EVIDENCE

Standing Committee on Justice and Human Rights NUMBER 028 1st SESSION 45th PARLIAMENT Monday, May 4, 2026 Le lundi 4 mai 2026 Standing Committee on Justice and Human Rights CANADA [Recorded by Electronic Apparatus] EVIDENCE May 4, 2026 Committee NUMBER 028 NUMBER 028 NUMÉRO 028 28 04 05 2026 2026/05/04 11:05:00 House Of Commons Comité permanent de la justice et des droits de la personne Standing Committee on Justice and Human Rights JUST Chair James Maloney 1 45

(1105) [ English ]

The Chair (James Maloney (Etobicoke—Lakeshore, Lib.)) :

I call this meeting to order. Welcome to meeting number 28 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference of February 2, the committee is meeting to continue its clause-by-clause study of Bill C-16 ,

an act to amend certain acts in relation to criminal and correctional matters, including child protection, gender-based violence, delays and other measures. Today's meeting is taking place in hybrid format, pursuant to the Standing Orders. Members are attending in person in the room and remotely by using the Zoom application. I'd like to confirm that the sound tests were done. I'd like to make a few comments for the benefit of witnesses and members. Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mic.

Please mute yourself when you're not speaking. For those on Zoom, at the bottom of your screen, you can select the appropriate channel for

interpretation: floor, English or French. For those in the room, you can use the earpiece and select the desired channel. This is a reminder that all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can, and we appreciate your patience and understanding in this regard. Welcome back to our witnesses. They're here to answer technical questions you may have.

From the Department of Justice, we have Matthew Taylor, senior general counsel and director of the general criminal law section; Nathalie Levman, senior counsel at the criminal law policy section; and Michael Ellison, who is counsel at the criminal law policy section. Thank you all for being here. We have a long day scheduled ahead. If anybody needs a break, just give me the look. I'm happy to suspend for a few moments to accommodate people. (On clause 32)

The Chair: We left off having just completed NDP-11, which carried, so we are now on G-15. I will start by asking, shall G-15 carry? (Amendment agreed to [ See Minutes of Proceedings ]) (Clause 32 as amended agreed to) (Clause 33 agreed to) (On clause 34)

The Chair: We will start with NDP-12. I will start by welcoming Ms. Kwan. I'll turn the floor over to you.

Jenny Kwan (Vancouver East, NDP) :

Thank you very much, Mr. Chair. I'm standing in for my colleague Leah Gazan , who was here previously, to add some comments on these amendments. Amendment NDP-12 would change the bill such that the accused must make an application for production, where possible, to the judge before whom the accused is to be or is being tried so that having the same judge is not mandatory. Legal experts have shared with us that this requirement may not be realistic in all jurisdictions, given different capacities and resources, and it could lead to unnecessary stays. That's the motivation behind this amendment, Mr. Chair.

The Chair :

Thank you. Mr. Brock.

Larry Brock (Brantford—Brant South—Six Nations, CPC) :

Thank you, Chair. While I don't disagree in principle, I'm wondering if it's redundant. I'm going to turn to the officials on this issue. My understanding has always been that any reference to a justice also includes provincial court judges, superior courts, courts of King's bench or, I guess, the supreme court in British Columbia. My

interpretation, with decades' worth of work in the legal field, is that the application is already within the code. Would this amendment be redundant in the circumstances?

Michael Ellison (Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice) :

Thank you, Chair. I thank the member for the question. Since the O'Connor decision that first laid out the groundwork for these types of production applications, guidance from the Supreme Court of Canada has stated that it is highly desirable for the trial judge to be the one to hear this type of application. That's something that over the past 31 years or so—hopefully my math is correct—jurisdictions across the country have strived to achieve. They ensure that the trial judge is the one hearing it. There are a couple of reasons outlined in O'Connor for that.

It's mostly to ensure consistency between decisions and to ensure that these are heard at the appropriate time in the process. In terms of redundancy, what I would speak to is that with respect to NDP-12, the main concern would be that if there is an expansion beyond the trial judge hearing these types of applications, we could open up the door to a greater possibility of inconsistent decisions.

One example would be if a justice of the peace who is also considered a justice were to make an order for production at a bail hearing, and months down the line, the trial judge hears or has the evidence before them and disagrees with that assessment.

(1110) Larry Brock :

Thank you for that. However, amendment NDP-12 does not speak specifically to a trial judge. It makes reference to a provincial court judge. On the surface of this, I thought it was redundant because the use of “judge” includes both levels. To be specific to your point, Mr. Ellison, do you think there's value in offering up a friendly amendment to the NDP to make reference to a trial judge as opposed to a provincial court judge?

Michael Ellison :

My response to that would be that while it's friendly and the intention would be friendly, it would actually introduce redundancy, because we're already very clear in the Criminal Code. Bill C-16 would carry over the requirement that a trial judge hears this type of application. At that point, if we were to add that clarity, we would simply be reconfirming the state of the law.

Larry Brock :

Okay. Thank you.

The Chair :

Mr. Housefather.

Anthony Housefather (Mount Royal, Lib.) :

I want to understand this, because I understand it the same way Mr. Brock does. Were this to be limited to a trial judge, it would become redundant. The issue here is that there would be an expansion to, potentially, pretrial judges with very limited evidentiary basis. What I would understand is that the accused could then seek victims' private information at an earlier stage from somebody who doesn't even have the evidentiary basis to determine that. There may have been an inadvertent way of drafting it that has actually created a privacy issue for the victim in this amendment. Would I be right in that?

Michael Ellison :

Yes, I would agree with this. Currently, the restriction here is very intentional to ensure that we are better protecting the dignity and privacy interests of a complainant and that access is not granted too early to a more limited evidentiary record. There's a very well-intentioned amendment here, I imagine, to expand this, because there are times, especially in remote and northern communities, when it is difficult to get that trial judge assigned, but jurisdictions across the country have found appropriate workarounds to ensure that trial judges can be assigned earlier, in some cases, to make these rulings.

The Chair :

Shall NDP-12 carry? (Amendment negatived [ See Minutes of Proceedings ])

The Chair: We're on G-16. Ms. Lattanzio.

Patricia Lattanzio (Saint-Léonard—Saint-Michel, Lib.) :

Thank you, Mr. Chair. This is , once again, a technical amendment. This amendment would expand the application of the regime governing the production of private and therapeutic records in the possession of a third party in sexual offence trials to cases involving an offence under “any other Act of Parliament, that is of a sexual nature or that is committed for a sexual purpose”, and not to just a Criminal Code offence that is of a sexual nature or committed for a sexual purpose.

The Chair :

Thank you. Shall G-16 carry?

Larry Brock :

I have a question.

The Chair :

I'm sorry, Mr. Brock. Go ahead.

Larry Brock :

I need some clarification from the officials. Is the expansion to all acts of Parliament, in your view, designed to capture these types of applications, perhaps in the military context? That's one example for the expansion.

Michael Ellison :

The intent here is really to capture.... My colleague Ms. Levman, at the previous meeting, mentioned in reference to G-8, which is a very similar amendment to the sexual history regime, that this would clarify that this also applies to other federal statutes, particularly the Immigration and Refugee Protection Act. It's to ensure that when the trafficking and smuggling offences that are contained within that act are committed for a sexual purpose, these protections apply then as well. I'll allow my colleagues later on to speak to the National Defence Act, but there are also amendments in Bill C-16 that would apply these principles within the National Defence Act as well.

Larry Brock :

Thank you. (Amendment agreed to [ See Minutes of Proceedings ])

The Chair :

We're on G-17.

(1115) Patricia Lattanzio :

This motion would clarify that victims or witnesses who are protected by automatic publication bans and can apply to hearings to determine the admissibility or production of highly sensitive evidence in sexual offence trials may disclose information about the hearing, including to a legal professional, health care professional or person in relationship of trust with them, provided that they do not “intentionally or recklessly reveal” the identity of any other person protected by the publication ban.

The Chair :

Thank you. Mr. Baber.

Roman Baber (York Centre, CPC) :

Ms. Lattanzio, does that include the recipient? When you say “they”, do you mean the recipient of the information?

Patricia Lattanzio :

I believe so. (Amendment agreed to [ See Minutes of Proceedings ])

The Chair :

We're on G-18.

Patricia Lattanzio :

Once again, this amendment is a technical one, and it has the same reasoning that I mentioned earlier in G-16. (Amendment agreed to [ See Minutes of Proceedings )]

The Chair :

We're on G-19.

Marilyn Gladu (Sarnia—Lambton—Bkejwanong, Lib.) :

This is another technical amendment. It changes the English language portion to say the prosecutor may “produce” the listed records, rather than “disclose” them, as was in there. It's just a linguistic change. (Amendment agreed to [ See Minutes of Proceedings ])

The Chair :

We're on NDP-13. Ms. Kwan.

Jenny Kwan :

Mr. Chair, as with the previous NDP amendments, this would ensure that the complainant has the right to independent legal advice, ensuring that this bill would truly uphold victims' rights and not leave them without protections in court proceedings.

The Chair :

Thank you. Is there anybody else?

Roman Baber :

We're contemplating a scenario here where the complaining witness—the alleged victim—would obtain counsel.

The Chair :

Who was your question directed to?

Roman Baber :

It was the mover of the motion.

Jenny Kwan :

It's a joint application.

Roman Baber :

I have a quick question for the officials. In theory, I don't object to this, but it's highly unusual to insist on the complainant being represented in a criminal context. Am I correct?

Michael Ellison :

Yes. There are very specific circumstances within the sexual history regime and the private records regimes where a complainant has limited forms of standing. In this case, this would be an amendment to a portion of Bill C-16 that replaces what we call the explicit waiver provision, which is currently in the production regime. When the Crown is in possession of private records, currently under the law, it can produce those records if the complainant waives the application of those protections, essentially. The court will consider admissibility later.

Bill C-16 proposes to reduce delays by changing the explicit waiver power to the new “authority of the produce” power that is in the bill. That was just amended with the change in that language from “disclose” to “produce”. This is the power of the Crown to produce documents to the defence that are in its possession. This amendment would require that before the complainant can give their permission for certain records to be disclosed to the accused, they would first have to have the opportunity to obtain counsel. That would be a step up from the current existing law, where just a waiver is required.

This would actually require counsel first. It would, in theory, lead to potential further delays as a complainant would have to first hire a lawyer, get their advice and then go back to the Crown and answer yes or no for whether they can produce. The intent of the amendment here is a different balancing of victims' rights versus efficiency.

Roman Baber :

I have a quick follow-up question. How is the waiver or consent regime being contemplated here? How is that balanced against the Crown's duty to produce?

(1120) Michael Ellison :

The Crown has its general duty to disclose. That comes out of the older cases such as Stinchcombe, of course, as you know. In that duty to disclose generally the fruits of the investigation to the accused person is tempered and restricted by the private records regime. The private records regime says if you have this category of records, even if it's part of the investigation, you must hold off and you must notify, and then an application must be made so that we can ensure that these protections are in place. The explicit waiver provision that is in existence right now in the code allows for you to override that and produce those documents just for disclosure to the defence at this time.

Roman Baber :

I don't know. I don't want to make a mistake here. I understand the intent of the NDP amendment. I am concerned, however, that the intent of the bill is to try to move proceedings along to avoid Jordan dismissals. I am a little concerned that we may be holding up proceedings and actually deviate from the intent of the bill. I don't know. I see Mr. Housefather nodding, but I'm not sure where the Liberals are at on this amendment. This is a friendly conversation, not political. Do you have any thoughts?

The Chair :

I think you'll find out their intentions when they vote, Mr. Baber. Are you finished, Mr. Baber?

Roman Baber :

Yes.

The Chair :

Okay. Mr. Housefather

Anthony Housefather :

It was just to say that I agree with what Mr. Baber said.

The Chair :

Okay, shall NDP-13 carry? (Amendment negatived [ See Minutes of Proceedings ])

The Chair: On NDP-14, go ahead, Ms. Kwan.

Jenny Kwan :

Thank you, Mr. Chair. Once again, this will ensure that input and consent from the complainant must be considered before their records are disclosed in legal proceedings. Many of these amendments are in the interests of the victims, which I think is an important component. While I understand there's a need to expedite, at the same time protecting victims' rights is critical as well.

The Chair :

Thank you. Mr. Brock.

Larry Brock :

To the officials, what is the nature of the communications that are contemplated by this amendment?

Michael Ellison :

This was discussed in the case of R v. J.J. This is an issue that has occupied a lot of time in court. When it comes to communications, what we're primarily looking at here are electronic communications that are slowing down court proceedings. For example, in a human trafficking investigation, a Crown could theoretically receive from the police of jurisdiction thousands of text messages between a complainant and an accused person.

Before those thousands of messages can be disclosed to the accused, assuming they're going to be used to prove the case, it not only has to go through the Crown vetting procedure, with them exercising their duties to protect a victim through properly vetting disclosure, but it also has to go through the entire production regime. This has been one sticking point in particular, especially in human trafficking cases but in sexual assault and related cases as well, which get more and more complex when we have large volumes of communications.

Communications have been singled out as something we can clearly save time on. We can allow the Crown to exercise its responsibilities as a minister of justice to properly fulfill its disclosure obligations to protect the victim and to get those records to the accused that are going to be used at trial, in any event, because the Crown will lead them.

It will give them the time to do that, and we don't necessarily then have to wait all the way until we have a trial judge to make a decision on production, and then, at that point, the defence would understandably be upset that the trial is very close and they now suddenly have thousands of communications. We're primarily talking about electronic communications.

Larry Brock :

You used, as an example, human trafficking. I'm looking at this through the lens of an IPV case, particularly in the context of a marital union, which would be protected. Communications between a married couple, if one is the accused and one is the complainant, would be protected. This would not apply to that. Is that correct?

Michael Ellison :

It's an excellent fact scenario that you pointed out. The Crown would have to, in this situation.... The proposal here, around giving the Crown the ability to produce these types of documents and replacing that explicit waiver provision, this is not mandatory for the Crown to do. The Crown still has its responsibilities to only disclose things in a proper manner—for example, making appropriate redactions and not disclosing things that might otherwise be protected to, let's say, a third party accused on the same case—a co-accused.

In that example, a Crown does have the authority here to—if this were to pass—disclose communications. However, if there is a co-accused and there is some sort of special consideration there—not part of the marriage, obviously—and they have concerns there, they can still withhold that disclosure, as they would be expected to today if there was a concern, or make appropriate redactions. I just want to stress that these powers are discretionary. It's an exercise in Crown discretion as it's drafted. Nothing here compels the Crown to make production.

It is simply their decision within their role as a minister of justice.

(1125) Larry Brock :

As a follow-up, will this amendment assist Crown prosecutors in the carriage of their responsibility? Give me a yes or no.

Michael Ellison :

Yes, it would.

Larry Brock :

Thank you.

The Chair :

Mr. Baber, go ahead.

Roman Baber :

Thank you for your excellent testimony and assistance to all of us. The spousal complaining witness is not a compellable witness. I think that's the state of the law. You can't compel. In other words, they're still capable of some of their own decisions. The NDP amendment is essentially that the disclosure would be conditional on the complainant's agreement. That's the operative provision of this amendment. Is that correct?

Michael Ellison :

Yes. The crux of this amendment here would be to constrain the Crown discretion that Bill C-16 proposes to provide. Right now, Bill C-16 says that we know our Crown attorneys are educated, know their role as a minister of justice and can make the appropriate determinations. Especially when it comes to communication evidence, which in certain cases can be vast, they want to be able to exercise that discretion, make the appropriate redactions and get that disclosed to defence, so they don't have to wait until the eleventh hour, right before trial, when they get that trial judge assigned, in order to get a production order.

Roman Baber :

How do you balance this requirement of consent by the complainant proposed by the NDP amendment versus the Stinchcombe requirement to disclose?

Michael Ellison :

We are working within the production regime, which already provides a constraint on the Crown's ability to disclose. In this case, we already have that constraint. Parliament would be free to impose further constraints. It would go against the intention of Bill C-16 overall to provide greater discretion.

Roman Baber :

Thank you, Mr. Ellison.

The Chair :

Does NDP-14 carry? (Amendment negatived [ See Minutes of Proceedings ])

The Chair: We're now on G-20. Ms. Lattanzio.

Patricia Lattanzio :

Again, it's a technical amendment. It's the same as G-16 and G-18.

The Chair :

Shall G-20 carry? (Amendment agreed to [ See Minutes of Proceedings ])

The Chair: We're now on G-21.

Patricia Lattanzio :

Mr. Chair, this is another technical amendment. It corrects the typo that changes the intent of proposed subsection 278.29(2), which governs the test for admissibility of records and therapeutic records, including when they contain sexual history evidence. This amendment would clarify that all therapeutic records, including those that contain sexual history evidence, are only admissible if they meet the “innocence at stake” test by removing the disjunctive “or” from the list of records that are subject to the private records admissibility regime in sexual offence trials in proposed paragraphs 278.29(2)(

a) and 278.29(2)(c), and replacing it with a conjunctive, thus clarifying that therapeutic records that contain sexual history evidence, which are listed in proposed paragraph 278.29(2)(a), must also meet the “innocence at stake” test in proposed paragraph 278.29(2)(c).

Anthony Housefather :

Mr. Chair, are we on G-22 now?

The Chair :

We're on G-21.

Anthony Housefather :

You were just describing G-22.

Patricia Lattanzio :

I did G-21. Did we not vote on G-21?

The Chair :

No.

(1130) Patricia Lattanzio :

Amendment G-21 is the same as G-16 and G-18, Mr. Chair. I got ahead of myself. I thought we had voted on that. I'm sorry about that.

The Chair :

Do you have any further submissions on G-21?

Patricia Lattanzio :

I have none on G-20. Those are all for G-22. I'm sorry about that, colleagues.

The Chair :

Shall G-21 carry? (Amendment agreed to [ See Minutes of Proceedings ])

The Chair: I have a feeling Ms. Lattanzio is going to speak to G-22.

Anthony Housefather :

She just did.

The Chair :

I have a feeling I know what she's going to say.

[ Translation ]

Patricia Lattanzio :

I'm sorry, I thought we'd already voted —

[ English ]

The Chair :

Shall G-22 carry? (Amendment agreed to [ See Minutes of Proceedings ])

The Chair: We're now on G-22.1. Ms. Khalid.

Iqra Khalid (Mississauga—Erin Mills, Lib.) :

Amendment G-22.1 is a technical amendment. It corrects a linguistic inconsistency to reflect the policy intent of the legislation to protect victims and create efficiencies in sexual offence proceedings. The amendment, if passed, would restore the existing procedure for service to the complainant at stage two.

The Chair :

Thank you. Shall G-22.1 carry? (Amendment agreed to [ See Minutes of Proceedings ])

The Chair: We are now on G-23. Ms. Lattanzio.

Patricia Lattanzio :

Again, Mr. Chair, this is a technical amendment, as previously stated in G-20.

The Chair :

Thank you. Shall G-23 carry? (Amendment agreed to [ See Minutes of Proceedings ])

The Chair: We are now on NDP-15. It's back to you, Ms. Kwan.

Jenny Kwan :

Thank you, Mr. Chair. NDP-15 is related to an earlier NDP amendment. This amendment provides complainants with a clear statutory right to counsel from the outset of the joint application process.

The Chair :

Thank you. Mr. Baber.

Roman Baber :

I just want to assist my friend from the NDP. Mr. Ellison, the complainant generally has the right to be represented by counsel. Does my friend try to allude to standing? Is that the issue here? In that case, maybe this amendment should be reconsidered.

Michael Ellison :

This is essentially identical to NDP-11 within the context of the sexual history regime. That carried, I believe. Here it's within the joint application procedure that's being proposed for admissibility of private records and not therapeutic records. The department's position is that the complainant does have standing and has the ability to be represented by counsel, because it is a joint procedure where the Crown, defence and the complainant must agree in order to take advantage of the procedure. This would simply clarify that the complainant has that right, because of course it is relatively unusual for a complainant to have standing. It is intended within the joint application procedure.

Roman Baber :

Thank you.

The Chair :

Thank you. Shall NDP-15 carry? (Amendment agreed to [ See Minutes of Proceedings ])

The Chair: We will now go to G-24. Ms. Lattanzio.

Patricia Lattanzio :

Thank you, Mr. Chair. Again, it is the same technical amendment that was brought forward for G-17.

The Chair :

Thank you. Shall G-24 carry? (Amendment agreed to [ See Minutes of Proceedings ]) (Clause 34 as amended agreed to) (On clause 35)

The Chair: This takes us to proposed amendment G-25.

Anthony Housefather :

Thank you, Mr. Chair. This amendment basically would ensure that the human trafficking provisions require consideration of two additional factors that we just agreed to in previous amendments. It is related to threatening to use “violence against any animal known to” the victim as opposed to just one owned by the victim; and damaging, threatening or attempting to damage the victim's property “or the property of anyone known to” them. Basically, we're adding two factors that we had agreed to in previous amendments.

The Chair :

Shall G-25 carry? (Amendment agreed to [ See Minutes of Proceedings ]) (Clause 35 as amended agreed to) (Clause 36 agreed to)

The Chair: New clause 36.1 is being proposed in CPC-20. I have reviewed amendment CPC-20 and have deemed it out of scope.

(1135) Larry Brock :

I challenge the chair. (Ruling of the chair sustained: yeas 7; nays 4) (On clause 37)

The Chair :

This takes us to CPC-21.

Larry Brock :

You ruled it out of order.

The Chair :

No. That was CPC-20.

Larry Brock :

I'm sorry. I thought it was CPC-21.

The Chair :

That's unless you want me to rule that one out of order.

Larry Brock :

I hope you don't rule CPC-21 out of order.

The Chair :

I'm not. That's why I'm asking you to speak to it.

Larry Brock :

Isn't that interesting?

The Chair :

I caught you off guard, there—didn't I, Mr. Brock?

Larry Brock :

I shall definitely take the opportunity. Thank you, Mr. Chair. CPC-21 reflects on the ongoing, growing issue of extortion, which is spreading, literally, like wildfire across this country. We know we have pockets of extreme activity in this country. Ontario is certainly not immune. Quebec is not immune. However, ground zero, in my view, is the province of British Columbia.

I know that most, if not all, members of this committee—at least from the government, and some from the Conservative perspective—have actually toured various cities in British Columbia and heard directly from law enforcement as well as from provincial leaders and municipal leaders, including the mayor of Vancouver, the mayor of Surrey and the mayor of Abbotsford. I have taken the liberty of talking to victims of extortion. It's absolutely heartbreaking to see the lawlessness that has been demonstrated by these nefarious actors in extorting, quite often with violence, various sums of money.

Also, it's rather disappointing that the Liberal government, a few years back, in the 44th Parliament, chose collectively to vote down our deputy leader Tim Uppal 's private member's bill , which would have mandated mandatory minimum penalties for extortion. That was a few years ago. The rising rates of extortion were not so extreme back then, but the crime itself is having devastating impacts for many residents across this country.

That was, in our view, the first Conservative attempt to undo the complete short-sightedness of this disastrous Liberal government, in the 44th Parliament, choosing to put forward Bill C-5 , which completely eliminated 14 serious mandatory minimum penalties in the Criminal Code. For the likes of me, I have yet to hear any cogent, rational explanation from any member of the Liberal government, including attorneys general and prime ministers, as to why they saw fit to eliminate all mandatory minimum penalties for all of the Controlled Drugs and Substances Act.

They did this at a time when we have an opiate crisis in this country. Fentanyl is taking the lives of our loved ones, friends and neighbours every single day of the year, and the RCMP are investigating massive fentanyl superlabs in this country. One such superlab in the province of British Columbia had enough precursor to produce enough fentanyl to kill every single Canadian twice over, yet this short-sighted Liberal government chose to eliminate mandatory minimum penalties for all drug offences. Let's think about it.

The rationale was—and this has not aged well in terms of history—that we have to take active steps to address the overincarceration rate of certain marginalized individuals in this country. We have to reflect the fact that this was, given Bill C-16 , an absolute failure by this Liberal government to acknowledge the elephant in the room—that there is a place in Canadian society for mandatory minimum penalties.

(1140) David Lametti, the former justice minister and attorney general of Canada, proudly got on his soapbox and said that mandatory minimum penalties were ineffective, that study after study shows they do not have a deterrent impact on offenders and that there is growing sentiment around the world, in many democratic nations, to remove them. That was the position of the Liberal government. Now, with Bill C-16 , we have the ability to bring back mandatory minimum penalties.

For all those reasons, I am very grateful that the Liberal Party of Canada and my Liberal colleagues here at this committee appreciate that there is a place in our Canadian justice system for mandatory minimum penalties. Those who would seek to do harm by extorting the precious assets that, largely, our immigrant population built up in this country, and to take from those individuals, need a strong response from parliamentarians. Thank you to my Liberal colleagues, who, after I criticized them appropriately in my interventions, saw the light and recognized that there is a place for mandatory minimum penalties.

A four-year mandatory minimum penalty for using a firearm in an extortion is highly appropriate, and it's time to reflect that as soon as possible. Thank you.

The Chair :

Mr. Gill.

Amarjeet Gill (Brampton West, CPC) :

Mr. Chair, I want to speak to Mr. Brock's motion because it is relevant to my riding. I know he mentioned that the extortion crisis is on the rise across the country. We all know extortion is up 330% in Canada, and it is a crisis in my hometown of Brampton. It is a crisis because of catch-and-release bail policies and the illegal firearms the Liberals have allowed across the border. We have seen drive-by shootings at businesses and homes in broad daylight. The criminals send the victims videos of them shooting at the victims' homes. Extortion is causing an exodus of business owners scared for their safety.

We know and are talking about how important it is to control this crime in our neighbourhoods and on our streets. It does not capture cases where the firearm is illegally held because the person does not have a licence or the firearm was smuggled across the border. These are the majority of extortion cases in my community and my town. This would simply add a four-year MMP—mandatory minimum penalty—if a non-restricted firearm is used. I encourage everyone to vote for Mr. Brock's amendment to clearly denounce extortion with any firearm. I am supporting it. I encourage all of you to support it. Thank you.

(1145) The Chair :

Ms. Lattanzio.

Patricia Lattanzio :

Mr. Chair, I'd like to ask the officials a few questions. First, would this be charter-compliant, and what would it do in terms of delay? Would it risk increasing the delays?

Matthew Taylor (Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice) :

Thanks for the question. It's difficult to say, in the abstract, whether it would be charter-compliant. I would point the committee to the Hilbach decision, which was discussed last week. There, the Supreme Court of Canada upheld two mandatory minimum penalties of imprisonment for robbery with a firearm. That would be, I think, instructive regarding any charter challenge in this space, given that the offences are similar in terms of their seriousness and that they would have some similar penalties.

Certainly, on the delays issue—to the second part of your question—that was one of the objectives that animated Bill C-5 at the time, in addition to some of the objectives Mr. Brock spoke about already. There was a significant concern about justice system delays. There had been a fairly significant number of charter challenges. There was a disincentive for individuals to plead guilty, and therefore their trials would continue. One expects those kinds of considerations to continue to be relevant in any offence where there are mandatory minimum penalties of imprisonment.

Patricia Lattanzio :

Mr. Chair, can I ask that we suspend for a couple of minutes?

The Chair :

Yes, you absolutely can. We'll suspend.

(1145) (1155) The Chair :

I'd like to call this meeting back to order. Ms. Lattanzio, you still have the floor.

Patricia Lattanzio :

Thank you, Mr. Chair. We have discussed it amongst ourselves, and I think we have an agreement to defer the vote on this one until the very end of the meeting, Mr. Chair.

The Chair :

Do we have agreement on that?

Some hon. members: Agreed.

The Chair: All right. Thanks. That takes us to.... Mr. Baber.

Roman Baber :

Am I able to make some...? Does that bump the speaking list, then?

The Chair :

No. This would carry over to the end. That's all. At the end, we'll pick up on this where we left off.

Roman Baber :

Can I speak to it now? Am I able to complete my submissions?

The Chair :

Sure. Go ahead. Ms. Lattanzio still has the floor technically, but—

Patricia Lattanzio :

That's it. I just had that request. Thank you.

The Chair :

You're done. Okay. Go ahead, Mr. Baber.

Roman Baber :

Mr. Brock is moving an amendment to mandate a four-year mandatory minimum sentence when a firearm is used in the commission of an extortion offence. We are witnessing horrible videos—on the news and social media—of people in the greater Toronto area shooting at residential houses and of mobs shooting at homes in the middle of the night repeatedly to demonstrate their strength, to flex and to threaten people to get them to do something that they otherwise wouldn't do, and that is typically to pay money. It is unthinkable that we have a crisis of extortion in Canada right now.

Unfortunately, this is something that my family has witnessed, but not in Canada. My aunt owned a flower store in Haifa, and she was compelled to pay protection money. When she didn't, her flower store was burned down to the ground. Then she didn't again, and her flower store was again burned down to the ground. This is not arson. This contemplates a firearm. I think that extortion.... When mobs—and in this case we often deal with foreign mobs—intervene in our small business climate and start extorting people for money, that's where the rule of law breaks down.

This is not an offence against the administration of justice. It undermines the rule of law so fundamentally that justice in itself is now in doubt. This bill gives us an opportunity to address this crisis, which I've heard the justice minister discuss in the House multiple times. I'm very pleased that the chair has ruled this amendment in order. I point out that the chair ruled out of order a previous amendment, which prescribed a minimum mandatory sentence where a firearm is used in a robbery. Now this one is ruled in order. The Liberals have an opportunity to do something very important. Thank you.

(1200) The Chair :

Thank you, Mr. Baber. We're going to defer that until the end, which also includes voting on clause 37. (Clause 37 allowed to stand) This takes us to new clause 37.1, which includes CPC-21.1, which I am ruling out of scope.

Roman Baber :

I'm sorry. Which one is it?

Larry Brock :

It's out of scope.

The Chair :

Yes. It's new clause 37.1 and CPC-21.1.

Larry Brock :

That's unbelievable.

Roman Baber :

Mr. Chair, you don't believe that's an expansion of an existing—

The Chair :

I've made my ruling, Mr. Baber. You—

Larry Brock :

I challenge the ruling.

The Chair :

Thank you. (Ruling of the chair sustained: yeas 7; nays 4) (On clause 38)

The Chair: All right, that takes us to clause 38 and G-26. Ms. Lattanzio.

Patricia Lattanzio :

Thank you, Mr. Chair. G-26 proposes to amend clause 38, which would amend

section 486.1 of the Criminal Code to make testimony with the support of a person or animal presumably available for victims in proceedings related to any offence committed by an intimate partner. This amendment would require a consequential amendment to subclause 2(1) in order to remove the reference to

section 486.1 that appears in proposed subsection 3.01(2). Expanding the availability of testimonial aids to all intimate partner offences recognizes that power imbalances and fear can affect a victim's ability to testify, even in the context of non-violent offences, since other unreported abuse may be present.

The Chair :

Thank you. Shall G-26 carry? (Amendment agreed to [ See Minutes of Proceedings ]) (Clause 38 as amended agreed to) (On clause 39)

The Chair: That takes us to clause 39 and NDP-16. If NDP-16 is adopted, G-27 cannot be moved due to a line conflict. Go ahead, Ms. Kwan.

Jenny Kwan :

NDP-16 is similar to an amendment previously moved. This would extend the procedural protections to all those who are victimized by an intimate partner and would not restrict procedural supports to a limited number of offences. What's important here is that these protections and legal proceedings are in the context of domestic violence and not the particular offence. I hope the committee members would support this, as this request for amendment follows the recommendations of experts.

The Chair :

Thank you. Go ahead, Ms. Lattanzio.

Patricia Lattanzio :

Our government agrees with the objective of this amendment. We are trying to achieve the same outcome, which is to expand access to testimonial aids for victims in proceedings involving intimate partner violence. However, we cannot support this amendment as drafted. We have put forward our own amendment in G-27, which achieves the same result but does so with more clear and more consistent language across the Criminal Code, including alignment with the French version. That matters because the law has to be clear and applied consistently by the courts if we want these protections to work for victims.

This is not a disagreement in theory. We are aligned on that. It's about getting the drafting right. For those reasons, we will be voting against NDP-16 and moving G-27 to ensure that victims receive the protections they need to fully participate in the justice process.

The Chair :

Thank you, Ms. Lattanzio. Shall NDP-16 carry? (Amendment negatived [ See Minutes of Proceedings ])

The Chair: This takes us to G-27. I assume you will speak to it, Ms. Lattanzio.

Patricia Lattanzio :

G-27 proposes to amend clause 39, which would amend

section 486.2 of the Criminal Code to make testimony behind a screen or outside of the courtroom by CCTV or other means presumptively available for victims in proceedings related to an offence committed by an intimate partner. This amendment would require a consequential amendment to subclause 2(1) in order to remove the reference to

section 486.2 from proposed subsection 3.01(2). Expanding the availability of testimonial aids to all intimate partner offences recognizes that power imbalances and fear can affect a victim's ability to testify, even in the context of non-violent crimes, since other unreported abuse may be present.

(1205) The Chair :

Shall G-27 carry? (Amendment agreed to [ See Minutes of Proceedings ]) (Clause 39 as amended agreed to) (On clause 40)

The Chair: We'll start with G-28. Ms. Lattanzio, go ahead.

Patricia Lattanzio :

Again, it's the same reasoning just mentioned for G-27.

The Chair :

Shall G-28 carry? (Amendment agreed to [ See Minutes of Proceedings ]) (Clause 40 as amended agreed to)

The Chair: We're now on the new clause 40.1 with NDP-17. Ms. Kwan, go ahead.

Jenny Kwan :

This amendment is based on a recommendation from the National Association of Women and the Law to ensure that victims are not at risk of criminalization for breach of a publication ban whose purpose is to protect the victims themselves. While past legislation has responded to concerns raised by survivors about this issue, experts tell us that these measures have proven to be overly narrow and that this remains a major risk for victims. With this in mind, I urge colleagues to vote in favour of this amendment to uphold victims' rights and to ensure that survivors of violence are not criminalized due to the same publication bans that are supposed to protect them.

The Chair :

Go ahead, Ms. Lattanzio.

Patricia Lattanzio :

I have a question for the officials. In the proposed amendment, would this not undermine the reforms already enacted through former Bill S-12 , which already allow victims and witnesses broad freedom to speak about their cases while preserving protections for other individuals whose identities remain subject to a ban?

Nathalie Levman (Senior Counsel, Criminal Law Policy Section, Department of Justice) :

Yes, I agree that it would conflict with subsection 486.6 (1.1), which was enacted, as the member said, through former Bill S-12 . That provision basically says that a victim can't be held liable for breaching a publication ban unless they “knowingly failed to comply with the order” or they compromised the “privacy interests of another person” who is also protected by a publication ban and a warning to the individual was not an “appropriate” response. Those are the safeguards that are already built into the Criminal Code to ensure broad leeway for victims to speak about what they have endured. Thank you.

The Chair :

I have Mr. Housefather.

Anthony Housefather :

I have one question. Thank you very much to my colleague for the question and for the clarification. I would read the proposed new language as essentially saying that the person who is failing to comply with the ban is exempt from any sanctions, even if, for example, they breach the privacy of another witness or another person who is also a victim. Is that correct?

Nathalie Levman :

That's correct. That's how I read the amendment as well.

Anthony Housefather :

Thank you.

The Chair :

Shall NDP-17 carry? (Amendment negatived [ See Minutes of Proceedings ]) (Clause 41 agreed to)

Jenny Kwan :

I'm sorry, Mr. Chair. I want to make sure that NDP-17.1 is under clause 59.

The Chair :

I'm sorry. I couldn't hear you. Can you say that again?

Jenny Kwan :

I want to make sure that NDP-17.1 is in the package. It comes in clause 59. I want to make sure you have it. It's an updated package.

The Chair :

Give me a second. We did get it.

Jenny Kwan :

Yes. I see the legislative clerk nodding. Thanks.

Roman Baber :

Can I ask for a clarification?

(1210) The Chair :

Yes. Go ahead, Mr. Baber.

Roman Baber :

Are we able to vote on the clause as we just did given that we have CPC-21 still outstanding for consideration?

The Chair :

I'm sorry. Is this on new clause 40.1?

Roman Baber :

We just voted on a clause, but I believe that clause is still not finalized, because we're dealing with CPC-21 still. Should we not defer the voting on the clause as well?

The Chair :

No. It's a different clause.

Roman Baber :

It's a different clause. Okay. (On clause 42)

The Chair :

We're now on clause 42. I believe PV-5 has been withdrawn. (Clauses 42 to 44 agreed to)

The Chair: We're on clause 45 with PV-6, which was withdrawn. Shall clause 45 carry? (Clause 45 agreed to) (Clauses 46 to 55 agreed to) (On clause 56)

The Chair: Clause 56 has amendment G-29. Go ahead, Ms. Khalid.

Iqra Khalid :

Thanks, Chair. This is basically cleaned-up language to make sure that the French version is the same as the English text. It adds grammatically correct language that's consistent with the English version.

The Chair :

Thank you. Shall amendment G-29 carry? (Amendment agreed to [ See Minutes of Proceedings ]) (Clause 56 as amended agreed to) (Clauses 57 and 58 agreed to) (On clause 59)

The Chair: Clause 59 takes us to amendment G-30. Go ahead, Ms. Lattanzio.

Patricia Lattanzio :

Thank you, Mr. Chair. This is a technical amendment. This motion would amend the English version of clause 59 to amend proposed paragraph 715.48(1)(

a) to specify that prosecutors may issue “a warning to the person”.

The Chair :

Shall G-30 carry? (Amendment agreed to [ See Minutes of Proceedings ])

The Chair: Now we're on NDP-17.1. Go ahead, Ms. Kwan.

Jenny Kwan :

Thank you very much, Mr. Chair. This amendment follows a recommendation from the Union of B.C. Indian Chiefs to explicitly list indigenous diversion programs as one of the options of alternative measures in the restorative justice framework. This will ensure that alternative measures are culturally appropriate and responsive to the distinct needs and realities of indigenous peoples accused and indigenous victims. We know that successive governments have embraced carceral approaches to public safety, ignoring that indigenous peoples are disproportionately impacted by these approaches, due to a pattern of systemic—

The Chair :

Ms. Kwan, I have three people trying to talk to me at the same time here. I'll let you finish. Then I'm going to suspend for a moment.

Jenny Kwan :

Sure. I'll just finish up that last thought. I was saying that successive governments often have ignored these approaches due to the pattern of systemic racism in our criminal justice system and the ongoing legacy of residential schools in Canada. While it's reassuring that this bill contains a restorative justice framework, it is essential that we do not ignore the voices of indigenous peoples and that alternative measures incorporate culturally appropriate practices for all indigenous communities.

This would help ensure that this bill does not contribute to the systemic racism experienced by indigenous peoples in the criminal justice system. Given the duty of lawmakers to ensure that all legislation aligns with the advancement of reconciliation, I urge my colleagues to vote in favour of this amendment.

The Chair :

Thank you, Ms. Kwan. I apologize for the interruption. Shall NDP-17.1 carry? (Amendment negatived [ See Minutes of Proceedings ])

The Chair: We're on NDP-18. We're back to you, Ms. Kwan.

Jenny Kwan :

Thank you. I'm disappointed that—

The Chair :

Do you know what? I am going to pause for a moment. Wait one second, Ms. Kwan. I'm sorry, Ms. Kwan. We are on NDP-18. Go ahead.

Jenny Kwan :

Thank you. It was disappointing that the last NDP amendment did not go through, as it was really important for the indigenous community. NDP-18 also relates to alternative measures in the restorative justice framework. This amendment would broaden protections for participants in alternative measures so that any statements made by persons alleged to have committed an offence, or by victims, would not result in their criminalization.

It is essential that the alternative measures lay this out in the restorative justice framework and that they are not jeopardized due to participants' fears that the statements they make while completing these programs would be used to criminalize them or others. If we're serious about non-carceral approaches to public safety—particularly for indigenous, Black and other people of colour, who are overrepresented in the criminal justice system—we must ensure that these solutions work and are trusted by all who are participating in them.

(1215) The Chair :

Thank you, Ms. Kwan. Mr. Baber.

Roman Baber :

I'm not sure we're able to amend civil statute or the civil process by virtue of criminal Bill C-16 . We have to tread carefully. There's a charter right against self-incrimination, but I'm not sure there's a charter right not to incriminate oneself once you choose to make a statement. I don't know. I'm a little confused by this.

The Chair :

Shall NDP-18 carry? (Amendment negatived [ See Minutes of Proceedings ])

The Chair: We're on G-31. Go ahead, Ms. Khalid.

Iqra Khalid :

It's a technical amendment. It would basically amend clause 59 to expand proposed

section 715.56 so that the records regime in the new part on alternative measures and restorative justice processes would also apply to records of warning and referrals made by prosecutors, in addition to those made by the police.

The Chair :

Thank you. Shall G-31 carry? (Amendment agreed to [ See Minutes of Proceedings ]) (Clause 59 as amended agreed to) (Clauses 60 to 62 agreed to) (On clause 63)

The Chair: For clause 63, we'll start with NDP-19. If NDP-19 is adopted, CPC-22 cannot be moved because of a line conflict. Ms. Kwan.

Jenny Kwan :

Thank you very much, Mr. Chair. This NDP amendment reflects concerns raised by a range of experts and stakeholders about the Liberals' reinstatement of mandatory minimums, which have repeatedly been struck down by the courts for violating charter rights. This change would ensure that Bill C-16 's safety valve would include the Gladue principles in order to consider non-carceral options for indigenous people and the protection of their charter rights in all cases.

This would mean aligning this legislation with the government's commitment to implementing call to action 32 of the Truth and Reconciliation Commission and to upholding equality for those overrepresented in prisons, including racialized people, victims and survivors of abuse, and those dealing with mental health and addiction issues.

This committee has heard from several legal experts who have recommended amendments to broaden the safety valve in Bill C-16 , including the National Association of Women and the Law, the Women's Legal Education and Action Fund, the Canadian Bar Association and Quebec's bar association. Elected representatives have a duty to uphold our charter and our commitments to reconciliation, so I strongly urge my colleagues to follow the recommendations of legal experts and vote in favour of this amendment.

The Chair :

Thank you, Ms. Kwan. Mr. Brock.

Larry Brock :

Thank you, Chair. To the officials, am I correct in my

interpretation? After Bill C-16 receives royal assent, wherever in this country a judge finds that the application of an MMP would result in cruel and unusual punishment, it would still avail that particular justice to consider

section 718 in the context of the Gladue principles as they relate to an indigenous offender. That would happen regardless. Is that correct?

Leah Burt (Counsel, Criminal Law Policy Section, Department of Justice) :

Yes, that's correct.

Larry Brock :

Thank you.

The Chair :

Shall NDP-19 carry? (Amendment negatived [ See Minutes of Proceedings ])

The Chair: Now we go to CPC-22.

Larry Brock :

Is it not out of scope?

The Chair :

No.

Larry Brock :

Thank you, Mr. Chair. I never know what to expect.

The Chair :

I try to keep you on your toes, Mr. Brock.

Larry Brock :

I'm very happy to speak to CPC-22. Colleagues, I come to this with the realization that notwithstanding our overarching concerns regarding the applicability of safety valves, for the reasons I have articulated far too many times about the built-in residual discretion that already exists, I'm addressing another elephant in the room with this particular amendment. The preferred language of the Liberal government sees the criminal justice system through, I believe, an artificial lens—that every particular judge in this country will do the right thing and that there is consistency in sentencing.

I couldn't disagree more with that general proposition. We're all lawyers. Most of us in this room are lawyers, and some of us have done some trial work. We will all agree that great discrepancy exists, even within a judicial district. In terms of sentencing, differences exist in western Canada versus eastern Canada. I can cite numerous examples. The point I'm trying to make here is that if we want to ensure consistency, there's an opportunity for all of us here at the justice committee to put some guardrails in place.

Bill C-16 , as drafted, does not provide any direction whatsoever to a justice, with the exception that they shall not deviate for murder and they shall not deviate for treason. There is no instruction on how the possibility of deviating from an MMP can be brought to the attention of a judge, whether by that judge on his own or her own, by application by the accused, by application by the accused's representative or by a friend of the court. What better opportunity is there for us as parliamentarians to strengthen a bill that, on its face, has a glaring weakness?

That weakness is that there is no direction, no base direction, to a sentencing justice. I've used language such as.... Well, let's look at factors. If the offender has no prior criminal record, that could be a factor to deviate. Is there any evidence of mitigating circumstances? Is there evidence that the offender co-operated with law enforcement officials or pleaded guilty very early on in the process? By no means is this list exhaustive. I didn't, on my own, come up with an exhaustive list, because the list was not intended to be exhaustive.

However, what I did in my own research into the drafting of this particular amendment was make a comparison with other jurisdictions that do provide their jurists with some degree of instruction on a deviation from an MMP. That exists in the U.K., in Australia and in a number of states in America. If Bill C-16 passes and receives royal assent, our country will be an outlier in the criminal justice field. That's one aspect of that particular amendment. The second aspect is something we all need to accept as reality.

If you recall, colleagues, on the last occasion, which was Wednesday, I asked a question of the officials. Mr. Taylor, you took responsibility for answering the question about there currently being nothing in Bill C-16 to prevent a justice from imposing a one-day sentence, because the only instruction that Bill C-16 provides is that when you deviate, you still must impose a custodial sentence. I use as an example a one-day sentence. It could be deemed to be a legal sentence, under Bill C-16, as a deviation. A “time served” disposition can be deemed to be an acceptable sentence under Bill C-16.

(1220) Take a look at the examples that exist out there. I used this one as an example last Wednesday, if you recall, colleagues. Senneville, that pervert who received the benefit of our Supreme Court of Canada's wrong decision, was originally sentenced, notwithstanding the size and depravity of the collection of child sexual abuse material, a 45-day weekend sentence. If anything, that one-year mandatory minimum penalty should be increased, because there has been no abatement of the creation of this filth in this country and around the world. There is such a growing appetite for this abuse material.

Here is an opportunity for us here in Canada, as parliamentarians, to take an appropriate stand. If anything, if I had some ability to direct policy in this country, I'd increase it to three years without any hesitation whatsoever. It is a sickening offence. I asked myself, how best can we at least reassure victims? How can we establish some degree of accountability and deterrence and denunciation? A one-day sentence, in my view, is tantamount to a fraud on our criminal justice system. I won't waste too much time here, but I'm going to use one example. I think this example is appropriate.

In my old life—I think we all can experience this in our various jurisdictions—some judges were harsher than others. In my jurisdiction, I had a female justice. I was in her guilty-plea court one day. I looked at the case file and said to myself, why on earth is an offender from Kapuskasing, Ontario, some eight, nine or 10 hours away from the Brantford jurisdiction, waiving in his guilty plea when he's already in custody and could have proceeded with his guilty plea in that jurisdiction? I was curious. This female judge in Brantford was curious and asked the question.

The offender, if anything, was extremely honest in what he said: “Your Honour, you have quite the reputation in Ontario, and I heard that we can easily pull on your heartstrings.” He laughed. The judge laughed. Guess what happened: It worked. She gave him a sweetheart sentence. He thanked her profusely. He got the job done. That is what happens every single day in our criminal justice system. We have accused and defence counsel who routinely play games. It's called judge shopping. For anyone who says it doesn't exist, I have a plot of swampland in Florida to sell them, because unfortunately, folks, it does exist.

I said to myself, how can I put some limitation on that? What I did, in a second aspect of CPC-22, was to suggest that where there is evidence that a mandatory minimal penalty could result in cruel and unusual punishment, you are forbidden as a jurist from undercutting that sentence by more than 50%. In my view, that provides a little bit more control and consistency in our justice system. That was my rationale for invoking the amendment contained in CPC-22. Thank you, Chair.

(1225) The Chair :

Thank you, Mr. Brock. Mr. Baber.

Roman Baber :

Sometimes I wish the viewers at home understood what actually happens in this committee, the legislation that comes before this committee and what this Liberal government is doing. The whole premise of Bill C-16 is to address a number of offences that should have been addressed a long time ago, but most importantly mandatory minimum sentences that are being struck by judges every day. We all know basic Criminal Code language. If you commit offence X, then you shall be sentenced to a minimum of Y or a maximum of Z. We have seen, time and time again, judges strike down the mandatory minimum sentence.

Here come the Liberals with the attorney general and justice minister to say, they're going to fix the fact that judges are striking down mandatory minimum penalties every day, and they're going to do it with the so-called safety valve. That, in my view, is the most critical piece of this Bill C-16 legislation.

What the justice minister says and what the Liberals would have us believe is that the safety valve allows judges not to look at a reasonable hypothetical, a non-existent scenario before them and then go ahead and strike down a mandatory minimum sentence for being cruel and unusual when it's applicable to that hypothetical scenario. Instead, they look at the accused before them and say that under the circumstances it would be cruel and unusual to impose the mandatory minimum sentence. The Liberals say that, by virtue of the existence of this safety valve, mandatory minimum penalties will actually be preserved.

Now I want to go to the officials. Mr. Taylor, am I correct that the policy of the justice department and of the government is that the safety valve put before us is going to strengthen mandatory minimum penalties, yes or no?

(1230) Matthew Taylor :

The proposed safety valve is a policy proposal of the government, not a proposal of the Department of Justice. In explaining how it operates, the idea is to, as I discussed last week, reinforce and reanimate MMPs that have been found unconstitutional by different levels of the court in Canada. It provides an ability to depart from the imposition of the MMP in a specific case where that MMP, in relation to the specific offender, would amount to cruel and unusual punishment.

Roman Baber :

Mr. Taylor, the premise that the government is operating under is that this will actually preserve mandatory minimum penalties, except for instances where judges believe that under the circumstances before them, the penalty would be cruel and unusual. Is this correct?

Matthew Taylor :

That's correct.

Roman Baber :

The government is saying that the safety valve means stronger mandatory minimum penalties. Is this correct?

Matthew Taylor :

It means that MMPs will remain in place.

Roman Baber :

Excellent. However, the safety valve has two notable exceptions for two notable offences. One is murder. The other one is treason. The Liberals say we're going to use the safety valve to strengthen mandatory minimum penalties, but the safety valve will not be available to strengthen, supposedly, offences of murder and offences of treason. Mr. Taylor, can you tell me why these two very serious offences—maybe the most serious offences in the Criminal Code—were left out from the application of the safety valve?

Matthew Taylor :

Certainly from the perspective of the penalty imposed, the mandatory penalty of life imprisonment, they are the most serious offences from a sentencing perspective because they carry the most significant penalty of imprisonment. Unlike other areas of criminal law and sentencing law in particular, these mandatory penalties have not been the subject of significant charter litigation. They have been upheld in the context of murder. I'll check with my colleague whether treason has ever been challenged constitutionally. I don't think it has.

To pick up on a comment I made earlier in response to a question, we have not seen, in respect of those specific offences, the same kinds of concerns around trial delay, guilty pleas and things of that nature in that context as compared to the other types of offences.

Roman Baber :

Basically what you're saying is—

The Chair :

I'm sorry. I'm just going to interrupt you for a second, Mr. Baber. The bells are ringing so we'll need unanimous consent to continue.

Roman Baber :

Thank you. I'd like to finish—

(1235) The Chair :

I'll allow you to finish, Mr. Baber. This a procedural issue we have to deal with, so please be patient. Do I have unanimous consent?

Some hon. members: Agreed.

The Chair: Thank you. Mr. Baber, please continue.

Roman Baber :

Mr. Taylor, I believe it's very instructive that the Liberals are telling everybody that they're using the safety valve to strengthen mandatory minimum sentences but are not applying the safety valve to the most serious offences of murder and treason. That, in and of itself, defies logic and exposes the argument for the safety valve doing not what it intends to do but, rather, quite the opposite. It does not strengthen mandatory minimum sentences, because if it did, then the Liberals would apply the safety valve to murder and treason as well. It weakens mandatory minimum penalties.

We're living in a crazy environment. We all knock on doors. We all talk to voters. I come from the city of Toronto, where crime right now is the most important issue for voters. People don't feel safe walking the streets of downtown Toronto. They don't feel safe taking the TTC. They don't feel safe in their local neighbourhoods in North York. We need to take a bite out of crime. We need to strengthen mandatory minimum penalties, not weaken them. What we've been seeing from the judiciary—with respect to the judiciary—is the undermining of mandatory minimum penalties. Mr.

Brock is proposing a reasonable amendment to put some sort of parameters around the safety valve, parameters that exist in other jurisdictions. Will the Liberals please not undermine mandatory minimum penalties and put some sort of framework around this proposed safety valve by passing Mr. Brock's amendment? Thank you.

The Chair :

Thank you, Mr. Baber. Ms. Lattanzio, go ahead.

Patricia Lattanzio :

Thank you, Mr. Chair. I thank my colleagues for their interventions. I have a question for the officials. It seems to be quite clear that the amendment proposed would undermine the constitutionality of the safety valve, which, I may point out, is fully supported by a Conservative member, more specifically the member for Kamloops-Thompson-Nicola , who is in full agreement with the use of the safety valve. I want to know if it is your understanding that it also limits judicial flexibility. This isn't about going easy on anyone. It's about making sure that the law works for the people it's intended to protect. I would like your thoughts on that.

Leah Burt :

Thank you for the question. As currently drafted, clause 63 tracks the constitutional standard, affording judicial discretion to impose a shorter term of imprisonment only where the MMP would constitute cruel and unusual punishment for the offender before the court. The inclusion of additional mandatory criteria could mean that proposed judicial discretion would be unavailable in some cases where the MMP would otherwise constitute cruel and unusual punishment. For example, where an offender has a criminal record, this could raise charter issues.

Additionally, excluding financial hardship could further impact judges' ability to assess whether the impact of a particular MMP would constitute cruel and unusual punishment, because the Supreme Court of Canada has made clear that financial hardship can be relevant to the assessment under

section 12 of the charter. Then, additionally, the proposal to limit judicial discretion to impose nothing shorter than half of the MMP could also re-enact existing charter vulnerabilities, because we know of several cases where courts have found that even half of an existing MMP could constitute cruel and unusual punishment. Senneville is an example of that, because in that case, they said that for the reasonable hypothetical offender, the proportionate sentence would be a conditional discharge.

If an individual presented with similar facts to the reasonable hypothetical in Senneville, it could be that even a six-month MMP, which would be half of the existing MMP, could constitute cruel and unusual punishment. The short answer would be that, yes, it could introduce new charter vulnerabilities.

Patricia Lattanzio :

Thank you.

The Chair :

Thank you. Mr. Housefather is next, and then Mr. Brock.

Anthony Housefather :

Thank you, Mr. Chair. With respect, I want to come back to some of the stuff that Mr. Baber said, because, of course, this bill essentially re-establishes MMPs that were struck down by the courts. Of course, this bill furthers the goal of ensuring that MMPs are put in place, because otherwise they would remain struck down. This bill creates a mechanism by which courts can determine whether or not somebody's individual circumstances, as opposed to using a reasonable hypothetical, would invalidate something for that person instead of for the entire group of offenders.

The courts will no longer be using reasonable hypotheticals. They will be looking at the individual charged with the offence and they'll be determining if the MMP is inapplicable to them, and then you have suggested wording that is consistent with that principle, which is whether it would be cruel and unusual. Mr. Baber is now seeking to introduce other elements into the factoring. Mr. Baber was arguing that not including murder or treason somehow is illogical.

To me, it's completely logical, because we're assuming that murder and treason are such heinous offences that nobody would ever question an MMP for them, and they have not been the subject of debate in the courts that could lead to them being—

(1240) Roman Baber :

[ Inaudible—Editor ]

The Chair :

Mr. Baber, Mr. Housefather has the floor.

Anthony Housefather :

I don't know what you're doing. I let you speak. We don't believe there's a hypothesis under which a reasonable hypothetical is going to allow a court to strike down a murder or treason offence, so there was no need to include that here. Am I correct in the supposition that, because these are such heinous crimes, we feel we can exempt them from the safety valve because they would never be struck down in the first place for anybody? Would that be correct?

Matthew Taylor :

I can answer the question in a slightly different way, perhaps.

Minister Fraser , I think, before this committee and when he appeared the week before last at the status of women committee, indicated that one of the specific concerns the government was trying to address in relation to this specific escape clause was the unintended impact that the increased use of MMPs has had in outlier cases. That, I think, speaks to what you're saying, Mr. Housefather.

What we have seen is a proliferation of charter challenges to MMPs that were enacted for very specific reasons that Parliament had deemed appropriate when passing that legislation, but in so doing, there were instances of outlier cases that were of concern. This escape clause is seeking to address those outlier cases, as Ms. Burt talked about, and maintain the MMPs for the vast majority of cases, remembering that at the end of the day a fit sentence is a fit sentence, and that can be in excess of the mandatory minimum penalty.

In exceptional cases, because cruel and unusual really is meant to be exceptional, it may be less.

Anthony Housefather :

I agree completely with what you just said. You phrased it very well, so thank you very much. Mr. Brock has suggested a list of other factors that we would be looking at in addition to cruel and unusual—and you mentioned two factors—one of which was saying that no sentence could be less than half of the mandatory minimum. I guess what I'm wondering is, obviously, if the wording proposed by Mr. Brock would lead to far more charter challenges than the wording that is already in the legislation. Would you agree with that hypothesis?

Leah Burt :

Thank you for the question. Yes, I think it's likely that this would result in increased charter litigation.

Anthony Housefather :

We're not in a situation where it's simply a legislator who is making a decision without the benefit of the court judgments that we've been looking at for years. The charter's been in effect since the 1980s. You opined upon where we could draw the line on the safety valve clause, and I presume advice was given that this is a reasonable area—to confine it to cruel and unusual punishment, or where the minimum mandatory would be cruel and unusual based on the circumstances of that offender. Is that essentially what your advice was? I guess my question would be this: If we added in the new wording, would you be comfortable, at that point, defending charter challenges with Mr. Brock's additions?

Matthew Taylor :

I think Ms. Burt has pointed out that the additional criteria, which we would read as being necessary in addition to finding that the potential penalty would amount to cruel and unusual punishment, would not be sufficient. You would have to go beyond that and also show that, for example, the offender had no prior criminal record. I do believe that would invite additional charter litigation.

(1245) Anthony Housefather :

Thank you.

The Chair :

Thanks, Mr. Housefather. We'll go to Mr. Brock and then Mr. Baber.

Larry Brock :

I am so deeply disappointed to hear this running theme of “this could potentially happen” or “that could potentially happen.” Let's face it: Isn't the entirety of Bill C-16 susceptible to a charter challenge, yes or no?

Matthew Taylor :

Mr. Brock, as I've said in response to other questions before this committee, it is always possible—

Larry Brock :

Absolutely.

Matthew Taylor :

—that legislation could be challenged.

Larry Brock :

Everything is possible. I listened to you very carefully, Ms. Burt, and with all due respect, it may snow tomorrow. It's quite possible. All I'm hearing from my Liberal colleagues is, “Could this result in increased charter challenges?” Since when are we, as parliamentarians, so concerned about the potential for charter challenges? When are we going to do our damn jobs and protect Canadians and ensure that we provide justices with the appropriate tools to do their damn jobs of holding offenders accountable and keeping communities safe? That is our role. Our role is not to go into the minds and shoes of a jurist.

Let's face it: This is what's going to happen, folks. Mr. Housefather raised this issue numerous times. “Could this result in increased litigation?” Absolutely. Name one accused or defence counsel who will not look for every opportunity, when faced with a mandatory minimum penalty, to argue for a deviation from that. With all due respect, Mr. Taylor, I disagree with you. It should be reserved for those outlier cases, but it's not going to stop a defendant from at least trying. One thing that I did not highlight, and this is to your point, Ms.

Burt, is that my amendment, CPC-22, talks about financial hardship and specifically excludes the issue regarding loss of housing or employment as not being a relevant circumstance. Let's take a look at mandatory minimum penalties that currently exist in the Criminal Code for impaired care and control and operation of a conveyance. That's the term they use now instead of “vehicle.” We have mandatory minimum penalties in terms of fines and, where there are subsequent convictions, jail. Again, name one accused who has not used the argument, “Oh, Your Honour, I can't go to jail. I'm the breadwinner of the family.

My family is going to suffer. I'm going to lose my job. I can't go to jail for 90 days on my third, fourth or fifth impaired driving charge because I haven't gotten the message yet.” I want that door to be closed as tightly as possible. I think we should be doing the same thing as legislators, because Pandora's box is wide open on this issue. To you, Ms. Burt, Mr. Taylor, Ms. Levman and Ms. Sigouin, can you name one particular case in which there has been a successful challenge to the mandatory minimum penalty where financial hardship, in and of itself, constituted cruel and unusual punishment?

Can you name one case? I certainly can't.

Leah Burt :

Thank you for the question. No, we wouldn't have that information at our fingertips at the moment.

Larry Brock :

I could give you a whole year to look into that matter, and I dare say at the end of one year you still wouldn't be able to find anything. That's my point exactly. We are inviting a whole spectrum of legal arguments to be used every single day in courts across this country if we don't give our jurists some direction. That's the problem, folks, and I'm urging you seriously to consider my amendment.

The Chair :

Thank you, Mr. Brock. Mr. Baber, go ahead.

Roman Baber :

It's actually considerably worse, I think, Mr. Brock, because what the safety valve will do is say that you no longer even need to bring a charter application to say that the mandatory minimum penalty would be cruel and unusual. The safety valve eliminates the requirement for a charter application. Am I correct, Mr. Taylor? Every single time an accused was sentenced, a judge would give consideration to whether the sentence was cruel and unusual.

(1250) Matthew Taylor :

Would you mind repeating the question, please? Thank you.

Roman Baber :

Right now the practice is that if an accused wants to challenge a mandatory minimum penalty as cruel and unusual, they have to bring a charter application. It's a step in the process. What the safety valve does is that it eliminates that step. Every single time an accused is up for sentencing, the judge would essentially be directed by Bill C-16 to consider whether a sentence is cruel and unusual.

Matthew Taylor :

Thank you for the clarification. In my answer last week, I articulated our expectation that at the sentencing stage, or perhaps during the trial, the defence counsel representing the accused at the trial stage, or the offender at the sentencing stage, would indicate their intention to seek a sentence that is less than the mandatory minimum penalty on the basis that vis-à-vis their client—the offender, in this case—it would be cruel and unusual. We do still expect, not as a constitutional argument but as part of the sentencing process, a step taken on the part of the accused's or offender's counsel in the sentencing.

Roman Baber :

Thank you, Mr. Taylor. I think you're agreeing with me in that, essentially, an allegation of cruel and unusual punishment would be almost part of standard operating procedure as opposed to a constitutional challenge. Members opposite to me must understand this. In and of itself, this weakens the mandatory minimum penalty, but wait, there's more. I mean, what are we talking about when we talk about cruel and unusual punishment? At the end of the day, the court does a weighing exercise in terms of what's reasonable or not. That's all it is when it comes to mandatory minimum penalties being cruel and unusual.

I have to be honest. Throughout our political careers, we often try to reach out across the aisle. I'm proud of my professional relationship with Mr. Housefather. We often see eye to eye on many issues. It's a necessary bridge in committees such as this when you can approach your friend on the other side of the table and try to be reasonable with each other. Mr. Housefather responded to my contention that there is no intention to strengthen mandatory minimum penalties, because an exception is made for treason and murder, which, on the scale of moral turpitude, are probably at the top of all evils.

Then why do we pretend we're going to be strengthening the mandatory minimum penalties for all other offences? Mr. Housefather's suggestion, and I think Mr. Taylor sort of alluded to it, was that they're generally not as susceptible in that they are so evil, generally courts try not to depart from them. Well, then, I would ask Mr. Housefather this: How about possession of child pornography or access to child pornography? How about sexual assault? Do those offences not rise to the level of turpitude where we should strengthen them as opposed to weaken them?

Here we are, by our own admission, saying there are greater evils that we don't want to depart from, because it's not about the strengthening but it's about departing from the mandatory minimum penalties. For murder and treason we will not, but for sexual assault or possession of child pornography we will. This is an absurd result we are now arriving at. I've been waiting for this for months now. I think my Liberal friends are understanding this. Do you know what will happen? We will be here again in a couple of years.

In a couple of years, we'll have a government, an attorney general and a justice minister saying that we need to address crime on our streets. We'll do this all over again. We've been through this with Bill C-5 and Bill C-75 . We've done very comparable work on Bill C-14 , which came short. I think Bill C-16 is now undermining the administration of justice.

(1255) The Chair :

Mr. Baber, I have to interrupt you for one second. We're under 10 minutes now. Does anyone intend to go to the House to vote, or will everyone vote here?

An hon. member: We're voting here.

The Chair: Okay. I'll stop with five minutes to go.

Roman Baber :

I submit that, for Naud, who was the other applicant in the Senneville case, who was holding 250 videos of children being raped, we should approach that case with the expectation that courts will not depart from the mandatory minimum penalties, just like we do with treason and murder. By the way, I can see everyone's brains moving when it comes to murder and treason, but it might not be as cut and dried as people think here. Think about Edward Snowden, an example that I often use when I instruct on the charter or civics.

Edward Snowden blew the whistle on national security, on Homeland Security, on the NSA and on the CIA as collecting metadata—something that is proposed in Bill C-22 —indiscriminately, on everybody. I ask an ordinary civics class, or a grade 12 law class, or a grade 11 law class or even first-year law students this question: Would you convict Mr. Snowden for treason, for coming out, leaving for Hong Kong and saying the United States administration and the security apparatus are violating search and seizure? Would you convict? Nine out of 10 say they would not convict.

It's a very interesting proposition that I'm advancing here. None of this is certain. What needs to be certain is sentencing. The Criminal Code says that this is the minimum for this evil of the possession of child pornography. That should be the sentence as opposed to weakening the mandatory minimum sentences, which is what this bill is, unfortunately, doing. Thank you.

The Chair :

Thank you, Mr. Baber. I don't have any other names on the list. Shall CPC-22 carry?

Larry Brock :

I request a recorded vote. (Amendment negatived: nays 7; yeas 4 [ See Minutes of Proceedings ])

The Chair :

I am going to suspend now—we have six minutes—rather than starting something new, and then we'll come back right after the vote.

(1255) (1335) The Chair :

My intention is to continue until about 10 minutes to two and then suspend again so people can attend question period. We were just about to start CPC-23. Once CPC-23 is moved, CPC-24 cannot be moved as they are identical. Mr. Brock, I believe you are going to address this.

Larry Brock :

Mr. Baber will.

The Chair :

I'm sorry. Go ahead, Mr. Baber.

Roman Baber :

Thank you, Chair. I move amendment CPC-23 to accomplish what Bill C-16 is meant to accomplish according to the government. It is to eliminate the use of reasonable hypotheticals when courts consider whether punishments are cruel and unusual. We heard from the Minister of Justice and Attorney General that this is a concern.

To explain this to the viewers at home, an accused shows up before a judge for sentencing and pleads that a sentence, a minimum mandatory sentence, is cruel and unusual, not because of their individual circumstances and not because of the circumstances of their offence or the circumstances of their life, but because what defence lawyers do is come up with a reasonable hypothetical that would render the minimum mandatory penalty absurd. This is what happened in the Senneville decision that struck down mandatory minimum sentences for access and possession of child pornography.

The accused in that appeal, Senneville and Naud, did not plead that they should not receive the mandatory minimum of one year—no. One of them possessed 300 images. One of them possessed 250 videos of children being raped. The Supreme Court considered a reasonable hypothetical. One teenager sends a picture that's not too modest to another teenager and that would lead to absurdity, and because of that, the mandatory minimum penalty was struck down.

We've been sitting here, working in good faith on this bill, trying to strengthen our sentencing system, and the Liberals have come up with the safety valve, saying that the safety valve will now enable the court to look at the individual circumstances of whether a sentence is cruel and unusual, without looking at reasonable hypotheticals. I take my Liberal friends at their word.

If that is the purpose of the bill, if that is the linchpin of this bill, Bill C-16 , then let's eliminate the ability of judges to refer to reasonable hypotheticals on sentencing when they decide a minimum mandatory is cruel and unusual and is therefore contrary to the charter. Let's eliminate this practice where judges do not look at the case before them, but look at a completely different case that is not before them to strike down mandatory minimum penalties.

If the Liberals are serious about the intent of the safety valve, they will vote for this amendment, and in connection with the same, we'd like to sharpen up some language. I'll yield to Mr. Brock.

(1340) The Chair :

Go ahead, Mr. Brock.

Larry Brock :

Yes, I'd like to propose an amendment to CPC-23, to the third line down, where it references “punishment for the offender, the court shall”. I wish to delete the entire phrase “for the offender”.

Roman Baber :

It's three words.

Larry Brock :

Yes, it's just those three words.

Roman Baber :

It's “for the offender”.

Rhéal Éloi Fortin (Rivière-du-Nord, BQ) :

I see “of” the offender. Mr. Brock...?

Larry Brock :

The readout will then be:

(1.1) In determining whether the specified term of imprisonment would amount to cruel and unusual punishment, the court shall consider the particular circumstances of the offender and shall not consider any reasonably foreseeable circumstances or hypothetical scenarios.

The Chair :

I'm going to give everybody a moment to absorb that. Mr. Fortin, do you have the French language portion clear?

[ Translation ]

Rhéal Éloi Fortin :

What I understand is, basically, amendments CPC‑23 and CPC‑24 are the same.

[ English ]

The Chair :

Once CPC-23 is moved, CPC-24 cannot be moved. They're identical.

[ Translation ]

Rhéal Éloi Fortin :

Okay. We're now discussing amendment CPC‑23, but I don't understand its purpose. Can you explain it to me?

Anthony Housefather :

Mr. Fortin, you understand that it's “for the offender” that needs to be removed.

Rhéal Éloi Fortin :

I got that, yes. I'm trying to imagine in what circumstances that might apply. I think “cruel and unusual punishment” is always from the offender's perspective. Are we looking for something else? If you could explain it to me, it would help me better understand the amendment.

[ English ]

The Chair :

Mr. Brock, do you want to address that?

Larry Brock :

I'll let Mr. Baber speak to that.

The Chair :

Mr. Baber, go ahead.

Roman Baber :

Mr. Fortin, I think what we have here is a drafting error by legislative counsel. The point of this amendment is to eliminate the court's use of reasonable hypotheticals. As presently drafted, the amendment states: “In determining whether the specified term of imprisonment would amount to cruel and unusual punishment for the offender, the court shall not consider”. We're trying to deviate from the individual circumstances. We're trying to put it to the courts that they should not consider reasonable hypotheticals vis-à-vis the constitutionality of the legislation.

I might also add that I think everybody understands the intent of the main amendment, and I'm very happy with any proposed subamendment. If Liberal friends or the Bloc member would like to propose any clarifying language, I'm very much amenable to that.

(1345) The Chair :

Does that answer your question, Mr. Fortin?

[ Translation ]

Rhéal Éloi Fortin :

I simply disagree with the amendment. I just don't see the point of removing “for the offender”. I don't think it changes anything to the text, but I won't make a big deal out of it. Mr. Chair, on another note, if I may, at what time will you suspend the meeting before oral question period?

[ English ]

The Chair :

We're going to suspend at 10 minutes to two. Ms. Lattanzio is next.

[ Translation ]

Patricia Lattanzio :

Mr. Chair, along the same lines, from what you told us, I thought if amendment CPC‑23 was adopted, amendment CPC‑24 would be set aside. The question I'd like to ask my colleagues is this: Was the amendment made with the goal of keeping amendment CPC‑24, in order to distinguish between the two amendments? I'd like some clarification on that.

[ English ]

Roman Baber :

I believe the answer to that is no. I believe you'll find consent. It's up to Mr. Brock to consider whether he will withdraw his amendment, but I understand your concern. You're wondering whether CPC-24 would still be considerable if we amend CPC-23, as is.

Patricia Lattanzio :

Yes, because the chair, at the onset, established that if one is adopted, the other one drops. Is the amendment made in the scope or in the goal of maintaining CPC-24?

The Chair :

Go ahead, Mr. Brock.

Larry Brock :

I'm prepared to withdraw CPC-24 at this time.

The Chair :

That leaves us with Mr. Housefather.

Anthony Housefather :

I have a question for the officials. I want to understand better. My understanding is that based on the way the safety valve is drafted, there would no longer be hypotheticals that would be used for the purposes of determining whether a minimum mandatory sentence should be struck down or not. Am I correct in that understanding?

Leah Burt :

Yes, that's correct. The proposed

section 718.4 would require courts to consider whether a mandatory minimum penalty constitutes cruel and unusual punishment for the offender, so that would—

Anthony Housefather :

It would eliminate hypotheticals.

Leah Burt :

Exactly. It would eliminate the requirement to look at reasonable hypotheticals.

Anthony Housefather :

We're also using the words “any reasonably foreseeable circumstances”. Would there be any reason whatsoever outside of these hypotheticals—which we understand would not be used—for “reasonably foreseeable circumstances” to be considered separately?

Leah Burt :

No, our view would be that the language in proposed subsection 718.4(1), which speaks specifically to the offender, would bar any analysis relating to reasonably foreseeable circumstances.

Anthony Housefather :

In your view, this amendment would not only be redundant, but it might even be confusing, because it would seem that with the way we structured the entire section, this might still have been considered. I find it confusing. We're saying that there would be no reason to do this anymore and you can't do this anymore, and now we're introducing the concept that you shouldn't do this anyway. I find it a bit weird. I wanted to understand for my head that both of these things would not be part of any analysis.

The Chair :

Does anyone else have anything on the subamendment?

Roman Baber :

This is the amendment to the amendment. It's not a subamendment.

The Chair :

Well, it's a subamendment.

Roman Baber :

Ms. Burt, I have to say, with greatest respect, that while there is an intent to suggest that judges should consider whether it would be a cruel and unusual punishment for the accused, there is no prescription for the court not to consider the constitutionality of the entire

section because of reasonable hypotheticals. There is nothing in Bill C-16 that says that the courts should depart from that practice. I'm saying this to Mr. Housefather: Why not give it greater certainty? If what we want to do is eliminate the use of reasonable hypotheticals to strike down mandatory minimum penalties, let's clearly spell that out for the court. If my friend is concerned about the words “any reasonably foreseeable circumstances or” and wants to stick to “hypothetical scenarios”, then I'm sure I'll find a friend on my side to move a subamendment to Mr. Brock's amendment. I think the chair wants to gavel us out. I invite anyone to have a conversation about this.

(1350) The Chair :

We're suspending until after question period and after whatever votes follow question period.

(1350) (1545) The Chair :

I have to call this meeting back to order. When we suspended, we were on the subamendment to CPC-23 proposed by Mr. Brock. Was it Mr. Baber...?

Larry Brock :

It was Mr. Baber, but it's my subamendment.

The Chair :

Yes. However, I think Mr. Baber was still speaking. That's where I got confused.

Roman Baber :

Can I be recognized, Chair?

The Chair :

You're recognized.

Roman Baber :

I appreciate that, sincerely. I understand that there were concerns with respect to some other phrases in the proposed amendment. I also understand correctly from Ms. Lattanzio that, right now, we're debating a subamendment by Mr. Brock. In other words, we cannot propose a subsequent amendment that will remove additional language, although I anticipate that Mr. Gill may move such an amendment. I also propose, at this time—just like we did with a previous amendment—to stand down CPC-23 and revisit it towards the end.

The Chair :

It sounds like we have consent, Mr. Baber. (Amendment allowed to stand)

Roman Baber :

Thank you.

The Chair :

We're standing down CPC-24 in its entirety, then.

Roman Baber :

It's CPC-23.

The Chair :

It's CPC-23. I'm sorry.

Roman Baber :

CPC-24 was withdrawn.

The Chair :

CPC-24 was withdrawn. That's right. Okay. That will take us to Ms. Kwan on Zoom. Ms. Kwan, I'll go over to you, then, for NDP-20.

Jenny Kwan :

Thank you very much, Mr. Chair. NDP-20 is similar to the last NDP amendment. This would eliminate Bill C-16 's exception to the safety valve for particular offences, which currently increases the likelihood of charter rights violations, particularly for racialized people, who are overrepresented in the criminal justice system. We cannot pick and choose when it comes to charter rights. We must ensure that they are upheld for everyone, so I urge my colleagues to vote in favour of this amendment.

The Chair :

Thank you, Ms. Kwan. Before I hear from anybody else, if NDP-20 is adopted, CPC-25, CPC-25.1, CPC-25.2 and CPC-25.3 cannot be moved due to a line conflict. Ms. Lattanzio.

Patricia Lattanzio :

Thank you, Mr. Chair. I cannot support this amendment because excluding offences that carry life sentences from the ambit of judicial discretion was a deliberate choice to reflect the seriousness of these crimes. Mandatory life sentences and periods of parole ineligibility have been upheld by the Supreme Court of Canada. For these reasons, I will not be supporting the amendment.

The Chair :

Thank you. Shall NDP-20 carry? (Amendment negatived [ See Minutes of Proceedings ])

The Chair: On CPC-25, we have Mr. Brock. Actually, before you go, if CPC-25 is adopted, CPC-25.1, CPC-25.2 and CPC-25.3 cannot be moved due to a line conflict.

(1550) Larry Brock :

That's correct. Folks, I'm mindful of the time. I'm mindful that we are only on page 84 of a 147-page bill, so I'm not going to belabour the point. I believe that, if I were afforded the opportunity of a fulsome explanation to justify this amendment, I would be repeating myself from this morning and early afternoon. Clearly, I want consideration from all members of this committee to look at the serious expansion of offences that should not ever qualify for any judicial discount from the mandatory minimum penalty. Right now, Bill C-16 only preserves, as we know, murder and treason.

I've already spoken at great length about child sexual abuse material. Quite frankly, this particular amendment speaks specifically to any sexual offence against a child. That is then referenced directly to

section 490.011(1) of the code, which provides authority for SOIRA consideration, the Sex Offender Information Registration Act. There is a whole litany, a whole list, of offences that would fall within the category of primary and secondary offences. Again, I would highlight that if there is one class of Canadians that we as parliamentarians should be standing firm on, that is our most vulnerable asset, our children. Again, the fact that a particular trial judge saw fit to afford Mr. Senneville and Mr. Naud a 45-day weekend sentence should be appalling to all of us.

I would encourage all parliamentarians at this committee to give serious consideration to supporting this amendment. Second, I've asked for a reinstatement of essentially mandatory minimum penalties under

part I of the Controlled Drugs and Substances Act. We're looking at the opioid crisis and the fentanyl crisis. The fact is that the Minister of Justice refuses, for whatever reason, not to reflect the spirit of Bill C-16 in resurrecting all of the offences that this Liberal government gutted in Bill C-5 . This is an opportunity for a course correction. Again, I'm not repeating myself. I don't want to repeat myself. We all understand and agree that there is a crisis of substantial measures in this country when it comes to the trafficking, importing, exporting and production of these poisonous substances.

All of that is contained within the amendment. I would hope that my colleagues would give serious consideration to that. Thank you.

The Chair :

Mr. Baber, go ahead, and then we'll go to Ms. Lattanzio.

Roman Baber :

I think my colleagues understand my point about the safety valve. Specifically, as I mentioned earlier, the Liberal government decided that murder and treason are going to be specifically excluded from the application of the safety valve. Mr. Housefather suggested that is because of the seriousness of the offences, and we are less likely to run into a situation where a court would deviate from the prescribed minimum penalty. Here I am to suggest that, first of all, that's not necessarily true.

You might think of a situation like Edward Snowden, where public opinion was very much in favour of a defector who was accused of treason and was tried in absentia. I am here to suggest that if we believe that murder and treason are so serious that they rise to the moral turpitude of being excluded from the safety valve, along comes Mr. Brock who says, “Please exclude serious offences from the application of the safety valve.

Please exclude child sexual offences from the application of the safety valve.” Naud, when he gets caught with 300 videos of children aged three to six being raped, is subjected to the mandatory minimum sentence of at least one year. One year is generous for that monster. That's what we're saying. Let's work collaboratively to protect children. That's what this amendment is about.

(1555) The Chair :

Ms. Lattanzio.

Patricia Lattanzio :

Thank you, Mr. Chair. While I can appreciate the interventions of my colleagues, we've seen what happens when we get this wrong. Mandatory minimums get struck down, cases get delayed and, in the end, offenders don't face the consequences they deserve. That doesn't protect victims. It leaves them waiting longer and without the accountability they deserve. This provision is what makes the difference. It allows us to keep serious penalties in place in a way that will actually hold up in court and apply in real cases.

Ultimately, colleagues, this is about protecting victims, especially those affected by serious violence, including intimate partner violence, and making sure that the system delivers real accountability. As it was mentioned previously this morning, even the Conservative colleague on the other side, Mr. Caputo , is in full agreement with the application of the safety valve—

Larry Brock :

That doesn't represent the position of our party.

Patricia Lattanzio :

—and this amendment would completely remove the safety valve. I think judicial discretion is necessary if we want these laws to last. This isn't about going easy on anyone. It is about making sure that the law works for the people it is meant to protect. Thanks.

The Chair :

Thank you, Ms. Lattanzio. Shall CPC-25 carry?

Larry Brock :

I'd like a recorded vote. (Amendment negatived: nays 7; yeas 4 [ See Minutes of Proceedings ])

The Chair :

We're on CPC-25.1. Again, if it is adopted, CPC-25.2 and CPC-25.3 cannot be moved. Mr. Brock, is this you again?

Larry Brock :

No. It's Mr. Gill.

The Chair :

Go ahead, Mr. Gill.

Amarjeet Gill :

Thank you, Mr. Chair. I'm very pleased to move amendment CPC-25.1, which seeks to expand the safety valve to include mandatory minimum charges under

section 272 of the Criminal Code. Those charges deal with sexual assault with a weapon. The current mandatory minimums in the Criminal Code are five years for a first offence and seven years for reoffenders. When we are talking about protecting victims of intimate partner violence, these mandatory minimum penalties will ensure that violent and repeat offenders are kept behind bars. When I asked Jennifer Dunn on April 15, “For the sake of the victims, should violent and repeat offenders serve stronger and longer sentences?”, she replied, “Absolutely.

A violent and repeat offender needs to be held accountable for what they've done. I agree 100%.” This amendment ensures that violent and repeat sexual assaulters are held accountable for their crimes. I encourage everyone to support this one. (Amendment negatived: nays 7; yeas 4 [ See Minutes of Proceedings ])

The Chair :

We're on CPC-25.2, Mr. Gill.

Amarjeet Gill :

Thank you, again, Chair. I'm moving amendment CPC-25.2 with the hope that we can make our laws tough on criminals. This amendment seeks to expand, again, the safety valve to include mandatory minimum charges under

section 273 of the Criminal Code. Those charges deal with aggravated sexual assault. My riding of Brampton West is located in Peel region, which has declared intimate partner violence an “epidemic”. In 2024, Peel police responded to over 16,000 incidents of family or intimate partner violence. That's more than 44 incidents a day. We need stronger penalties for violent offenders to keep them off the streets and curb this epidemic. The current mandatory minimums in the Criminal Code are five years for the first offence and seven years for reoffenders.

We need these violent and repeat offenders to stay behind bars so that we can work to cure this epidemic sweeping across my region and some parts of the country. Thank you.

(1600) The Chair :

Thank you, Mr. Gill. We'll go to Mr. Baber and then Ms. Khalid.

Roman Baber :

I'm just trying to bridge the gap and I'm trying to understand why there is no consensus in this committee on how we should apply the safety valve. This is a very technical bill. I don't think we're having political disagreements. If we're having a legal disagreement, then let's have a conversation. Let's ask the officials again. Let's get a second opinion. We all want to arrive at the right result. An aggravated sexual assault contemplated in Mr.

Gill's amendment is now subjected to a safety valve, according to this legislation, where a judge can disregard the mandatory minimum if he or she finds that it's cruel and unusual. I'm saying we're looking at the sentencing stage. In other words, the accused has already been found guilty of an aggravated sexual assault. Either the safety valve is good enough to be excluded for murder and treason, but it's not good enough to be excluded from an aggravated sexual assault.... I don't understand that.

If all of this is lost in translation because people have a different idea about how judges might apply the law, let's not rush it and let's hammer it out. We have an intimate partner violence epidemic and emergency in Peel region, where Mr. Gill comes from. Let's bind judges to impose the mandatory minimum on aggravated sexual assault. It's so grotesque. I think there's legitimate disagreement about what's happening with the safety valve and whether the mandatory minimums are going to be restored. Respectfully, I'm not sure that I share the legal opinion of the panel and of the officials.

If we're missing each other because we're not certain about how the law will work here, let's work it out. Thank you.

The Chair :

We'll go to Ms. Khalid and then Ms. Lattanzio.

Iqra Khalid :

Thank you, Mr. Chair. I take the comments of my colleagues. I am from Peel region as well. Mississauga—Erin Mills is the best riding in the country, which I appreciate and it happens to be part of Peel region. Mr. Gill is absolutely right. We do have a significant increase in intimate partner violence over these years. There have been ways in which we've been trying to deal with that. There is no flip of a switch where you can just say this law is done, this judge's discretion is taken away and now all of a sudden we are going to find solutions.

Locally, Peel Region has created a safe centre where victims and survivors of intimate partner violence are able to go to get that full, covered support, whether it is police, child services or transitional housing—whatever support they need. When we talk about removing discretion from judges, what we are really missing is the fact that a crime that has been committed against an intimate partner doesn't get its justice from the time that there's a conviction or there's a sentencing. The support that a victim and a survivor need has to start from day one of their having faced that.

That requires all levels of government jumping in and providing the support that the intimate partner and her family and kids will need. We talk about protecting our kids here at this committee. It's not mandatory minimums that are protecting kids. It is the local support, the collaborativeness with all levels of government, that is going to help us get there. Taking away judicial discretion is not the way.

In my opinion, that will ultimately take away the context for why the case is where it is and how things have progressed over the entirety of the entry into the judicial system with the victim and the survivor. Taking that context away is going to hurt the victim further, not help them.

(1605) The Chair :

Thank you, Ms. Khalid. Ms. Lattanzio.

Patricia Lattanzio :

Thank you, Mr. Chair. Giving judges the discretionary power ensures that a judge takes into account the different circumstances of each sentence, and does not apply a one-size-fits-all approach. My question to the officials is the following. Once again, I come back to this. If we remove this judicial discretion, would that not take away the whole basis of a safety valve that we find in Bill C-16 ?

Leah Burt :

Excluding

section 273 from the application of the judicial discretion clause would leave those MMPs for those offences open to constitutional challenge and may have the effect of fewer offenders being subject to those MMPs. This is because it would be excluded from the ambit of proposed

section 718.4, and they would be potentially subject to constitutional challenge on the basis of reasonable hypothetical scenarios. If that MMP is struck down, it cannot be applied to anyone in the jurisdiction in which it's been struck down. Clause 63 would insulate the existing MMPs against constitutional challenge while also, as we've discussed previously, reviving MMPs that were previously struck down.

Patricia Lattanzio :

Thanks.

The Chair :

Go ahead, Mr. Brock.

Larry Brock :

This is becoming a really frustrating exercise, Mr. Chair. I listened to my colleagues' interventions. I have the utmost respect for my colleague, Ms. Khalid, but this particular amendment doesn't speak to the continuum of criminal justice as it relates to victims of this extremely serious, heinous offence. In the hierarchy of offences, when we're talking about something that's aggravated, we're getting very close to homicide levels. In fact, an aggravated assault—in this case, an aggravated sexual assault—really, in the hierarchy of offences, is one notch below that of a homicide.

That's how seriously the House of Commons, Parliament, has decided over several decades to treat this offence. While I agree with Ms. Khalid and am glad to hear that Mississauga is taking the appropriate steps to ensure wraparound services for victims, this is about restoring justice back into sentencing. Right now, in my view—and I'm sure that the officials will agree with me—sentencing is an art. It's not a mathematical equation. I see some heads shaking, so I'm not going to ask anyone specifically, but we're going to agree with that in principle.

Judges already take into consideration the personal circumstances of an offender. What we don't want to see happening here is for some activist jurist somewhere in Canada.... I'm going to repeat this because it bears repeating: There is no minimal standard by which Canadian judges uniformly sentence on criminal matters in this country. It depends on appointment. It depends on region. It depends on filling quotas. DEI, which should never exist in our judicial appointment process, unfortunately still exists.

We want to get back to the point of merit, where it doesn't matter about your orientation, your colour of skin, your religion or the legal work that you have contributed to certain underprivileged classes of individuals in your community. It should be based on legal merit. I'm actually glad that there are some provincial governments in this country that are focusing in on a merit-based application. However, that means we have a huge discrepancy when it comes to sentencing.

All we're asking this committee to consider is to give a baseline for consideration when you're dealing with the most serious form of sexual assault on another human being. Exclude that from any judicial discretion so that on the basis of stare decisis, of precedent value, future judges in similar circumstances will know that the mandatory minimum penalty is a threshold that we, as parliamentarians, set as a base standard.

There are going to be cases on the lower end of the spectrum where the minimum penalty is absolutely appropriate, but there are going to be cases—and I had cases as well—where the mandatory minimum penalty will be woefully inadequate in the circumstances.

(1610) All we're asking, again, is that we as parliamentarians give judges the appropriate direction that we, as a supreme entity.... It's not the judges who makes laws; it's us, as parliamentarians, who make laws, and they interpret those laws that we have established as a threshold that we will not deviate from. I think this is a great opportunity for us to take the appropriate stand. Thank you, Chair.

The Chair :

Thanks, Mr. Brock. Mr. Mantle is next.

Jacob Mantle (York—Durham, CPC) :

Thank you, Mr. Chair. I'm pleased to speak to this amendment. I think what we're trying to do is identify those crimes so heinous that they should be excluded from the safety valve. I think the Liberal government has put themselves in a pickle here, because they have created an arbitrary line to say that certain crimes should be excluded but others shouldn't be. They have as yet been unable to provide a cogent reason for some of those exclusions. I think we're offering to them some of the crimes that we would suggest are so heinous that they should be excluded.

The response about fears of a constitutional challenge, which I continue to hear, suggests to me a lack of courage on the other side to take up their responsibility as legislators to make laws. We believe in the supremacy of Parliament and we respect the independence of the judiciary, but that is the separation of powers. Abdicating your responsibility to make laws because of the fear you hold of the judiciary is an abdication of your role and an abdication of our constitutional arrangement. I was perplexed by the comments made by my colleague from Mississauga.

I'm glad she's speaking to this as an issue that affects her area more than others and on this particular amendment with respect to aggravated sexual assault, but she suggested in her comments that excluding aggravated sexual assault would somehow harm victims. I don't follow that logic, so maybe she can explain that in a further intervention. In my view, putting the bad person in jail will not hurt the victim.

Victims, as I understand it, demand justice, and that means removing the offender from society as a means of showing our condemnation of that heinous crime and keeping them out of society so that they cannot commit that crime again. I'm confused by her logic in saying that doing so will somehow hurt the process or hur