Senator Jaffer: Yes, “consent of the accused,” Senator Plett. You can debate later. It is my turn. What I would say to you, senators, is that it was very clear to us that there was enough protection in the act to have trials. These are not all trials. For example, if the technology wasn’t available, obviously there wouldn’t be a video trial; the accused would have to appear in person. It is only in certain circumstances that the court “may allow.” Honourable senators, I want you to remember that it is not “shall.” It is “may.”

Senator Batters: Yes.

The Hon. the Speaker: Honourable senators, this week we will be paying tribute to the Senate pages who will be leaving us this summer. Senate page A.J. Hancock will be leaving and A.J. unfortunately cannot be with us today, but she has just graduated from the University of Ottawa with an Honours Bachelor of Arts degree in History with a minor in Economics. She will begin her Master of Arts degree in History this fall at the University of Ottawa to focus on Canadian consumer history. She is excited to continue her studies at the graduate level with a full academic scholarship.

(1500)

A.J. is grateful for the opportunity to have worked as a Senate page with such an amazing team. Thank you, A.J., for all your hard work and dedication.

Hon. Frances Lankin: Honourable senators, in respect of the limited amount of time, I will put what might have been a question and supplementary together.

Senator Batters, I am inclined to agree with the analysis you put forward, but I wasn’t there at committee. One part of our job, particularly when an amendment comes at third reading — which is kosher; there’s nothing wrong with that — is to understand both sides of the arguments. To the best of your ability, would you articulate the arguments against your amendment? As we know, the committee rejected it. What did the senators who discussed this have to say? Why were they critical of it? And what witnesses came forward who took a position opposite to you and what did they say? Thank you very much.

Hon. Mobina S. B. Jaffer: Thank you, Senator Batters, for your amendment. I want to intervene for a few minutes to let senators know that regarding trial for a summary convention offence, the bill states the court “may allow” it. Considering the circumstances, the court may allow, “with the consent of the accused and the prosecutor” if the accused is not in custody. If the accused is in custody, the court may allow it with the consent of the accused.

Regarding a trial for an indictable offence, the court “may allow.” Honourable senators, I keep saying “may” because it is not “shall.” The court is not bound by it. Considering the circumstances, the court may allow an accused to appear by video conference, “with the consent of the prosecutor and the accused,” except “when evidence is being presented to the jury.” Then the accused has to appear in court.

For a plea, “the court may, with the consent of the prosecutor and the accused. . . .” And regarding sentencing, the court may allow “with the consent of the prosecutor and the offender. . . .”

Honourable senators, I’m not going to speak for all of the members who supported or didn’t support this, but it was very clear the court “may allow.” Obviously, I have not spoken to the same judges to whom Senator Batters has spoken, but looking at what is in the bill, it says the court “may allow.” So the judges who had a problem with the issue would not have to allow a video trial. It is in there. The court “may allow” with the consent of the accused and the consent of the prosecutor. Senators, I think there is enough —

Senator Plett: Consent of the accused —

Senator Gold: Access to justice has been an issue of concern — and properly so — ever since I was a law student so many years ago. Much needs to be done, as we have discussed in this chamber many times.

The best answer I have is to rely upon the work of the Legal and Constitutional Affairs Committee, which heard the witnesses, which considered your amendment and others that were proposed and — for all the reasons that were known to the committee — decided not to accept the amendment.

For the reasons that I outlined, that is the government’s position as well.

Hon. Claude Carignan: Honourable senators, my question is for the Leader of the Government in the Senate. Leader, during question period on May 31, I raised the issue of the slow processing of passport applications and the long wait times in passport offices. At the time you replied, and I quote:

The government is aware of the challenges and is listening to the staff on the ground. I have been advised that the government has created new centres to increase production capacity. It has hired approximately 500 new staff members and created a new online tool . . . .

Then you stated the following: “The government will continue to work on this issue to reduce the wait times . . . .”

That was three weeks ago, and it seems that the more people and tools there are, the longer the wait time gets. Can you explain why, over the past three weeks, the lineups have gotten longer rather than shorter, even though the government supposedly took steps to correct the situation?

The Hon. the Speaker pro tempore: All those opposed to the motion in amendment will please say “nay.”

The Hon. the Speaker: Pursuant to the order of Monday, June 20, I leave the chair for the Senate to be put into a Committee of the Whole on the subject matter of Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication). The Honourable Senator Ringuette will chair the committee. To facilitate appropriate distancing, she will preside the committee from the Speaker’s chair.

(1700)

[Translation]

On the Order:

The Senate in Committee of the Whole in order to receive the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada, accompanied by no more than two officials, to consider the subject matter of Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication).

(The sitting of the Senate was suspended and put into Committee of the Whole, the Honourable Pierrette Ringuette in the chair.)

The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the second time?

(On motion of Senator Gold, bill placed on the Orders of the Day for second reading two days hence.)

On the Order:

Resuming debate on the motion of the Honourable Senator Gagné, seconded by the Honourable Senator Gold, P.C., for the third reading of Bill C-24, An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2023.

The Hon. the Speaker: Caleb Rudyk has just graduated from the University of Ottawa with a Bachelor’s degree in Biopharmaceutical Science with a specialization in Genomics. He has been so proud to be able to represent his hometown of Vegreville, Alberta, as a page in the Senate of Canada over the last year. Caleb hopes to continue working in the public service next year, and he aspires to study law in order to work in the legal domain of the pharmaceutical industry.

He is so grateful to have had the opportunity to serve in the Senate alongside such wonderful colleagues, and he will never forget this incredible experience.

Thank you kindly for all your hard work, Caleb.

The Hon. the Speaker pro tempore: Call in the senators.

Motion in amendment of the Honourable Senator Batters negatived on the following division:

The Hon. the Speaker pro tempore: I believe the “nays” have it.

And two honourable senators having risen:

Some Hon. Senators: Nay.

Hon. Senators: Yes.

Hon. Senators: Agreed.

(Motion agreed to and bill read third time and passed.)

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

Senator Dawson: Yes, Senator Dasko.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak to the second reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

Yesterday, I complimented the Prime Minister and Minister of Justice for introducing the mandatory minimum bill.

(1650)

I want to share with you some of the history of mandatory minimum penalties from my experience.

In 1992, when the mandatory minimum sentencing bills were first put in place, we in the legal profession thought it was a temporary measure. Sadly, for many of us, successive governments have continued to impose mandatory minimum sentences.

To date, we have 73 mandatory minimum penalties. That is why, honourable senators, I believe the justice minister and Senator Gold, the sponsor of the bill, are very courageous to have taken the first step towards repealing mandatory minimum penalties.

I genuinely believe that this is a very big step. Over the years, even before I came to the Senate, I used to get into discussions with former Liberal justice ministers to stop imposing mandatory minimum sentences and to repeal them. They found it politically difficult to repeal mandatory minimum penalty bills.

Senators, since I have been in the Senate, I have introduced the following bills to get rid of mandatory minimum penalties: In June 2013, I introduced Bill S-221, An Act to amend the Criminal Code (exception to mandatory minimum sentences for manslaughter and criminal negligence causing death); in November 2013, I introduced Bill S-209, with the same name; and in February 2014, I introduced Bill S-214, once again with the same name.

I have introduced three bills, the last one in 2014. I tabled these bills because I truly believed that mandatory minimum penalties do not work.

As a lawyer, I used to see that it really destroyed my clients, my family and, I believe, society in the long run.

Indeed, traditionally — before 1992 — when a person is determined to plead guilty, the judge is then tasked with looking at sentencing principles, and they would have to ask the following questions: What is the act that is applicable? What crime was committed? How severe was the crime? What are the circumstances of the individual?

In Canada, sections 718.1 and 718.2 of our Criminal Code are very clear. Section 718.1 stipulates that a sentence be proportionate to the gravity of the offence and the degree of the responsibility of the offender. Section 718.2 follows by outlining some of the other principles to be followed in sentencing, as well as aggravating and mitigating circumstances to be considered in determining a sentence.

One of the most important factors the justices are tasked with considering is who has committed the crime and what factors might have contributed to the criminality, and then to look at the circumstances of the person appearing before them.

With regard to proportionate sentencing, section 718.1 of the Criminal Code sets it out as the fundamental principle of sentencing, which directs that all sentences must be proportionate to the gravity of the offence and the degree of the responsibility.

In other words, a sentence must accurately reflect the circumstances of a particular crime.

Mandatory minimum sentences handcuff judges and limit their discretion and ability to determine appropriate and proportionate sentences.

In Canada, at the moment, we have 73 mandatory minimum penalties, 67 of which are in the Criminal Code, while 6 are in the Controlled Drugs and Substances Act.

To date, at least 53 mandatory minimum penalties have been struck down by the courts, found to be violations of our Charter of Rights and Freedoms or called into question by provincial and territorial courts, as well as the Supreme Court of Canada, our country’s highest court.

Of those 53, 10 have been included among the 20 in Bill C-5. Yesterday, Senator Gold spoke articulately about discretion of judges and proportionate sentencing, and over the years, many of us have spoken about judicial discretion and why it is important. I will not dwell on it now.

The fact is that if we trust our judges to do their job — and, by the way, we have the best judges in the world — then we should trust them with sentencing the person in front of them. If we trust our judges to do their job, then we should trust them with having the discretion which allows them to do their job to the best of their ability and with direct relation to the facts and the individual circumstances of any case before them.

In keeping with this sentiment, the Standing Committee on Justice and Human Rights in the other place heard from a majority of witnesses that all mandatory minimum penalties should be repealed. Experts from all manner of experience, perspectives and expertise reached a consensus.

Mandatory minimum penalties and the sentences they carry are predetermined by parliamentarians without knowing the exact circumstances of the case. Members of the other place and senators are determining the fate of countless people in Canada without even having to look at a particular person in front of them, without having to hear their story, without having to look them in their eyes and confront their humanity.

Instead, parliamentarians are predetermining their fate and are putting aside time-proven sentencing principles. In doing so, we are not only putting aside coveted sentencing principles on which the foundation of our Criminal Code is built; instead, we are wholly ignoring them.

Today, I want to explain to you the situation in the best way that I can. The exact numbers may need a little bit more work, and we can do that in the committee, but I want to give you the bigger picture.

As I have said a number of times, there are 73 mandatory minimum penalties in the Criminal Code and the Controlled Drugs and Substances Act. Various levels of courts across the country have struck down 53 mandatory minimum penalties, including appellate courts and the Supreme Court of Canada.

As the judges see the person in front of them, they impose the penalty that fits the crime, and not what we parliamentarians decided many years ago without seeing the eyes of the person standing in front of the judge.

The government has introduced Bill C-5 to repeal 20 mandatory minimum penalties. This bill includes 10 of the mandatory minimum sentences that have been struck down by the judiciary.

Now, senators, I want to repeat that I’m sure the Department of Justice might be able to give us better figures, but my purpose in sharing this with you is to make sure we understand that we parliamentarians have created a patchwork across the country that is inconsistent. For example, if my appellate court in British Columbia strikes down a mandatory minimum penalty, it will be applied in British Columbia, but it will stay in force in the rest of the country, unlike a mandatory minimum penalty that is struck down by the Supreme Court or the Government of Canada. I want to say this again, senators: We have now ended up with a patchwork, and at committee and at third reading, we are going to have to find a way to address the patchwork.

I agree with the leader, Senator Gold, that we cannot shoot for the moon. All my life I have been a political person, and I understand the realities of repealing mandatory minimum penalties. That is why, senators, when the leader says that we cannot shoot for the moon, I get it.

That is why we, at committee or at third reading, will have to deal with this patchwork in a creative way.

I want to repeat, senators, that currently we have 73 mandatory minimum penalties in force in Canadian law, the courts have struck down 53 and Bill C-5 repeals 20. Among the 20 included in Bill C-5, 10 mandatory minimum penalties were struck down by the courts.

I hope that we will be able to address this patchwork situation in committee. Thank you, senators.

The Hon. the Speaker: Senator Lankin, before you begin, it is almost five o’clock. At five o’clock, I’m obliged to leave the chair for the Senate to form Committee of the Whole. Perhaps you could wait until we return after Committee of the Whole. We’re about 30 seconds away.

Senator Lankin: If you keep talking, Your Honour, we will not have that problem. I’m absolutely fine with that.