Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Appendix 5900-2.40/L1-C-15, 15 "1''
Appendix 5900-2.40/L1-C-15, 15 "1''
Follow-up questions from appearance before the Standing Senate Committee on Legal and Constitutional — Answers from Howard Krongold
Senator Angus: Would you agree that the bill covers quite a bit, apart from the provision on minimum sentence. I understand that the answers will be in writing.
The Chair: No one likes to do it this way, but it is better than not having an opportunity to put your questions.
Senator Angus: I understand that both of you are critical of the bill with respect to the provision on mandatory minimum sentences because, in your view, it will increase the costs of the administration of justice and because you feel it contains provisions that are discriminatory, in particular against certain elements of society — Aboriginals. Are you critical of any other elements in the bill? Is there anything that the minister has said that he is trying to accomplish with which you agree will be accomplished through the bill? You heard Senator Campbell say that he agrees with many things in the bill because it is tough on crime and will help to reduce this perception, which I put to you is not false. People are afraid and the bill is directed against organized crime. Is it not a fact that there is fear in the community, and that we require a message to allay these fears so that people might have a safer environment.
This Bill will not make people safer. Those who are truly dangerous already receive sentences the same as, or in excess of, those provided for in this Bill. The people who will be adversely affected by this Bill are those who do not—at least prior to their incarceration—present a real danger to their communities.
I am also concerned that the premise of this question may be faulty: I do not believe that Canadians as a whole feel generally insecure in their communities. I think it bears asking whether some of the feelings of insecurity that people experience is a result of legislation of this sort, rather than the other way around. If Canadian are constantly told by their leaders that they are unsafe; that current sentencing laws are too lax and permit dangerous criminals to wander the streets unchecked; and that judges cannot be trusted to protect them, invariably some will begin to feel insecure. At the same time, we are presented with unquestionable evidence that crime rates continue to fall, as they have done for years.
In view of this, I think it should be asked whether legislation, which will not make us safer and will create injustices, is an appropriate way to respond to misperceptions about public safety.
Senator Nolin: All my questions will deal with section 10 of the CDSA. First, concerning the aggravating conditions that we see in paragraph 2 of section 10 of the CDSA, it is my understanding that the bill is basically saying if there is a mandatory minimum, section 2 will not apply; paragraph 2 of section 10 will not apply.
Considering the new paragraph 4 of section 10 of the CDSA, to be fair to the minister and the department, we have talked a lot about the drug courts and the drug treatment courts, but we have to be fair. The bill is also referring to an "or'' with the actual section 720(2) of the code, which is brand new — we all agree it was an old bill agreed to by us in 1995, but it came into force only last year — that was accepting as a mitigating factor those provincial treatment centres or programs.
I want to have your comments. I understand this question of uniformity of the law and the fact that individuals in Canada should be entitled to all the benefits of the law. If they are not, there is a question at least to give options to individuals; that refers to the North and those who are not living in those magnificent, huge urban centres.
Nevertheless, section 720(2) of the code is in force even if there is no federal treatment centre, if there is a provincial one — and I assume the code means provincial and territorial. I would like to hear your comments on that.
It is indeed important to address the court supervised programs described in s. 720 (2), and I regret that there was not the time to address this point during the hearings.
In short, s. 720 (2) will not address the inability of many Canadians to obtain exemption from the mandatory minimum sentences.
Firstly, I would reiterate our concerns that access to s. 720 (2) programs is also subject to Crown consent. I have already made lengthy submissions on the potential for unequal and arbitrary Crown screening, and my concerns that this may create unfairness, perhaps of constitutional dimensions.
Secondly, drug treatment programs are already under great strain, and I do not see any provision in this Bill which will help to alleviate that. Using Ottawa as an example, my experience is that there is essentially one non-religious drug treatment program that is open to accepting people on bail from the courts. This program has a constant backlog, and it is inconceivable that it will be able to keep up with demand if access to this program becomes a route to exemption from mandatory minimum sentences. The other program available in Ottawa in strongly religious, and obviously not appropriate for everyone on that basis. I think it is fair to think that smaller centres would typically have even less access to programming.
This Bill also does not address the lack of access to exemption in smaller centres and in the North.
Senator Chaput: It is a repetition, but I'd like to put my question. In your opinion, what is the real objective of Bill C-15? If it's to reduce crime and protect the public, nobody can be against that. We all want to reduce crime and protect the public. The Minister said in his presentation, and I quote, "½translationŠ Traffickers who want to import drugs into Canada will be punished by this bill.'' So the bill would punish traffickers who bring drugs into Canada. It would punish those who buy drugs and resell them. It would punish those who feed the drug culture in Canada, those who deal in drugs and those who use them. But isn't it discriminatory, in that it would punish primarily the most vulnerable people we have here in Canada, in other words Aboriginal people and young people?
It is the CLA's position that this Bill will in some cases force judges to impose disproportionately lengthy sentences on young and vulnerable Canadians. This applies equally to relatively low-culpability dealing — such as a young woman who sells her friend a few pills of ecstasy in a mall or near a school, which will attract a mandatory two-year penitentiary sentence under this Bill.
With respect to discrimination against Aboriginals, this Bill will inevitably have the effect of requiring the incarceration of Aboriginal persons who, as a result of section 718.2 (e) of the Criminal Code and the Supreme Court of Canada's decision in R. v. Gladue, [1999] 1 S.C.R. 688, would have been eligible for a non-custodial sentence. Given the undeniable historic overrepresentation of Aborginal Canadians in penal institutions — a fact the Supreme Court of Canada recognized in Gladue — this Bill will exacerbate this pre-existing problem.
It should also be mentioned that the lack of availability of drug treatment courts and other treatment facilities in the North and in rural communities is likely to contribute to unequal treatment of Canadians.
Senator Carignan: Yes, when I started my career as a lawyer, I witnessed a practice whereby some lawyers "shopped'' for a Crown attorney or a judge depending on the type of case, so they could be heard by a judge who was more lenient with a certain kind of charge or a certain kind of accused. Does this practice still exist? Is it documented? If so, have you any documentation about it?
I do not find this to be a common practice. The range of sentences imposed by judges is fairly consistent.