Transcripts & Minutes - Standing Senate Committee on National Security, Defence and Veterans Affairs (44th Parliament, 1st Session) — Evidence — 45ev-56497-e — 35-2
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THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY, DEFENCE AND VETERANS AFFAIRS
EVIDENCE
OTTAWA, Monday, November 27, 2023
The Standing Senate Committee on National Security, Defence and Veterans Affairs met this day at 3 p.m. [ET] to study Bill C-21,
An Act to amend certain Acts and to make certain consequential amendments (firearms).
Senator Tony Dean ( Chair ) in the chair.
[ English ]
The Chair: Good afternoon, everyone. Welcome to this meeting of the Standing Senate Committee on National Security, Defence and Veterans Affairs.
I’m Tony Dean, representing Ontario as a senator, chair of the committee. I am joined by fellow committee members who I ask to introduce themselves, beginning with the deputy chair.
[ Translation ]
Senator Dagenais: Jean-Guy Dagenais from Quebec.
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
[ English ]
Senator Plett: Senator Don Plett, Manitoba.
[ Translation ]
Senator Carignan: Good morning. Senator Claude Carignan from Quebec.
[ English ]
Senator Richards: Dave Richards, New Brunswick.
Senator M. Deacon: Marty Deacon, Ontario.
Senator Anderson: Margaret Dawn Anderson, Northwest Territories.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia.
Senator Cardozo: Andrew Cardozo, Ontario.
Senator Dasko: Donna Dasko, a senator from Ontario.
Senator Yussuff: Hassan Yussuff from Ontario.
Senator Boehm: Peter Boehm, Ontario.
The Chair: And we have our committee clerk, Ms. Ericka Dupont.
Today we proceed to clause-by-clause consideration of Bill C-21,
An Act to amend certain Acts and to make certain consequential amendments (firearms), all with respect to the regulation of firearms in Canada.
I would like to remind senators of a number of points. If at any point a senator is not clear where we are in the bill, please ask for clarification. I want to ensure we all have the same understanding of where we are in the process at each point.
As chair, I will call each clause successively in the order that they appear in the bill. When more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of a clause. If a senator is opposed to an entire clause, I would remind you that, in committee, the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill.
I would also like to remind senators that some amendments that are moved may have consequential effects on other parts of the bill. Should this be the case, it would be useful if the senator moving an amendment identifies to the committee other clauses in the bill where the amendment could have an effect; otherwise, it will be very difficult for members of the committee to remain consistent in their decision making. Staff will endeavour to keep track of the places where subsequent amendments need to be moved and will draw our attention to them.
If senators have any questions about the process or the propriety of anything occurring, you can raise a point of order. As chair, I will listen to argument, decide whether there has been sufficient discussion of a matter or order and make a ruling. The committee, though, is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed by the full committee by asking whether the ruling shall be sustained.
As chair, I’ll do my best to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend on your cooperation and ask you all to consider other senators by keeping your remarks as concise as possible.
Finally, I wish to remind senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective way is to request a roll call vote which obviously provides for unambiguous results. Senators are aware that any tied vote negates the motion in question.
With us today, in support, we have government officials from Public Safety Canada, the Department of Justice Canada, the Royal Canadian Mounted Police, the Canada Border Services Agency and the Canada Nuclear Safety Commission with us to answer technical questions if they arise.
Are there any questions with respect to any of the material that I’ve covered so far? Okay. Thank you. Colleagues, we will now move to clause-by-clause review of Bill C-21.
Is it agreed, colleagues, that the committee proceed to clause-by-clause consideration of Bill C-21,
An Act to amend certain Acts and to make certain consequential amendments (firearms)?
Hon. Senators: Agreed.
The Chair: Thank you, colleagues.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 0.1 carry?
Some Hon. Senators: Agreed.
Senator Plett: On division.
The Chair: Thank you.
Shall clause —
Senator Plett: You did hear “on division”?
The Chair: I did hear “on division,” yes. Thank you.
Shall clause 0.2 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: That’s on division then.
Shall clause 1 carry? I understand we have some proposed amendments.
Senator Plett: Thank you, chair.
Colleagues, I move in amendment:
That Bill C-21 be amended in clause 1, on page 2, by replacing line 6 with the following:
“ 1
(0.1) The definition antique firearm in subsection 84(1) of the Act is amended by striking out “or” at the end of paragraph (
a) and by adding the following after paragraph (a):
(a.1) any firearm that is designed or intended to exactly reproduce, or to reproduce with near precision, a firearm described in paragraph (
a) and that has not been redesigned to discharge rim-fire or centre-fire ammunition, or
(1) The definition prohibited firearm in subsec- ”.
The current definition of an antique firearm as outlined in
section 84(1) of the act defines them as:
(
a) any firearm manufactured before 1898 that was not designed to discharge rim-fire or centre-fire ammunition and that has not been redesigned to discharge such ammunition, or
(
b) any firearm that is prescribed to be an antique firearm;
This amendment would simply provide that any reproduction firearm that is exactly the same, such as a pre-1898 firearm, and does also not shoot modern ammunition, will also be considered to be an antique firearm.
Colleagues, we’ve had numerous witnesses who have appeared before this committee who have testified to the many unintended consequences of this bill. These are individuals in Canada who have collected antique firearms for many years. They have done this entirely legally, of course. Some of these antique firearms are what we could call black powder, matchlock or flintlock firearms; in other words, firearms that have not been in common use since about the 18 th or early 19 th centuries. Others might be what is termed cap-and-ball firearms, which were briefly only in common use during the mid-19 th century.
These are firearms that are usually used today mostly for historic reenactments, which I am sure some of us on occasion have attended. Some might be used for hunting, just as a bow and arrow are sometimes also used for hunting.
The Criminal Code has always recognized the unique nature of these historic firearms by declaring in law that they are not to be considered firearms under the definition in the Criminal Code. This amendment would add to that definition reproductions of such antique firearms that may be acquired for historical reenactments, for example.
Why is this the right thing to do? It is the right thing to do because those who own antique firearms may prefer to not actually shoot them, given their potential age and value. These individuals may acquire reproductions that are of more recent manufacture in order to preserve their old firearms.
Colleagues, I do not believe that such an outcome is at all consistent with the intent of this bill and, therefore, I would ask for your support for this amendment.
The Chair: Are there any questions?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I hear division.
Senator Plett: A recorded vote, please.
The Chair: Honourable senators, there has been a request for a recorded vote. I’ll ask the clerk to name all of the senators present who are entitled to vote at this time.
Ericka Dupont, Clerk of the Committee: The Honourable Senator Dean, Senator Anderson, Senator Boehm, Senator Boisvenu, Senator Cardozo, Senator Carignan, P.C., Senator Coyle, Senator Dagenais, Senator Dasko, Senator Deacon, Senator LaBoucane-Benson, Senator Plett, Senator Richards and Senator Yussuff.
The Chair: Thank you.
If any member present does not wish to vote, you may withdraw from the table now. The clerk will now call members’ names, beginning with the chair, followed by the remaining members’ names in alphabetic order. Members should verbally indicate how they wish to vote by saying “yea,” “nay” or “abstain.” The clerk will then announce the results of the vote. The chair will then declare whether the vote is carried or defeated.
We will start with the chair: Nay.
Ms. Dupont: The Honourable Senator Anderson.
Senator Anderson: Yes.
Ms. Dupont: The Honourable Senator Boehm?
Senator Boehm: Nay.
Ms. Dupont: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Dupont: The Honourable Senator Cardozo?
Senator Cardozo: Nay.
Ms. Dupont: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Dupont: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Dupont: The Honourable Senator Dagenais?
Senator Dagenais: No.
Ms. Dupont: The Honourable Senator Dasko?
Senator Dasko: No.
Ms. Dupont: The Honourable Senator Deacon?
Senator M. Deacon: Nay.
Ms. Dupont: The Honourable Senator LaBoucane-Benson.
Senator LaBoucane-Benson: Nay.
Ms. Dupont: The Honourable Senator Plett?
Senator Plett: Yes.
Ms. Dupont: The Honourable Senator Richards?
Senator Richards: Yes.
Ms. Dupont: The Honourable Senator Yussuff?
Senator Yussuff: Nay.
Ms. Dupont: Yeas, 5; nays, 9.
The Chair: The motion is therefore defeated.
Colleagues, shall clause 1 carry?
Senator Plett: I have another amendment.
The Chair: Sorry, Senator Plett. Please proceed.
Senator Plett: Thank you, chair.
I again would like to move an amendment, and that is:
That Bill C-21 be amended in clause 1, on page 2, by deleting lines 14 to 27.
This amendment relates to the amendment the government has proposed to subsection 84(1) of the act which defines what is to be a prohibited firearm. The government argues that the definition of a prohibited firearm should be expanded to include:
(
e) a firearm that is not a handgun and that
(
i) discharges centre-fire ammunition in a semiautomatic manner,
(ii) was originally designed with a detachable cartridge magazine with a capacity of six cartridges or more, and
(iii) is designed or manufactured on or after the day on which this paragraph comes into force;
All of these criteria must apply for the firearm in question to be prohibited. As we heard from witnesses, there are numerous problems with this proposed definition.
What the government is attempting to define is an assault-style firearm for which there is actually no definition. I am sure that if many Canadians were asked what that term meant, they would say it means a firearm capable of being fired in a fully automatic manner.
Indeed, if we think of any military rifle in service today, that is what such a rifle would be capable of, but such rifles have been legally prohibited for civilian use in Canada for many decades, so instead, the government now proposes to expand the prospective definition to also prohibit firearms simply because they happen to discharge ammunition in a semiautomatic manner.
Theoretically, this would impact well over one million hunting firearms in Canada — firearms that are actually classified as non-restricted under current Canadian law and which have been assessed as entirely appropriate for hunting purposes in Canada. This is why so many hunters, including Indigenous hunters, oppose this provision so strongly.
What the government now proposes to do is to claim that it is prohibiting a range of semiautomatic rifles, but only if all of the provisions I mentioned apply. In practical terms, this means this provision will actually apply to very few firearms, if any — at least today. However, the government is signalling what it intends to do through regulation. This is raising much confusion and considerable concern, particularly among Indigenous hunters who have testified about how the government consulted with them or did not consult with them. Colleagues, this provision has raised significant concerns among hunters, including Indigenous hunters.
Again, I propose that the provision be deleted and would ask for your support.
The Chair: Any questions or discussion, colleagues? All right.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: It sounds like division.
Senator Plett: A recorded vote, please.
Ms. Dupont: The Honourable Senator Dean?
The Chair: Oppose, nay.
Ms. Dupont: The Honourable Senator Anderson?
Senator Anderson: Yes.
Ms. Dupont: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Dupont: The Honourable Senator Cardozo?
Senator Cardozo: No.
Ms. Dupont: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Dupont: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Dupont: The Honourable Senator Dagenais?
Senator Dagenais: No.
Ms. Dupont: The Honourable Senator Dasko?
Senator Dasko: No.
Ms. Dupont: The Honourable Senator Deacon?
Senator M. Deacon: No.
Ms. Dupont: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Dupont: The Honourable Senator Plett?
Senator Plett: Yes.
Ms. Dupont: The Honourable Senator Richards?
Senator Richards: Yes.
Ms. Dupont: The Honourable Senator Yussuff?
Senator Yussuff: No.
Ms. Dupont: Yes, 5; no, 8.
The Chair: The motion is defeated.
Senator Plett, any further amendments?
Senator Plett: One more, please, chair. Thank you.
In amendment, I move:
That Bill C-21 be amended in clause 1, on page 3, by replacing line 4 with the following:
“cision, an antique firearm or any such device that is brightly coloured on 25% or more of its surface; ( réplique )”.
This amendment would exclude from the definition of “replica firearm” any device designed or intended to resemble any device from being defined as a prohibited replica firearm if that device is brightly coloured on 25% or more of its surface. The challenge with replica or toy firearms that very closely resemble real firearms is the danger of them being wrongly seen by police as a real firearm. This amendment removes airsoft devices from being caught by that provision if they are brightly coloured on more than 25% of their surface. In other words, it unambiguously exempts them from being wrongly categorized.
Now, why is that important? When Mr. Brian McIlmoyle of Airsoft in Canada appeared before our committee on November 6, he noted that clarification is still required in this bill to ensure when such toys are imported into Canada that CBSA has clear direction that they are to be considered as toys and not replica firearms. One approach recommended by Airsoft in Canada, through its submission to this committee, is to provide that when such a toy is brightly coloured on 25% or more of its surface, it is clearly a toy and can be easily identified by CBSA officers.
Airsoft notes in its submission that adopting such an amendment would be generally comparable to provisions that exist in the United Kingdom, for example. Airsoft in Canada argues that such an amendment is generally acceptable to the Canadian airsoft industry, though there will still be an impact on profitability given the need to colour such toys accordingly. Nevertheless, the amendment would help to clarify the law when it comes to preserving the airsoft sport in Canada and also address the concerns raised by law enforcement.
This amendment carries no cost to the government itself, but it would, according to Mr. McIlmoyle, reduce confusion for CBSA when it is dealing with such imports and thereby reduce its workload.
Again, I would hope that you would approve this amendment.
The Chair: Are there any questions or discussion, colleagues?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: We have division.
Senator Plett: Recorded vote.
The Chair: Recorded vote.
Ms. Dupont: The Honourable Senator Dean?
Senator Dean: Nay.
Ms. Dupont: The Honourable Senator Anderson?
Senator Anderson: No.
Ms. Dupont: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Dupont: The Honourable Senator Cardozo?
Senator Cardozo: No.
Ms. Dupont: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Dupont: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Dupont: The Honourable Senator Dagenais?
Senator Dagenais: No.
Ms. Dupont: The Honourable Senator Dasko?
Senator Dasko: No.
Ms. Dupont: The Honourable Senator Deacon?
Senator M. Deacon: No.
Ms. Dupont: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Dupont: The Honourable Senator Plett?
Senator Plett: Yes.
Ms. Dupont: The Honourable Senator Richards?
Senator Richards: Yes.
Ms. Dupont: The Honourable Senator Yussuff?
Senator Yussuff: No.
Ms. Dupont: Yeas, 4; nays, 9.
The Chair: Thank you. Colleagues, the motion in amendment is defeated, and I think this wraps up clause 1. Shall clause 1 carry, colleagues?
Senator Plett: On division.
The Chair: On division.
We have a new clause.
[ Translation ]
Senator Carignan: I move:
That Bill C-21 be amended on page 3 by adding the following after line 27:
“ 1.01 (1) Subsection 95(1) of the Act is replaced by the following:
(1) Subject to subsection (3), every person commits an offence who possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with ammunition that is capable of being discharged in the firearm and that is capable of being loaded into it without delay.
(2) Paragraph 95(2)(
a) of the Act is replaced by the following:
(
a) is guilty of an indictable offence and is liable
(
i) in either of the following cases, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years for a first offence and five years for a second or subsequent offence:
(
A) the offence is committed for the purpose of committing an indictable offence under this Act or the Controlled Drugs and Substances Act , or
(
B) the offence is committed in a manner that, having regard to all the circumstances, creates a real risk of physical or psychological harm to another person, and
(ii) in any other case, to imprisonment for a term not exceeding 14 years; or
(3) Subsection 95(3) of the Act is replaced by the following:
(2.1) For the purposes of clause (2)(a)(i)(B), in the absence of evidence to the contrary, the offence is deemed to be committed in a manner that, having regard to all the circumstances, creates a real risk of physical or psychological harm to another person if it is committed
(
a) in a place where another person is present; or
(
b) in or next to a school or other public place , as defined in
section 150, usually frequented by persons under the age of 18 years, at a time when such persons can reasonably be expected to be present.
(3) Subsection (1) does not apply to a person who
(
a) possesses the firearm in accordance with the Firearms Act and any regulation made under
section 117 of that Act respecting the storage, handling, transportation or display of prohibited firearms or restricted firearms, as the case may be;
(
b) is using the firearm under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it; or
(
c) comes into possession of the firearm by the operation of law and intends to, within a reasonable period, lawfully dispose of it or take the necessary measures to possess it in accordance with the Firearms Act and any regulation made under
section 117 of that Act respecting the storage, handling, transportation or display of prohibited firearms or restricted firearms, as the case may be.
(4) For greater certainty, a person may plead the common law rule of innocent possession in respect of proceedings for an offence under subsection (1).”.
This amendment proposes mandatory minimum sentences for possession of a loaded firearm that differ from those previously set out in subparagraphs 95(2)(a)(
i) and (ii). It increases the maximum period of imprisonment to 14 years, which is fully consistent with
section 14 of the bill.
Although the mandatory minimum sentencing provisions were ruled unconstitutional in R. v. Nur in 2015, the Harper government introduced Bill C-69, which attempted to address the concerns raised in that case. The bill was the subject of a legislative
summary. The amendment incorporates the changes to
section 95 that were set out in Bill C-69.
I propose, therefore, that in circumstances where an individual uses a prohibited firearm or a loaded or readily loadable restricted firearm to commit an indictable offence, or uses such a firearm to create a real risk of physical or psychological harm to another person, or in particular, of course, in places where people under the age of 18 might reasonably be expected to be present.
The proposed amendment includes exceptions. It excludes circumstances in which a firearm may be possessed in accordance with the provisions of the Firearms Act, and in which the individual in question intends to comply with the provisions of the Firearms Act.
Colleagues, it’s important to also recall the context of this particular amendment.
In April 2015, the Supreme Court struck down the mandatory minimum sentence for possession of a prohibited or restricted firearm, and in that judgment, the majority of the justices felt that in certain reasonably foreseeable circumstances, the mandatory sentence of three years for a first offence, or five years, in the case of a repeat offence, could impose a disproportionate sentence in relation to the circumstances of only certain individuals.
The government of the day responded to R. v. Nur with Bill C-69, which took into account the arguments of the majority of the court and proposed an approach that reflected the amendment currently before this committee.
This bill was unfortunately not put to a vote due to the 2015 election, and this had not been taken up. The amendment I am proposing is taken directly from Bill C-69. It takes into account the very serious problem of restricted prohibited handguns being smuggled into our cities.
It also takes into account the objections of the majority of the court that had rendered the decision in R. v. Nur by incorporating important exceptions or limitations to the proposals for mandatory minimum sentences.
The previous government had reacted to the Supreme Court’s ruling, and it was decided on this side not to go any further with this responsibility.
In my view, instead of the flawed bill before us now, we need to go after the real criminals on our streets, such as those who carry prohibited or restricted handguns — in Toronto, for example.
Bill C-21 goes after respectful gun owners. So I believe, colleagues, that we have an obligation to correct this deeply flawed approach, and this amendment corrects that, at least in part. We are facing an epidemic of gang crime using illegal firearms in our major cities. Many of these people are repeat offenders.
According to Statistics Canada, in 2021, 788 people were murdered in Canada, up from 509 in 2013. In the space of eight years, the number of murders has risen by more than 50%. In 2021, 25% of these murders were gang-related, and the shootings involved prohibited weapons.
I would also like to highlight a testimony that particularly struck me, that of Brian Sauvé, President of the National Police Federation. Last year, he told the House of Commons that 400 street gangs currently operate in Toronto. According to police witnesses and former gang members, gangs regularly have access to prohibited and illegal firearms.
I’d also like to highlight the testimony of Marcell Wilson, president and founder of the One By One movement, who told our committee on October 30 that a person could easily gain access to such a weapon in about two hours if they didn’t own one.
I’d like to quote his testimony, which particularly struck a chord with me. He told us the following:
Sadly, people are killed by legal firearms in Canada. This does happen, but I think any expert or rational person can agree that when speaking about gun violence in Canada, this represents a minority. [...]
If we want to reduce gun violence in Canada, the first step is to tackle illegal guns and the way they enter the country, without question.
Colleagues, to tackle illegal guns, we need to include appropriate penalties; that’s what the amendment proposes. I’m fond of quoting a former Liberal cabinet minister, Allan Rock, who in 1995 said the following:
The right approach to gun control in Canada is to deal effectively with the criminal use of guns, while respecting the legitimate use, which is the interests of law-abiding gun owners.
[...] Tighter border controls and tougher penalties for smuggling and trafficking are needed.
That was 1995; now, almost 30 years later, history is repeating itself.
Colleagues, we cannot shirk our responsibility to ensure tougher penalties, which is why I am proposing this amendment today. I ask you to support it. I am available to answer questions if necessary.
[ English ]
The Chair: Are there any questions?
Senator LaBoucane-Benson: Colleagues, I note that quite a few amendments today deal with mandatory minimums, so I’ll make a few quick points.
First, in general, mandatory minimum penalties prevent judges from using their discretion to tailor a sentence to the specifics of the offender and the offence. In other words, they prevent the judge from considering context, which is not usually the best way to achieve a just result.
Second, several mandatory minimums have been struck down by the courts, so it’s questionable whether those being proposed in amendments today are actually constitutional.
Third, mandatory minimums are associated with aggravating the over-representation of Indigenous and Black people in our prisons.
Fourth, there’s no evidence that mandatory minimum penalties serve to deter or reduce crime.
Fifth, many of the mandatory minimums being proposed today were repealed by Parliament a year ago through Bill C-5. That bill was studied in depth by our colleagues in the Legal and Constitutional Affairs Committee, and it was adopted by the Senate just last year with a strong majority support.
Finally, there is no contradiction between addressing gun violence and repealing mandatory minimums. We should be getting dangerous firearms out of our communities and off our streets, and when someone commits an offence using a firearm, the sentence should fit the crime. It doesn’t make us any safer if judges aren’t allowed to distinguish between some crime boss running a sophisticated straw purchasing operation and a woman in an abusive relationship who is caught storing her boyfriend’s gun.
For these reasons, I encourage the committee members to oppose this and all the amendments that propose to add or reinstate mandatory minimums. Thank you, colleagues.
[ Translation ]
Senator Carignan: I’d like to respond to that. That’s why I’m proposing an amendment that is consistent with the Supreme Court decision. The Supreme Court decision clearly established, when measures were declared unconstitutional, that we were at the limit and that the law could create elements of incongruity that meant that, in certain very specific situations, the
section could result in cruel or abusive punishment. We took this into account.
That’s why we’ve structured this amendment to cover situations where the Supreme Court has said it would be reasonable. We’ve excluded the part where the Supreme Court has come to the spectrum of factual situations, where we’d be dealing with cruel and unusual punishment.
I’m aware of your point of view. That’s why we’ve drafted an amendment that strikes the right balance.
[ English ]
The Chair: Any other comments? Okay.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I’m hearing, I think, a preponderance of no’s over here.
Senator Plett: Chair, you’re always saying you’re hearing division, but you never tell us what the vote is in your opinion, so I’m always asking for a recorded vote. I don’t necessarily want to do that on behalf of the government if you’re declaring that we won the amendment, so I’m asking you to at least let us know how you feel the voice vote went before I ask for a recorded vote.
The Chair: My ears and eyes were telling me that there were at least seven senators who voted against it.
Senator Plett: That’s no problem, and I accept that, but I hadn’t heard that from you.
The Chair: Fair enough.
Senator Plett: I appreciate your ears and your eyes. Everybody is looking down at their papers and not really giving any indication with their eyes, so I would question that, in some humour there, but I will ask for a recorded vote.
The Chair: Fair enough.
Ms. Dupont: The Honourable Senator Dean?
The Chair: Nay.
Ms. Dupont: The Honourable Senator Anderson?
Senator Anderson: Yes.
Ms. Dupont: The Honourable Senator Boehm?
Senator Boehm: Nay.
Ms. Dupont: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Dupont: The Honourable Senator Cardozo?
Senator Cardozo: Nay.
Ms. Dupont: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Dupont: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Dupont: The Honourable Senator Dagenais?
Senator Dagenais: Yes.
Ms. Dupont: The Honourable Senator Dasko?
Senator Dasko: No.
Ms. Dupont: The Honourable Senator Deacon?
Senator M. Deacon: No.
Ms. Dupont: The Honourable Senator LaBoucane-Benson.
Senator LaBoucane-Benson: No.
Ms. Dupont: The Honourable Senator Plett?
Senator Plett: Yes.
Ms. Dupont: The Honourable Senator Richards?
Senator Richards: Yes.
Ms. Dupont: The Honourable Senator Yussuff?
Senator Yussuff: No.
Ms. Dupont: Yes, 6, no, 8.
The Chair: Colleagues, the motion in amendment is defeated.
I believe we have another amendment coming up.
[ Translation ]
Senator Carignan: I have another amendment to propose, which is a little shorter. I move:
That Bill C-21 be amended on page 3 by adding the following after line 27:
“ 1.01 Paragraph 96(2)(
a) of the Act is replaced by the following:
(
a) is guilty of an indictable offence and is liable
(
i) in the case of a prohibited firearm, a restricted firearm or a non-restricted firearm designed to discharge centre-fire ammunition, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of one year, and
(ii) in any other case, to imprisonment for a term not exceeding 14 years; or”.
This amendment introduces a mandatory minimum sentence, which was previously found in paragraph 96(2)(
a) of the Criminal Code, with a minor change to resolve, once again, the problem of constitutionality. It also increases the maximum period of imprisonment to 14 years, in accordance with
section 14 of Bill C-21.
The former subsection 95(3) was ruled unconstitutional, this time in the case of The Queen v. Robertson , in 2020, before the British Columbia Court of Appeal. The court then found the mandatory minimum sentence unconstitutional based on a completely hypothetical scenario involving possession of a stolen pellet gun.
The change proposed here is that the mandatory minimum sentence would only apply when the firearm possessed is a prohibited firearm, a restricted firearm or an unrestricted firearm that is designed to fire centerfire ammunition, thus specifically excluding pellet guns and .22-caliber pistols, among other firearms.
The change would also address the hypothetical scenario that led the court to declare this case unconstitutional. It also deals with possession of a firearm obtained through the commission of an offence. Subsection 96(1) of the Criminal Code reads as follows:
Subject to subsection (3), every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition that the person knows was obtained by the commission in Canada of an offence or by
an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence.
Prior to Bill C-5, this offence was punishable by a minimum sentence of one year. This sentence was overturned by the British Columbia Court of Appeal in the case of The Queen v. Robertson , because the majority of judges developed the scenario that a person could be caught by the provision, namely possession of an air rifle that had been stolen.
In Bill C-5, the current government simply accepted this decision without comment and simply repealed the minimum sentence.
With this amendment, I believe we have an opportunity to do what the government should have done in the original bill.
We’ve heard testimony that stolen firearms are an extremely serious crime problem in Canada. In fact, I believe Senator Dasko referred to this problem on several occasions. The Commissioner and Chief Firearms Officer of Saskatchewan also referred to this problem when he appeared before the committee on October 23. I believe that this amendment gives us the opportunity to really tackle the problem.
The change I’m proposing is to reinstate the old mandatory minimum sentence for possession of a restricted prohibited firearm or a stolen unlicensed firearm. However, in the case of an unlicensed firearm, the minimum sentence would be limited to possession of a stolen unlicensed firearm firing centerfire ammunition.
For context and clarity, centerfire ammunition is the same powerful ammunition that can be found in any prohibited or restricted firearm. By limiting the application of the mandatory sentence to the possession of stolen centerfire long guns, the hypothetical case of the British Columbia Court of Appeal would be addressed by this amendment.
When a court renders a decision, the government has an obligation to read it and treat it with care. It must also answer the question, and if it feels it is imperative for public safety to consider it, that’s what we’re talking about when we invoke the importance of a dialogue between the Supreme Court and Parliament.
The current government has therefore chosen to stand still, despite this growing problem of stolen guns on the streets, and has chosen to reduce the sentence rather than extend it. I propose to reverse this abdication of responsibility with this amendment.
I ask for your support, colleagues, for this amendment. I’m also available to answer your questions, if you need clarification.
[ English ]
The Chair: Thank you, Senator Carignan. Any questions or comments?
Senator Dasko: Thank you, Senator Carignan. Do I understand that part of your critique is that the court based their decision on a hypothetical case? You mentioned that. Is that part of your critique of what the court did?
[ Translation ]
Senator Carignan: No, but that’s how the court should deal with it. It’s not a criticism of the court.
The court examines hypothetical situations to judge the constitutionality of a situation. We take this hypothetical situation, we analyze it, and then we ask ourselves how we can draft an
article that will remove these hypothetical situations and focus on those we really want to target with minimum sentences. We want to solve the real problems, not deal with hypothetical situations where there are no problems of morality or criminality.
Accidentally, when we drafted the article, we touched on a field, a part of the factual domain that criminalizes a situation that shouldn’t be criminalized or imposes a minimum sentence for a situation that shouldn’t exist.
The amendment clarifies things, drawing a fine line rather than a broad one.
[ English ]
Senator Dasko: Thank you.
The Chair: Let’s test this, then. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I’m seeing a majority of “No.” Senator Plett, it’s in your hands as to how we proceed.
Senator Plett: I heard we had a [Technical difficulties]. You have the same ear that the Speaker has.
Ms. Dupont: The Honourable Senator Dean?
Senator Dean: Nay.
Ms. Dupont: The Honourable Senator Anderson?
Senator Anderson: Yes.
Ms. Dupont: The Honourable Senator Boehm?
Senator Boehm: Nay.
Ms. Dupont: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Dupont: The Honourable Senator Cardozo?
Senator Cardozo: Nay.
Ms. Dupont: The Honourable Senator Carignan?
Senator Carignan: Yes.
Ms. Dupont: The Honourable Senator Coyle?
Senator Coyle: Nay.
Ms. Dupont: The Honourable Senator Dagenais?
Senator Dagenais: Yes.
Ms. Dupont: The Honourable Senator Dasko?
Senator Dasko: No.
Ms. Dupont: The Honourable Senator Deacon?
Senator M. Deacon: Nay.
Ms. Dupont: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Nay.
Ms. Dupont: The Honourable Senator Plett?
Senator Plett: Yes.
Ms. Dupont: The Honourable Senator Richards?
Senator Richards: Yes.
Ms. Dupont: The Honourable Senator Yussuff?
Senator Yussuff: Nay.
Ms. Dupont: Yes, 6; no, 8.
The Chair: Thank you. Accordingly, the motion in amendment is defeated.
We will now move on to the next amendment.
[ Translation ]
Hon. Pierre-Hugues Boisvenu: I move:
That Bill C-21 be amended on page 3 by adding the following after line 27:
“ 1.01 Subsection 85(3) of the Act is replaced by the following:
(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable
(
a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of one year; and
(
b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.”.
When the former minister testified in June 2022, he said this bill would eradicate gun violence and protect Canadians. As many witnesses told us, the bill will have little effect on gun violence and even less on organized crime. Basically, this bill will not remove any legal guns from Canada.
What’s more, the bill does nothing to solve the problem of gun smuggling. We’ve heard this from experts and people working in the security field. We know that the main source of handguns for organized crime is arms smuggling.
Taking into account the principle of studying a bill with the aim of eradicating violence, I think we’re a long way from this reality. At the same time, as we’ve seen, the government has passed Bill C-5, which we believe will amplify gun-related violence by eliminating minimum sentences. When there are sentences, in most cases they are served at home.
So, if we want to give meaning to the minister’s commitment that this bill is about tackling organized crime, we can’t do it by relying strictly on the maximum sentence, which is 14 years. As we have seen over the past 10 years, no sentence of this nature has been imposed in Canada. The most severe sentence was two years plus one day, and there was only one. The majority of sentences were between three and six months.
We have seen that this situation has had a huge impact on the increase in crime linked to illegal weapons, particularly in relation to street gangs. This message is completely contradictory to the one the government sent when it passed Bill C-5 and led us to believe that Bill C-21 alone would reduce crime, violence and firearms. There’s a huge contradiction here.
In my opinion, the only way to restore a modicum of credibility to this bill is to reinstate minimum sentences. That’s what my amendment aims to do, by proposing minimum sentences for first and second offences. I believe this is the only message we can send with regard to organized crime and street gangs.
As we saw in a statistic on gun crimes committed by young people aged 14 to 18, that’s where the biggest increase is in Canada. If we leave Bill C-21 without any serious guidelines for cracking down on organized crime and do not send a clear message that there will be minimum prison sentences, I believe that Bill C-5, like the minister’s commitment, is a completely meaningless amendment.
I would ask you to adopt this amendment. Thank you.
[ English ]
The Chair: Are there any questions or comments, colleagues?
[ Translation ]
Senator Carignan: I’d like to stress the importance of the offence in question. Let’s take subsection 85(3), which refers to offences under 85(1) and 85(2). These are extremely serious offences. It reads
(2) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm:
(
a) while committing an indictable offence other than an offence under
section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder) [...];
(
b) while attempting to commit an indictable offence;
(
c) during flight after committing or attempting to commit an indictable offence.
Subsection (2) then reads as follows
Every person commits an offence who uses an imitation firearm
(
a) while committing an indictable offence,
So there’s an accumulation, an aggravating factor when all this happens while the person is committing an indictable offence or attempting to commit one. It’s not just a matter of having a weapon in one’s hands, it’s also a matter of doing something else with it, i.e., committing a criminal act.
My colleague’s proposal, given its seriousness, justifies this minimum sentence, which is still a minimum, as its name suggests. The minimum sentence could be longer than that, but I think the balance Senator Boisvenu has struck is an interesting one.
That was my point. So I support Senator Boisvenu.
[ English ]
The Chair: Are there any other thoughts or comments, colleagues?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Okay, I had trouble tracking that one. Let’s do a recorded vote, and we’ll see.
Ms. Dupont: The Honourable Senator Dean?
The Chair: Nay.
Ms. Dupont: The Honourable Senator Anderson?
Senator Anderson: Yes.
Ms. Dupont: The Honourable Senator Boehm?
Senator Boehm: Nay.
Ms. Dupont: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Dupont: The Honourable Senator Cardozo?
Senator Cardozo: No.
Ms. Dupont: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Dupont: The Honourable Senator Coyle?
Senator Coyle: Nay.
Ms. Dupont: The Honourable Senator Dagenais?
Senator Dagenais: Yes.
Ms. Dupont: The Honourable Senator Dasko?
Senator Dasko: No.
Ms. Dupont: The Honourable Senator Deacon?
Senator M. Deacon: No.
Ms. Dupont: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Dupont: The Honourable Senator Plett?
Senator Plett: Yes.
Ms. Dupont: The Honourable Senator Richards?
Senator Richards: Yes.
Ms. Dupont: The Honourable Senator Yussuff?
Senator Yussuff: No.
Ms. Dupont: Yeas, 6; nays, 8.
The Chair: Colleagues, the amendment is accordingly defeated.
I believe that we move on to another amendment now.
[ Translation ]
Senator Boisvenu: My second amendment is as follows:
That Bill C-21 be amended on page 3 by adding the following after line 27:
“ 1.01 Subsection 92(3) of the Act is replaced by the following:
(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable
(
a) in the case of a first offence, to imprisonment for a term not exceeding 14 years;
(
b) in the case of a second offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of one year; and
(
c) in the case of a third or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of two years less a day.”.
This amendment is similar in substance to the previous one, but this time it concerns the possession of illegal weapons. The first amendment dealt with weapons of any category,
whereas this one deals with illegal prohibited firearms, restricted weapons or non-restricted firearms without a possession permit or registration certificate.
My amendment proposes to modify Bill C-5, which also abolished minimum sentences even for people possessing illegal firearms. Among other things, under paragraph 4 of this clause, the provisions do not apply to an individual, even if he or she does not have a licence, if he or she is under the direct or immediate supervision of a person who may illegally possess a firearm or the devices in question. As a result, the minimum sentence applies only to repeat offenders or those whose criminal intent is obvious.
Basically, the minimum sentence applies to the most serious and the biggest, but those who have illegal weapons and commit a crime will fly under the radar.
I’m referring to Chief Evan Brey, who testified before the Standing Committee on Public Safety and National Security:
[...] we continue to assert that restricting the legal possession of handguns will not meaningfully address the real problem: illegal handguns obtained in the United States that have led to the current disturbing trend of gun violence that is largely linked to gangs, street gangs and more sophisticated organized crime groups.
I’ll quote another witness, retired Montreal police supervisor Stéphane Wall, who said:
Bill C-21 has the wrong target. It is a cosmetic and ideological approach that will have no effect in reducing the number of shootings by violent criminals, 90% of whom use illegal firearms [...]. Instead of hitting the right nail on the head, namely the trafficking of illegal weapons across the border and through Indigenous reserves, we’re hitting a nail that won’t change a thing. We’re attacking people who own firearms and have the necessary permits for legitimate hunting and shooting sports.
[...] The maximum prison sentence for firearms offences, including trafficking, has been raised from 10 to 14 years. In reality, courts almost never give the 10-year sentence. So why would they suddenly give a 14-year sentence?
I remind you of the case of William Rainville, who was arrested in Dundee in possession of 250 gun carcasses and received a five-year prison sentence, but was released after one year.
So, illegal gun trafficking is a major problem in Canada, and this bill, in its current form, does very little to deal with these criminals, having abolished minimum sentences in Bill C-5.
Another witness, Mr. Matthew Taylor, said:
In 2019-20, there was one conviction resulting in a imprisonment of more than two years. In 2018, sentencing ranged from as low as three to six months [...].
So, as we can see, the current situation encourages organized crime to possess these illegal weapons, and if we don’t intervene severely with minimum sentences, I think Bill C-21 and the minister’s commitment to tackle organized crime will be like hot air. I therefore propose that you adopt this amendment. Thank you.
[ English ]
The Chair: Are there questions or comments?
Senator Cardozo: I just have a couple of comments on the issue of the debate over the mandatory minimum penalties. Often when people criticize the removal of mandatory minimum sentences, they kind of leave the impression that the penalty is being removed altogether. That’s not the case at all. We’re leaving it to the discretion of the judge to decide upon the penalty. Judges develop their penalties based upon jurisprudence and what is happening across the country. But to put this in, the only way we can make it stick is to use the notwithstanding clause. Unless that accompanies the amendment, I don’t think it’s a serious amendment.
As we’re looking at Bill C-21, I’m really focused on the problem, which is the crisis or epidemic of domestic violence and intimate partner violence. That’s where we really have to be focused. We’ve had some terribly tragic mass shootings and mass casualties, and those are the issues I want to focus on. Thank you.
[ Translation ]
Senator Carignan: I’d like to disagree with Senator Cardozo. It’s not just the use of the notwithstanding clause that can be used to have minimum sentences. As I said earlier — and the Supreme Court has said this: in certain situations, minimum sentences were justified, were reasonable and did not constitute cruel punishment — so you don’t have to use the notwithstanding clause when you adopt minimum sentences.
Furthermore, the minimum sentences that are often forgotten, and which have had an extremely important deterrent effect, are the minimum sentences for impaired driving. There are minimum sentences, and they’ve passed the test; it’s recognized that they change people’s behaviour because they know there’s a minimum sentence, the message is clear.
The minimum sentence — or the maximum sentence in certain situations — gives the judge some clues. You say you leave it to the judge’s discretion, but it’s our role as parliamentarians to give clues to the courts about what Parliament considers to be more serious crimes.
Here we have an amendment by Senator Boisvenu. The maximum sentence is 14 years, and in the case of a repeat offence, one year. For a person in possession of a prohibited weapon once, there is no minimum sentence, but there is one if the person is in possession of a prohibited weapon for a second time.
You have to be unlucky in life to end up with a prohibited weapon in your hands twice. It’s called a one-year minimum sentence, but if it happens a third time, he’s really unlucky: it’s three years.
It’s obvious that when we set minimum sentences for repeat offences involving the possession of a prohibited weapon, we’re targeting criminalized individuals, extremely dangerous people for whom, at present, sentences are not sufficient. As Senator Boisvenu told you, during his testimony, Matthew Taylor, General Counsel and Director of the Criminal Law Policy
Section of the Department of Justice, responded to a question from Senator Yussuff, who asked him what the average sentence was for trafficking illegal firearms in Canada.
His answer, quoted by Senator Boisvenu, was as follows:
In 2019-20, there was one conviction resulting in imprisonment of more than two years. In 2018, sentencing ranged from as low as three to six months to more than two years. So, sentences are what they are.
It’s our role to give legislative clues to the courts to say what we want to combat, what message we want to send in this fight against crime. If the penalties aren’t sufficient, it’s up to us to say so in the Criminal Code. If we don’t, the courts will say that, in any case, the legislator decided that it wasn’t necessary, that it wasn’t an issue we had to fight, that he had the chance to make amendments and didn’t do so.
The courts rely on our judgment and then on our discretion. We go with the parameters we’ve set. With minimum sentences, we’re sending a message. We represent the public, and more specifically the House of Commons, and they are asking us to act. There are serious situations, we have evidence, repeat offenders, street gangs, trafficking. All the witnesses we’ve heard from have told us so, everything that’s going on and then what we hear in the media about street gangs — and it’s even worse, because we have more information than the average citizen.
We’re sending out the message that we want to take action. We’re a long way from the question of whether the only solution to using minimum sentences is to use the notwithstanding clause. We’re not there at all.
Senator Boisvenu: Senator Cardozo, you know very well that when we propose minimum sentences, we don’t do it with the impression that the courts won’t give sentences. We do it with one objective in mind. The chief of police in Toronto told us to stop putting people in prison, because they come out two months later, go back out on the street and commit the same crimes again. That’s the situation police officers are facing.
The lack of a minimum sentence means that these people are the revolving doors of our justice system. It discourages police officers from intervening, because they know that these people will suffer no consequences for their actions, if any at all.
A minimum sentence of one year, you know, Senator Cardozo, is between three and six months in prison, it’s not a year, because our justice system is such that the Parole Board of Canada will release them after three to six months. Minimum sentences should be two years. If people think that a minimum sentence of one year is a harsh sentence, I think we’re somewhere else, except that we’re sending out the message that no act will merit a minimum sentence. That’s what’s important.
It’s all about the perception we give to criminals, telling them that they won’t get away with anything less than that, that there will be a minimum sentence for what they’ve done. Otherwise, for them, there will be no consequences. When there are no consequences, the result is what’s happening on our streets right now. Street gangs are a scourge, as you know. In Toronto — you live in that area, I think — it’s a plague. It’s a scourge in Montreal, it’s now in Sherbrooke, in Quebec City; it’s now arriving in the regions. We have to send out a very strong message saying enough is enough.
[ English ]
Senator Plett: Most of the points that I was going to make have been made, so I won’t repeat those, but I do want to just say that we have a gun bill here in front of us that says the government wants to clamp down on some illegal activities. That’s what they’re saying. When they’re, in fact, clamping down on legal activities, they say they want to clamp down on illegal activities. Then when someone wants to help improve that so that when somebody does, in fact, do something illegal and then suffers the consequences, we have that same government and that same group of, in this case, senators, saying, “Well, no, but let’s not be too harsh on these people who do this.”
Senator Cardozo used two illustrations, one of domestic violence and one of mass shootings. I hate somebody trying to lump me into a crowd that makes believe that there are senators here that aren’t horrified by domestic violence and mass shootings. We all are. It’s a matter of what we do we do to punish people who do that.
Then when there are those here who want to hand down tough sentences on those people, we have the same people on the other side fighting that: “Yes, but let’s not be too harsh on these people.” Senator Cardozo, if you’re so concerned about the mass shootings and domestic violence — and I know you are — then let’s be tough on the people who do it.
Instead, you’re suggesting, “Well, no, let’s not do that.” We have people going around saying, “I hope I’m in front of that judge because that judge is much more lenient than that other judge.” If Parliament did their job and invoked these mandatory minimums, then we would have some consistency.
Instead, the government comes along and puts in a maximum sentence in one of their clauses, when the maximum we have today has never been reached. So this is just simply trying to show and pretend that we have someone who is tough on crime when everything that we’re doing here even today is saying that those same people that are horrified by what’s going on are here today saying, “But et’s not be too difficult. Let’s not be too tough on them.”
Senator Boisvenu has a good amendment here, colleagues, and something that we should all be wanting to support if we want to be tough on crime.
Senator Cardozo: I just want to say I never suggested we should be less harsh on anybody. Thank you.
The Chair: Colleagues, let’s test this then. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I see a majority —
Senator Plett: Recorded vote.
The Chair: Recorded vote, okay.
Ms. Dupont: The Honourable Senator Dean?
Senator Dean: Nay.
Ms. Dupont: The Honourable Senator Anderson?
Senator Anderson: Yes
Ms. Dupont: The Honourable Senator Boehm?
Senator Boehm: Nay.
Ms. Dupont: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Dupont: The Honourable Senator Cardozo?
Senator Cardozo: Nay.
Ms. Dupont: The Honourable Senator Carignan. P.C.?
Senator Carignan: Yes.
Ms. Dupont: The Honourable Senator Coyle?
Senator Coyle: Nay.
Ms. Dupont: The Honourable Senator Dagenais?
Senator Dagenais: Yes.
Ms. Dupont: The Honourable Senator Dasko?
Senator Dasko: No.
Ms. Dupont: The Honourable Senator Deacon?
Senator M. Deacon: No.
Ms. Dupont: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Dupont: The Honourable Senator Plett?
Senator Plett: Yes.
Ms. Dupont: The Honourable Senator Richards?
Senator Richards: Yay.
Ms. Dupont: The Honourable Senator Yussuff?
Senator Yussuff: Yes.
Ms. Dupont: Yes, 6; no, 8.
The Chair: Thank you, madam clerk. The motion in amendment is therefore defeated. That brings us through that clause.
Colleagues, shall clause 1.1 carry?
Some Hon. Senators: Yes.
Senator Plett: On division.
The Chair: On division.
Shall clause 1.2 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: On division.
Shall clause 1.3 carry?
An Hon. Senator: On division.
The Chair: On division.
Shall clause 1.4 carry?
An Hon. Senator: On division.
The Chair: On division.
Shall clause 1.5, carry? I see an amendment signalled from Senator Plett.
[ Translation ]
Senator Boisvenu: Colleagues, first I’ll move my amendment and then I’ll explain.
I move:
That Bill C-21 be amended in clause 1.5, on page 6, by adding the following after line 23:
“
(2.1) Section 103 of the Act is amended by adding the following after subsection (2):
(2.01) Despite subsection (2), every person who commits an offence under subsection (1) for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of five years.”.
You will understand, somewhat along the same lines as for the amendments I proposed previously, that we are attacking here, in my opinion, the greatest scourge, which is the smuggling of firearms across our borders; in most if not all cases, this smuggling is done under the direction or supervision of organized crime.
As my colleague Senator Carignan said earlier, in 2021, 788 people were murdered in Canada, a 50% increase since 2013. In 2021, a quarter of these murders were gang-related, mainly in cities, not to mention shootings, which generally involve prohibited firearms and represent a serious danger to the innocent population: men, women and children.
Illegally obtained weapons account for 75% of all gang-related homicides. National Police Federation President Brian Sauvé told the House of Commons last year that some 400 street gangs were operating in Toronto alone. According to police witnesses and other former gang members, gangs regularly gain access to illegal prohibited weapons through cross-border trafficking.
Mr. Wilson, founder of the One By One movement, testified before our committee that a person could have easy access to such a firearm in less than two hours, on the streets. That’s pretty much the same information we got from the Toronto police chief, and the same information I got from the Montreal police. Getting a gun on the streets of Montreal and Toronto is as easy as buying a bicycle.
In Montreal, 95% of handguns were illegal. In Ontario, 79% were of foreign origin, particularly from the United States. Many witnesses came before the committee to tell us that gun trafficking must be controlled. Unfortunately, Bill C-21 does very little to address gun trafficking, except to set the minimum sentence at 14 years instead of 10.
As I said earlier, most of these criminals will be out on the street after serving a third of their sentence. The 14-year sentence was a maximum; if the sentence is five to six years, these people, in the majority of cases, will be released after serving one-third of their sentence.
By setting a minimum sentence of 14 years, with a minimum of five years, we can be sure that these individuals will be behind bars for a long time, that they won’t immediately start committing crimes again once they’re out of prison, and that they’ll possibly be able to take
part in programs inside penitentiaries to get back on track. Being incarcerated for a year or two has little or no effect on rehabilitation. Being incarcerated for five or six years can have an effect, because these people will have to work on their criminogenic actions and perhaps thus have some control over their rehabilitation as citizens.
A maximum sentence is fine, but a minimum sentence within a maximum sentence is even better. That’s what I’m proposing with this amendment, to ensure that a criminal given a maximum sentence won’t regain his freedom after a few years. That’s the reason for my amendment.
Senator Carignan: I agree with my colleague’s proposal. I want to emphasize the seriousness of the offence under
section 103 of the Criminal Code. We’re talking about importing and exporting firearms; this is at the heart of the difficulties we’re currently experiencing in our cities, whether in Montreal, Toronto or anywhere else where we have street gangs. We’re really at the heart of the problem.
I want to focus on the amendment in particular, because it becomes a kind of gradation.
Section 103(2) already provides for a minimum sentence of three years for a first offence and five years for a second offence. This amendment really adds the notion of participation in a criminal organization.
So, in addition to importing or exporting a weapon, the person is doing it to aid, participate or associate with a criminal organization. It’s a much higher level of sophistication; it’s criminal intent and it’s clear that these are not weapons that will end up in the hands of collectors or in the hands of young adults. We’re really talking about participation in a criminal organization. So it’s a much more serious offence that requires a minimum five-year sentence, as in the case of a repeat offence, which is already provided for in
section 103, which provides for a minimum five-year sentence.
It’s a reasonable suggestion, in my opinion, and goes to the heart of the problem. We have the opportunity to send a message; we must do so. I insist, because now we’re going to the vote and it looks like people are voting “yes,” “no,” “yes,” “no”; it’s quite a structured vote, particularly against the amendments. We’ll have to answer to the public.
When criminal acts are committed, we can’t wash our hands of them afterwards and say that we didn’t know what we were voting for or that we didn’t see it coming. We’ve seen it happen. We’re voting! You can’t bury your head in the sand and say, “Oh, I should have.” We’re carrying a lot of weight here. These aren’t decisions, these aren’t texts. We’re asking for a change in behaviour, for sanctions. This is not a vote to be taken lightly.
I therefore draw your attention to this amendment and suggest that you support it.
Senator Boisvenu: Just a few days ago, I was with my colleague Senator Dagenais and two former police officers. Policing is a very thankless and difficult job. We legislators and the justice system have to support their work. The greatest discouragement that police officers currently face in their work is intercepting criminals who have no fear of the justice system, knowing that sentences — as we’ve seen with Bill C-5 and several other bills — no longer have any value.
What’s especially difficult for police officers is the fact that a few months later, they have to pick up the same criminal and bring him back to the courthouse. We wonder why our courthouses have such long delays for judgments and trials. It’s because we’re constantly sending these people back out on the street, without any consequences, or at least with such minimal consequences that they return to organized crime.
I think this amendment supports the work of police officers by telling them that the system will be behind them when they’re faced with people from organized crime who import weapons to commit crimes, but even worse, who import weapons to give to 14-, 15- or 16-year-old children — that’s what organized crime does. We don’t give guns to adults, we give guns to teenagers so they can shoot each other.
So we have to send out a very strong message that in these cases, if a major sentence is handed down, there will be a minimum sentence of five years.
We cannot tolerate organized crime selling guns to children. We don’t tolerate selling drugs to children, so why should we tolerate selling guns to them? It just doesn’t make sense.
Senator Dagenais: I was a police officer for 40 years, and unfortunately I realized that people who commit crimes with firearms are released too quickly.
In my experience, when people were arrested, they went before the judge in the morning, they had conditions to meet, and that same evening, they were arrested again because they hadn’t met their conditions. The courts have become a sieve where people don’t care about the sentences because they’re not severe enough. I met the two police officers who didn’t need to explain their frustrations to me, because I lived through them myself for nearly 40 years.
The bill is there to regularize firearms, but also for the safety of citizens. I believe that these amendments bring back minimum sentences, and as far as I’m concerned, the votes must be seriously understood.
If I put myself in the police officers’ shoes, it’s an eternal restart. Judges have a certain latitude and will often give a chance, but people don’t understand, don’t respect the conditions.
What used to make me smile, when I went to court, was when the judge would say: “Please, don’t come before me again.” People knew it wasn’t serious.
Voting on amendments has to be taken seriously. You’ll have noticed that I sometimes vote against them, but when we’re talking about minimum sentences, we have to consider these amendments, which are serious. All the more so as it increases public safety and, at the same time, tells criminals to take what’s going on seriously, that if they come before a judge again, their presence won’t be taken lightly.
We have to consider these amendments, and for these reasons, I’m going to vote for them.
[ English ]
The Chair: Thank you, Senator Dagenais.
I see no more senators wishing to speak. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: That’s a pretty clear “no,” I think.
An Hon. Senator: Recorded vote.
Ms. Dupont: The Honourable Senator Dean?
Senator Dean: Nay.
Ms. Dupont: The Honourable Senator Anderson?
Senator Anderson: Yes.
Ms. Dupont: The Honourable Senator Boehm?
Senator Boehm: Nay.
Ms. Dupont: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Dupont: The Honourable Senator Cardozo?
Senator Cardozo: No.
Ms. Dupont: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Dupont: The Honourable Senator Coyle?
Senator Coyle: Nay.
Ms. Dupont: The Honourable Senator Dagenais?
Senator Dagenais: Yes.
Ms. Dupont: The Honourable Senator Dasko?
Senator Dasko: No.
Ms. Dupont: The Honourable Senator Deacon?
Senator M. Deacon: No.
Ms. Dupont: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Dupont: The Honourable Senator Plett?
Senator Plett: Yes.
Ms. Dupont: The Honourable Senator Richards?
Senator Richards: Yes.
Ms. Dupont: The Honourable Senator Yussuff?
Senator Yussuff: No.
Ms. Dupont: Yes, 6; no, 8.
The Chair: Colleagues, accordingly, the motion in amendment is defeated, and that would cause me to ask whether — sorry?
[ Translation ]
Senator Carignan: In a recorded vote, people have to express their vote verbally. When I was a lawyer and I did interrogations, the person would respond by nodding. You have to verbalize it because the stenographer can’t take down a nod.
I think it’s important for people to speak up, because what people say, outside, is that they can’t hear certain votes because people don’t pronounce their “yes” or “no” clearly and precisely.
So, in the interest of transparency for the people who are listening to us, I would ask that people express themselves more clearly. Thank you, senator.
[ English ]
The Chair: We will take that as a going-forward request, Senator Carignan, and it’s an important point.
Accordingly, colleagues, shall clause 1.5 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: On division?
Senator Plett: Yes, on division.
The Chair: Okay.
Colleagues, shall clause 1.6 carry?
Some Hon. Senators: Yes.
An Hon. Senator: On division.
The Chair: Thank you.
Shall clause 2 carry?
Some Hon. Senators: Yes.
Senator Plett: On division.
An Hon. Senator: On division.
The Chair: On division.
Shall clause 3 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 3.1 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 3.2 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 4 carry? I believe we have an amendment here.
[ Translation ]
Senator Boisvenu: Thank you for giving me the floor.
Honourable senators, I move:
That Bill C-21 be amended in clause 4,
(
a) on page 10,
(
i) by replacing lines 1 to 3 with the following:
“ 110.1
(1) A member of a person’s immediate family or an individual who resides with the person, an organization authorized to submit an application on the family member’s or that individual’s behalf, a peace officer or a medical professional may make an ex parte application to a provincial court judge for an order prohibiting the person against whom the order is sought from possessing any firearm, cross-bow,”,
(ii) by replacing line 6 with the following:
“stance, or all such things, if the person applying believes on rea-”;
(
b) on page 15,
(
i) by replacing lines 26 to 28 with the following:
“ 110.1
(1) A member of a person’s immediate family or an individual who resides with the person, an organization authorized to submit an application on the family member’s or that individual’s behalf, a peace officer or a medical professional may make an ex parte application to a provincial court judge for an order prohibiting the person against whom the order is sought from possessing any firearm, cross-bow,”,
(ii) by replacing line 31 with the following:
“plosive substance, or all such things, if the person applying be-”.
Honourable senators, as you may have guessed, this amendment deals with the famous red flag provision.
As currently drafted, the bill allows anyone to make an ex parte application to a provincial court judge for an order prohibiting a person from possessing a firearm, crossbow or other prohibited or restricted device.
Witnesses told us that this amendment would limit things. That is, in keeping with the witnesses’ request, my amendment would limit the people who can make such an application to the person’s immediate family, an individual who resides with that person, an organization authorized to make an application on behalf of family members, a peace officer or a medical professional.
We must also remember that under current law, anyone, without restriction, can call the police or a Chief Firearms Officer if they are concerned about the presence of a firearm in a home where the person may have a problem. This firearm can then be removed by the police. Currently, there is an opportunity to do this.
The red flag provision would allow any individual to go to a provincial court judge to get the same result.
Personally, I don’t know who could do it, but that’s what the government is planning in this bill. My amendment therefore limits the number of organizations or individuals who can raise this red flag. Witnesses have expressed concern that this provision could be misused, for example, in a dispute between neighbours or to target people from minority communities.
In fact, First Nations representative Jessica Lazare, Mohawk Chief of Kahnawake, pointed out the following:
With respect to the “red flag” and “yellow flag” provisions, we are concerned about the anonymous reporting approach, because of the potential for racial discrimination.
Even the testimony of the Canadian Bar Association mentions this:
The Canadian Bar Association (CBA)
section believes that these provisions “represent a risk to public safety and a disproportionate risk to marginalized groups.” Orders made under
section 110(2)(1) are likely to result in serious Charter litigation. The current law is sufficient and preferable.
Law enforcement currently plays an essential role in screening applications for firearms prohibition, and individuals who fear for their safety, the safety of the public or the safety of the gun owner can apply to the police, who will investigate to see if the fears are well-founded. My amendment therefore maintains the current situation, which, according to the majority of people who came to testify, was sufficient.
Expanding this to include Mr. and Mrs. Everyman runs the risk of touching on human rights, the rights included in the Canadian Charter of Rights and Freedoms, and of generating more civil litigation than resolving a mental health problem or another type of problem or a case of domestic violence. These cases are already provided for in the law; these people can be reported to the police and weapons can be seized. My amendment maintains the current situation.
[ English ]
The Chair: Thank you, Senator Boisvenu. Questions and discussions?
Senator LaBoucane-Benson: I just have a question for my honourable colleague. I’m noticing how this amendment is written and it includes immediate family members and members of the household. Can you just confirm that would not include a former spouse or a girlfriend, boyfriend or fiancée who might not live with the firearms owner?
[ Translation ]
Senator Boisvenu: Under the current law, an ex-spouse — surely you’re referring to a case of potential domestic violence — can report their ex-spouse.
As the saying goes: “If something isn’t broken, don’t fix it.” The current law is already well enforced. In the cases of domestic violence where women were murdered with firearms that I consulted — there were very few — there was a delay on the part of the police in intercepting the weapon.
The law wasn’t badly drafted. It’s the police who often act too late; the weapon cannot be seized. At present, the legal framework for denouncing a person who represents a risk is perfectly suited to the situation of victims of domestic violence or people with mental health problems. These are the two cases targeted by this police intervention.
[ English ]
Senator Richards: I have a problem with this clause. I mentioned it during the debate on this bill to a fine woman police officer from Vancouver. She said that she didn’t mind this provision in the bill at all until I spoke to her privately. At the end of the session, I said that false witnessing is a terrible thing. I’m not saying it’s as bad as murder, but it comes pretty close. It can drive an irreparable wedge into society, families and people. I think we have to be very careful with this part of the legislation.
I would agree with Senator Boisvenu completely that what is in the books now is perfectly adequate and sufficient to keep guns out of the hands of people who might have some kind of mental disorder or some kind of predilection for using them for a bad purpose, and I would support his amendment totally. Thank you.
Senator Coyle: This is an important discussion. I’m just filling in here, but I’m the legislative lead on this legislation for the Independent Senators Group so I’ve been following it very closely.
I’m sensitive to this one in particular because of the Mass Casualty Commission and their report that came out that looked at the really tragic multiple murders and almost murder of the spouse of the killer in the case of the murders in Nova Scotia. We know from the history of that particular case that the gunman, the mass murderer in this case, had many weapons. His spouse was intimidated and she was not going to and did not intervene, but we know that neighbours tried to intervene and tried to raise the red flag, in fact, and were not taken seriously.
Because of Recommendation C.22 of the Mass Casualty Commission and Recommendations 56, 70 to 72 of the Renfrew County Inquest, again in a case intimate partner violence and three murders in that case, I have a hard time with this because I think it’s too limited.
I hear you. I agree that it’s an egregious thing if somebody falsely identifies somebody that is holding weapons that is not actually a threat at all, but I do believe that there is a case to be made for these red flag laws and the yellow flag laws. Therefore, I do support it, and I wouldn’t support this amendment.
Senator Yussuff: With regard to the amendment, almost all the witnesses who came before the committee testified in support this provision for a variety of different reasons. I think it speaks to the recognition that we need to use whatever tools. I do recognize that from time to time they could be abused, but that’s what the courts are there to mitigate in the context of somebody trying to use the legislation for the wrong purpose. I do believe this could have a positive effect in the context of trying to prevent harm to individuals who might not have the strength or the wherewithal to intervene on their behalf.
I support what’s currently in the legislation and am speaking against the amendment that’s been proposed by Senator Boisvenu.
[ Translation ]
Senator Boisvenu: I have a question for Senator Coyle. Did she use the Portapique massacre as an example? I actually met all the victims, personally, there.
If Bill C-21 had become law at that time, do you think that this massacre would not have happened?
[ English ]
Senator Coyle: That’s a tough question to answer.
Senator Boisvenu: That is the point of view you just put on the table.
[ Translation ]
You were against the amendment because of what happened in Portapique, so my question is fundamental. If Bill C-21 had become law in 2022, would the Portapique event have been avoided?
[ English ]
Senator Coyle: I would hope so, and I would hope that those recommendations that came out of the commission — the commission did an incredibly thorough job in terms of consulting with the families of the victims, some of the victims who were injured at the time and many other people who are involved in preventing violence in Canada and in our province. Therefore, I personally believe that Bill C-21 and many of the provisions here will be helpful in preventing such mass murders in the future. Is it perfect? No, I’m not saying it’s perfect. Do we need other measures? Yes, of course we need other measures.
[ Translation ]
Senator Boisvenu: Senator Coyle, the police knew the killer had weapons. The family knew the killer had weapons. His entourage knew he had weapons. In 2022, there were red flags to report this individual to the police.
How, even if the bill were extended to the entire world, could the Portapique massacre have been prevented thanks to Bill C-21? My question is clear. I understand the victims’ difficulties, but at the time, his entourage knew about the situation and no one denounced him. How would Bill C-21, if passed, encourage these people to come forward?
[ English ]
Senator Coyle: People did speak up, and they were not heard and action did not happen. That’s a fact, and I don’t have the names of the individuals with me here.
Senator Boisvenu: That means that Bill C-21 would have had no effect at that time if they made a complaint and didn’t act.
Senator Coyle: I think that with this law, they will hopefully heed it a lot better than they did then. As well, we’ve learned an awful lot in particular about how people listen to neighbours, in this case, who came forward with accurate information that was not acted upon.
[ Translation ]
Senator Carignan: I’d like to emphasize one point: the practical approach. This is a bit like the former mayor speaking, the one who had to arbitrate or mediate in cases of neighbourhood disturbances or disputes between neighbours. Sometimes it’s hard to imagine what can happen in a neighbourhood or on a street when neighbours don’t get along. Neighbours become paranoid: “It’s so-and-so’s fault, it’s him, it’s definitely him.” I’ve seen several.
Subsection 110.1(1) obviously states that “any person may make a claim ex parte ,” i.e., without the other party being present, without the party in possession of the weapon being present. Subsection 110.1(2) states that the request may be made in camera. That’s fine, it’s to protect the person.
Imagine that anyone could make an ex parte application without the other party being present, and in camera. If a neighbour is out to get you, it’s easy to do. It’s really easy. When we talk about hypothetical situations that lead to the unconstitutionality of certain provisions, I’ll give you the example of bickering neighbours. It’s not hypothetical; I’m telling you, it happens all the time. I’m raising the flag that the Canadian Bar Association has raised with regard to the Charter and possible unconstitutionality.
Imagine a dispute between neighbours, where the person’s gun is taken away without knowing who filed the complaint, because it was behind closed doors. He has no idea who the person is, whether it’s someone who wants to hurt him for revenge or all kinds of reasons, and it ends up in court. Obviously, such a provision will be attacked and probably declared unconstitutional. However, when it’s a family member, a close friend, an authorized organization, it’s different; the framework is much more restricted, and therefore likely to pass the Charter test.
However, when it’s anyone who can make the request ex parte , in camera no less, I agree with the Canadian Bar Association that there’s a strong risk that this provision will be declared unconstitutional.
[ English ]
Senator Richards: I’m just going to add something to what Senator Carignan said. I think there will be a constitutional challenge because this denies one of the very provisions of common law, which is that you’re able to face your accuser. You wouldn’t be able to under this clause.
I’m not arguing for the bad guys. I’m just saying that false witnessing in any degree is a horrible thing, and just as all of us on this side of the argument deplore any violence with guns or otherwise, we should recognize that false witnessing is a horrible thing in any form in our society, and that’s what makes me very conscious of the problems of this clause.
The Chair: Colleagues, let’s now test the amendment.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
An Hon. Senator: Recorded vote.
The Chair: A recorded vote is under way as we speak.
Ms. Dupont: The Honourable Senator Dean?
Senator Dean: Nay.
Ms. Dupont: The Honourable Senator Anderson?
Senator Anderson: Yes.
Ms. Dupont: The Honourable Senator Boehm?
Senator Boehm: Nay.
Ms. Dupont: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Dupont: The Honourable Senator Cardozo?
Senator Cardozo: Nay.
Ms. Dupont: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes.
Ms. Dupont: The Honourable Senator Coyle?
Senator Coyle: Nay.
Ms. Dupont: The Honourable Senator Dasko?
Senator Dasko: No.
Ms. Dupont: The Honourable Senator Deacon.
Senator M. Deacon: Nay.
Ms. Dupont: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Dupont: The Honourable Senator Plett?
Senator Plett: Yes.
Ms. Dupont: The Honourable Senator Richards?
Senator Richards: Yes.
Ms. Dupont: The Honourable Senator Yussuff?
Senator Yussuff: No.
Senator Plett: Chair, respectfully, I would like to ask Senator Dasko and Senator Yussuff to cast their vote in such a way that we can hear it. I didn’t hear either one of them, and I was looking directly at them.
Senator Dasko: I think the clerk certainly heard me.
Senator Plett: The clerk repeated your vote in order for her to know what it was. Is there a reason, colleagues, why we are afraid to be vocal so that every Canadian in the country knows how we are voting? That’s an obligation that we have, and I would like, chair, to respectfully ask that we do that. I’m not ashamed of how I’m voting. I’m happy to stand in front of Canadians and be judged on how I’m voting. I think we have an obligation to do that, chair, and I ask that it be done in such a way that we can all hear it.
Senator Yussuff: With all due respect, chair, it’s not for him to judge. I did indicate my vote. It’s too bad that he didn’t hear it, but I did indicate my vote, and I think my colleagues equally did the same thing. Without passing judgment on each other, if you want us to be louder, we can be louder. When I don’t hear you sometimes, I don’t perceive to judge you. I accept however you voted. The clerk’s job is to record the vote accordingly.
Senator Dasko: Senator, I am quite happy to have Canadians know how I vote. I want that to be clear.
Senator Plett: Thank you. Senator Yussuff, making a statement that I didn’t hear you is not judging you. I don’t think, Senator Yussuff, there has been a time since you have come into the Senate that you have not heard what I have said. I have a lot of faults, Senator Yussuff, but being too quiet is not one of them.
Senator Yussuff: Senator Plett, I would equally say that I don’t think my problem is being too quiet either.
An Hon. Senator: Let’s get on with the business at hand.
Senator Plett: I made a request, chair. I don’t want to delay this. It was made respectfully. I’m sorry that people are taking offence to a very simple, respectful request.
[ Translation ]
Senator Carignan: That was also my argument; I don’t want to single anyone out, but that’s kind of what I wanted to say earlier. Citizens are listening and they’ve sent me text messages saying that they didn’t hear how certain senators voted. For the sake of public transparency and to ensure that the people listening can hear properly, I would ask everyone to speak a little louder when it’s time to vote.
[ English ]
The Chair: All right.
Senator Cardozo: Chair, could I ask if how they voted will be recorded in writing forever and a day after this?
The Chair: It’s recorded in the minutes of the meeting with each senator’s vote being indicated. That will be clear. Please go ahead with the result of the vote.
Ms. Dupont: Proceeding with the result of the vote: yes, 5; no, 8.
The Chair: Okay.
An Hon. Senator: Were there any abstentions?
Ms. Dupont: There were no abstentions.
The Chair: There were no abstentions. Accordingly, the motion in amendment is defeated.
Before we move on to test clause 4, Senator Anderson wanted to make an intervention, I think.
Senator Anderson: Thank you.
This is my first time proposing amendments, so I want to beg your indulgence. Recognizing my amendment is for
section —
An Hon. Senator: Did we pass clause 4?
Senator Anderson: No. I’m speaking to it.
The Chair: You’re now speaking to clause 4? Okay.
Senator Anderson: Clause 4 is linked to my clause 5, so I’m begging your indulgence. I’m not sure if this is the proper way to proceed. The chair can let me know if I should go ahead.
The Chair: Go ahead.
Senator Anderson: My amendment or motion is linked to me repealing completely proposed sections 4 and 5, the red flag laws. My amendment only exists as it touches on other parts of the bill if proposed sections 4 and 5 are repealed.
To go into the red flag laws, one of the witnesses, Mr. Thurley, Firearms Researcher and Policy Specialist, indicated in regard to the red flag laws that:
… it’s important to note these orders are effectively redundant. Right now, police have the authority to confiscate firearms from an individual who could pose a threat. They don’t need a warrant. They can do it without a warrant. All an individual needs to do is call the hotline, their local police service, explain their concern, and the police can then investigate and come to their own conclusion.
He noted that the red flags make this more difficult to use. He went on to say:
This has been generally acknowledged by the government as they keep discussing how they want NGOs to be involved to help people navigate these … the Canadian Bar Association has called these existing laws “sufficient and preferable to the proposed changes.”
… the complaints are anonymous and the court records are sealed, the system could be pretty vulnerable to false, trivial or vexatious complaints made against high-profile individuals, even police officers and members of the military. Indigenous Canadians, who are already disproportionately involved in the justice system, will have an especially difficult time navigating this process and attempting to get back firearms if they are unjustly taken.
I want to add the voice of Natan Obed, President of ITK, who stated:
The red flag system is another example of a balanced measure that creates a mechanism that can disrupt Inuit households disproportionately. Inuit often live in multi-generational homes. Thus, the seizure of firearms could have unintended repercussions on entire families, not just the individuals targeted by the provisions of the bill. The confidential nature of the application process and the prospect that the target of the application or their household wouldn’t even know about the application could also lead to actions being taken without adequate notice or understanding of a family’s circumstances.
On the other hand, the limited access to justice faced by Inuit also means that applications themselves would likely be hampered simply by the fact that Inuit may not be able to apply in the first instance.
Within the Northwest Territories and Nunavut, we have fly-in courts. Those fly-in courts occur every two to three months. Sometimes they’re cancelled due to weather. Accessibility for us, as Indigenous peoples in the territories, is restricted. It is limited not just by our fly-in courts but the fact that our services are provided by Legal Aid lawyers. A Legal Aid lawyer who represents one person cannot, due to a conflict, represent another, which means we have to get lawyers from the south to then come in. It is hugely problematic.
Mr. David, who came with the ITK, noted that the red flag system is a central point of concern. He said:
I suppose the system itself presumes that there are police to enforce it, yes. It also presumes that there are effective provincial courts available in communities at all times. There’s a real challenge there in terms of whether or not someone seeking an order has access to the means to be able to do it. From the perspective of trying to prevent violence, the red flag system itself may not be entirely helpful within all communities within Inuit Nunangat.
On top of that, it allows for one to apply for an ex parte order, so you can have police, where the red flag system is available, showing up unannounced to seize firearms from people who are not aware that those police are showing up to seize those firearms.
The entire system itself seems to be set up to work well in areas where there’s a lot of legal enforcement infrastructure. The problem here is that we don’t perceive that there is adequate infrastructure to actually make the provisions effective, either for community safety or for the delicate balance that the legislation seeks to strike between, essentially,
section 35 rights holders and harvesters and then victims or potential victims of domestic violence.
Although I’ll be speaking to this later, I want to reiterate that none of the territories have Chief Firearms Officers in their locations. That’s hugely problematic. The fact is that the bill that we’re looking at aims to create a safer, more secure Canada when the current legislation we have already fails, in the Northwest Territories, to provide us with equal and equitable services; and we have Chief Firearms Officers who live outside our territories making decisions that have potentially harmful impacts to families, to communities, to food security and to safety when you’re on the land. It’s hugely problematic.
I am not supporting clause 4 or 5. It’s my opinion that the red flag laws and the potential harm that they present to the three territories have not been given adequate consideration. The fact that we had a national organization and witnesses who spoke and had no representation from the N.W.T., Nunavut or Yukon Territory is indicative of a larger problem. As we sit here and consider legislation, we, as parliamentarians, need to consider that the Arctic has some specific challenges that are not taken into account in this legislation. Therefore, I’m asking for support to not support clauses 4 and 5.
The Chair: Let’s test clause 4. Colleagues, is clause 4 adopted as is?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: We’ll have a recorded vote on clause 4. We were waiting for Senator Anderson’s intervention before we voted on adopting clause 4 because she was speaking against it.
Senator Plett: She was speaking against clause 4. Doesn’t her amendment remove clause 4?
Senator Anderson: It does.
Senator Plett: So we’d need to vote on her amendment, would we not, chair, before we pass clause 4?
The Chair: It’s not an amendment. She’s simply saying that she’s voting against the clause as a whole.
An Hon. Senator: Her amendment is on clause 5?
The Chair: Yes.
Ms. Dupont: That’s right, and we haven’t made it to the fifth amendment yet.
Senator Plett: Okay, so she has not yet moved an amendment. Is that what you’re telling me?
The Chair: That’s right. She was talking in general about why she’s uncomfortable with clauses 4 and 5.
Senator Plett: Fair enough. On division is fine.
The Chair: Clause 4, on division.
Colleagues, the next item of business is, shall clause 5 carry? Yes?
Senator Plett: Wasn’t there an amendment?
The Chair: No, it’s dropped.
Senator Plett: It’s dropped. Well, on division.
The Chair: On division.
Shall clause 6 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 7 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 8 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 9 carry?
Hon. Senators: Yes.
The Chair: Shall clause 9.1 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division, carried.
Shall clause 10 carry?
Hon. Senators: Yes.
The Chair: Shall clause 10.1 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 11 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 11.1 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11.2 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: It carries on division.
Shall clause 11.3 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 12 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 12.1 carry?
Hon. Senators: Yes.
The Chair: Shall clause 12.2 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 12.3 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
We now pause as we move into 12.4, a new clause 12.4 proposed with an amendment coming from Senator Plett.
Senator Plett: I would like to move, colleagues:
That Bill C-21 be amended on page 28 by adding the following after line 4:
“ 12.4 Subsections 117.15(1) and (2) of the Act are replaced by the following:
117.15
(1) Subject to subsections (2) to (2.4), the Governor in Council may make regulations prescribing anything that by this
Part is to be or may be prescribed.
(2) Before a regulation is made prescribing any thing to be a prohibited firearm, a restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition, the Minister shall
(
a) if the proposed regulation may affect one or more Indigenous groups’, communities’ or peoples’ rights recognized and affirmed by
section 35 of the Constitution Act, 1982 , consult with a variety of Indigenous governing bodies and a variety of Indigenous organizations to take into account the unique circumstances and needs of those Indigenous groups, communities and peoples and prepare a report describing the consultations undertaken; and
(
b) cause the proposed regulation and any report prepared under paragraph (
a) to be tabled in both Houses of Parliament.
(2.1) A proposed regulation tabled in a House of Parliament under paragraph (2)(
b) shall, on the day it is tabled or, if a House is not then sitting, on the next day on which that House is sitting, be referred by that House to an appropriate committee of that House, as determined by the rules of that House, and the committee may conduct inquiries or public hearings with respect to the proposed regulation and report its findings to that House.
(2.2) A regulation may not be made before the earliest of
(a) 30 sitting days after the proposed regulation is tabled in both Houses of Parliament;
(b) 90 calendar days after the proposed regulation is tabled in both Houses of Parliament; and
(
c) the day after the day on which each appropriate committee has reported its findings with respect to the proposed regulation.
(2.3) The Minister shall take into account any report of the committee of either House. If a regulation does not incorporate a recommendation of the committee of either House, the Minister shall cause to be tabled in that House a statement of the reasons for not incorporating it.
(2.4) A proposed regulation that has been tabled before both Houses of Parliament need not be tabled again prior to the making of the regulation, whether it has been altered or not.
(2.5) The following
definitions apply in this section.
Indigenous governing body means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by
section 35 of the Constitution Act, 1982 . ( corps dirigeant autochtone )
Indigenous organization means an Indigenous entity that represents the interests of an Indigenous group and its members. ( organisme autochtone )
Minister means the Minister of Public Safety and Emergency Preparedness. ( ministre )
sitting day means a day on which either House of Parliament sits. ( jour de séance ).”.
Colleagues, over the last weeks here, we have heard considerable testimony that speaks to the complete absence of consultation from the government in relation to this legislation.
When the minister appeared before this committee on October 23, he said the following:
We engaged with First Nations, Inuit and Métis organizations, rural and northern communities, victims’ groups, and with the firearms community and sportspersons and sports shooters across Canada to hear their perspectives and to ensure that we respect their traditions and way of life. These consultations have informed our path forward.
That is what the minister explicitly claimed when he appeared before this committee.
Colleagues, I would suggest that it is no exaggeration to state that this claim has been proven to be completely untrue and false. The first witnesses who appeared before our committee were Chief Firearms Officers for Alberta and Saskatchewan. I asked them what consultation the federal officers had with each of their offices in relation to this provision before the bill was introduced. Dr. Teri Bryant, Chief Firearms Officer of Alberta, replied, “I can answer that very quickly and save us time. No consultation whatsoever.” Mr.
Robert Freberg, Chief Firearms Officer for Saskatchewan, said, “It was zero.” Witness after witness told our committee the same thing. At best, the government may have consulted organizations or groups after the bill was already tabled, or they held meetings where they would have told the organizations concerned what they were going to do and then attempted to call that consultation.
With respect to Indigenous peoples, the government has a special obligation to consult over any matter that impacts them. By enacting the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, the government has said that it is absolutely committed to full consultations on all issues impacting Indigenous peoples. Government ministers have repeatedly proclaimed their commitments to the principle of “nothing about us without us.” Yet, on Bill C-21, which directly impacts Indigenous hunting and sustenance rights, there was no consultation.
This was confirmed by several witnesses, including Terry Teegee of the Assembly of First Nations, Paul Irngaut, Vice President of Nunavut Tunngavik and Chief Jessica Lazare of the Mohawk Council of Kahnawà:ke. Will David, a legal affairs advisor for Inuit Tapiriit Kanatami, was most explicit on the subject of consultations when he said:
Put simply, there was none. The minister had reached out and offered, and we had reached out and requested, but that consultation never occurred. We’re still waiting.
Colleagues, we cannot ignore the fact that the government may now envision the regulatory process as an opportunity to do behind the scenes what they were not able to do through the parliamentary process. In that regard, my amendment simply mandates consultation on any regulation that may affect one or more of Indigenous groups’, communities’ or peoples’ rights as recognized and affirmed by
section 35 of the Constitution Act, 1982. It also requires the government to take into account the unique circumstances and needs of those Indigenous groups, communities and peoples and prepare a report describing the consultations undertaken.
The current subsection (2) of
section 117.15 of the Criminal Code provides as follows.
In making regulations, the Governor in Council may not prescribe any thing to be a prohibited firearm, a restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition if, in the opinion of the Governor in Council, the thing to be prescribed is reasonable for use in Canada for hunting or sporting purposes.
That is fairly clear and explicit, colleagues. My amendment replaces the current subsection (2) of the act but permits an appropriate committee of the House and the Senate to inquire into the issue of whether the government’s proposed action is reasonable. In essence, the restriction of the Governor-in-Council in the current act is replaced with parliamentary oversight. I believe this is necessary because the government has demonstrated that it cannot be trusted to undertake consultations in a manner that is either fair or inclusive.
Colleagues, minister upon minister and the Prime Minister have said they want to work together with the Indigenous communities. They are showing here, colleagues, that that is all talk and no action. Contrary to the Constitution Act, they ignored UNDRIP when they brought this bill forward without consultation. Therefore, I ask you to support this very reasonable amendment.
The Chair: We will now move to questions and discussion.
Senator LaBoucane-Benson: Colleagues, you all know that I believe very strongly in meaningful consultation with Indigenous organizations. I sponsored the UNDRIP bill that was passed in 2021. We’re on third reading of Bill S-13 which puts the non-derogation clause — which is a statement about
section 35 rights — into the
Interpretation Act, compelling all laws, federal laws as well as policies and regulations, to be seen through the lens of
section 35 rights. And so the government is taking it seriously.
If you remember my second reading speech on this bill, I acknowledged that the government was playing catch up on consultation at that time, and that was particularly around an amendment which was subsequently taken off the floor in the House of Commons. It was taken off the floor of the House of Commons because of the consultations that they did, albeit late, with First Nations, Métis and Inuit people.
Obviously, I fully support the idea of consultation, and the government is getting better at it. They have a lot of work to do. This government or even the next government is still going to be struggling with the idea of consultation. I’ve asked many times at APPA that we study consultation and do a report on it because it’s changed a lot.
Senator Plett, the problem I have is that I don’t want Indigenous consultation as a concept to become a parliamentary tool that gets wielded as a delay tactic. To be clear, parliamentary procedure exists and it can be used. Nobody said that it can’t or that legislating is easy, but I do want to see this bill pass because I think it will save lives. It will save Indigenous lives and particularly the lives of Indigenous women.
When Pam Palmeter testified before this committee, she said:
We have to make sure that we are taking into account that even First Nations rights, even within a First Nations community and First Nations law, has to be balanced with the safety of women. We do have to take that seriously — and the safety of children and everyone around us.
And I agree with her.
Having said that, I welcome this renewed focus on Indigenous consultation. Along with all of my colleagues, I hope we hold this government’s and future governments’ feet to the fire on consultation and demand that it continues to improve. I absolutely endorse the call for Bill C-21 regulations to be developed in meaningful consultation with Indigenous peoples, and certainly Bill S-13 would compel the government to do that.
I will be voting against this amendment.
Senator Cardozo: I certainly agree with a lot of what Senator Plett and Senator LaBoucane-Benson have said. I think the standard of consultations toward this bill wasn’t what it should have been. It’s gone through a few iterations. If you talk to various people, there have been consultations at various points over the last two or three years.
Nevertheless, what I am working on and would like to put forward is an observation which will be very specific on what the consultation should be. Having worked in regulations before in a previous life at the CRTC, and drawing from that experience, I would like to suggest that in an observation we would put forward a bit more detail than even in this amendment where the government would first put out an open statement about all the major issues, get feedback on that, then put out draft regulations in a second round of consultations and then finalize them.
Those consultations would be with everybody who has appeared before this committee and the similar committee in the House of Commons in the hearings for this bill, as well as more people. We had I think two Chief Firearms Officers. I suggest they all be consulted across the country. In terms of the North, the government or the RCMP has indicated they’re doing consultations on whether to have Chief Firearms Officers in the territories. I think we should pronounce on that in the observations.
But having been involved in observations, I think that we can put out some very specific recommendations about what should be happening.
I agree that there are various areas that have been hit and miss in terms of consultations. In other cases, they might have been with one person in an organization and other people may not know. It’s hard to tell. If we have them put out lists of who they’re consulting and we give them the breadth and the scope — and the two rounds of consultations are really important because you’re not sort of giving people a finished product and saying, here, but rather getting input on it before they start.
As a last comment, Senator Plett, it’s your amendment, but you may want to be more specific in terms of the minister. Currently, you noted the Minister of Public Works and Emergency Preparedness, and I think in this cabinet and the previous cabinet there have been two separate people in those two portfolios. You may want to be more specific as to which one you mean.
The Chair: To wrap up?
Senator Plett: Senator Cardozo, I’ll go backwards here. Certainly, on your last suggestion, if you tell me you’re voting for the amendment if I do that, I would be happy to do that, but I don’t think that’s going to get your vote on the amendment. Really, to try to change the wording on the amendment in order to get support, I don’t think that’s going to work so I won’t bother wasting any ink on that.
Senator LaBoucane-Benson, I hope you can sell to the Indigenous people what you’re trying to sell here. You talk about legislation there that will compel more consultation. The legislation is already there, UNDRIP, and it’s being brought up day after day in the chamber of what UNDRIP compels us all to do. UNDRIP compels the government to do something. They haven’t done it. You say that Bill C-13 will and Bill C-35 will. Why would that legislation any more compel a government that doesn’t want to consult with consulting? Bringing in more laws when they’re already not adhering to the present laws makes absolutely no sense. They are under obligation. They’ve adopted UNDRIP.
Now, at least you acknowledge the next government. I appreciate that because the next government will do better than this government. You did say that, and I appreciate that, Senator LaBoucane-Benson.
But this government, right now, is bringing us legislation. We’ve had a minister right here in this room telling us things that are not true, not true, and then we are hearing, well, maybe they consulted individually with some Indigenous people. We had witnesses here. The government could have called witnesses. You, Senator LaBoucane-Benson, the sponsor, could have called witnesses here that would have backed up the minister. But they didn’t. We didn’t hear any witnesses. Just across the board, they said no consultation, especially the Indigenous ones.
Observations, Senator Cardozo. I’m absolutely happy. We will also have some observations, but that doesn’t compel anybody to do anything. An amendment, changing the bill, compels someone to do something. An observation is a suggestion to the government, and they have shown us exactly how much stock they take into what other people suggest to them. They won’t take anymore with an observation. I certainly would support an observation of that kind, but that would be me supporting it. The government won’t.
Colleagues, if we want to do the right thing, if we want to do what everybody around this table is saying, that we want to support UNDRIP, that alone, if we want to support UNDRIP and we want to do what UNDRIP says, then this amendment needs to pass. I’m going to simply wrap up with that, chair, and say I hope that you will all take this serious and I will hear a loud “yes” on your mic when the chair calls for the anticipated recorded vote.
The Chair: Thank you, Senator Plett.
Well, let’s test the question. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think it has to be a recorded vote, don’t you?
Senator Plett: Well, I don’t know.
The Chair: Let’s record.
Ms. Dupont: The Honourable Senator Dean?
Senator Dean: Nay.
Ms. Dupont: The Honourable Senator Anderson?
Senator Anderson: Yes.
Ms. Dupont: The Honourable Senator Boehm?
Senator Boehm: Nay.
Ms. Dupont: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Ms. Dupont: The Honourable Senator Cardozo?
Senator Cardozo: Nay.
Ms. Dupont: The Honourable Senator Carignan, P.C.?
Senator Carignan: Yes. I wanted to test whether you heard me say yes.
Ms. Dupont: The Honourable Senator Coyle?
Senator Coyle: Nay.
Ms. Dupont: The Honourable Senator Dagenais?
Senator Dagenais: No.
Ms. Dupont: The Honourable Senator Dasko?
Senator Dasko: No.
Ms. Dupont: The Honourable Senator Deacon?
Senator M. Deacon: No.
Ms. Dupont: The Honourable Senator LaBoucane-Benson
Senator LaBoucane-Benson: No.
Ms. Dupont: The Honourable Senator Plett?
Senator Plett: Yes.
Ms. Dupont: Honourable Senator Richards?
Senator Richards: Yes.
Ms. Dupont: Honourable Senator Yussuff?
Senator Yussuff: No.
Ms. Dupont: Yes, 5; no, 9.
The Chair: Colleagues, the amendment is loudly defeated.
We move on. Shall clause 13 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: On division.
We now move to a proposed new clause, 13.01.
[ Translation ]
Senator Boisvenu: I move the following amendment:
That Bill C-21 be amended on page 28 by adding the following after line 20:
“ 13.01 Paragraph 244(2)(
b) of the Act is replaced by the following:
(
b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years.”.
Colleagues, with this amendment I’m trying to correct what I would call a legal inconsistency. Bill C-5 repealed the four-year mandatory minimum sentences for the use of an unrestricted firearm in the