyond the scope of the existing bill.
What I am asking of the government is whether we can think about using the relatively rare process of sending Bill C-5 to committee before the vote at second reading. This would allow the Standing Committee on Justice and Human Rights to alter the scope of the bill and to add missing provisions like the TRC call to action 32 to Bill C-5, and to add expungement to it. That would put some teeth in this bill.
Sending Bill C-5 to committee before a second reading vote would require a motion from the minister, and he has that opportunity later today when he speaks.
Let me conclude with this offer to work with the government on Bill C-5. This is renewing the offer New Democrats made when the bill was originally introduced in the last Parliament. I make this offer pointing to the progress we were able to make on bills like Bill C-4 and Bill C-3, when we were able to work together on common goals and purposes.
If sending Bill C-5 to committee before a second reading vote is not the way forward in the government's view, then let us work together to find other ways to strengthen the bill.
Am I optimistic about the chances of Bill C-5 proceeding? With the bill as it stands, can the government actually convince the New Democrats that there is enough in Bill C-5 to justify proceeding quickly or even proceeding at all? As I have said, I have good ideas about how we can ensure that is true.
I know there are misgivings in other parties about certain provisions of the bill, but I also know that no one in the House is unaware of the systemic racism in our justice system and its impact on racialized and indigenous Canadians. As well, I know no one in the House wants to turn a blind eye to the suffering imposed on families by the opioid crisis.
I also know we will not get a lot of opportunities to address systemic racism in the justice system in this minority Parliament and will not get many, if any, other opportunities anytime soon to respond effectively to the opioid crisis. Let us not waste the opportunity we have before us now with Bill C-5 to do one, the other or both—
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