1st Session, 42nd Parliament
Volume 150, Issue 219

Tuesday, June 12, 2018
The Honourable George J. Furey, Speaker

Criminal Code

Bill to Amend—Third Reading—Motion in Amendment Negatived—Debate Continued

The Hon. the Speaker: Resuming debate on third reading of Bill C-46.

Hon. Mobina S. B. Jaffer: Honourable senators, I’m going to ask for permission to distribute a diagram along with the amendment when it’s being distributed. May I get permission from the Senate to distribute the diagram at the same time?

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Jaffer: Thank you very much.

Honourable senators, I rise today to speak on Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. This bill reflects our government’s desire to strengthen our impaired-driving laws and to increase the deterrence, conviction and detection measures for those who drive impaired by drugs or alcohol.

Taking a strong stance against impaired driving is a goal I support wholeheartedly. In Canada, drugs are present in fatal crashes twice as often as alcohol, and Canadians need an effective safeguard against impaired driving.

(1740 follows — Sen. Jaffer cont’g: I support the goal . . .)

(Following 1730 — Senator Jaffer cont’g — against impaired driving.)


I support the goal of this bill because it protects the lives of Canadians, both on and off the road. However, Parliament and Canadians have established a framework in criminal law that distinguishes between offences based on seriousness. These categories are indictable offences, which are considered more serious, and summary offences, which are considered less serious.

Bill C-46 erases the lines between these categories and subjects all summary offences to serious and unintended consequences. It deals with all offences as if there were one category. It lumps all offences together. That is why I am tabling the amendment before you.

The amendment states:

A conviction for an offence committed under subsection 320.14(1) or 320.15(1) does not constitute serious criminality for the purposes of subsection 36(1) of the Immigration and Refugee Protection Act unless the person was sentenced to a term of imprisonment of more than six months in respect of that offence.

Subsection (1.1) expires two years after the day on which it comes into force unless, before then, the Minister extends its application for up to two years.

The Minister may, before the expiry of each extended period under subsection (5.1) extend the application of subsection (1.1) for up to two years.

Honourable senators, in our criminal justice system, we have established a framework that has been in operation for many decades. The framework differentiates between two main types of criminal offences: summary and indictable offences. As I have already mentioned, summary criminal offences are considered minor and are punishable by way of fines, and sometimes a prison sentence of less than six months.

Indictable offences are serious offences. They are punished more severely and can carry up to 25 years to life prison terms.

This criminal framework is the bedrock of our criminal justice system. We have relied heavily on this distinction for many decades, and we recognize that all new offences must fall within this framework so that Canadians can understand how the law will be applied and interpreted. For our courts, law enforcement and us Canadians, this criminal framework is an important part of our daily lives. When we see that a certain offence is summary or indictable, we understand what the punishment should be.

Unfortunately, Bill C-46 does not follow this criminal law framework.

Currently, a person convicted of impaired driving may face up to five years in prison. Bill C-46 increases punishments for driving under the influence to a maximum penalty of 10 years. This increase is significant and triggers unintended consequences under immigration law. Immigration law says very clearly that any crime punishable by 10 years is considered serious and triggers a provision called serious criminality, which leads to the person being deported. Serious criminality in the Immigration and Refugee Protection Act is reserved for those who commit heinous crimes like murder, sexual assault, crimes against humanity or acts of terrorism. It is reserved for indictable criminal offences because if a permanent resident is charged with an indictable offence, they will be deported.

Honourable senators, I agree that if a permanent resident commits a serious crime, he should be deported. In our country, we have made the decision under our immigration system that we welcome immigrants, but if they commit a serious crime, they should be deported. But that goes for indictable offences; it does not talk about summary offences. We are also a country that gives people who make a mistake another chance, as long as it’s not a serious offence. If it is a serious offence, we all agree that person should be deported. What I am speaking about, this act doesn’t deal with, which are summary offences.

However, because the government has raised the potential penalty for impaired driving to 10 years under Bill C-46, even summary offences committed by people will trigger serious criminality under the immigration act. This means that less serious offences that carry, for example, a simple fine or a short prison sentence will trigger the deportation of permanent residents.

Let me share with you an example which was shared with us at the Standing Senate Committee on Legal and Constitutional Affairs. Bill C-46 establishes various mandatory minimum sentences for impaired driving based on intoxication level. So a person who commits a first impaired-driving offence would be subject to a minor summary conviction and a fine of $1,000. Since we have raised the overall penalty to 10 years, even summary offences trigger deportation. This means, regardless of the sentence imposed, even if a discharge or fine was imposed, a citizen will face consequences and move on with their lives. A permanent resident will face the same consequences and will be deported.

I want to give you an example of a young man called Steven who came to Canada as a baby with his parents. However, when he arrived, his parents did not apply for citizenship for him. Many years later, he decided to apply for citizenship himself. Canada is practically the only home he has ever known and he wishes to proudly call himself a Canadian. Steven has been a pro-social and productive citizen. He finished school and college, he has a job and family, and he has never been in conflict with the law.

Unfortunately, even the best people can make mistakes. While he was waiting on his citizenship application, Steven was charged with impaired driving. He was not driving dangerously; there was no accident. It was an isolated incident. Due to the circumstances, the Crown elected to proceed with a summary conviction and the court imposed a fine of $1,000. Despite the fact that the Crown chose to proceed summarily and the court imposed the minimum possible punishment, Steven is now subject under Bill C-46 to serious criminality consequences, and he could face deportation to a country he doesn’t even know.

If Bill C-46 passes in the current state, we will be taking the position that Canada would deport Steven to a country he has never lived in, to a place he may have no family and to an area where he may not be familiar with the language and culture.

Honourable senators, I want to make it clear that if Steven, as a permanent resident, had committed a serious crime, then he should be deported. But this is a case of a summary offence, and that is why I’m saying that Steven should not be deported. This is an unintended consequence of Bill C-46.

How can we punish as a summary offence but proceed as if it were indictable under immigration law? This is unprecedented. If someone commits any indictable offence, they should be deported, but we do not deport someone for a summary offence. That is what Parliament has decided many times.

Simply put, summary means summary; indictable means indictable.

Bill C-46 creates a system where the punishment does not fit the crime. It creates a system that recognizes that all impaired driving offences are not equal. It classifies them according to blood alcohol level or impact on others. However, despite this division, all permanent residents are subject to the worst possible punishment under immigration law, regardless of their circumstances, whether they have committed a summary offence or an indictable offence.

I know, honourable senators, you will also think that this is not right. This is not how we have set up our criminal system. Subjecting those who commit less serious summary offences to deportation is not consistent with our parliamentary framework of criminal and immigration law. This inconsistency has been recognized as unconstitutional, and if we don’t rectify it, we will see the serious impacts in our already overburdened Federal Court system. The 10-year maximum sentence in Bill C-46 will worsen the unacceptable delays we see in the immigration system. It will also contribute to court delays in our criminal courts.

That is why I am raising this technical amendment before you. We have a clear choice before us. We can act now by adopting the amendment before us, or we can once again wait for our judiciary system to correct our error.

There may be some who will say this amendment has to be done under the Immigration and Refugee Protection Act. I say to them: When will that happen? What are the deadlines?

(1750 follows — Senator Jaffer cont’g — In the meantime, I absolutely can…)

(following 1740 — Sen. Jaffer cont’g — What are the deadlines?)


In the meantime, I absolutely can guarantee that no federal court is going to deport a person who has committed a summary offence. So what do we see? We already have the Jordan principle. Our courts are overclogged. Are we once again going to say, “Wait and see,” or are we going to take action?

The amendment I am tabling will stop summary offences from triggering deportation. If both a Canadian and a permanent resident commit a minor first offence, both would receive the same proportionate consequence for their actions.

To be clear, this amendment ensures that if a permanent resident commits what Bill C-46 considers to be a minor offence, they will receive the associated penalty laid out in this bill — nothing more, nothing less.

On the other hand, if a permanent resident commits any indictable offence, their actions will subject them to being deported. I agree that they should be deported because we have set up a system in which, if you come to our country, you are welcome, but, if you commit serious crimes, you are not welcome. I stand by that. But that should not apply to summary offences.

The amendment further recognizes that driving under the influence is a significant problem and should be taken seriously. As such, I’m not proposing that we lower any penalties. I’m merely proposing that summary offences will not trigger the deportation of a permanent resident.

Honourable senators, just a few days ago, in this Senate, we passed a similar amendment. A similar amendment, which sought to rectify the same unintended consequences in Bill C-45, was adopted by the Social Affairs, Science and Technology Committee and by us here in the Senate. We accepted a similar amendment under Bill C-45. We accepted that amendment as we accepted that we felt the government had erred, and we, as the Senate, fixed it. The similar amendment in Bill C-45 that I’m talking about is:

A conviction for an offence committed under section 9, 10, 11, 12 or 14 does not constitute serious criminality for the purposes of subsection 36(1) of the Immigration and Refugee Protection Act unless the person was sentenced to a term of imprisonment of more than six months in respect of that offence.

As we remember, honourable senators, the Social Committee recognized that these provisions were inconsistent and amended Bill C-45. As such, this amendment also exists for policy coherence between Bill C-46 and Bill C-45.

We go further in Bill C-46. My amendment goes further. Alongside this amendment, we will have a sunset clause of two years. Therefore, this amendment is not permanent. It simply signifies to the government that embedded within this legislation is an inconsistency between how we are labelling certain penalties and how we are punishing them. The sunset clause will give the government two years to recognize and deal with these inconsistencies. In the meantime, this amendment ensures that we are punishing according to the crime and not clogging the federal court system, which is already overburdened.

I am certain; I have no hesitation in telling you that I do not believe that our federal court system would ever deport a person like Steven, whom I was describing to you. That is the reason why I’m tabling this amendment. In Canada, in our framework, we should never deport somebody for committing a summary offence. That is something Parliament decided many years ago. It would not align with our Canadian values.

Honourable senators, if you give me the permission, I want to explain the chart that I have drawn. For me, this is really a technical argument, and I would like to explain to you visually what I’m saying.

The government has lumped together all criminal offences, whether they are summary or indictable. There is this lump on the top called “serious criminality.” But, when it comes to punishment, they have separated them. They have said that summary offences are less serious than indictable, and they have set out separately summary offences where there is — may I have five minutes, please?

The Hon. the Speaker: Sorry, senator, but your time has expired. Are you asking for five more minutes?

Senator Jaffer: Yes.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Jaffer: The bill deals with it. It lumps all the offences together, but it separates the punishment. It says, for summary offences, there is a fine and a prison sentence of less than six months. Then, for indictable offences, there is up to 10 years of imprisonment, for example, for murder, acts of terrorism or treason.

Honourable senators, I stand before you and say that there is a lot of talk about us being the chamber of sober second thought. There is a lot of talk about us being different. These days, there’s a lot of talk about how we are standing up to make things better for Canadians. I stand before you and say that if we really mean that, we should fix this. The government has erred, and it’s our duty to fix it. Thank you very much.

Motion in Amendment Adopted

Hon. Mobina S.B. Jaffer: Therefore, honourable senators, in amendment, I move:

That Bill C-46, as amended, be not now read a third time, but that it be further amended in clause 15, on page 19, by adding the following after line 6:

(4.1) A conviction for an offence committed under subsection 320.14(1) or 320.15(1) does not constitute serious criminality for the purposes of subsection 36(1) of the Immigration and Refugee Protection Act unless the person was sentenced to a term of imprisonment of more than six months in respect of that offence.

(4.2) Subsection (4.1) expires two years after the day on which it comes into force unless, before then, the Minister of Justice extends its application for up to two years.

(4.3) The Minister may, before the expiry of each extended period, extend the application of subsection (4.1) for up to two years.”.