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Michael Cooper

Conservative 5:20 p.m.

“Mandatory minimums are important. The bill guts them. I don't like that. There should be clear limits on when judges can go below the minimum. We suggested some. Liberals said no to all of them. That's soft on crime. I can't support this bill.”

Official Hansard

Mr. Speaker, I rise in opposition to Bill C-16 because it is legislation that would completely eviscerate mandatory minimum penalties, virtually every one on the books, other than murder and treason. The bill would eviscerate them with a so-called safety valve that would give judges wide ambit to bypass virtually every mandatory minimum penalty set by Parliament, regard for Parliament's judgment that certain offences are sufficiently serious to impose a minimum sentencing floor, and regard for long-standing sentencing principles, including denunciation, blameworthiness and so on. It would give them the ability to instead apply a lesser sentence. The Minister of Justice will claim that this is about saving mandatory minimum penalties in the face of certain recent jurisprudence. He has a point up to a certain point, which is that, yes, there has been some recent jurisprudence in which the courts have been more ready to strike down mandatory minimum penalties due to an expansive application of the reasonable hypotheticals doctrine following the Nur decision of 2015. In that decision, the court lowered the threshold in which the reasonable hypotheticals doctrine could be applied, to include hypotheticals that are not merely remote or far-fetched. What that has led to in some cases is the courts' applying reasonable hypotheticals that are in fact remote, far-fetched and unreasonable. One clear example of that was the Supreme Court's Senneville decision. It was a divided, five-four, decision, but the majority, in its infinite wisdom, struck down the mandatory minimum penalty for the possession of child pornography. The facts in the Senneville case were grotesque. It involved two offenders: violent, sadistic sexual predators who had in their possession hundreds of images of child sexual abuse and torture. The court applied a completely remote hypothetical, that of a 17-year-old boy who received a sexually explicit image from his 17-year-old girlfriend, which he then passed on to his 18-year-old friend. It is a completely remote hypothetical, but the court said that because it hypothetically could apply, the sentence was cruel and unusual punishment and violated section 12 of the charter, no matter how far removed that hypothetical was from reality and from the facts in the case. In the face of a decision that constitutes, frankly, naked judicial activism, the only appropriate course of action for the government to take is to use the constitutional tool it has at its disposal, which is to invoke the notwithstanding clause to reassert parliamentary supremacy and Parliament's law-making powers, but the Liberals did not do that. Instead, they accepted the Senneville decision. Not only did they accept the Senneville decision, but they used the Senneville decision as a pretext to bring the so-called safety valve, which is an escape valve, into the bill. What about the Nur decision and the cases that have followed? I say that, yes, it is an issue, but this is not the solution. The solution, when faced with decisions such as Senneville and Bissonnette, I restate, is to invoke the notwithstanding clause. Seeing that the Liberals have absolutely no appetite to ever invoke the notwithstanding clause, there is another path, which is to introduce legislation to bring in new mandatory minimum penalties that would clarify and narrow the application of the offence as the mandatory minimum would apply to. However, that would take hard work, and the Liberals have not availed themselves of doing that. Instead what they offer is the broad escape valve. The Liberals have characterized it as a modest safeguard. They have claimed that it would, in effect, apply only in exceptional circumstances. If that is the case, if it is not about totally eviscerating mandatory minimum penalties, which the Liberals are on the record as consistently opposing, by the way, over the past 10 years, then at the very least what is required is reasonable guardrails. Guardrails are completely missing from the legislation. There is no direction to the courts, no exceptional circumstances clause, no direction on how Parliament would demand or assert that the courts apply mandatory minimum penalties, and no direction with respect to the circumstances in which the escape valve could be used. Conservatives brought forward at the justice committee multiple amendments to provide guardrails, including a guardrail that could apply only when the accused does not have a prior criminal record, a guardrail that the mandatory minimum penalty could be cut only by half, a guardrail that the escape valve would not apply in cases of child sexual offences, and a guardrail that the crime not include weapons trafficking, armed extortion or aggravated sexual assault. The Liberals voted against all those guardrails. If in fact this is a modest safeguard and would apply only in exceptional cases and circumstances, then why is it that the Liberals were so reticent to define what those exceptional circumstances would be? Could it be because this is the same Liberal government that has the dubious record of being the only government in Canadian history to bring in legislation, Bill C-5, that repealed mandatory minimum penalties, by choice, involving serious crimes, including serious gun crimes and drug offences? I am not talking about minor possession; I am talking about trafficking and producing schedule I drugs, such as fentanyl, that have killed tens of thousands of Canadians over the past 10 years. Could that be the reason why they were so reticent, so opposed to defining safeguards or guardrails around the escape valve? Could it be that the bill is not as advertised but that, despite the protestations of the Minister of Justice that it is about saving mandatory minimum penalties, the true intent of the bill is to eviscerate them? Make no mistake about it; mandatory minimum penalties would be eviscerated. They would have no meaning. The floodgates of litigation would be opened. It begs the question, what good are mandatory minimum penalties if they can be disregarded on an ad hoc basis? For that reason, I and my Conservative colleagues cannot support this soft-on-crime bill from the soft-on-crime Liberals.

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Hon. Kevin Lamoureux

Liberal 5:30 p.m.

“The old law had problems. The court said it wasn't allowed. We're fixing it. We'll make a rule saying what happens if it's still no good. Conservatives just want to overrule the court over and over. That's not a solution. Our way is better.”

Official Hansard

Mr. Speaker, there are no floodgates here, but there is a lot of contrast between the Conservatives and the government on the issue. There are laws in place that have been ruled as unconstitutional, in violation of the charter, so a lot of the minimum penalties have been thrown out. The current government and the Prime Minister would reinstate minimum sentences. Yes, there is the exceptional clause so the course could be stayed, we would be allowed to continue and things would not be struck down by the Supreme Court of Canada. The Conservative approach is the notwithstanding clause. How many times is the member going to have to bring in the notwithstanding clause to deal with the legislation? Is it twelve times or 20 times? What is the limit?

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Michael Cooper

Conservative 5:30 p.m.

“I want judges to follow our rules on minimum sentences. Liberals let judges ignore what Parliament says. Liberals gave up on making laws about minimum sentences. They could use the notwithstanding clause or make new minimums. Or if they really want a way out, they need strong safeguards. We tried to add safeguards. Liberals voted no.”

Official Hansard

Mr. Speaker, the solution is not to impose a blanket escape valve and leave it to judges to, at their discretion, disregard or bypass what Parliament has judged to be a minimum sentencing floor related to the seriousness of the offence. That is what the Liberals have done. The Liberals have completely surrendered Parliament's law-making power as it relates to mandatory minimum penalties. They had many options, including the notwithstanding clause and including bringing in new mandatory minimums. At the very least, as we said, if the Liberals are insistent upon an escape valve, then there needs to be robust safeguards. We brought forward robust safeguards. They voted them down every step of the way at committee.

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Blaine Calkins

Conservative 5:35 p.m.

“A few years ago, I complained that Liberals let some criminals off easy. Liberals got rid of minimum sentences for bad crimes with guns. I said that must be fun, having a gun to your head. What happened to that crime since then?”

Michael Cooper

Conservative 5:35 p.m.

“I want you to know extortion got a lot worse. It's up 80%. The Liberals let criminals off easy for bad crimes with guns. Courts didn't make them. The Liberals just don't like minimum sentences. They went soft on crime over and over for 10 years. This bill too.”

Gabriel Ste-Marie

Bloc Québécois 5:35 p.m.

“I want to know if you think the Liberals messed up when they changed the rules on bail and procedures for intimate partner crimes. They took out the violence part without putting in anything specific to target that kind of crime instead. That seems bad to me. What do you think?”

Michael Cooper

Conservative 5:35 p.m.

“I agree with you. The Liberals had a chance to fix this problem with section 810 orders. But they didn't take it. They voted against every amendment that tried to make the rules better. Just like they voted against putting strong limits on the escape valve for mandatory minimum penalties. The Liberals keep voting against making their bail reforms better.”

Hon. Ruby Sahota

Liberal 5:35 p.m.

“I want mandatory minimums. I'm claiming it's to prevent litigation but I won't say how that follows.”

Michael Cooper

Conservative 5:35 p.m.

“I want the government to define the 'exceptional circumstances' for the escape valve they've proposed. How can it be exceptional if there are no limits on when it's used?”

Andrew Lawton

Conservative 5:35 p.m.

“The Liberals are soft on crime. I'm tough on crime. Mandatory minimums are good. Judges shouldn't have discretion. The Liberals put a poison pill in the bill. I'm very upset.”

Official Hansard

Mr. Speaker, it is a great honour, as always, to rise on behalf of the people of Elgin—St. Thomas—London South. It is also a privilege to rise, as I always do on matters of justice and the Criminal Code, in support of victims. That is one thing that distinguishes the approach my Conservative colleagues and I take to crime and justice matters from that of the Liberals. We look out for the rights of victims, and they look out for the rights of offenders. We root our approach in the facts on the ground, what law enforcement advocates say, what members of law enforcement say and what victims advocates say. They rely on legal theory and, so often in doing so, ignore the gruesome realities of some of the most heinous acts of crime we see in our country. A lot of the discussion about mandatory minimums for sexual offences, for example, such as child sexual exploitation and abuse material, was exacerbated when there was, last year, a horrendous Supreme Court of Canada decision called the Senneville decision. In that decision, the Supreme Court ruled that for someone possessing thousands of images and videos of children as young as four being subjected to brutal sexual acts, a one‑year mandatory minimum sentence in that case was cruel and unusual punishment because of some “reasonable hypotheticals” in which someone else, in an entirely different set of circumstances, might be charged, under what the court said were more sympathetic terms, with possessing child sexual exploitation and abuse material. Conservatives offered a very reasonable solution: to reinstate the mandatory minimums for people trafficking in and possessing child sexual abuse and exploitation material; and to defend them with the notwithstanding clause, a tool in our Charter of Rights and Freedoms given to legislatures to ensure that the will of the people and, indeed, basic decency are upheld in our laws. Now, Bill C‑16, the government has said, was its answer to this. To be fair, members of the Liberal Party have certainly expressed disgust with the facts of the Senneville and Naud case, but where we diverge is that their answer to this is a bill that would give all judges a so-called safety valve, to say that a mandatory minimum sentence seems like it might be cruel and unusual punishment in a certain case and, therefore, they will not apply it. “Mandatory minimum penalty” has three words. The first is “mandatory”. If we give judges a safety valve to unilaterally declare, on their own terms, that they do not need to uphold the mandatory minimum, it is no longer mandatory. It is not even a minimum. In some cases, it is not even a penalty. Why that is so important here is that in the Senneville and Naud case, the trial judge made that very determination. The trial judge thought that the mandatory minimum penalty for these two men, who between them possessed thousands of images of young boys and girls being subject to acts I will not read in the House, was cruel and unusual punishment. That judge would have availed themselves of the very safety valve the Liberals are now seeking to enshrine in Bill C‑16. Why is this so particularly troubling? I am very proud of some of the work that the justice committee, on which I have the great privilege of sitting, did on Bill C‑16. In fact, I am proud of some of my own amendments, which have been adopted into this bill. An example is the way the bill deals with those who are victimized by intimate images being distributed. This is a horrible crime that we see affecting more and more Canadians, especially young Canadians. I have spoken about this with high school students, who just accept this now as a fact of life. This is something that we need to have a very strong response to in the Criminal Code. We also see, through emerging technologies and artificial intelligence, the dissemination of deepfakes, or deepnudes as they are sometimes called: artificially generated images and videos that look very real, showcasing someone in a state of undress or engaging in a sexually explicit act. These things are disseminated and shared and victimize people in much the same way that the sharing of actual non-consensual intimate images does. This is important because the law needs to catch up with the technology. I heard from witness testimony. I spoke to women's advocates in particular, like Liz Brown from Valora Place in St. Thomas, and Jennifer Dunn from the London Abused Women's Centre. I spoke to Chief Thai Truong, chief of the London Police Service, and Chief Marc Roskamp of the St. Thomas Police Service. I spoke to people including a personal friend of mine who was herself a victim of an artificially generated nearly nude image's being shared. What happens is that these images are shared, and oftentimes the most important thing is for the image or video to be taken off-line, so one of the amendments I put forward at the justice committee would force tech giants to remove this material within 48 hours. I am grateful I had support for that from my Liberal colleagues. Another amendment I put forward was one making it so that the definition of “intimate image” would not exclude things based on a technicality. We changed it to include “nearly nude”. This was, again, something that was brought forward in testimony we heard from witnesses. We also added, and this came from previous work that my colleague the hon. member for Calgary Nose Hill did in her bill, Bill C‑216, a definition specifically of artificial intelligence-generated material, which would ensure that new technology is captured by what we are trying to do here. We would not need to come back as members of Parliament to the drawing board because we find that the law does not actually capture all the cases we are seeing. As we were working on this, I was very proud. This was an example of all parties working together to support victims. However, as we got through the clause-by-clause process on Bill C‑16, we realized that the big sticking point remaining was the Liberals' own poison pill, making it so that their so-called restoration of mandatory minimum penalties would not be, in fact, a restoration at all. They would be allowing any activist judge who fundamentally does not even believe in carceral sentences, which, sadly, we have seen a fair bit of in the justice system, to unilaterally declare that they do not think a mandatory minimum is appropriate. This would take away the “mandatory” of mandatory minimum sentences and ensure that the very people who commit these heinous acts we are talking about, and not just acts of a sexual nature but breaking any criminal laws really, are actually able to get a pass. This is something that I feel we need to say, in the strongest possible terms, we will not stand for, and it is with a great deal of regret that I say this is what the Liberals have done to Bill C‑16. I have a great deal of regret that these provisions that I am very proud of and that I can stand up here and say would help victims are embedded in a bill alongside other things that would actually make things far worse for victims of crime. The bill now has this poison pill that the Liberals would not address, which would basically take any mandatory minimum sentence, including minimums that have not even been declared to be unconstitutional by a court, and subject it to the so-called safety valve, which means it would become optional. It would become discretionary. Interestingly enough, I spoke about what some of these circumstances would be at committee with justice department officials. When judges are formulating their picture of the circumstances of an offence and an offender, the officials indicated that one's immigration status could actually be captured by the bill. If a mandatory minimum sentence would jeopardize someone's status as a resident of Canada, someone who is not a citizen and is convicted of a criminal act, that could be factored into a judge's saying that a mandatory minimum is no longer appropriate. The justice minister said something different, and herein lies the problem. If the minister and the department officials are not even on the same page about what this safety valve would do, how can any judge looking at it, even in good faith, take it and make laws and decisions that are going to support victims? We will always stand up for victims. That means listening to them and advocating for them, but it also means advocating for a justice system that does not let perpetrators and offenders, including those behind some of the most heinous crimes imaginable, get a pass. It is regrettable that this is what this Liberal bill, Bill C‑16, would now do.

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