I want to start off by highlighting the talking points that the government repeatedly used when this bill was introduced at first reading and at second reading, what we've heard from the government committee members in their questioning of witnesses and, in particular, how the Attorney General, the highest legal officer in this country, has said that the whole purpose behind Bill C‑5 is to make a significant step to once and for all address the overincarceration of indigenous offenders and other marginalized individuals in the country.
My colleague Mr. Naqvi, in his previous capacity as the Attorney General of Ontario, was my boss, and certainly in his tenure would give us instructions from time to time to be ever-cognizant of that particular fact and to look at ways in which prosecutors in Ontario—I can speak only for Ontario—would be afforded the additional tools to exercise the appropriate discretion. As Crown attorneys, we are vested with an enormous amount of power when we receive a case. When we receive a case, there's a Crown brief. There's an indication of what the accused's name is and what the offence is and perhaps a summary of the salient facts, but apart from a particular Crown attorney such as me being familiar with a surname that could be the same as that of an indigenous offender in my community or unless someone has experience as a prosecutor and knows repeat offenders, they may not know whether or not that particular accused falls within the class of individuals who this bill is designed to assist.
We take a position. We take a screening position as to what we believe the offence is worth, but through the process of the prosecution for an offence such as a section 85 offence.... For the non-lawyers on this committee, section 85 offences are most often committed in an armed robbery scenario. They are extremely violent offences that impact community safety. They're quite often committed as a result of an addiction someone has as a quick scheme to acquire money to feed that addiction, quite often targeting convenience stores and vulnerable members of our community. We take a very stern approach that this cries out for a significant denunciatory sentence. However, the process could take upwards of a few years to resolve. Quite often individuals charged with this offence will acquire defence counsel, and defence counsel will bring to the attention of me or other Crown attorneys some of the other factors that we should be considering when we exercise our discretion.
This is a long, roundabout way of my saying to this committee that something no one has spoken about in the House, and something I have tried unsuccessfully many times to bring up, is that it completely ignores the discretion that Crowns in Ontario—and, I would like to think, across this country—have reflected and are doing in their work to ensure that we are addressing the overincarceration issue. When you're dealing with an offence like the ones in subsection 85(3), the serious nature of which I have highlighted—and this is to Mr. Garrison's point—with all due respect to Mr. Garrison, I completely disagree with his interjection, because a message must be sent to like-minded offenders. The sentencing provisions in the Criminal Code mandate principles that a judge must consider.
This is over and above factoring in the indigenous background or taking a look at the court of appeal decision in Morris, when you take at look at the impact of being a Black Canadian in an urban centre and whether or not that can be taken into consideration by a judge.
The fact of the matter is that there is much jurisprudence, and I'm sure my colleagues at the DOJ will back me up when I say that the predominant sentencing principles for this type of offence is denunciation, general and specific deterrence and, most importantly, separation from society. These are individuals who will not be getting a conditional sentence. These are individuals who, regardless of an indigenous or a Black background, will end up in jail. In my view, this sets the appropriate bar, sending out a message to like-minded individuals that should you engage in this activity, you're not going to “pass Go”, to use the Monopoly metaphor. You are going to jail, no ifs, ands or buts. However, with Crown discretion, there are ways of adapting and taking a look at the overincarceration issue.
The last thing I want to highlight—and my DOJ colleagues can confirm this—is that this particular offence has been charter-proofed by the Ontario Court of Appeal 2013 decision of Meszaros, post-Nur, and the Al-Isawi decision by the British Columbia Court of Appeal in 2017. Both cases stood for the proposition that this particular section and the mandatory minimum penalties did not infringe upon section 12 of the charter.
Thank you, Chair.