Senator Gold: Of course, I’ll certainly make the request. I’m sure the committee will make its request, and they will produce all the evidence, figures and research that they have.

The art of legislating is the art of dealing with the facts that one has and making a decision in public policy that is deemed to be in the best interests of moving the justice system — in this case the criminal justice system — forward in a more just, equitable and humane way.

Again, I have confidence in the process that we have embarked upon. I have confidence that the committee will have access to all the information upon which the government made its decision. I am hopeful that in the process of examining the legislation in second-reading debate, in committee and again in third-reading debate, when we’re back in the fall, that honourable senators will see the merits of this bill as being a major step forward, not perhaps the last step forward or the only step forward, but a major step forward in addressing an unjust situation in our criminal justice system.

[Translation]

Senator Gold: Thank you for the question. With respect, senator, it is not the case the minister does not recognize the problem. The government and the minister thank the commissioner for her report and take access to information seriously. There are more requests, indeed, and they are more complex. The government is taking action.

I am advised that Library and Archives Canada is creating a task force to address the issues. It is reducing the backlog and developing a long-term plan. The government, for its part, added $25 million in Budget 2022 to make documents related to residential schools accessible to all survivors. The government hopes these measures will improve the situation as set out in the report.

Senator Gold: The attendance of the official at the party was a mistake and unacceptable. It has been so stated by the minister and by the Prime Minister himself. It shall not happen again.

Hon. Ratna Omidvar: Senator Gold, will you take a question, please?

Senator Gold: When I said I wasn’t sure of all the facts, I wasn’t referring to the statistics so much as all the circumstances surrounding the cause of the delays.

I’m not aware of the proportion of workers who are still working at home nor the many different reasons that may explain that. I’ll certainly look into it and report back. Again, I can assure the chamber that the government is very aware of the unreasonably long delays and the impact that’s having on Canadians and is doing its very best to address the situation.

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question and for underlining the very troubling situation that affects so many Canadians waiting for their passport renewals.

I don’t know whether all details are correct. I do know that the government has invested significantly to engage additional personnel to support and supplement the current working staff to address this problem. The challenge is a serious one, and the government is working hard to address it.

I’m advised that the focus is on ensuring that anyone who has travel planned within 25 business days are given priority for service and, although there is no question that processing times are longer than prior to the pandemic and longer than they should reasonably be, 72% of applications are being processed within the service standards.

Senator Gold: I think it’s the position of the government that health labels on beef, pork or any other matter help Canadians make informed decisions. Canadians will, I expect — as will folks around the world — continue to purchase ground beef. Canada produces high-quality beef that is enjoyed in this country and elsewhere, and it’s the expectation of the government that this will continue to be the case.

Senator Gold: Of course.

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

Senator Gold: Sure, one more.

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 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. Salma Ataullahjan: Senator Gold, thank you for your thoughtful and insightful speech. I have a couple of questions.

Senator Gold, multiple reports, including one by the Canadian Human Rights Commission, have found that individuals who are racialized or Indigenous are at a much greater risk of being selected for so-called random screening and extra questioning. One study found that 79% of Muslims — or their friends and family — have experienced unfair treatment. We have heard many times our colleague Senator Jaffer being very vocal about how she is regularly pulled over for random screening.

Do you worry that border guards will misuse their authority to access our phones, which contain intimate details on every aspect of our lives? In fact, our phones have become an extension of our inner lives.

Hon. Brent Cotter: Senator Gold, would you take a question from me?

Senator Duncan: Senator Gold, how do we know if the government will proclaim any of the measures under order-in-council proclamation of Bill C-19 that we are currently studying at the National Finance Committee? Are any of these measures under question?

Senator Gold: Thank you for the question. Again, these questions are best answered — you can ask them to me; everything is fair game — by the officials who have it.

I used the example to illustrate the point, senator, that in every circumstance, especially dealing with weapons as opposed to prohibited firearms, handguns and the like, there are possibly a range of circumstances.

The point to emphasize is that if circumstances like that arise, then we want judges to have the discretion to do the right thing. It’s true; you quite properly point out that police have discretion; prosecutors have discretion. It’s also true, painfully true, that this discretion is not always exercised in an equitable way in dealing with certain offenders, racialized offenders, Indigenous offenders.

What Bill C-5 does is to give to the judge — who is faced with a decision that has been made by police, by prosecutors, to lay a criminal charge in the case of a prohibited weapon — the discretion to tailor the sentence to the circumstances of the case. That is what judges should do, and I think that’s why Bill C-5 is worthy of our support.

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

He said: Honourable senators, I rise to begin second reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

This bill will make significant improvements to the way we approach criminal sentencing in Canada. It won’t solve every problem, but it will help refocus our criminal justice system on rehabilitation, community well-being and genuine community safety. I’m proud to be the sponsor.

My office has already had discussions about this legislation with many honourable senators, and some of you have asked whether it will really achieve anything meaningful. Clearly, I think it will.

Let me begin by quoting some other credible voices on this point so that you don’t have to just take the government’s word for it.

The Canadian Bar Association says Bill C-5, “takes important steps towards reforming the Criminal Code to allow a more evidence-based, principled approach to sentencing proceedings.”

It predicts the bill:

. . . will lead to a fairer and more just sentencing regime, one that recognizes that criminal offences can be committed in various ways and that one size does not fit all, particularly when it comes to offenders from traditionally marginalized communities.

That’s the Canadian Bar Association.

A director of the South Asian Bar Association of Toronto told the Standing Committee on Justice and Human Rights in the other place that “we need legislation like Bill C-5” because it will “introduce discretion into the criminal justice system again.”

Senior legal counsel for the African Nova Scotian Justice Institute also testified in support, calling Bill C-5 “a necessary step towards justice.”

The Native Women’s Association of Canada calls Bill C-5 “a meaningful step towards reconciliation” and predicts that it will “immediately begin decreasing Indigenous women’s over-incarceration rates.”

In other words, this is an important and consequential bill that is highly valued by many relevant stakeholders. I look forward to sending this bill to committee for proper study. I hope that at the end of our deliberations we can turn the promise of this bill into lived reality for the many Canadians who will benefit from its provisions.

[Translation]

For many of us, criminal law is personal. There are senators in this chamber who have been directly affected by crime. Many of them have loved ones and acquaintances who were victims of crime and they have felt the anger, grief and vulnerability that can cause, as well as the determination to ensure that no one else goes through the same thing.

Many of us also know people who have been charged with crimes and are caught in the web of the justice system, a system that is not always fair. Our prisons are full of people who were subjected to a combination and some degree of poverty, abuse, mental illness, addiction, behaviour disorders and learning disabilities, often overlaid with the legacy of colonialism and racism, along with institutions that are designed to control, rather than support, these people and their communities.

I saw this situation many times when I was a member of the Parole Board of Canada. When you get to know people who are in this situation and you understand how much wasted potential is unnecessarily kept behind bars, it can, dare I say, it should make people want to change things. This bill will do that on two fronts: It addresses the concerns about victimization and overincarceration, and it contains several elements designed to improve the capacity of our criminal justice system to respond fairly and effectively when people break the law.

Bill C-5 reserves harsh penalties for serious criminal behaviour while recognizing that in some cases, the interests of justice and public safety are better served by flexible and creative approaches to sentencing or even by the absence of sentencing.

[English]

The part of Bill C-5 that has attracted the most attention is the repeal of a number of mandatory minimum sentences. Before I get to that, though, I’m going to discuss other aspects of the bill that will also have positive and significant impacts but have garnered fewer headlines.

The first is set out in that part of the bill that amends certain provisions of the Controlled Drugs and Substances Act. Bill C-5 would require police and prosecutors to consider alternatives to criminal charges for simple drug possession.

Essentially, this section of Bill C-5 largely incorporates the former private member’s bill, Bill C-236, which was sponsored by Member of Parliament Nathaniel Erskine-Smith in the last Parliament.

This approach is in line with the Canadian drugs and substances strategy, which is led by the Department of Health, rather than Justice or Public Safety. It is based on four pillars that include prevention, treatment and harm reduction, as well as enforcement. The idea is to treat problematic drug use primarily as a medical and social issue because, colleagues, that’s what it is.

This approach is also consistent with guidelines issued in 2020 by the Director of Public Prosecutions. Those guidelines instructed federal prosecutors to bring charges only for “the most serious manifestations” of drug possession offences, such as if a coach or a teacher consumes drugs when there are children in their care.

The approach is further informed by a 2020 report by the Canadian Association of Chiefs of Police which endorsed “alternatives to criminal sanctions for simple possession of illicit drugs” and said that diversion from the criminal justice system can have positive effects including “reducing recidivism, reducing ancillary crimes and improving health and safety outcomes. . . .”

[Translation]

It was long thought that a strong criminal justice approach to drug users and those involved in drug production and trafficking would result in a steady decrease in drug use, a significant reduction in the production of controlled drugs and a drug-free environment.

However, more than 50 years of the tough-on-drugs approach has not resulted in a significant reduction in the use or distribution of drugs. This approach was based in large part on the idea that problematic substance use was voluntary and that if those with a drug problem really wanted to, they could simply stop using drugs.

What research has shown is that there is a neurobiological basis for substance abuse and that it must be dealt with as a medical issue just like any other health issue. Consequently, attitudes toward drug use have evolved. Today, many health professionals, anti-drug organizations, members of law enforcement and Canadians are calling for a public health approach to drug use. This is clear from the way Canadians have reacted to the opioid crisis and the high number of deaths it has caused.

The proposed amendments to Bill C-5 include a set of principles that recognize the change in attitudes and encourage peace officers to remember that problematic substance use should be addressed primarily as a health and social issue when they use their discretion to decide whether or not to charge an individual possessing an illicit drug.

[English]

Under Bill C-5, rather than laying charges for drug possession, a peace officer shall — not may, but shall:

. . . consider whether it would be preferable . . . to take no further action, to warn the individual or, with the consent of the individual, to refer the individual to a program or to an agency or other service provider in the community that may assist the individual.

The bill stipulates that prosecutions for simple possession would only occur if the prosecutor is of the opinion that a warning, referral or other alternative measures would be inappropriate.

To guide police and prosecutors in determining what is appropriate and what is not, the bill sets out a series of principles. They’re in clause 20. I won’t read them all out. Essentially, they prioritize the health, dignity and human rights of people who use drugs as well as those of their families and communities, and recommend charges and prosecution only where public safety would otherwise be at risk.

As I mentioned, the approach to drug possession proposed by Bill C-5 is similar to the way the Public Prosecution Service of Canada has been operating for two years now, but now the bill will enshrine this approach in law and expand its application to police and provincial Crown attorneys.

[Translation]

In addition, the committee in the other place made three amendments regarding the Controlled Drugs and Substances Act. The first amendment sets out what kind of information can be kept in police records, how that information can be used and to whom the information can be disclosed. For example, it can be disclosed anonymously to researchers to be used in studies on the impact of these measures and whether diversion measures are more frequently used for members of a particular community. It’s important to note that this information cannot be used as part of legal proceedings.

The second amendment is particularly important. When a person is convicted of simple drug possession, their past and future convictions must be kept separate and apart from other records of convictions within two years after the sentence. This means that their criminal record will be suspended and they will not have to submit a request and pay and fees.

The same thing will happen to all existing records of simple drug possession in the two years after the implementation of the bill. This will enable individuals convicted of simple drug possession to continue living their lives. They can continue their schooling, explore employment opportunities or participate in their communities without being held back by a prior conviction of simple possession.

This addition provides the bill with a mechanism to reduce the stigma associated with simple possession convictions.

Finally, the last addition specifies that social workers, health professionals and service providers are not committing an offence when they come into possession of drugs in the course of their duties and intend to dispose of them lawfully within a reasonable period.

[English]

In practice, the goal of this whole section of Bill C-5 is to make prosecutions for drug possession an uncommon occurrence and to codify the idea that the role of police and prosecutors is not to catch addicts and lock them up, but to be part of a community infrastructure that supports everyone’s safety and well-being. This way, when police come across an 18-year-old kid with a small amount of cocaine, for example, instead of being stuck in the court system for a year and then being saddled for just two years with a criminal record — which means no one wants to hire them or rent them a place to stay, or generally having their youth ferment into estrangement, anger and despair — that kid will get a second chance. They will be more likely to go to a community treatment program, finish high school and start building a life. That’s better for the individual and for the safety of their community because healthy people living productive lives commit fewer crimes and create fewer victims.

Honourable senators, if this were the entirety of the bill it would be enough on its own to be worthy of our support, but, of course, there is more.

Bill C-5 also undoes restrictions imposed a decade ago on conditional sentence orders. When Minister Lametti met recently with the Indigenous senators working group, he expressed a particular enthusiasm for this part of the bill. A number of criminal justice stakeholders, even people who have made critiques of other parts of Bill C-5, have equally expressed enthusiasm in regard to this part of the bill. This is notably the part that the Native Women’s Association of Canada believes will immediately begin decreasing Indigenous women’s overincarceration rates.

Honourable senators, conditional sentence orders have existed in Canada since 1996. In cases where a judge determines that a sentence of less than two years is appropriate and that community safety would not be at risk, conditional sentence orders give judges the option of imposing a community-based sentence instead of incarceration. These types of sentences are accompanied by conditions set by the judge, such as house arrest, curfew or mandatory treatment programs. The alternative is often provincial or territorial jail, which is where sentences of less than two years are served in Canada. The benefit of a conditional sentence order is that people aren’t removed from their communities unnecessarily, with all the long-term consequences for them and their families that imprisonment entails.

[Translation]

A conditional sentence order would allow a mother to stay with her children rather than being sent to jail, which would keep her children out of the child welfare system. A CSO would allow someone to keep their job rather than having to struggle to earn a living when they get out of jail. In remote northern communities, a CSO means that a young person who commits a minor property crime does not have to be sent to jail in Iqaluit, Yellowknife or Whitehorse, hundreds or even thousands of kilometres away, when they could securely be held accountable for their acts and would certainly have better rehabilitation prospects in their home community.

[English]

Once they were given the option of imposing conditional sentences in the 1990s, courts started making use of them to a significant degree. In 2004-05, for example, nearly 19,000 conditional sentence orders were issued across Canada. That’s 19,000 people who would otherwise have been in provincial or territorial prison even though they posed no public safety risk.

In 2007 and again in 2012, a whole series of restrictions were placed on the use of conditional sentence orders. There was a long list of offences that became ineligible for them regardless of whether a judge thought a conditional sentence order was appropriate in the circumstances, and conditional sentence orders became unavailable for any offence where the maximum possible sentence was 14 years or more.

Colleagues, it’s worth pausing to fully understand that last part. Let’s take an example of an offence where the maximum possible sentence is 14 years, such as trafficking in stolen property worth more than $5,000. That offence can cover a wide range of behaviour, from a kingpin running a massive criminal enterprise to a man or a woman who drives across town with some jewellery in the trunk because their partner told them to do so. A judge might want to give that person a conditional sentence believing they pose no threat and don’t need to go to prison. However, under the 2012 changes, she’s barred from getting a conditional sentence because of the theoretical 14-year maximum. In other words, she has to go to jail simply because it’s possible to imagine different circumstances where a different person might deserve 14 years for the same broad category of behaviour. Colleagues, it doesn’t really make sense and it ruins lives.

By 2018-19, about 8,000 fewer conditional sentence orders were being issued annually compared to 15 years earlier. That’s 8,000 people per year sent unnecessarily to jail, and Elspeth Kaiser-Derrick, a researcher at the University of British Columbia, has found that Indigenous women have been particularly affected. She studied the cases of 44 Indigenous women who received conditional sentence orders. Her work shows that because of the restrictions imposed in 2007 and 2012, only 8 of those 44 women would be eligible to receive a conditional sentence order today.

There is currently a case before the Supreme Court of Canada involving a woman named Cheyenne Sharma, a 20-year-old mother from the Saugeen First Nation who transported cocaine for her boyfriend to avoid getting evicted along with her daughter.

Due to the 2012 restrictions, she is not eligible for a conditional sentence, a fact that the Ontario Court of Appeal has ruled violates her Charter rights. According to the court:

By restricting the availability of the conditional sentence, the impugned amendments —

— that is, the restrictions on CSOs —

— deprive the court an important means to redress systemic discrimination against Aboriginal people when considering an appropriate sanction. . . .

That’s what Bill C-5 would fix by reverting, more or less, to the way things were when the concept of conditional sentences was first introduced.

CSOs would remain unavailable for certain serious offences, like serious criminal organization offences, attempted murder, torture, terrorism and advocating genocide. As has always been the case, a CSO can’t be imposed where the law requires a prison sentence.

[Translation]

According to data on the impact of restrictions imposed between 2007 and 2012, we can expect to see more CSOs and fewer people in prison, especially Indigenous women who don’t really need to be there.

Honourable senators, it’s important to remember that, as the courts began to hand down more CSOs in the late 1990s and the 2000s, crime rates in Canada dropped. It makes perfect sense that, when people maintain ties to their community, are treated in accordance with the court-ordered conditions and are not pointlessly uprooted from their home, family and work, they are more likely to lead stable, law-abiding lives.

[English]

Importantly, colleagues, many people serve their first sentence in a provincial prison before ending up in federal custody. By preventing that initial provincial or territorial prison term, a CSO can be a circuit breaker that keeps people out of the federal system altogether.

Also, as I briefly mentioned earlier, CSOs can have a positive intergenerational impact. When a parent, say a single Indigenous mother, gets a CSO instead of a jail sentence, her children are more likely to stay in a stable family home instead of winding up in child welfare. That means those kids have better prospects, and we all have a better chance of interrupting the cycle of hand-me-down imprisonment promoted by a justice system too often at odds with social welfare.

In summary, Bill C-5 makes diversion the default response to drug possession and it removes obstacles to conditional sentences. On their own, these are significant measures that would make our justice system fairer and more effective, reduce disproportionate impacts on Indigenous and racialized communities and make us all safer.

As I said before, even if the bill stopped here, it would be worthy of support, but it goes further still: Bill C-5 also repeals 20 mandatory minimum penalties.

I will discuss which ones and why in a moment, but I will give a bit of background first. A mandatory minimum sets a sentencing floor. Where one exists, the judge can impose a higher sentence but not a lower one, regardless of the details of the case or the circumstances of the individual. Mandatory minimums have been part of criminal justice in Canada since the Criminal Code was created in 1892, ranging, at that time, from one month’s imprisonment for corruption in municipal affairs to five years for stopping the mail with intent to rob.

In the 130 years since, hundreds of mandatory minimums have been proposed, dozens have been enacted and some have been repealed. The justification for them has generally been that they make a statement about the type of criminal behaviour we find most egregious, that they guard against the occasional irrational judge who might be tempted to let someone off easy and that they deter potential offenders. That’s the justification.

In reality, though, there is no evidence that they work as a deterrent. We have an appeal system that guards against outlier judicial decisions, and most Canadians know what behaviour is egregious without being conversant in the sentencing provisions of the Criminal Code.

So there are real questions about the utility of mandatory minimums. It’s pretty clear, in fact, that they don’t make a statement. Moreover, it’s evident they exacerbate systemic racism and the overrepresentation of Indigenous people, Canadians of African descent and other historically marginalized groups.

[Translation]

Most of what we know about the overrepresentation of Indigenous and Black individuals and members of marginalized communities in the criminal justice system comes from national statistics collected by various governments and federal organizations. For example, we know that Black and Indigenous individuals are overrepresented among people charged with crimes.

According to data from Correctional Service Canada, Black and Indigenous individuals are overrepresented in federal institutions. In addition, between 2010 and 2020, Black people were 53% more likely and Indigenous people were 36% more likely to have been admitted to a federal penitentiary for an offence punishable by a mandatory minimum sentence.

Indigenous and racialized individuals are always significantly overrepresented in the criminal justice system, and mandatory minimums exacerbate the situation.

[English]

Mandatory minimums notably prevent courts from meaningfully applying Gladue principles meant to guide the sentencing of Indigenous people convicted of an offence. Those principles, established by the Supreme Court of Canada in R. v. Gladue in 1999 and reaffirmed in 2012, are based on subsection 718.2(e) of the Criminal Code sentencing guidelines:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

According to the Supreme Court, sentencing judges have “. . . a judicial duty to give the provision’s remedial purpose real force” by considering, amongst other things:

 . . . the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. . .

Overall, we don’t do nearly a good enough job in Canada of making those principles a reality in every case. I am encouraged, however, that recent federal budgets have allocated new resources for Gladue sentencing reports as well as for similar initiatives that can apply to people from other communities that are overrepresented in our criminal justice system. But the over-reliance on mandatory minimum penalties has often meant that even when judges want to give Gladue principles real weight, their hands are tied.

Let’s be clear: Mandatory minimums are not the sole cause of the over-incarceration of Indigenous and Black people in Canada, but they are definitely part of the problem. Giving judges more discretion to deal justly and specifically with the person in front of them is definitely part of the solution.

Bill C-5 focuses mostly on drug-related mandatory minimums enacted in 2012 and firearms-related ones enacted in the 1990s and amended in 2008. Those represent the majority of all admissions to federal custody with a mandatory minimum. Colleagues, this is an important point to emphasize: It’s true that the bill only deals with 20 of the 70-odd mandatory minimums in our criminal statutes, but most people who get a mandatory minimum get one of these 20.

I will address the drug-related ones first. Bill C-5 eliminates all mandatory minimum penalties for drug offences. Let me say that again: If the bill passes, there will be no such thing as a mandatory minimum for a drug offence in Canada. This would be a huge development. Between 2007-08 and 2016-17, out of all admissions to federal custody for offences that currently have a mandatory minimum penalty, drug offences made up 75% of them.

The disproportionate impacts are staggering. Of everyone charged with exporting or importing drugs during that time, 42% were Black. With regard to Indigenous people, the numbers show a very disturbing trend. In 2012-13, only 1% of people charged with importing or exporting drugs were Indigenous. By 2016-17, that number had grown to 12.5%. That’s a 1,200% increase in the first five years after this mandatory minimum was enacted.

In other words, colleagues, in the last 10 years, thousands of people have been getting mandatory minimums for drug offences and they are disproportionately Black and Indigenous.

Bill C-5 is not designed to and won’t fix all the related problems, like the social determinants of crime and inequities in policing, but if we pass it, judges’ hands won’t be tied by mandatory minimum statutes in these cases. Instead, they will be able to consider the particular circumstances of the person before them and impose a sentence that makes sense for that individual with regard to public safety, rehabilitation and the realities of colonialism, racism and intergenerational trauma.

As a package, Bill C-5 represents a major shift in the way our criminal law deals with drugs. As I have outlined, it would obligate police and prosecutors to avoid bringing criminal charges for drug possession in most cases. When drug possession charges are laid, conviction records would automatically expire two years after the end of the sentence. All mandatory minimums for drug offences would be eliminated, and that means conditional sentences would be an option where appropriate and where consistent with public safety.

Once again, I will say what I have said before: If Bill C-5 stopped there, that would be enough to make it worthy of our support but, again, it goes further, which brings me to the repeal of mandatory minimums for a variety of firearms and weapons offences.

This is an area where Indigenous people are heavily overrepresented, and that overrepresentation has been getting worse. In 2007-08, 17.5% of people admitted to federal custody with a firearms-related mandatory minimum were Indigenous. By 2016-17, the number had grown to 40%.

[Translation]

I know that a great deal of concern has been expressed about this part of the bill, and that the offences related to firearms and weapons are undoubtedly serious. I will therefore review the mandatory minimum penalties that Bill C-5 would repeal, keeping in mind that even without a mandatory minimum, judges can and do impose harsh sentences when they deem such sentences are appropriate.

By way of clarification, our legislative regime distinguishes between a prohibited firearm, a restricted firearm and non‑restricted firearms, in addition to prohibited weapons, ammunition and devices. Prohibited firearms include short-barrelled handguns and those listed in the regulations.

Examples of restricted weapons include handguns that are not prohibited, short-barrelled rifles and centrefire semi-automatic rifles, as well as those prohibited by the regulations.

Lastly, non-restricted firearms include any firearm that is not prohibited or restricted. Most common long guns fall into this last category.

[English]

The bill would repeal mandatory minimums related to trafficking or importing and exporting prohibited or restricted weapons. To be clear, these provisions do not apply to the trafficking of firearms. Prohibited weapons under the Criminal Code are things like tear gas, crossbows and brass knuckles. Canadian judges currently have no choice but to impose a one‑year prison term on a first-time offender who brings, say, pepper spray into Canada. Now, there may be instances where that sentence is appropriate, but surely we’d want the judge to be able to consider the differences between, say, a black-market shipment of pepper spray for resale and someone who forgot they had a can in their glove compartment when they crossed the border.

Bill C-5 would also repeal several mandatory minimums involving possession of a firearm or prohibited weapon, device or ammunition. Now, one of these is already void because the Supreme Court of Canada struck it down in 2015 in R. v. Nur on the grounds that it was far too easy to come up with a hypothetical scenario where a three-year minimum for a first offence would be cruel and unusual.

For instance, it could apply to a licensed firearms owner who stores his firearm at his cottage even though his licence requires storage at his primary residence. Or in the case of possession of a firearm obtained by the commission of an offence, one could easily imagine a woman who finds herself in possession of a firearm stolen by her boyfriend and who might not deserve the year in prison that the law currently requires.

The bill would further repeal the mandatory minimum for use of a firearm or imitation firearm in the commission of another offence. As you might imagine, this charge is usually brought concurrently with the charge for whatever the other offence is, and it applies even if there is no bodily harm involved. But importantly, this provision does not apply to the use of a firearm in the commission of many serious offences like manslaughter, attempted murder, sexual assault or kidnapping, because those offences have dedicated provisions that apply when a firearm is used.

The bill would specifically repeal the mandatory minimums for use of a firearm in the commission of robbery or extortion, but only when there is no link to a criminal organization and where the firearm is not restricted — in other words, a hunting rifle — as opposed to an assault rifle or handgun. The idea here is that there are more likely to be mitigating factors in incidents where a troubled youth picks up the family’s hunting rifle as opposed to gang shootings.

Obviously, armed robbery in whatever circumstances is a very serious crime, and where the circumstances of the offence justify the imposition of a severe sentence, judges will impose it. But let me give an example of the kind of case where more judicial discretion would be warranted.

In 2016, in Hay River, Northwest Territories, a 21-year-old Mountain Dene man named Cameron Bernarde went into a convenience store carrying a rifle — a rifle with a rusted barrel and the bolt hanging open, meaning it could not fire. The clerk gave him $200 from the till although later the clerk told reporters he had “. . . never been robbed by such an incompetent person.” That makes sense. Cameron has fetal alcohol spectrum disorder, a history of sexual abuse and, according to the testimony of a psychologist, the developmental age of a 9-year-old.

Cameron pleaded guilty and was given the mandatory minimum sentence of four years in prison. His lawyer challenged that sentence as grossly disproportionate, arguing that it was unconstitutional. The constitutional challenge was unsuccessful, but even the judge who upheld the mandatory minimum in Cameron’s case said that without it she would probably have imposed three years rather than four. In other words, because of this mandatory minimum, a young Indigenous man with serious psychological difficulties got a whole extra year in jail beyond what the judge would otherwise have considered appropriate.

These are the kinds of human details that can be obscured and the kinds of injustices that can result when we rely simply on a shorthand like “armed robbery” to describe a range of behaviours and a range of contexts.

Bill C-5 equally repeals the mandatory minimums for recklessly discharging a firearm or discharging a firearm with intent. Again, this would only apply where there is no link to a criminal organization and where the firearm is not restricted.

Once again, these offences are obviously very serious and, again, where appropriate, a judge will impose the appropriate sentence. But again, let me give an example where the circumstances might warrant judicial discretion.

Cedric Ookowt is from an Inuit family in Baker Lake, Nunavut. His father has a history of alcohol abuse. In 2015, when he was 18 years old, a good friend of his committed suicide and Cedric started drinking heavily. A few months later, in 2016, Cedric was walking down the street intoxicated and another man, named Arnold, who had bullied him for years, attacked him, punched him in the face and tried to steal his bottle of alcohol. Cedric went home, got a rifle and, from a nearby hill, fired a shot into Arnold’s house, not knowing whether anyone was home. It turns out Arnold’s uncle was home, but thankfully he wasn’t injured.

The sentencing judge found that the mandatory minimum of four years was excessive. He noted that Cedric had already begun rehabilitation programs, including treatment for substance abuse at the Baffin Correctional Centre in Iqaluit.

[Translation]

The judge also cited the Supreme Court of Canada in Gladue and in a similar case, the 2012 Ipeelee decision, which stated the following:

 . . . courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

The judge set aside the mandatory minimum sentence and instead imposed a sentence of two years less a day. That meant that Cedric could stay in Iqaluit and continue his time in incarceration and his treatment there, in an Inuit environment. If the minimum sentence of four years had been imposed, Cedric would have been transferred to a federal penitentiary in the southern part of the country, because every sentence of two years or more is served at a federal institution.

The decision was then reversed on appeal, although Cedric had served his two-year sentence by then and the Court of Appeal chose not to send him back to prison for two more years. However, it is important to note that the Court of Appeal did not decide that it was appropriate to impose a sentence of four years. It simply stated that the mandatory minimum sentence was not excessive to the point of being considered unconstitutional. I note that this jurisprudence is subject to an application for leave to appeal to the Supreme Court of Canada, but the proceedings were delayed after the introduction of the latest version of the bill, which, as I mentioned, proposes to eliminate the minimum sentence being challenged.

[English]

It’s too early to know how the rest of Cedric’s life will turn out. The judge who heard the testimony and weighed the evidence thought that two years of treatment at a correctional centre in Nunavut was a better option in that case than four years of incarceration thousands of kilometres from Inuit community and culture. By repealing this mandatory minimum, we’re acknowledging that the judge is closer to the facts and the people involved than we are, and it should be their call to make.

Along with the repeal of one more mandatory minimum for selling contraband tobacco, that’s all of it. As senators will recall, a debate on this mandatory sentence for selling contraband tobacco in 2013 and 2014 raised particular concerns of targeting and criminalizing those who were poor and marginalized, such as First Nations people.

Colleagues, altogether Bill C-5 provides for diversion instead of incarceration for drug possession, fewer obstacles to conditional sentences, complete elimination of mandatory minimums for drug offences and more room for judicial discretion with regard to certain weapons and firearms offences.

As I noted earlier, this suite of measures is not a panacea, but it will help. It will help a great deal to take a bite out of systemic discrimination and make our communities safer, especially if it’s accompanied by resources for community programming and social supports. There have been some positive developments on this front, colleagues. Budget 2021 included $216 million over five years, with $43 million annually thereafter for youth diversion programming. There was also $75 million over three years for the development of an Indigenous Justice Strategy, including working with Indigenous peoples and organizations to address systemic barriers in the criminal justice system.

The 2020 Fall Economic Statement included $29 million to support and expand Community Justice Centres — funding that recently led to a tripartite agreement between the federal government, the B.C. government and the BC First Nations Justice Council to expand Community Justice Centres in that province.

[Translation]

There are also significant investments that seek to reveal gaps in the data on overrepresentation, including national data on police services and the courts, and data on offenders serving provincial or territorial sentences, which does not currently include Indigenous or ethnocultural identifiers.

Budget 2021 included several millions of dollars for Statistics Canada and Justice Canada to support the development of data collected through research to inform policy responses to the overrepresentation of Indigenous and racialized persons in the criminal justice system. In addition, the budget allocated more than $100 million over five years for a disaggregated data action plan to support the collection of new data on the experiences of Indigenous peoples and racialized groups in the criminal justice system. This includes a collaboration between the Canadian Association of Chiefs of Police and Statistics Canada, which will enable police to provide statistics on Indigenous and ethnocultural groups.

[English]

These investments are a good start. Clearly there is a need for continued investment at all levels of government and for continued hard work to turn numbers in budgets into concrete results on the ground, like the recent developments in British Columbia. I’m encouraged that we are finally heading in the right direction, and Bill C-5 is an important part of that.

Honourable senators, I know there are calls to go even further and, for instance, repeal all mandatory minimums or fully legalize all controlled substances. These are legitimate positions. Senators are free to advocate for them both during this debate and at committee, but I encourage honourable senators to recognize nonetheless that Bill C-5 is not some minor tweak. It’s not just nibbling around the edges. It’s a really big deal. It will genuinely help people. It will make our communities healthier and safer.

[Translation]

I want to point out that a last change was made to Bill C-5 in the other place, requiring Parliament, and thus both chambers, including ours, to undertake a full review of the provisions and functioning of this bill. This review will take place four years after its entry into force.

Honourable senators, I hope that we will be able to conduct a more thorough and detailed study of this bill as quickly as possible. Every month, hundreds of people are convicted across the country. This affects Indigenous women, who will go to prison instead of being given a conditional sentence to be served in their community, Indigenous children, who will consequently be placed in child protective services, Inuit youth in trouble, who are incarcerated thousands of kilometres from their homes, and many Black and Indigenous people, who will be sentenced fruitlessly to years of mandatory incarceration.

[English]

I’ll close with this: I know many Canadians have been waiting for a bill like this for a long time, and I truly am sympathetic to those who wish it did even more. But I’m also aware — as I’m sure you are too — that this is a difficult thing for a government to do. It’s very easy to impose harsher sentences and get tough on crime. It fits nicely on a bumper sticker. It works well in a fundraising email. But here the government is trying to do something hard — really hard — by repealing mandatory minimums and allowing for more flexibility and nuance in sentencing.

As it is, this bill has generated heated accusations of the government being soft on crime in the other place, and I’m sure we will hear some of that in this chamber too. It’s worth keeping in mind, however, where the country truly is after decades of arguing incorrectly that more jail time somehow makes us safer. Hopefully, that narrative has started to change and will change more. But, in my respectful opinion, colleagues, there is considerable merit in an approach that doesn’t start by shooting the moon — one that makes a real and tangible difference. In this regard, I’m optimistic that we can bring Canadians along on the journey to a better justice system rather than getting so far out ahead of the mainstream that we invite the pendulum to swing back.

When I began my remarks, I quoted the African Nova Scotian Justice Institute which calls Bill C-5 “a necessary step towards justice,” and the Native Women’s Association of Canada which calls it “a meaningful step towards reconciliation.”

I hope we can take this step together and soon. Honourable senators, I encourage you to support Bill C-5 in principle and to send it to committee for proper study. Thank you.

Hon. Kim Pate: Thank you, Senator Gold. I share Senator Jaffer’s perspective. Thank you for a very well-crafted speech.

I’d like to ask you this, though. When I’ve met with members from the Department of Justice, the assertion that this will result in a significant decrease in the number of people in prison has not been borne out by the Department of Justice’s own research. In fact, they indicate that maybe, as you’ve indicated — and most of the examples you used were of provincial and territorial incarceration — there may be some decrease for Black and some Indigenous folks, but there won’t be a huge decrease at all, in fact, no significant decrease in the numbers of Indigenous and Black prisoners serving two years or more.

In addition, most of the changes that are talked about in the drug laws have already been achieved through health policy and negotiations between provinces and municipalities.

Finally, I’d like to ask you this. You mentioned the testimony of the Canadian Bar Association, the South Asian Bar Association, the African Nova Scotian Justice Institute, PhD candidate Elspeth Kaiser-Derrick, all of whom went on to recommend that the bill go much further. Wouldn’t you agree that, in fact, in most cases, the evidence, including from Aboriginal Legal Services, from the Canadian Association of Chiefs of Police and many other witnesses at the Justice and Human Rights Committee in the House of Commons, recommended not that we shoot for the stars but, in the interim, until other mandatory minimum penalties are repealed, that judges be permitted the structured discretion to not impose mandatory minimum penalties in exceptional circumstances?