Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence, October 8, 2009
OTTAWA, Thursday, October 8, 2009
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts, met this day at 10:48 a.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[Translation]
We continue our study of Bill C-15, an Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts.
[English]
Our first witness is the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada. Welcome to the committee, minister. Thank you for being with us.
Before I ask you to begin your statement, I have been told that you only have a few minutes available. Is that true?
Hon. Rob Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: I am sorry to tell you, Madam Chair, that apparently there is a vote in the House of Commons, and my presence has been requested.
The Chair: We all understand about votes, minister. In that case, I will tell you now that the committee will want to invite you back as we continue our study.
We are interested in what you have to say in the time you have available.
Mr. Nicholson: I could come back after the vote. I can make my opening statement now, if that is helpful.
The Chair: That would be very helpful.
Mr. Nicholson: Honourable senators, I am pleased to be here to speak about Bill C-15. The bill proposes to amend the Controlled Drugs and Substances Act to address serious crimes. Canadians are worried about how much crime, especially serious drug crime — there is in communities. I hear this all the time. An article entitled "Crime, not health, top issue for urbanites: poll,'' on September 8 in the National Post, said, "Half of urban Canadians say they are very concerned about drugs in their communities and almost as many fear guns, gangs, and random shootings.'' That article came out one month ago, today.
They tell us that they want the federal government to tackle serious drug crimes so that they are protected from offenders whose illicit activities, such as methamphetamine production and marijuana grow operations, threaten their safety.
Bill C-15 is a priority for this government. The bill supports one of the government's key commitments to ensure the safety and security of Canadians. Protecting society is a priority for the government, not an afterthought.
We believe that protecting society requires that criminals serve time when they have committed serious crimes. Therefore, these amendments would increase the minimum penalties for specific serious drug offences and provide mandatory terms of imprisonment for those offenders.
I can tell this committee that many Canadians who are concerned about drug use, the threat posed by marijuana grow operations and methamphetamine production and trafficking support this bill. These Canadians are very concerned that these activities endanger their own safety and that of their families and their communities.
Over the last several years, marijuana grow operations and clandestine labs have dramatically increased, resulting in a serious problem in some regions of Canada. These activities have reached a point where it often overwhelms the capacity of law enforcement to deal with this phenomenon. These illegal operations pose serious health and public safety hazards to those in and around them. They produce environmental hazards and pose clean-up problems.
Organized crime and criminal gangs are resorting to increased violence to establish their dominance over the drug trade in various metropolitan regions of this country. Innocent people are being hurt, and, in some parts of the country, there exists an almost permanent state of fear.
It should be noted that Bill C-15 does not run contrary to the sentencing principles currently set out in our criminal law. It provides a fundamental sentencing principle, namely, that a sentence should be proportionate to the gravity of the offence and the degree of the responsibility of the offenders. The bill also provides that the purpose of sentencing is to impose just sanctions on offenders in order to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The proposals in the bill will contribute to respect for law and the maintenance of a just society.
Overall, the proposals represent a tailored approach to mandatory penalties for serious drug offences. They would operate as follows: The offences being targeted are trafficking, possession for the purpose of trafficking, production, importing, exporting and possession for the purpose of exporting drugs. The drugs that would be covered are Schedule I drugs, such as cocaine, heroin, methamphetamine, and Schedule II drugs, such as marijuana.
The scheme would not apply to possession offences. I will repeat that again because I get a lot of push back on it: It does not apply to possession offences. We are targeting trafficking. To be clear, we are not targeting the university student, caught with a couple of joints or a plant or two. We are targeting those who profit from of the vulnerabilities of those addicted to drugs. We are targeting organized crime.
For Schedule I drugs, the bill proposes a one-year sentence for the offence of trafficking or possession for the purpose of trafficking in the presence of certain aggravating factors. The aggravating factors include if the offence was committed for the benefit of, or at the direction of, an association, or in association with organized crime; the offence involved violence or the threat of violence, weapons or the threat of use of weapons; or the offence was committed by someone who has been convicted of a designated drug offence in the previous 10 years.
If youth are present or the offence occurred in a prison, the minimum penalty is increased to two years. In the case of importing, exporting and possession for the purpose of exporting, the minimum penalty is one year if these offences are committed for the purpose of trafficking. A one-year minimum penalty will be imposed if an offender abuses his authority or his position, or if the offender who has access to a restricted area uses that access to commit these crimes. The penalty will be raised to two years if these offences involve more than 1 kilogram of those Schedule I drugs. A minimum penalty of two years is provided for a production offence involving Schedule I drugs. The minimum sentence for the production of Schedule I drugs increases to three years where aggravating factors relating to health and safety are present.
For Schedule II drugs, the mandatory penalty for trafficking and possession for the purpose of trafficking is one year, if certain aggravating factors such as violence, recidivism or organized crime are present.
For the offences of marijuana production, the bill proposes mandatory penalties based on the number of plants involved, whether it is 6 to 200 plants if the plants are cultivated for the purposes of trafficking; that is what is caught. If the offender goes above that number, again, mandatory penalties apply. We have increased the maximum penalty for marijuana, doubling it from 7 to 14 years. We are including date-rape drugs and changing their designation from Schedule III to Schedule I. These are steps in the right direction. We are also giving the courts the discretion to impose a penalty other than the mandatory minimum for a serious drug offender who has successfully completed a court treatment program — I am a big fan of that.
This is part of our continuing commitment to protect Canadians, Madam Chair, and I hope that it has the full support of everyone here, just as we had the full support of everyone in the House of Commons. I am sorry to have to excuse myself. Apparently, a vote is imminent in the House of Commons, and I have to attend.
The Chair: We understand that. Did I understand you to say that you could come back after the vote, minister?
Mr. Nicholson: Yes, I would be glad to do that.
The Chair: That would be very helpful.
We are very fortunate to have a representative from the Canadian Council of Criminal Defence Lawyers, Mr. Phil Downes; and a representative from the Criminal Lawyers' Association, Mr. Howard L. Krongold. We are very grateful to both of you for appearing. We are even more grateful than usual that you were here so promptly and early this morning.
Phil Downes, Representative, Canadian Council of Criminal Defence Lawyers: Good morning, honourable senators. I bring greetings to you on behalf of Mr. Bill Trudell, the chair of the Canadian Council of Criminal Defence Lawyers, who may be known to some of you.
As you may know, the Canadian Council of Criminal Defence Lawyers was formed in November, 1992, with the encouragement of the then Justice Minister, Honourable Kim Campbell. The goal of our organization is to represent defence counsel across the country in order to hopefully be in a position to offer a national voice and perspective on criminal justice issues, as a result of us having representatives in every province and territory. We are very grateful for the opportunity to address you in the important work you are doing in this committee.
Let me first address the general issue of the effectiveness of mandatory minimum sentences. It is our submission that mandatory minimum sentences really have no measurable effect on crime rates; particularly, in relation to drug offences. This is a long-held and — I respectfully submit to you — a well-supported view. A 2002 report from the Department of Justice Canada says that mandatory minimums are "blunt instruments that fail to distinguish between low and high-level, as well as hardcore versus transient drug dealers.'' It is widely recognized that mandatory minimums have the effect of increasing our prison population and increasing the cost to the taxpayer without any real benefit to society as a whole.
I read the previous proceedings in relation to this bill. The one question that is always asked and never seems to be answered is where the evidence is that mandatory minimums will have a positive effect in terms of the reduction of drug crime or of drug abuse. It is, in our submission, not there.
In my practical experience as a criminal lawyer — I was also a Crown counsel for eight years before becoming a defence counsel — the overwhelming number of people engaged in criminal activity actually have no idea what the penalty is that they are subject to. When they come to see me, one of the first questions they ask is, "How much time can I get?'' They do not know.
The decision of whether or not to sell a joint of marijuana to someone is not made because they may be aware that they could get a year as opposed to the six months that they would get today. It is made for other reasons — often the likelihood of getting caught as opposed to not getting caught.
Therefore, we say that mandatory minimums, in practice — and this is our experience — do not have the effect that some people say that they do. Most significantly, with respect to the issue of mandatory minimum sentences, we say the following: Our judges in Canada are widely recognized as some of the most — if not the most — independent and skilled in the common law world. Our National Judicial Institute sends our judges all over the world to countries such as China, Russia, Rwanda and Pakistan to conduct judicial education in those countries. We take pride through that. Our judicial appointment process rarely — if ever — results in allegations of political interference or someone being appointed who is unqualified.
However, we seem to be seeing a steady erosion of judicial discretion by the passage of legislation such as the bill before you for your consideration today. Why do we seek to continually undermine the front-line decision makers who, we say, are best placed to make individual assessments of the person before them about their needs, the needs of the community, the public interest and the right sentence to achieve the best goals of sentencing?
We are profoundly concerned about this double standard in terms of our respect for our judiciary and our continual attempts to remove from them the discretion that we feel they are best placed to exercise.
A statistic in your background material with respect to the issue that is more generally before you shows that the overall cost of substance abuse in Canada in 2002 was estimated at just under $40 billion. Tobacco and alcohol combined accounted for almost 80 per cent of those costs. More than 20 times the number of Canadians were killed by tobacco than were killed by using elicit drugs.
If our goal is public health and public safety, why is this legislation the legislation that will achieve those goals?
Let me say a word or two about the drug treatment centres that I heard the minister refer to a few minutes ago. We have two concerns about the drug treatment program. Clearly, we think that, overall, it is a good thing.
First, we have a concern that its availability is dependent upon the consent of the prosecutor. Why should a judge not have the ability to independently assess a situation, override refusal to consent and say that he or she believes it is in the best interests of everyone that the person enters into that program. That power is not in the legislation. Mr. Krongold may have comments on that in a few minutes.
Second, the reality is that simply nowhere near enough low-cost treatment programs are available. This is a complex issue because of the role of the provinces in funding those programs. There may be a disconnect between the legislation that puts a lot of faith in drug treatment courts and the availability of them.
I will say more about that in a particular context. I mentioned that we have representation across the country, and I want to focus, in my closing remarks, about the experience in Northern and remote communities, particularly in the Yukon.
With respect to mandatory minimums in proposed new section 5(3)(a) of the bill, our members in the Yukon report that many, if not most, individuals sentenced for drug trafficking in remote Northern regions are addicts who are selling small amounts to support a habit. Imposing a minimum one- or two-year sentence, which seems aimed at specific and general deterrence principles, will be ineffective for people motivated by addiction. To impose minimum sentences that do not distinguish between the kingpin drug seller doing it purely for profit and exploitation and low- level dealers will only clog the courts and jails. It will do nothing to enhance public safety.
I will be more specific about the problems in the Yukon with respect to people seeking treatment. First, only one outpatient addictions counsellor is employed by the Department of Justice for all individuals — both those incarcerated and those serving probation in the community. Therefore, only one professional is providing free counselling to people involved in the criminal justice system, and she must be all things to all people.
Second, the Yukon government initiated a drug treatment and mental health court called the Community Wellness Court. However, in the absence of any increased funding for counselling and stable housing, the majority of participants have left that program or have been re-incarcerated.
Third, the local in-patient treatment centre offers 28-day programs. However, there are waiting lists, and because the program alternates between a men's program and a women's program, a person may wait up to two months for an appropriate program to be offered.
Fourth, and even more troubling, the local in-patient treatment centre will not typically accept clients subject to a court order, such as a bail term, probation or recognizance. Therefore, no treatment would be available if sentencing is delayed or if treatment is built in as part of the sentence; none is available in an in-patient context.
People working with Aboriginal clients have identified the need for specific culturally appropriate drug counselling, such as that provided at Williams Lake and Lantzville, British Columbia. No such counselling is offered in the Yukon, although a significant majority of offenders are from an Aboriginal background. Additionally, Indian and Northern Affairs Canada, which is responsible for paying for Aboriginal health care, will not pay for transportation to these facilities if the individual is under a court order. Therefore, delaying sentences for treatment in these situations would result in a First Nations offender being unable to access out-of-territory treatment, even if that is the best place for them to get the treatment they need.
Finally, little or no treatment is available in the one jail that serves all of the Yukon.
The same counsellor I referred to a few minutes ago does some one-on-one counselling, and peer-led programs such as AA are available to the men but not to women, by the way.
I tell you this, realizing that these are problems that this honourable committee cannot solve, but I mention them because they demonstrate the real impact that mandatory minimum sentences will or could have on people living in remote areas. Without any significant attention to increase in funding and facilities, the sentencing benefits that are said to offset the mandatory minimum — for example, the availability of drug treatment courts — will not be available to the poor or to Aboriginal people; they will be available to people who can pay and who can afford their own drug treatment. We say that that will simply not be acceptable.
In short, we say, in closing, that there is no evidence that this legislation will result in decreased drug crime or in enhanced public safety. However, there is a great deal of evidence that it will continue to marginalize and prejudice those who are already marginalized by the criminal justice system.
I am very grateful for the opportunity to discuss these issues with you.
Howard L. Krongold, Representative, Criminal Lawyers' Association: I want to begin by thanking this honourable committee for inviting the Criminal Lawyers' Association back before you to make submissions on this legislation. Similar to everyone here, I think, the Criminal Lawyers' Association, CLA, supports initiatives that truly promote safer communities. Our concern, however, is to see that measures that are intended to create safer communities actually have this effect and that these provisions operate fairly and constitutionally.
Overall, our organization has concerns about the use of mandatory minimum sentences. A cost is associated with removing discretion from the judges who are appointed to carefully craft sentences, having regard to the specific facts of each case. The cost is that what may seem to be an appropriate penalty in the abstract will invariably work injustice in some cases.
One question I would ask this committee to consider is whether, in reality, drug sentences, as they are applied at this time, are actually too low. If drug sentences generally carry an appropriate penalty — and I would suggest that they do — then the legislation here imposes costs without any appreciable benefit. I propose to spend the rest of my time speaking about those costs in three areas.
The first area of costs that is of concern to the CLA is the cost to the administration of justice. There will be fewer guilty pleas if mandatory minimum sentences are imposed in this area. Mandatory minimum jail sentences dramatically increase the number of trials because they remove an accused person's incentive to plead, even where the prosecution's case is strong.
As it stand now, an accused person facing a strong case will often plead guilty in the hope of shaving even a small amount of time off their sentence. The very modest reduction — and I should say that it is a modest reduction — in a jail sentence from a guilty plea multiplied over thousands of cases has a massive systemic benefit, and it is what permits the justice system to continue to operate effectively.
The flip side of that is that in weaker cases, there will be a shift of discretion from judges to prosecutors operating behind closed doors. Prosecutors offer plea bargains because of weaknesses in their case, and this bill will not change the fact that weak cases will continue to be prosecuted. Prosecutors, in order to entice guilty pleas in weak cases, will be forced to offer pleas to lesser offences or forced to avoid proving aggravating features. This will distort the sentencing process if the person is charged again in the future. The result of this is a shift from public accountability in open courts to private, unreviewable backroom deals between defence counsel and prosecutors.
The final administration of justice cost that I want to speak about — and this also relates to my next area, which is individual costs — is about the disproportionate impact on racial minorities in Canada and, in particular, on Aboriginal communities. I echo my friend's concerns in this area. Poverty, lack of legitimate employment and economic disenfranchisement often play a role, especially in low-level drug trafficking offences, and these factors ought to be taken into account by a sentencing judge.
This bill creates no exemption, for example, to recognize the systemic discrimination against Aboriginal people. To this extent, I would respectfully disagree with the Minister of Justice's comments earlier that this bill does not depart from sentencing principles that exist in the Criminal Code.
If history is any indication, the effect of this bill on Aboriginal people will be to continue disproportionate incarceration and the disproportionate representation of Aboriginal people in Canadian jails and penitentiaries.
The second area I want to touch on briefly is the cost to individuals and the potential that this bill will subject individuals to sentences that are disproportionate to their degree of moral culpability. We can talk about a number of examples, but I will try to limit myself.
First, there will be, in some cases, a disproportionate effect on very low-level street addicts who are dealing drugs to feed their own habits. Under this bill, a second-time offender will qualify for a one-year minimum sentence and will often be disqualified, by virtue of the previous conviction, from drug treatment court, even though these are the very people who need treatment the most.
Second, to the extent that the imposition of mandatory minimums will even come to the attention of higher-up, for- profit drug dealers — and I agree with my friend's submissions that that is unlikely — but to the extent that mandatory minimums do come to the attention of higher-level drug dealers, one can expect that rather than deterring them, it will encourage them to exploit vulnerable drug addicts to do their dealing for them, and for them to take the mandatory minimum sentence.
The other example of a disproportionate effect on individuals is that the mandatory two-year minimum sentence for trafficking in a Schedule I substance — for example, near a school or other place where minors frequent — will, in some cases, result in grossly disproportionate sentences. We can imagine an 18-year-old high school student who sells a small quantity of Schedule I drugs to a fellow student, who will be subject to a two-year mandatory minimum sentence if that sale happens at or near a school or, for example, at a mall. A court should be permitted to recognize the reduced culpability of a person in this situation.
Finally, I want to also touch on the Criminal Lawyers' Association's very serious concerns about the reliance on drug treatment courts as the main route to exemption from the mandatory minimum sentences.
First, as my friend indicated, a patent problem exists with unequal access to these courts. The effect will be that minimum sentences will invariably apply in smaller centres but not in larger ones. The question will be raised of why a person should in Perth, Ontario or in Brandon, Manitoba face a mandatory minimum sentence, while a person in Toronto, Ontario or Vancouver, British Columbia who has access to drug treatment courts, will not.
The Supreme Court of Canada, in the well-known decision of R. v. Morgentaler, held that:
One of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.
The same argument would be made in the context of minimum sentences, namely, that it violates our basic sense of fairness to offer one offender an exemption from a mandatory minimum and to deny that exemption to another offender, based solely upon in which courthouse the person finds him or herself answering to the charge.
Our second concern about drug treatment courts is that the discretion to permit participation will fall into the unreviewable hands of Crown attorneys, who can and do exercise a veto power over enrolment.
Speaking to some of my colleagues, I can tell you that our experience on the ground is that standards between Crown prosecutors vary significantly. We have seen cases where a person has been excluded from a drug treatment court because of very dated convictions for violence, whereas a different Crown may take a view that a dated conviction should not disqualify the person from enrolment if they are truly in need and truly seek treatment.
Similarly, Crowns will take a different view about what prior offences and what quantities of drugs would preclude a person from enrolment. Whichever way these decisions go, whether prosecutors make decisions that are viewed as too lenient, too harsh or just right, instead of a reviewable decision by a judge, there will be an unreviewable decision by a prosecutor. This creates serious concerns about public accountability and also may raise additional constitutional challenges on the basis that entrance into drug treatment courts is policed arbitrarily and not subject to judicial review.
Finally, relating to my previous point, many of the aggravating factors that cause mandatory minimums to be invoked, such as a prior drug conviction, will often disqualify a person from even being enrolled in a drug treatment court in the first place. The exemption will often be illusory.
This committee is a place for sober second thought and cooler reflection. I would suggest that serious costs for offenders and for the administration of justice are in this bill. I would ask this committee to consider whether these costs are counterbalanced by any appreciable benefit and whether the false perception that unjustly low sentences are being imposed on drug traffickers justifies creating actual injustice in sentencing practices.
Senator Nolin: I totally agree with Mr. Krongold's last comment. We want to give this bill rigorous analysis. We have respect for politicians and expert witnesses, but I personally want this bill to be looked at rigorously. Of course, many members of the Senate have much interest in this subject because, in previous times, we studied it quite seriously and rigorously.
While making that comment, if the chair agrees, if you want to give us more in writing, more than what you are asked in questions or your opening statements, please do so. However, when doing so, I have a great deal of respect for who you are and your experience, but I would love to have your notes on where you are getting the information. If you have any peer-reviewed research, that would be preferable. I have a great deal of respect for expert opinion, but I also want to see what is behind the opinion.
I have only one question. We all know that youth, not only in Canada but around the world, are the main stakeholder of such public policy, mainly because they are the main users of drugs. The minister, in the last part of his remarks, repeated that the public policy through Bill C-15 is not to go after young university students who are caught with two or three joints, but the big dealers. Through your experience, how will Bill C-15 affect young Canadians? I will repeat, if you need to write to us to provide us a longer answer, please do so. If your answer is influenced by experience in other countries, please forward to the committee the reference to those experiences.
The Chair: We are looking forward to written responses with great detail. However, do you have any responses now that you would like to give?
Mr. Downes: I can respond very briefly, and we would be delighted to take you up on your offer.
The problem is that nothing in the legislation distinguishes between the young person who is trafficking in marijuana — bear in mind, trafficking is simply providing to someone else — and the high-level drug dealer. If the policy goal is to attack the sophisticated and exploitive drug dealers, nothing inherently in the legislation does that. We rely, therefore, on police and Crown discretion. Our courts have said that that is not an appropriate way to address imbalance and inequality, and whether it rises as a constitutional problem is a separate question. That is my short answer to you. In terms of hard data on how this will affect young people, I am not in a position to give you that right now but would be happy to look at it.
Mr. Krongold: I would make two quick comments. First, the bill does not allow judges to take into account the unique vulnerabilities of young Canadians. To that extent, it raises some of the serious costs I spoke about in my opening statement.
Second, many addicts who become involved in drug dealing and who would be caught by some of the mandatory minimums here are very often young people from terrible backgrounds who get sucked into drug use and drug dealing. It is our position that there should be some flexibility provided to the justice system in dealing with young, vulnerable Canadians who find themselves facing mandatory minimums under this bill.
Senator Baker: First, congratulations on your report to this committee. I would like to clarify a few points with you as to your experience directly in the courtroom relating to matters surrounding this bill. First, one of your major points was that the Crown attorneys will be making the decision on whether or not to exclude the mandatory sentence and go to a treatment courts. We do not have any of these treatment courts in Quebec or in Atlantic Canada. Of course, your point is that it discriminates against those areas of Canada that do not have these courts, which are manned by federal Superior Court judges whose salaries are paid by the federal government.
You say the Crown attorneys are given the responsibility to make that determination, and you say that Crown attorneys vary from province to province, case to case, person to person. In the Criminal Code now, however, we have provisions for Crown attorneys to make certain decisions, such as whether or not to enter someone's previous criminal record. That is entirely in the hands of the Crown attorney. That forms a part of the negotiation with the defence, at times. What would be your major objection to having the same provisions applied to this legislation on minimum sentences?
Mr. Krongold: Our biggest concern is that it takes discretion about the actual sentence to be imposed away from judges and puts it in the hands of Crown attorneys. There is obviously a very important role for Crown attorneys to exercise discretion, and they generally do so very well. This is a more extreme situation where, effectively, a Crown attorney gets to decide the sentence, or, in the context of drug treatment court, if a person is even eligible to seek an exemption from a mandatory minimum.
Senator Baker: You say that the Controlled Drugs and Substances Act will not distinguish between someone who has drugs in their possession for the purpose of, if they are the kingpin or the person carrying the drugs or the person distributing the drugs or the person selling the drugs, which are distinguishable upon sentencing. I am sure you will agree. All of those four different categories are distinguished by the judge in imposing the sentence. You get down to the ground level, and that person at street level probably gets a small sentence or even a conditional sentence if it is a first offence.
Are you saying that the minimum sentence imposition here for the offence of possession for the purpose of or conspiracy to traffic or trafficking will not make any distinction that presently exists in the act of sentencing by the judge?
Mr. Downes: Nothing in the legislation says that there is a different application of the minimum sentence to those people. Clearly I agree with you that, at the end of the day, the kingpin drug dealer dealing truckloads of cocaine will get a much harsher sentence. The minimum sentences tend to have the effect of ramping up the tariff. I do not mean to suggest that this legislation takes away any role a judge has in assessing the aggravating factors, but nothing in the actual legislation says that we will differentiate that as a starting point.
Senator Baker: Therefore, the university student will be treated the same as the kingpin drug dealer, is that correct?
Mr. Downes: Not in terms of the ultimate sentence that is imposed, no, but the legislation captures that university student doing something that a judge may now say, "I do not think this person needs to go to jail for a year,'' for any number of reasons.
Senator Baker: However, the minimum would be imposed.
Mr. Downes: Right.
Senator Baker: With respect to fewer guilty pleas, Mr. Krongold, you made the statement that offenders receive modest sentence reduction amounts from guilty pleas. Does that not depend on the province you are from? In certain provinces, it can amount to a quarter of your sentence being forgiven because you did not put the court through the cost of having a trial. Do you not agree with that?
Mr. Krongold: I cannot speak to the situation in all the other provinces. My experience from practicing criminal law in Ottawa is that a guilty plea generally results in a reduction of a few months in a sentence, maybe 10, 15 or 20 per cent. Overall, though, we are talking about taking two or three months off a sentence if we are looking at lower-end drug trafficking. In that sense, by removing that really rather small incentive overall, you create massive systemic costs that will create a real problem in the justice system.
Mr. Downes: I suspect you are right that there is a variation between provinces as there is in many areas of the exercise of discretion by the Crown. I cannot give you anything more than that. That is another issue that if you would like any assistance with, we would be happy to provide it in terms of our experience as an association.
The Chair: Honourable senators, I see in the distance that our first witness has returned. This meeting is turning into something of a jigsaw puzzle, but I wonder if I could ask Mr. Downes and Mr. Krongold to remain available, and we will invite the minister to rejoin us for a few minutes. We are trying to cram a great deal into this meeting this morning.
Minister, welcome back.
Mr. Nicholson: Thank you, Madam Chair, and thank you for accommodating me. I am here with Mr. Greg Yost from the Department of Justice Canada. He was following the testimony that you heard and indicated to me that he may be able to clarify a point, and then I am open to any questions on my opening statement. That was with respect to, I think Mr. Yost said, 18-year-olds trafficking a couple of joints. Under the notes you will see, for trafficking in marijuana, it would have to involve more than 3 kilograms of cannabis marijuana or cannabis resin. It would not be just a joint or two. Did I get that right, Mr. Yost?
Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice Canada: If I caught the remark correctly, it was referring to selling a couple of joints in a school. Being in a school is an aggravating factor, but to get there you have to be above the amount set out in Schedule VII, which is 3 kilograms. Those would be awfully big joints.
Mr. Nicholson: In any case, I am in your hands, Madam Chair. I am available for questions.
Senator Nolin: Minister, welcome. As we were mentioning while you were in your house, we will give that bill quite a rigorous approach and detailed discussion, a little deeper than in the House of Commons. We will question the public policy, not only of the bill but also the fact that Bill C-15 will be enshrined in the global Canadian public policy on drug prohibitions.
What is the real objective of the bill?
Mr. Nicholson: As with all of them, it is an update of the law, a reclassification. I indicated in my somewhat abbreviated comments changing the classification for date rape drugs. This is a development of which we have become aware. You will see the mandatory prison sentences for people importing drugs into this country. This stems from conversations that I have had with law enforcement agencies across the country who tell me the people in the business of bringing drugs into this country are part of organized crime. This is not a one-off; this is not a person who has unfortunately become addicted. We want to send the right message. If you bring drugs into Canada, you will be looking at jail time.
It is an update, a modernization and an attempt by the government to send out the right message to people, namely, that if you get involved with this business, this is the wrong business to get into because the consequences are serious.
Senator Nolin: One of the features that the government is using in that modernization, to use your expression, of the drug prohibition policy is a massive use of mandatory minimum sentences. I would like to know if the government and your officials have looked into the experience in other countries, specifically on drug policies of other countries, to try to find a positive experience and use it.
Mr. Nicholson: You can appreciate that the sentences in many jurisdictions, including American jurisdictions, are quite a bit higher than what we are looking at in Canada. I do not agree with the comment that we have made massive use of mandatory minimums. They show up in a number of pieces of legislation. Of course, many are already in the Criminal Code. I suppose the best example is that people convicted of first degree murder face life imprisonment. That is the highest minimum you could possibly have with no parole eligibility for 25 years. They have been used in the Criminal Code. That is part of our responsibility as legislators. We give maximum sentences to many of these offences, and on many occasions, we give minimum sentences, but that is our job and our responsibility. I do not know about the international experience with drug crimes.
Do you have any comments to add, Mr. Yost?
Mr. Yost: That is definitely a better question for Mr. St. Denis, who I understand is in Geneva at this time dealing with the World Health Organization about various drug issues and has been on the file much longer than me. That is why we want him next week.
Senator Nolin: We will ask Mr. St. Denis.
Minister, have you taken into consideration, while reflecting on the bill and its consequences, the quite large use of cannabis for medical purposes in Canada?
Mr. Nicholson: This does not deal with medical purposes. That is under a completely different regime; this bill does not affect that in any way.
Senator Nolin: Minister, I beg to differ with you. Roughly 3,000, almost 4,000 Canadians are enlisted through the regulated access to medical marijuana. We will hear testimony trying to understand the reality of the medical use of cannabis.
Mr. Nicholson: Do me a favour, senator. Make sure you tell them this bill does not affect them. They are not the ones importing drugs into this country or into the production of methamphetamines or anything similar to that. That is who this bill is targeted at.
Senator Nolin: When I look at proposed new section 7(2)(b) of the bill, you are talking about minimum sentences in production. Many medical users of cannabis are producing it themselves. Others are not able to do it themselves, so they rely on someone else to do it.
Even though I take your word that the government did not want to get into the medical use of cannabis, the effect of the bill will do it. We will hear witnesses to that effect. Have you thought of that, reflecting on the consequences of the bill?
Mr. Nicholson: I did, and I am assured by my officials and my reading of the bill that there is no consequence to people who are part of the medical marijuana process. A licensing regime is in place. Again, we are targeting those individuals who are in the business of trafficking and production, and sending out the right message.
[Translation]
Senator Rivest: Minister, I would like to hear your opinion of the principle of minimum sentences. Two studies conducted and published by the federal Department of Justice in 2005 and 2006 clearly show that minimum sentences are completely ineffective. I have here the references to these studies done by your own department. What has transpired since 2005 for you to consider this approach which once again erodes the principle of judicial discretion?
[English]
Mr. Nicholson: We always give direction with respect to the parameters of judicial discretion. You may not have been here, but I pointed out that one time in the early 1990s, I had one of my colleagues in my political party asking why we were only putting a five-year maximum, that we should leave it to the judge; the judge may want to give this person 10 or 15 years.
I was speaking on behalf of the minister at the time, and I said that we have to give guidance and range. We have to look at every new offence or modification of the Criminal Code, and we have to give guidance. That is our job as legislators.
Therefore, we do put those maximum sentences. Sometimes people say that those maximums are not enough, and I appreciate that input. However, we have to make a decision on this. In many cases, we make decisions with respect to minimum sentences. I gave you the most prominent there.
I was not part of the government when they came up with life imprisonment for people convicted of first degree murder. That is a huge minimum, and I am sure there must have been many questions about it. However, at the time, I am sure it was a government decision to say that this is appropriate in the circumstances.
We know we have a big problem with an increase of drugs coming in and out of this country. I have had it reinforced many times. People who are close to this problem say that this is a terrible disease, that we do not want this to take over our streets. This can destroy a society, so we must send the right message out.
We are sending a message to the people bringing drugs into this country. Provincial law enforcement agencies all tell me the same thing: These are people involved with organized crime; these are dangerous individuals; send out the right message to them.
The parameters will be starting at one year, depending on the type of offence and the aggravating factors. Again, that is our responsibility, and I take it very seriously. However, within those minimum-maximum ranges, it is up to a judge; that is their role as well.
[Translation]
Senator Rivest: Can you provide the committee with the studies done either in Canada or abroad that prove the effectiveness of minimum sentences?
[English]
Mr. Nicholson: I will talk to the department and see what, if anything, they have. However, I do not know if this has been your experience or not, but people who do not believe in minimum sentences never believe in any study, report or anecdote to the extent of their effectiveness; but that is fine, I accept that.
In my job as either Justice Minister or in my days as a parliamentary secretary, we set those. Sometimes the push- back is that the maximum is not high enough. I have had people tell me the maximums do not work, judges never give them. However, that is our responsibility as legislators. You or others may disagree with that, but I believe we have it right in this bill.
[Translation]
Senator Rivest: Have any studies been done that prove the effectiveness of imposing minimum sentences and if so, can you provide them to the committee?
[English]
Mr. Nicholson: I will speak to my department. If there are any studies that may be of use to you, I will forward them to you.
These provisions are set on the basis of the advice that I have been given. We have gone to the people of this country. We have told people that we are getting tough on these issues, and these are the parameters we are setting. This is the basis upon which this bill has been drafted.
Senator Campbell: Welcome, minister. I guess I am one of the people who you say are continually soft on crime and try to hold up your bills. I have to tell you that I like some of this bill. I recognize that for some of the substances — the date-rape drugs — certainly we are bringing it into the 20th century.
However, I should tell you also that I probably have more experience than anyone in this room of the reality of drugs and society. When I was a Royal Canadian Mounted police officer, it was a seven-year minimum for importing drugs. We took that out. I have no idea why because I can tell you that the only drugs that are being imported into Canada are cocaine, heroin, and —
Mr. Nicholson: That provision was struck down by the Supreme Court of Canada.
Senator Campbell: Maybe we need another shot at that.
We do not import marijuana into British Columbia. If you did, you would be charged under B.C.'s Mental Health Act and not the Food and Drugs Act.
I will deal with the minimums later on. One of the biggest concerns I have is that nowhere in here do I see any indication that we are prepared to move toward banning the precursors for methamphetamine. That has always been a concern to me. We are truly one of the biggest producers in the world of methamphetamine and ecstasy. The reason for that is the precursors come from all over the world into Canada, and we make it.
While we are here dealing with all of these terrible drugs, methamphetamine in particular, why are precursors not included in this bill as part of the sentencing?
Mr. Nicholson: I appreciate that representation, senator; I am always glad to get input as to further legislation. As you can see, sometimes it is difficult even to get a bill passed that deals with the actual production of the drug, never mind the precursor.
Hopefully, you will get this bill through quickly. I appreciate getting input and suggestions on other bills because even though I have nine bills before Parliament, I always tell my colleagues that I will be introducing more bills in this area. Without saying one way or the other on that, I certainly appreciate the input.
My challenge right now is just to get the bill that talks about the production of these drugs passed, quite apart from the precursors. If this goes through easily, it will be wonderful to know that this committee and Parliament would be interested in a bill on precursors.
Senator Campbell: I do not think it will go through easily, but it will go through with a great deal of study. I appreciate your comments.
Senator Wallace: Thank you, minister, for appearing here today. As with any amendments of this nature, there is always that need to balance out what, at times, are the competing interests. We have heard briefly this morning from lawyers representing the accused and the convicted.
The Chair: We will be bringing them back to the table, Senator Wallace.
Senator Wallace: Yes. On the other side of the coin, it is the general public. Members of the public — I suspect, 99 per cent of the public — are not involved in crime, never find themselves as an accused or a convicted person. However, the interests of both must be balanced.
In preparing Bill C-15, has that balance been considered, and what comments would you have on the rights of the accused and convicted versus the rights of 99 per cent of the people in this country who do not find themselves in either of those categories?
Mr. Nicholson: I have to listen to the input that I get on these matters. I have been out in B.C., in the Vancouver area about half a dozen times in the last year. Again and again, they tell me about the problem of drugs moving in and out of this country, and they are asking us to address it with appropriate penalties. That being said, we must have a balanced approach. We want to assist those individuals, who, unfortunately, become addicted to or are experimenting with drugs. We want to get the message out to them that it is a bad idea to get involved with that type of activity.
I was very pleased to be a part, with my colleagues the Minister of Health and the Minister of Public Safety, of the Prime Minister's announcement on the National Anti-Drug Strategy, to get the message out through advertising and assistance to groups, to ensure that we get help, education and information to individuals on this difficult topic.
Mr. Yost was good enough to tell me that you discussed drug treatment courts. Again, this is another step to give people an alternative. Ultimately, we hope that people will see the error of their ways or that they want to get help. When, unfortunately, they become addicted, you want to get them help. A number of initiatives exist, and they must be taken into consideration.
That is one component of it. Many times when I introduce one bill, people will ask about something else. I appreciate that a great deal of assistance comes from the provinces on these issues by way of policing, et cetera. It is a complete approach; this is one important component of it. We have to have it.
Senator Nolin: Minister, when you answered Senator Wallace's question, you were referring to the Canadian population. I am sure that you keep in mind that almost 45 per cent of all Canadians have used cannabis at least once. In the population of minors between the ages of 12 and 17, that proportion goes up to more than 65 per cent.
Mr. Nicholson: Senator, that is why, when I talk about this bill, I am talking about trafficking. Again, I make that very clear. I know the critics are out there. They are talking about possession, and it is people who do not want us to get tough on the people involved in destroying people's lives. The people bringing drugs into this are not your friendly next-door neighbours with whom you want to associate. Hardened criminals — people in the organized crime business — are bringing drugs in and out of this country. You will see that we are zeroing in on that activity.
When I was in the Vancouver area, they gave me demonstrations of the hazards and pitfalls of these grow-ops. We do not want those in your neighbourhood, so we are sending out the right message.
Senator Wallace: Minister, in your comments to my previous question, you referred to Canada's National Anti- Drug Strategy. When you say that, it seems that this bill is not a one-off, disjointed approach, rather it is part of a more integrated approach whose aim is to protect our citizens. I wonder what comments you might make about the integrated approach.
Mr. Nicholson: That is a very good point, Senator Wallace, and, as I indicated to you in your previous question, I was pleased to be a part of that announcement. We do want to get help to someone who has become addicted or is thinking about experimenting with drugs. We want them to have the information about what it could lead to. We want to give them help, so that is part of the equation.
I do not get as many questions on that as I perhaps might like, but it is certainly a part of what we are doing. I believe $66.3 million is going into that, and two thirds is to assist with groups, individuals and education programs. That is an essential component of our response to drugs in this country. We have to have a complete response.
It is a huge problem, and it is not just at the federal level. As I have gone across this country talking with provincial authorities, municipal authorities and non-governmental organizations, I have been impressed with how much activity goes on to try to assist people in this area. It is not as though we are alone and have to come up with the solutions. Everyone in society and all different levels of government are involved in coping with this difficult problem.
Senator Wallace: Thank you very much for clarifying that. That is very helpful.
[Translation]
Senator Carignan: Less than a month ago, I was not a senator, but rather a mayor. A number of times throughout the course of the year, our police service conducted searches of residences in my community when the presence of illegal substances was suspected. I observed an increase in this serious problem.
I have discussed this situation with members of my family, some of whom are farmers who grow corn, among other crops, and they have told me that for the past several years and virtually every summer, they discover people growing marijuana on their land.
My wife practises civil law. She has observed an increase in family problems tied to the use of illegal substances such as cocaine. While statistics show that the crime rate is down, we can almost sense that the problem is in fact growing. Do you have any statistics an unreported crimes and on victimization which may more accurately reflect than the actual crime rate the reality that we are encountering?
[English]
Mr. Yost: Victim surveys have been carried out by Statistics Canada. I do not know when the last one was, but I am certainly prepared to look into that and report to the committee.
[Translation]
The Chair: We will invite officials from Statistics Canada to testify before the committee to provide us with more information about this matter. I would ask senators who have specific questions to forward them to us so that we can pass them along to the Statistics Canada representatives.
Senator Carignan: Are you guided by these statistics or these victimization surveys when you impose minimum sentences? In other words, are you guided not only by the crime rates, but also by victimization and unreported crime surveys?
[English]
Mr. Nicholson: We are not guided by statistics, which they always say can prove anything, senator. We are guided by our conversations and engagement with law enforcement agencies and different groups that make representations to the Government of Canada; by our discussions with provincial attorneys general; and by our discussions with our voters during elections as to what they want.
Again, we have an increase in certain problems, such as importing. I believe law enforcement agencies when they tell me that the people who are bringing drugs into this country and are involved with organized crime are very dangerous individuals. Our job, of course, is to set the penalties out in the Criminal Code. Some people say that the maximum is too low or too high. It is a judgment call that we are making as the people's elected representatives. We put them in and present them to Parliament. We think a one-year minimum sentence is reasonable if you are in the business of organized crime and bringing drugs into this country for the purpose of trafficking. Some people say, "No, don't do anything; maybe just give this person a hug and send them on their way.'' I would disagree with anyone who says something such as that. This is a very serious business, and we have to send a serious message out.
[Translation]
Senator Carignan: Mention was made of drug treatment centres. Apparently, these centres receive support from the federal government. It seems that the same drug treatment services are not available in all regions of Canada. Would you care to comment on that?
Do you intend to take steps to ensure a balanced delivery of drug treatment services across Canada?
[English]
Mr. Nicholson: You are quite correct. The drug courts — if you will — that give opportunities to people to get out of this business are located in the major centres across Canada. Small municipalities will not have drug courts set up. They are set up in the areas where the problem is the greatest. These are a considerable expense to the Government of Canada to create. While we may wish to have them in every community, it is impossible with the costs to the government. They are in the major cities.
Senator Milne: I will follow through from my colleague's questioning. It seems that access to drug courts is a real problem currently. We have already heard today that Quebec and the Maritime provinces have none. I am fairly sure Northern Ontario, Nunavut and the Northwest Territories do not have drug treatment courts. We heard a semi-official drug court exists in the Yukon.
Access to these courts is a real problem. They are only accessible to a limited number of people; mostly for people who have not previously been convicted. Does the federal government intend to do anything about that?
Mr. Nicholson: I am not making any announcement on this today. As I indicated on previous occasions, I support the concept of drug courts. They are a considerable expense to the Government of Canada, but it is a worthwhile investment. I appreciate your representation to see them in more communities, such as Northern Ontario and other places.
Today, I am here on Bill C-15. It is very specific, and this is what we are dealing with.
Senator Milne: It is probably less expensive than more jails.
In the last month, you have sent me personally, to my own door, three communications such as this one.
Mr. Nicholson: I like to stay in touch with you, senator. I know you are interested in this area.
Senator Milne: You may find out that it is somewhat counterproductive.
Senator Joyal: Minister, did your department conduct any pre-study, before tabling this bill, on the impact of increased sentences on the population of provinces' jails and federal penitentiaries?
Mr. Nicholson: I have been assured by my colleague, the Minister of Public Safety, that the capacity is there. Provincial attorneys general are aware of the direction that we are going through my discussions with them on all these issues.
Senator Joyal: Have you any specific numbers?
Mr. Nicholson: I do not have any specific numbers here. That would probably be more accurately directed to the Minister of Public Safety. Again, I have his assurance that the capacity is there.
Senator Joyal: We heard from the director of the Correctional Service of Canada during our study of the bill previous to this bill. We asked him to provide figures on the impact of the implementation of the bill in the instance that Parliament would approve it. He told us that he had those figures, but they were confidential cabinet documents, so he could not provide them to us. However, we at least knew there were figures relating to Bill C-25.
Are there figures attached to the cabinet recommendation on this bill?
Mr. Nicholson: I will not discuss what is in a cabinet recommendation. I will pass your comment on to my colleague. Again, I have assurances from him on that issue.
The Chair: I will make a supplementary point on Bill C-25. We had invited your colleague to appear. After considerable back and forth, we were informed that he would not be available in the foreseeable future. If you could, indeed, urge him to come before us, there is information that only he can provide to help us as we go forward with our work.
Mr. Nicholson: I am glad to pass that on, Madam Chair.
Senator Joyal: To your knowledge, were no figures brought to your attention on the impact of this bill on federal or provincial prisons?
Mr. Nicholson: I have indicated to you that I have assurances from the man in charge of that. He tells me that the capacity is there, and I have complete confidence. My responsibility is with respect to this.
Senator Joyal: Thank you for your answer.
The previous witness heard during your absence, Mr. Downes from the Criminal Lawyers' Association, indicated that minimum sentences have no deterrent effect. You keep repeating, "We have to send the right message.'' Your policy seems to be to send the right message.
What link do you make between the fact that increasing sentences has no deterrent effect and to keep repeating that we have to send the right message? Is there any link of rationality between those two?
Mr. Nicholson: There is, senator. When we get those people who are involved with organized crime and who are part of the business of destroying our society off the street, we give them the opportunity to help themselves and break the cycle of criminal activity in which they have become involved. That is a help to them, to get them away from these gangs and organized crime, to get them into a penitentiary system where they will be away from that type of activity, the addictions and other challenges they face.
You always have less victimization when these people are not out destroying other people's lives — that is what we are talking about. It is hard to quantify how many people's lives they would have destroyed if they were back out on the street in the business of trafficking drugs and bringing drugs into this country. When we break that cycle, we get them out of there, and we know intuitively that they are not destroying other people's lives.
It is my sincere hope that they can get the help they need to break that cycle. This is what we hope for and what we want.
Senator Joyal: The testimony we heard from people involved in the Correctional Service of Canada is that programs such as counselling and rehabilitation that should be made available to people serving time in prison are not available. Those programs would help the person be in the right condition when they leave prison. If you put people in prison, but you do not assist them in the proper way, they are more dangerous than they were before they entered prison.
Mr. Nicholson: We want them to get the help; there is no question about that. When they are detained in our penitentiary system, we want them to take advantage of the programs available to get the counselling and help they need. We want them to break that cycle of crime so that they have an opportunity to become productive members of society.
Senator Joyal: I advise you to read the testimony that we heard here from correctional services inspectors who keep telling us those programs are not available. The waiting lists are so long.
Mr. Nicholson: Excuse me, there are programs, but there is a waiting list; or is it that there are no programs? What is your concern?
Senator Joyal: It is the availability of programs.
Mr. Nicholson: I would be glad to pass your comments on to the Minister of Public Safety.
We want to break that cycle of activity and get them off the street. They are not getting any help if they continue as part of a gang or part of organized crime. They have a better chance when in prison to have an opportunity to reflect on what they are doing and, in my opinion, get the help they need.
Senator Joyal: Moreover, we heard from an expert two weeks ago that the mere fact of having a person serving a longer time in prison does not provide that person a better context to reintegrate into civil society in a normal way. That was from a study conducted by Mr. Gendreau. We hope to get information from your department rebutting or qualifying those conclusions.
Mr. Nicholson: I hope he talked about the reduction in victimization of innocent Canadians. It is important to get these people off the street with longer sentences, where they are not selling drugs and destroying people's lives. I will have to check the testimony he gave.
I hope he got into that. I hear this all the time: He is just a poor fellow, out selling drugs around the school. Guess what? Many people do not want that type of activity. They want to send a clear message to those individuals, and they want less victimization.
It is the same reason to get rid of the faint-hope clause. I have had people ask me if I think someone will stop committing first degree murder because they will no longer be eligible for parole after 15 years. I said that I did not know what goes through the minds of those who would commit a premeditated murder, but I know certainly there will be less victimization of the families destroyed by these people, the relatives of the victims they murdered. They will be less victimized by not having to come back in 15, 17, 19 and 21 years to continue to testify and relive their horrible experience.
We have to remember victims. We are concerned about the individual involved with organized crime out destroying lives and bringing drugs into this country. We are very concerned about that person, and we want to break that. However, we are also concerned about law-abiding Canadians and the victims.
We have to decrease that victimization. I am absolutely certain that longer sentences for these individuals will mean they will be victimizing fewer Canadians, which is a good thing.
Senator Angus: Minister, some critics of this bill have suggested that the bill has the potential to have a very negative impact on our Native population. Indeed, the same criticisms were made about Bill C-25 yesterday. It was even suggested that the bill is so discriminatory against that part of our population that it is unconstitutional.
I listened very carefully to your very excellent comments. You have not treated the question of our Aboriginal peoples. I would like to know what you have to say on Bill C-15, in particular.
Mr. Nicholson: Of course, we have a special or constitutional responsibility with respect to Aboriginal Canadians. I am a supporter of our Aboriginal Justice Strategy. I would be pleased to forward to you or to the committee many of the details that we have there. It is specifically designed to assist people in the Aboriginal community and to break any cycle of crime that any individual may get involved with and to get that individual the help that is needed.
This is an important component of any initiative of the federal government because of that particular constitutional responsibility. However, these bills, as is the case with the Criminal Code, have a general application to all Canadians, regardless of background. I believe they are a reasonable attempt to deal with the very difficult problem that we have.
Again, you are quite correct by raising that particular issue. I can assure you that, just as I am a supporter of our drug courts, I am a supporter of the Aboriginal Justice Strategy, as well.
Senator Angus: Before you returned to the committee, we heard other witnesses, as your staff has advised you. One witness did raise this quite stringently in regard to Bill C-15, criticizing the failure to take into account the regional differences in the country, which results in aggravating what this witness characterized as a systemic discrimination against Aboriginal people. I would like you to have a chance to respond to that.
Mr. Nicholson: This goes back to the British North America Act. The federal government has the responsibility with respect to the criminal justice system. I have had people point out to me that the United States has 50 different regimes. Every state is able to come up with its own version of the Criminal Code. That is fine; that is the United States Constitution. Ours is different.
We have had a different development and history. Our history is that the federal government enacts the laws with respect to the criminal justice system. Interestingly enough, and something that would be an interesting study in and of itself, the administration of justice, for the most part, was given to the provinces. We have that split. That is what we deal with.
I am absolutely certain that this passes the constitutional muster and that this is compliant with the Charter and the Canadian Bill of Rights. You can be assured of that. We would not introduce it if it was not.
Senator Angus: I understand that, on the constitutional side. I appreciate your response there. I again wanted to ensure that you realized there are, according to some witnesses whom we have already heard, more negative effects on Aboriginal people than on other Canadians. The Yukon, for example, was mentioned. I am speaking about the specific provisions of this bill.
Mr. Nicholson: Again, I believe it has general application. To the extent it sends the right message out, that right message goes out to every Canadian. Our attempt — and my answer to Senator Joyal — at reducing the victimization in this country would help all Canadians, including Aboriginal Canadians. When there are fewer victims, we all benefit.
The Chair: Senator Watt will proceed, and then I will leave you with a question and ask you to respond in writing, minister.
Senator Watt: I understand we have six federally funded drug treatment courts in Canada. They are located in Toronto, Vancouver, Edmonton, Regina, Winnipeg and Ottawa.
First, what options or alternatives are available in Quebec, the Maritimes and the Arctic? Second, is this government planning to add additional facilities for those regions?
Mr. Nicholson: In answer to your second question first, I have no immediate plans to open more drug courts. With respect to what is being done, when I have talked with officials in Quebec, I have been impressed as to what they are doing to assist individuals who have, unfortunately, become addicted to drugs. I have had good responses from my colleagues in Atlantic Canada, as well, with respect to this.
It is not just at the federal level we do these, although I did mention the National Anti-Drug Strategy. Of course, that has wide application across the country in terms of getting the message out to people, getting education, getting material and assisting groups. The National Crime Prevention Strategy goes from coast to coast. We fund groups that work with people who are at risk of becoming addicted to drugs. Those have general applications.
Again, in a government prior to mine, these drug courts were opened. Having a look at them myself as justice minister, I am supportive of them. I am pleased to have any representations from you or anyone who you would like to see them in other locations, as well.
Senator Watt: If I understand correctly what this bill really represents, you are saying, "Let us leave it for now because there is no counselling availability, access or treatment centres.'' Is that what you are telling me?
Are you saying, "Let us put them aside for the time being until such a time as we build our own facilities''?
Mr. Nicholson: I do not think so. It is quite the opposite. I said that this is one component of dealing with a difficult problem. We talked about drug treatment courts; I support that. I was delighted to be a part of the National Anti- Drug Strategy, which is one component of it. Working with my federal-provincial-territorial colleagues on this to assist these people is very important to me. I am a big supporter of the Aboriginal Justice Strategy. These are all components of it.
Senator, I am telling you that the people who are bringing drugs into this country are out to destroy this country, and they will destroy this country unless we are vigilant and take steps to stop it. This sends out the right message: If you bring drugs into Canada, you are looking at prison time. That is the message we have to get out there.
We are all better off if these people go somewhere else or figure out for themselves that they should not get involved with this business. We do not want them coming into Canada. This bill strikes the perfect balance, in my opinion, of getting that message out to them and encouraging people to get the help they need. However, it is only one component.
Senator Watt: I think we can only agree to disagree on that.
The Chair: Minister, I will ask you, if I may, to provide for us in writing your and the department's legal response — I am not talking now about the government's policy positions but the legal response — to the argument that because, as has been noted, only six drug courts exist, they are not available in the vast majority of the Canadian territory or to a vast majority of the population, and, therefore, this law has unequal application and is open to a constitutional challenge on that ground.
You do not have to answer this now because I understand your policy position, I think, but it would be helpful to have your legal response to that.
We thank you very much for your racing back and forth between the two ends of Parliament Hill. It has been extremely helpful to us. We do appreciate it.
Mr. Downes and Mr. Krongold, thank you so much. It is not our usual way of proceeding, to interrupt matters in this way. We do appreciate your patience and understanding. We will resume now.
Senator Nolin: They can still give us answers in writing.
The Chair: I may end up asking that the last batch of questions be put to you in writing.
Senator Wallace: One thing strikes me in all of this. When the minister was here a few moments ago, I raised this issue of trying as legislators to find the balance between the interests of the general population, who rarely find themselves as an accused person or a person convicted of a crime, and those who are accused and convicted. Of course, your organizations represent — and thank heavens you do, and represent very effectively — the rights of the accused and the convicted. As I had suggested to the minister — it is not a scientific study, of course — I would suspect 1 per cent of the population finds themselves as an accused or convicted of an offence. Perhaps 99 per cent of Canadians are law-abiding and never find themselves in those circumstances.
Having said that, I fully appreciate the need to properly represent and provide for those who find themselves in difficulty with the law, absolutely, beyond question.
Mr. Krongold, a comment you made in that context, as I consider this need to find balance, I must say that I found a bit troubling, and I ask you to comment on it. You referred to the unique vulnerability of our youth, but you said that solely in the context of those youth who would be involved in the production or trafficking of drugs, those who would find themselves either as an accused or a convicted person.
Senator Angus: Under this act.
Senator Wallace: That is right. I am surprised that there does not seem to be that sense of balance. Forgetting the jobs that we have, is that not the ultimate responsibility, to protect society? It surprises me that your comments seem to be so geared to one side of the equation. I would ask you to comment on that. I found it rather shocking.
Mr. Krongold: I appreciate the opportunity to comment. The vulnerability of youth as victims is a factor that is taken into account very strongly by trial judges. Trial judges are not at all unaware of the effects of drugs in the community. They see it every day, and they see it specifically in the particular local communities in which they operate. I would not want to be seen to suggest that that might not be a very important aggravating factor for a trial judge in exercising his or her discretion. Frequently, it is the sort of aggravating factor that would result in a jail sentence that may well be in excess of the mandatory minimums proposed here.
The question is really in situations where vulnerable youth are involved as offenders, and whether that should be taken into account as well. My position and the position of the Criminal Lawyers' Association is that judges are in the ideal situation to take into account, both as it relates to mitigating sentence and increasing sentence, the vulnerability of young people.
Senator Wallace: When you say that, it brings us back to the issue of minimum sentences and whether they perform any proper role in sentencing. As I understand it, the principles of sentencing, the benefit from sentencing is that sentences would act as a denunciation of unlawful conduct, a deterrence of similar conduct in the future and provide overall protection to society.
Would you not agree that, at least in relation to the denunciation of unlawful conduct, minimum sentences represent at least that — a statement by legislators that drug trafficking and drug production are not acceptable? If you are involved in it, you must pay a minimum penalty. Will that act as a deterrent and prevent anyone in the future from trafficking and producing drugs? Perhaps it will not. In some cases, the deterrent factor may not be as effective. Would you not agree that, as representing society's statement of where it stands on the trafficking and production of drugs, it clearly represents a denunciation and to that effect is entirely consistent with the principles of sentencing?
Mr. Krongold: Just to clarify, do you mean that in the context of drug offences around young people?
Senator Wallace: No, I mean it in the context of Bill C-15 in total.
Mr. Krongold: I guess the question is not whether it is a laudable statement, and no doubt it is, but whether in operation it will serve to make our communities safer and whether it has the potential in many cases to operate unfairly and inequitably. Many situations are covered by this bill where the minimum sentence will frequently have no effect. For example, there was a lot of discussion by the Honourable Minister of Justice about importation of cocaine or heroin. An importer of cocaine or heroin for the purpose of trafficking would count himself very lucky to get a one- year, or even a two-year or three-year penitentiary sentence.
Senator Angus: You would have to have a good lawyer.
Mr. Krongold: You would need a very good lawyer, maybe more than that, to get a sentence such as that. I do not think there is any doubt that the community is well aware or that an informed community that looks at the way sentencing laws are applied now will be well aware that the courts already treat drug crimes very seriously, especially when they implicate vulnerable communities.
Senator Milne: You gentlemen heard the minister say that society will be safer if these people are off the streets. Will it be safer, given your earlier position that minimum sentences do not work?
Mr. Downes: This comes back to the point Mr. Krongold just made. A repeat offender who is importing quantities of crack cocaine, who is exploiting vulnerable people on the street, who is profiting from that and who is causing people to be addicted, no one disputes that that person should be punished.
Senator Milne: They would not get a minimum sentence anyway. They could get life.
Mr. Downes: For that person, this legislation is completely meaningless. That person would be going to jail for double-digit penitentiary time. Drug offences and armed robberies are the two crimes that, as defence lawyers, you know you are into big numbers.
Clearly, the issue of removal from society, that aspect of sentencing, is there because that person is gone. That is far removed from what this bill is about. We are talking about two different things.
Senator Milne: I have to agree with you.
When the minister was talking just now, he talked about the constitutionality of this bill and assured us that it is constitutional. He said nothing whatsoever about the fiduciary responsibility of Canada and the Canadian government to our Aboriginal people. In your opinion, how will this play out? Will this bill be eventually thrown out because of that? You mentioned that 90 per cent of the prison population in some provinces is Aboriginal.
Mr. Downes: All those types of constitutional challenges, particularly in relation to minimum sentences, have been difficult. It seems to me that if input from our members in the Yukon is correct, you may well have situations where someone, simply by virtue of their location and status, will go to jail when they would not elsewhere. As a factual basis, that seems to present a compelling ground to say that we might have a possible Charter problem here. It is difficult to say how the courts will rule on the Charter, but it is right there.
[Translation]
Senator Rivest: I would like to talk briefly about the relative erosion of judicial discretion or about your concerns that this bill will limit judicial discretion. Is your association concerned about some recent cases where the government, through various moves or legislative measures, has attacked judicial discretion which nonetheless remains a very important principle in our judicial system? Judges do not deal in generalities, but rather rule on specific cases involving specific accused persons. It is important that the process allow for some latitude of judgment. Can you give the committee other examples of the erosion of judicial discretion, aside from this bill providing for mandatory minimum sentences?
[English]
Mr. Downes: That is interesting, senator, because I made note of that issue when the minister was speaking. Sentencing comes to mind. We have looked at the erosion of the availability of conditional sentences. Judges have been told that they cannot impose conditional sentences for certain offences. It seems that list may be growing. We have also seen provincial attorneys general provide directives to Crowns that they shall not agree to conditional sentences in certain situations.
Offences involving guns and weapons are another obvious important example where minimum sentences have played a role. Minimum sentences for white-collar crime have been discussed. The other one — and, the minister made reference to this — was with respect to the faint-hope clause. It is not just the discretion that is being taken away from judges; it is being taken away from the people. That faint-hope clause relies on multiple levels of screens. Ultimately, it is a jury of your peers who decides whether you get the faint-hope clause, not a judge. That is an erosion of the people's ability to have input on that. Quebec is particularly interesting in this regard. Those are the examples that come to mind.
Senator Rivest: I totally share your view.
Senator Watt: In your presentation, Mr. Downes, you used the Yukon as an example. I was not quite sure whether you were just using it as an example or that you had some specific knowledge about the Yukon.
You probably heard my questions to the minister about the lack of facilities and the lack of counselling services that need to be available. You are probably aware that I come from the North. I am very much concerned about the well- being of the people in the North. We have a high number of substance users in the North, and I think we are heading in the direction that we will have orphans running around in the Arctic soon if this law comes into effect. I want to ensure that I address that aspect of it.
You have raised the fact that partial facilities exist in the Yukon, but do you have any knowledge about the facilities, for example, in Nunavik or Nunavut? I believe they are in the same category as the Yukon. To my knowledge, no facilities exist there, unless you can enlighten me in that area. Due to that factor, what will this bill do to us? How will this help us? How will it be beneficial for us?
As the minister indicated, we would like to get offenders off the streets. If that is the case, you have already heard what I have had to say, namely, that we will have many orphans running around because their parents will be locked up. Could you make a comment on that?
Mr. Downes: I picked the Yukon because, in the short time I had to prepare for coming here today, that was specific information I received from a member there. I cannot tell you about any of the other specific places.
In terms of your comment, the minister did place a great deal of emphasis on wanting to help people and get them into treatment. To the extent that those services are not available in so many places, that is the difficulty that we have. That is in the legislation in order to mitigate against the harshness of mandatory minimum sentences. If it is not available, that is the problem we have.
Senator Watt: Realizing the distance we are talking about here, the transportation costs, do you see anything in the bill that has addressed that situation? That is, where the government would be obliged to cover the cost of transporting those people from the High Arctic to the South to get treatment?
Mr. Downes: I did not see anything in the bill, senator.
[Translation]
Senator Carignan: You talked about the link between the imposition of mandatory minimum sentences and a decrease in crime levels. You seem to be demanding a high standard of proof that such a link does in fact exist. We are not dealing here with an exact science. Reported or unreported crime can be influenced by multiple factors.
Do you not think that you are being a little harsh when you say that there is no evidence pointing to a link between mandatory minimum sentences and a decrease in crime? The minister's position seems rather practical. If a person is off the street, then he is no longer able to engage in trafficking activities. Demanding statistical evidence or a study establishing a link between minimum sentences and a reduction in crime is effective enough. Do you not think that you are demanding an overly high standard of proof?
[English]
Mr. Downes: Perhaps that would be asking for a high standard of proof. With respect, I am asking for any proof because it has never been tendered. When one is passing legislation to require people to go to jail, one would think that that evidence would be available. I have read the committee proceedings in the House of Commons, where that question was put constantly. From any country anywhere, where is the evidence?
The United States is currently backing away from mandatory minimum sentences, such as in California where their prisons are bursting at the seams, and they have not seen any consequent effect on crime reduction. I would say that the onus is on the government to provide the evidence that what they are doing by proposing mandatory minimums will have a positive effect on people's safety and security, but it is not there. We are not asking for perfection. Obviously, many factors are involved, but some evidence should be available.
[Translation]
Senator Carignan: Speaking of examples, earlier you said that never, or rarely have you seen one of your clients receive the sentence that could have been imposed in his case. Perhaps that is somewhat normal, given that Crown attorneys and judges differ from case to case. If a minimum sentence is set out in the legislation and was public knowledge, do you not think that it could have a deterrent effect?
Let me quickly give you an example, namely the case of marijuana grow operations in residential homes. Based on my experience, criminal groups pay the rent or mortgage on a home and the persons involved agree to remain silent if they are caught. They plead guilty and spend six months in jail.
If the minimum sentence for this offence was set at three years and was well publicized, do you not think these individuals would think twice about growing marijuana?
[English]
Mr. Downes: Senator, you make many interesting points. When I talk about the clients and their views of penalty, I am saying that, in my experience, what deters people from committing crimes is not the idea of how many years they will get, but rather whether they think they will be caught. Particularly with respect to importing or marijuana grow- ops, I would prefer people to have a better sense that police will be resourced to investigate and prosecute the crime. That is a greater deterrent in my view than people knowing how many years they will receive for the type of crime they commit. That does not factor into their approach to criminal behaviour for the most part, and not in every case, of course. The message can go out about the community's disapproval of a grow-op, for example, without it necessarily requiring a minimum sentence.
Your issue about the grow-ops is interesting because often in the situation you describe, the person we call "the sitter'' watches the grow-op. That person is usually desperate for money and being exploited by the bigger kingpins. That is where the effort should be — at the high level — not toward the person being used, as you put it, by criminal organizations.
[Translation]
The Chair: I am sorry to have to interrupt you, but Senator Joyal will have the last question. I will then ask senators to think of some questions that they would like to put to the witnesses, who could then provide us with their answers in writing.
[English]
Senator Joyal: In your practice as a criminal defence lawyer, are you aware of a substantial increase in those types of criminal offences in recent years?
Mr. Krongold: It is difficult for us to comment on that from anecdotal experience. Certainly, it does not appear to me that a significant increase has occurred; the statistics would back me up on that, I believe. That question could be answered more fulsomely by someone with broader statistical information. We can speak only anecdotally.
Mr. Downes: I suspect that the one increase you might find is in grow-op activity in certain areas of the country, such as British Columbia, for example. I would suspect that has a great deal to do with police enforcement rather than with penalty provisions. I am speaking somewhat impressionistically.
Senator Joyal: I asked you the question because I wondered whether we are legislating a perception vehicle through the media or whether we are facing a problem that has reached such a level that we need to change the context in which the law is applied.
Mr. Krongold: There seems to be a perception, perhaps a misperception, about the leniency with which drug offences are currently treated. Generally, in my experience in Ontario, trafficking in even small quantities of Schedule I substances will start with a person receiving a jail sentence, usually in the range of around six months if not significantly more. It is our position at the Criminal Lawyers' Association that, to a certain extent, Bill C-15 is a cure for which there is no known disease and that it addresses a misperception. Perhaps it would be better to try to correct the misperception rather than to try to remedy a problem that does not exist.
The Chair: I will ask Senator Angus, Senator Chaput and Senator Nolin on a second round if they could put their questions, but I will ask the witnesses to respond in writing. When we do that, we follow up with a letter from the clerk identifying the question you were asked so that you do not have to take shorthand.
Senator Angus: I must say that this is not the most satisfactory way of dealing with this, and I am inclined to not ask my question, but I will. Gentlemen, you have heard the minister both times that he testified this morning, what he said as to the intent of the proposed legislation and what he is trying to accomplish.
Would you agree that the bill covers quite a bit, apart from the provision on minimum sentences. 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 you feel it contains provisions that are discriminatory, in particular against certain elements of society, namely, Aboriginal peoples.
Are you critical of any other elements in the bill? Is there anything that the minister said he is trying to accomplish that you agree will be accomplished through the bill? You heard Senator Campbell say that he agrees with many provisions 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.
The Chair: That is quite a long list of questions, Senator Angus.
[Translation]
Senator Chaput: In your opinion, what purpose will Bill C-15 really serve? If the aim of the bill is to reduce crime and protect the public, how could anyone possibly object? Everyone wants to lower the crime rate and protect the public. The minister stated the following in his presentation and I quote:
[English]
If you bring drugs into Canada, you are looking at prison time.
[Translation]
The bill will punish traffickers who want to bring drugs into Canada. The bill will punish those who buy the drugs and then sell them back to other people. It punishes drug growers in Canada as well as drug traffickers and users. However, do you not think that the bill is discriminatory in that it mainly punishes Canada's most vulnerable groups, namely aboriginals and youths?
Senator Nolin: I would like to correct a few things. In fact I have a few more questions.
The Chair: Your final question, please.
[English]
Senator Nolin: All my questions will deal with section 10 of the Controlled Drugs and Substances Act, CDSA. First, concerning the aggravating conditions that we see in section 10(2) of the CDSA, it is my understanding that the bill is basically saying that if there is a mandatory minimum, section 10(2) will not apply.
Considering the proposed new section 10(4) in the bill, to be fair to the minister and the department, we have talked at length about the drug treatment courts, but we have to be fair. The bill also refers to an "or'' with respect to section 720(2) of the Criminal Code that accepts as a mitigating factor those provincial treatment centres or programs, which is brand new. It was an old bill agreed to by us in 1995, but it came into force only last year.
I would like your comments. I understand this question of uniformity of the law and that all individuals in Canada should be entitled to all the benefits of the law. If they are not, the question then arises of how to at least 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 Criminal Code is in force, even if no federal treatment centre is accessible, if a provincial treatment program exists — and I assume the code means provincial and territorial. I would like to hear your comments on that.
[Translation]
The Chair: That was not the last question. Senator Carignan will have the final question.
Senator Carignan: When I first began practising law, I noticed that some lawyers would "shop around'' for a Crown attorney or for a judge so that their case could be tried before a judge who had a more favourable bias toward a specific type of offence or accused. Does this still happen today? Has this practice been documented and if so, do you have the evidence to prove it?
[English]
The Chair: Mr. Downes and Mr. Krongold, thank you so much. Let me repeat that we are very grateful to you for being here at all, but doubly grateful for your forbearance and patience with the very unusual format that we followed this morning.
We look forward to your written answers. In the meantime, we thank you for your presentation and answers this morning because they will be very helpful to us as we go forward in our study of this bill.
Senator Nolin: While we are in the invitation phase and welcoming their written expertise, would it be acceptable to you that if you can access any more quality research that you think would help us understand your testimony, can you offer it to this committee, please?
The Chair: Of course. Senator Nolin is, among many other things, the deputy chair of this committee. His requests carry weight.
Thank you so much. Colleagues, this meeting stands adjourned.
(The committee adjourned.)