Senator Gold: Thank you for the question. I don’t know whether projections of that kind have been done, Senator Christmas. I do know, though, as I tried to set out in my remarks, that when the mandatory minimum sentences were added to additional offences, the rates of incarceration for Indigenous Canadians and members of other communities increased.

It is reasonable to expect — given the statistics that I cited — that there will be a diminution. Whether or not there are actual projections, I just don’t know. I would encourage that to be explored in committee, where whatever information that is available can be explored.

Senator Gold: That’s a good question, and I don’t know specifically the degree or extent or involvement of Indigenous Services with the drafting of this bill. Again, I expect that answer will be easily available at committee.

You raise a larger point, and I raised it in my speech but it bears repeating. We’re dealing here with a situation when we’re focusing on the overrepresentation of Indigenous offenders and those from racialized communities. We are focusing on the criminal justice system, but there is a whole world and history that has led us to this place, and we know it. We, in the Senate, know it well. The Aboriginal Peoples Committee knows it well, and there has been work done on the United Nations Declaration on the Rights of Indigenous Peoples.

We also know, to your point and as I mentioned in passing, that the success of any of these measures depends upon a whole-of-society approach to address our history, and in some cases what is required clearly, as you pointed out quite correctly, is resources: it’s funding. It’s fine to have a diversion program if you are in downtown Toronto or Montreal, but if you are in a much more remote area where there are no resources, no treatment centres, no appropriate facilities, then it is a hollow promise. There have been investments. There need to continue to be investments at the federal, territorial and provincial levels, and within First Nations communities and others.

There are all kinds of ways to capture the idea to not let the best be the enemy of the good. In this case, we have a societal problem and a history that we are trying to tackle. It will take time and generations, perhaps, but every step in the right direction — and this is a step in the right direction in my humble opinion — is worth taking and celebrating. This should be done without fooling ourselves, however, that it is a panacea and without ignoring all the other supports — financial, social and others — that need to be put into place to make this a lived reality and make the improvements in the justice system tangible for Canadians.

Hon. Michèle Audette: My questions for the Government Representative in the Senate are the following. Did the process of drafting and preparing this bill take into account the Gladue decision, the United Nations Declaration on the Rights of Indigenous Peoples, and all of the recommendations of the National Inquiry into Missing and Murdered Indigenous Women and Girls regarding the changes needed to reduce the very high percentage of Indigenous women and men in our federal institutions and prisons?

Also, can you confirm that there will be a mechanism to follow up on what the government is proposing, which will ensure that all this will be encouraging to the nations, to Indigenous women and men?

Senator Gold: Thank you, Senator Jaffer. Look, the government looked carefully at that issue and many others and came to the conclusion that it would address those offences which represent a significant majority — I think I mentioned 75% — of cases where people are actually incarcerated. And not only simply that but the types of offences — drug offences, notably, but also offences committed with long guns — that have a serious disproportionate impact on Indigenous individuals and racialized Canadians. It is clearly a major step that the government is taking to address a significant chunk of the problem.

These questions we will study, and I look forward to the study in committee. The government and the officials will have a chance to hear your questions and respond to them, but I think the short answer is that this is a major step and an overdue step in the right direction, a promise that was made during the campaign, as you know. The committee will do its job, as we always do, to make sure that the law is properly understood, and all questions are answered. The government is satisfied that the step that it’s taking now is a major step forward. It doesn’t preclude further steps in the future, but this is an important bill that deserves to be studied seriously, as we will, with your support, at second reading.

Senator Gold: Thank you for your question. The government’s position is that the research and the testimony do, in fact, support the proposition that if and when Bill C-5 is passed in this form, it will have a real impact on the overrepresentation of racialized Canadians and Indigenous Canadians who are subject to it.

It’s true that where circumstances are such that a serious prison term — that is to say, two years or more — is thought appropriate by a judge, it’s the federal system that receives the inmates. But it’s equally true, as I said in my speech, that it’s important to do things to break that all too familiar pattern of beginning in the provincial system and then, regrettably, escalating to the federal system.

We’ll study this in committee. I hope we will send it to committee for proper study, and all of these questions will, of course, be addressed. I have every confidence in the committee to address them as diligently as we do all of our work. Thank you for your question.

Senator Gold: I understand your question. I have presented to the best of my ability the reasons for which the government believes that this is an appropriate bill to be debated and, of course, passed. The government is relying upon the evidence of the kinds of offences for which mandatory minimum penalties are required under the current law, the consequences to Canadians who are subject to these mandatory minimums and the overrepresentation of those Canadians, whether Indigenous or other racialized communities, as a result. These questions and the questions about whether forecasts have been done as to what the possible impact will be, all that, as I said, I have answered. I don’t know whether forecasts were done in that regard, and that’s why I undertook and encouraged it to be a subject of study in committee.

It remains legitimate for a government to legislate based upon the state of knowledge and information that it has, what we call legislative facts. In that regard, the government has a set of legislative facts upon which it has relied, and Bill C-5 is a product of that. That’s why it has been supported in principle by organizations that represent those who are the most intimately affected by the mandatory minimum penalty provisions in the Criminal Code.

[Translation]

Senator Gold: Again, in my response I acknowledged the reality of this, senator. The government is not burying its head in the sand. I know that concerns were expressed at the committee about the extent, or the lack of extent, of training in these matters for officials. I am also aware that the Canada Border Services Agency provided the committee some follow-up information with more detail about the nature of its training, which included two hours on diversity and race relations and an hour specifically on preventing unconscious bias, which we know is a problem. We are conscious that it is a problem. One and a half hours were spent on processing Indigenous travellers and two hours on Gender-based Analysis Plus. And more training is coming.

The fact remains, honourable senators, that the bill is addressing the criterion, the legal threshold and related issues around searching of digital devices. It is not an open invitation for random searches at a whim. That would be so whether it is “reasonable grounds to suspect,” “reasonable concern” or any other legal standard. The possibility that unconscious or conscious bias will creep into that decision making is a real one, which we need to address in all respects. Strictly speaking, it is an important but separate issue from the legal threshold before which a search of a digital device can be undertaken by an officer.