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.

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. Marc Gold (Government Representative in the Senate) moved third reading of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016, as amended.

He said: I rise to begin debate at third reading of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016. This is legislation intended to update the way personal digital devices are dealt with at the border, following court decisions on this point, first, in Alberta and, more recently, in Ontario.

[Translation]

To begin, I want to thank Senator Boniface for her work as the sponsor of this bill, Senator Wells for his contribution as the critic, and all senators, especially those who sit on the Standing Senate Committee on National Security and Defence, for their efforts and their commitment. In this bill, as is often the case in democratic countries, we are dealing with issues that seem divergent, such as fundamental rights, including the right to privacy and the protection of our security. In this case, it is about protecting the safety and privacy of children who are victims of sexual predators, as well as the ability of border officers to detect and stop people who are trying to bring child pornography into Canada on computers and cell phones.

[English]

I’m sure we all appreciate the challenge this presents to us as legislators. Certainly, people of goodwill and good faith can disagree about how best to strike this balance. Indeed, there has been a disagreement about what the legal threshold should be to allow border officers to examine a digital device. As originally drafted by the government, the bill proposed a threshold of “reasonable general concern.” Last week, we adopted on division a report from the National Security Committee that changed it to “reasonable grounds to suspect.” Colleagues, let me take a moment to remind honourable senators of a bit of background and the government’s rationale for the “reasonable general concern” threshold.

[Translation]

First, it should be noted that we currently do not have a legal threshold for examining personal digital devices at the border. Bill S-7 would never have given new powers to the border officers. Both the initial version and the current amended version would restrict the power to examine digital devices. The debate was never on the scope of that restriction.

[English]

By restricting this authority at all, Canada would be joining New Zealand as two of the only countries in the world whose laws don’t give border officers carte blanche to search personal digital devices. Laws in the U.S., the U.K. and Australia all allow no-threshold searches, as does Canadian law, at least for the time being.

Our Customs Act was drafted well before cellphones and laptops existed, so it naturally makes no mention of them. It says simply that any goods being brought into Canada can be examined by border officers, in keeping with the long-standing principle that the expectation of privacy is lower at the border than in most other contexts. For many years, Canada Border Services Agency, or CBSA, treated digital devices as goods like any other, and there were court rulings that endorsed that approach.

In 2012, however, acknowledging the changing nature of phones and computers in the 21st century, CBSA instituted its first internal policy about the examination of personal digital devices. This policy carved out digital devices as a special category of goods, even though the law didn’t require it. The policy was then strengthened in 2015.

Under the 2015 policy, border officers can only examine a personal digital device if there is “. . . a multiplicity of indicators that evidence of contraventions may be found. . . .” The policy also directs officers to “. . . disable wireless and Internet connectivity . . .” before conducting an examination and to “. . . only examine what is stored within the device.” In addition, officers are instructed to take notes of the indicators that led to the search, as well as the areas of the device that are accessed during the search and why. This policy was slightly amended in 2019, but its essence remains in place to this day.

In other words, CBSA already has considerable guardrails around the examination of digital devices, and, colleagues, these examinations are rare. In 2021, for example, less than 0.01% of travellers had their devices searched. Nonetheless, the Alberta Court of Appeal ruled in a case called Canfield in 2020 that merely having an internal policy was insufficient and that personal digital devices must be treated differently in law.

There are a few points worth highlighting about that decision. First, this was not a case of officer misconduct. Child pornography was indeed found during the examination, and the court agreed that the officer’s decision to conduct the search was reasonable and supported by objective facts that could be articulated. Second, the events took place in 2014, before CBSA strengthened its policy regarding digital devices in 2015. Third, the court was silent about the merits of CBSA’s policy, saying only that there needed to be some threshold in law. Finally, the court was explicit that a threshold lower than “reasonable grounds to suspect” might be appropriate. The court noted that “reasonable grounds to suspect” is the threshold used in the Customs Act for strip searches and that the search of a digital device is comparatively less intrusive.

According to the court:

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

[Translation]

The government agrees, so it developed a new threshold consistent with the court’s reasoning. The “reasonable general concern” threshold is lower than “reasonable grounds to suspect” but higher than the current absence of any threshold whatsoever in the Customs Act. Contrary to assertions that “reasonable general concern” is vague and meaningless, the Minister of Public Safety and CBSA representatives clearly explained to the committee why this expression was chosen and how it is meant to be applied.

[English]

As the minister said, “. . . the term “reasonable” means that the noted factual indications of non-compliance need to be objective and verifiable.” This is, indeed, the way reasonableness is understood in law. In various contexts at the border and elsewhere, when courts consider concepts like “reasonable grounds to suspect” and “reasonable grounds to believe,” they’re not merely looking for any grounds for suspicion or belief that an officer may dream up. They’re looking for reasonable grounds, something that can be articulated and something that can be verified that would lead to belief, suspicion or concern, as the case may be, on the part of a reasonable person.

The minister went to on to explain that:

. . . the term “general” intends to distinguish it from higher thresholds that may require officers to identify specific contraventions before beginning the exam.

In other words, a police officer conducting a search as part of a criminal investigation has more time and capacity to collect information in advance, and we can, therefore, demand that the officer be relatively precise about what offence they suspect and what evidence they expect to find. By contrast, officers at the border have very little information about a traveller and little time or capacity to collect any, so we can’t expect them to be quite as specific. In the government’s view, it should be enough that there are objective indicators that the traveller is hiding something, even if the officer cannot pinpoint exactly what.

Finally, as the minister told the committee, the reason for using “concern” rather than “suspicion” was to establish the proposed standard as distinct, because the context is distinct. If there is a spectrum of certainty with belief, with “reasonable grounds to believe” at the high end and “suspicion” somewhere below that, “concern” would fall somewhere below suspicion. In the government’s view, this would be appropriate given the lower expectation of privacy at the border and given the recognition by the Alberta Court of Appeal that it may be appropriate to have a lower standard to search someone’s phone than to make them take off their clothes and examine their body.

[Translation]

At report stage, Senator Dalphond emphasized that the Customs Act uses the expression “reasonable grounds to suspect” in contexts other than strip searches. This is a valid argument that deserves a thoughtful response. In the government’s opinion, there are certain essential differences between the examination of personal digital devices at a point of entry and other uses of the “reasonable grounds to suspect” threshold set out in the Customs Act.

[English]

For example, subsections 99(1)(b) and (c.1) say officers need reasonable grounds to suspect to open mail, but officers can do a whole lot of examining of an envelope or a package without meeting that standard. They can examine the outside of it to see where it’s from and where it’s going. They can weigh it. They can scan the exterior for traces of organic matter like drugs, and they can even X-ray it to get a better sense of what’s inside. All of this can be done while meeting no threshold whatsoever, and these procedures help officers glean information to potentially develop reasonable grounds to suspect.

By contrast, you can’t X-ray a cellphone to better understand its contents or look at its exterior to see who has been sending messages to whom. In practice, “reasonable grounds to suspect” is a higher bar to clear for digital devices than for mail.

Subsections 99(1)(d) and (d.1) require reasonable grounds to suspect to re-examine goods to verify potential errors in the determination of tariffs or place of origin, but these are re‑examinations. The initial examination is done with a no-threshold authority. It’s only if an officer wants to go back and double-check that they need to meet the higher standard.

Subsections 99(1)(e) and (f) impose a standard of reasonable grounds to suspect on examination of goods and conveyances, but, crucially, these subsections apply beyond the immediate context of a border crossing. For instance, if a person has gone through customs, and then an officer sees them down the hall unwrapping a package from under their shirt, the officer would need reasonable grounds to suspect to conduct an examination. Or if an officer sees a suspicious truck emerging from the woods near a border crossing, they would need reasonable grounds to suspect to search it.

At a port of entry, though, where it is well understood and accepted that there is a lower expectation of privacy, goods — as defined in section 2 of the act to include conveyances — can be examined with no threshold, pursuant to subsection 99(1)(a).

Colleagues, all of this is to say that there are important differences between the examination of personal digital devices at a port of entry and in other contexts in which reasonable grounds to suspect is used in the Customs Act. Ultimately, the government proposed the standard of “reasonable general concern” in order to require a level of certainty lower than suspicion but still based on objective indicators that can be articulated and verified.

Plus, if and when section 7 is enacted, it will be accompanied by regulations establishing the details of how digital device examinations are to be conducted. The draft regulations were shared with the National Security Committee and include elements of the existing policy, such as the requirements to disable connectivity and take notes. Nevertheless, the National Security Committee studied the matter, heard testimony and chose to replace “reasonable general concern” with “reasonable grounds to suspect.” I totally understand the appeal of using a standard that already exists and, therefore, has a body of jurisprudence to back it up.

At the same time, colleagues, the government does worry that the “reasonable grounds to suspect” threshold may unduly limit the ability of border officers to interdict illegal activity and detect contraband, including material depicting the exploitation of children. This concern was voiced at committee by Monique St. Germain of the Canadian Centre for Child Protection, who said:

I’m just not sure whether the rising of reasonable grounds of suspicion in this context is going to enable border control officers to do what they need to do to protect children at the border.

We can get a bit of an early sense of the possible implications of this standard by looking at CBSA’s data from last month. The court rulings in Alberta and Ontario took effect at the end of April, and that has had the practical impact of applying the reasonable grounds to suspect threshold by default in those jurisdictions.

As Senator Boniface noted last week, in May 2021, between both provinces, CBSA processed some 600,000 travellers, examined 63 devices and found 17 contraventions. This past May, the volume of travellers quadrupled due to relaxed COVID restrictions, but the number of device examinations dropped to 18 and only 4 contraventions were found.

We can’t know how many contraventions went undetected. It’s a small sample size so far, and it’s possible May 2022 was a light month. These numbers should give us pause. Some of the contraventions CBSA finds relate to immigration violations or undeclared goods, but many relate, as I said, to the sexual exploitation of children. There are, unfortunately, Canadians who travel abroad, abuse vulnerable children and return with macabre souvenirs in the form of photos and videos. I’m sure we all want our border officers to have the legal tools to detect and deter that kind of activity.

Now, assuming that we adopt Bill S-7 at third reading, it will be up to our colleagues in the other place to conduct further study. I expect they’ll examine many of the issues that have come up during our analysis of this legislation, and they may have the benefit of a larger sample size of CBSA data to better understand how the “reasonable grounds to suspect” threshold in Alberta and Ontario impacts operations. I’m sure they will also analyze the other amendments made by the Senate. One of these incorporates the requirement to disable network connectivity in law rather than — or perhaps in addition to — in regulation.

Now, as a practical matter, this is certainly an objective the government shares, although there was a discussion at committee about the particulars of the wording and whether, given the speed of technological change, leaving this in regulation may be a nimbler approach.

The other amendment is a regulation-making authority related to the protection of solicitor-client privilege. Again, the government shares the objective, and I look forward to the committee in the other place hearing from some of the same witnesses our committee heard from, including, for instance, the Canadian Bar Association, about this amendment.

Finally, colleagues, a word on the matter of witnesses. It has been mentioned correctly that with the notable exception of the Canadian Centre for Child Protection, most testimony at committee supported the “reasonable grounds to suspect” standard. The witnesses were certainly very eminent individuals, like representatives of the Office of the Privacy Commissioner and the Canadian Civil Liberties Association, who need to be heard on legislation such as this.

At the same time, I would note that it’s much easier to hear testimony in Senate committees from Canadian law professors than from young children or other individuals whose names we don’t know and whose voices we will never likely hear.

I don’t for a moment, colleagues, minimize the important input of witnesses from law faculties and civil society — far from it. It is worth keeping in mind that when the bulk of testimony is of a single opinion, that may sometimes be because people with different views or interests face obstacles that prevent them from sharing their thoughts with us.

[Translation]

I hope that, in our analysis of this bill, we have done our best to put ourselves in the shoes of others, such as people of colour, Muslims and members of Indigenous peoples who are concerned about prejudice and unjust treatment at the border. Senator Jaffer and Senator Yussuff expressed those concerns eloquently in committee, just as Senator Ataullahjan, Senator McCallum and Senator Omidvar did here in this chamber.

I hope we have also tried to put ourselves in the shoes of the vulnerable children in brothels, alleys and hotel rooms halfway around the world who have never heard of Bill S-7 and do not know what the CBSA is but will be affected by our choices.

[English]

As I said at the outset, this legislation calls upon us to engage in a difficult balancing of interests and considerations with serious real-world consequences and valid competing concerns.

Colleagues, you have my thanks for the conscientious and careful study that the committee undertook on this important bill. Thank you for your kind attention.