Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 16 - Evidence, October 22, 2009
OTTAWA, Thursday, October 22, 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 10:53 a.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Welcome honourable senators and everyone to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study of Bill C-15.
[Translation]
We are continuing 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.
It is a great pleasure to welcome again as experts witnesses — always very useful for the business of the committee — Ms. Lynn Barr-Telford, Director, Mr. Craig Grimes, Unit Head, and Ms. Mia Dauvergne, Senior Analyst for the Policing Services Program, all from the Canadian Centre for Justice Statistics.
[English]
I am not exaggerating when I say your work is always very helpful to us. It really is. You have no idea how much this committee loves the work you do.
Senator Campbell: Our lives depend on it.
The Chair: Maybe someone else's life does depend on it, ultimately.
I think you have a presentation to give us, Ms. Barr-Telford.
Lynn Barr-Telford, Director, Canadian Centre for Justice Statistics, Statistics Canada: Thank you for the opportunity to present today regarding Bill C-15. Statistics Canada does not take a position on the proposed amendments. Our presentation provides information on trends in police-reported drug offences in Canada and information on how drug offences are processed by adult and youth criminal courts in Canada. All data sources are clearly indicated on the slides, as are any pertinent data notes.
At the outset, it is important to recognize that trends in reported incidents of drug offences can be affected by variations in police enforcement practices. Where particular efforts are directed towards or away from enforcement, these can impact trends in the data. Also, we do not collect information on the quantity of drugs seized by police or on the size of drug production operations.
We have provided supplemental information for the consideration of the committee. In particular, you will find there are tables that correspond to the charts in the presentation. We have also distributed to the committee a copy of a recent Juristat article on police-reported drug offences in Canada showing longer-term trends.
My colleagues, Mr. Craig Grimes and Ms. Mia Dauvergne, will assist me to answer questions. I invite the committee to turn to slide 2 in the presentation package.
For clarification and before I begin the slides, there is an explanation in the footnotes of when we are speaking about the most serious offence in a drug-related incident and when we might be speaking about any offence within the incident. I draw your attention to those notes within each of the graphics.
On slide 2, the graph on the left shows the overall police-reported crime rate and the overall drug offence rate from 1998 to 2008. Please note that different scales are used for the drug offence rate and the overall crime rate. You can see that, over the last decade, the trends have generally been moving in opposite directions. The police-reported drug offence rate has generally been going up, while the overall police-reported crime rate has generally been going down.
In 2008, there were about 102,000 police-reported incidents of drug offences in Canada. That is a rate of about 306 incidents per 100,000 population. A decade earlier, there were about 71,000 incidents or a rate of about 235 incidents per 100,000 population.
The graph on the right shows that drug possession offences account for the majority of police-reported drug offences in Canada. The drug possession rate is much higher than the rates for drug trafficking or for production, importation and exportation.
At this point, our data only allow us to separate production offences from importation and exportation offences in the case of cannabis. We cannot do this for other types of drugs, and that explains why we have grouped them into one category here.
You can also see from the graph on the right that the overall rate of drug possession offences has been increasing over the last decade, while the overall rate for drug trafficking offences has been stable in recent years, and the rate for import, export and production offences has been going down in recent years.
On slide 3 we take a closer look at trends in police-reported drug offences by the type of offence and also by the type of drug, focusing specifically on the offences under consideration in Bill C-15 — trafficking and import, export and production.
Information on possession offences can be found in the supplementary tables we have provided. Cannabis offences continue to account for the largest number of police-reported drug offences in Canada. Possession of cannabis alone accounts for about half of all drug-related offences in Canada.
The graph on the left in slide 3 shows trends in trafficking offences, and the graph on the right shows trends in import, export and production offences. Both are split out by type of drug. You can see that the trends differ by drug type.
If we look at the graph on the left, you can see that, since about 2003, police-reported rates of cocaine trafficking offences have generally been increasing, and this is also the case for other drug-trafficking offences. Other drugs include such things as crystal meth, ecstasy, date-rape drugs, LSD and barbiturates. These have historically been collected into one category. The rate of cannabis-trafficking offences is below where it was earlier in the decade. It is also of note that the rate for cocaine trafficking has been higher than that for cannabis since about 2005.
If we look at the graph on the right, you can see that, for import, export and production offences, the rate remains higher for cannabis than for other drug types. However, the cannabis rate has been steadily dropping over the decade due to a drop in police-reported rates of cannabis production offences.
For cocaine, the rate of import, export and production offences has been relatively stable over the last decade, while for other drugs, there has been some fluctuation: the rate increased from 1998 to 2003 but is now closer to the rates seen earlier in the decade.
Slide 4 shows police-reported drug offence rates by type of offence for the provinces and territories. Among the provinces, British Columbia has relatively high drug offence rates, and this has been the case for about 30 years. The trafficking offence rate in Manitoba, however, is close to the rate in British Columbia. The rate for import, export and production offences in Quebec is similar to that of British Columbia. Rates of possession and trafficking offences are higher in the territories.
Slide 5 provides the same information as the previous one but for census metropolitan areas, CMAs. You can see variations across these areas by type of reported drug offence. Drug trafficking rates are higher in Greater Sudbury, Kelowna, Abbotsford, Mission and Brantford, and higher rates of import, export and production offences can be seen in Windsor and Trois-Rivières.
The Chair: Sorry to interrupt. This is fascinating stuff here. I want to stress — maybe you can tell me if I am wrong — we are talking here about police-reported drug offences. We do not know whether these numbers reflect the situation on the ground of how many people traffic, how many people possess, or whether this may reflect differences in policing, police priorities or the way police handle cases. We do not know.
Ms. Barr-Telford: That is absolutely true. These are police-reported statistics. They do represent what comes to the attention of or what is investigated by the police. They can be affected by trends in enforcement practices where there are efforts more towards enforcement or away from enforcement, and that can impact trends in the data. That is correct.
The Chair: Do you know whether there is any other statistical information, from the census or wherever, that might indicate whether possession is more uniform across the land? Not the police, but actual possession. How many people in Canada would be using cannabis? Do we have any information about that? I doubt we would have accurate census statistics on other drugs, but we might on cannabis.
Senator Nolin: We will hear from witnesses on that. Of course, the rate of use cannot come from Statistics Canada, for obvious reasons, as you are dealing with reported offences. However, we have other means to gather information and to have a snapshot of the Canadian rate of use — the same thing we did in the U.S. and in other countries. We will hear from witnesses on that. With all their effort, Statistics Canada cannot provide us the answer.
The Chair: I was just curious.
Senator Milne: If you follow for a minute on the graph, this is fascinating. If you look at Windsor, it makes sense for import, export and production because it is right across the river from Detroit, so you get the higher green bar on the graph. Then look at Gatineau and Ottawa in comparison, just across the river here from each other.
The Chair: Yes. Do we have any idea as to why possession would look to be about doubled in Gatineau compared to what it is in Ottawa?
Ms. Barr-Telford: I do not have any information to offer you that explains the differences in the patterns that you see here.
The Chair: We are fortunate to have our own resident expert on the committee.
Senator Nolin: Again, if I may — I may need to be corrected on this — the appropriate witness to answer that is the police force from those local authorities.
The Chair: We will ask them.
Senator Nolin: The committee will come to the conclusion that the law is not applied uniformly across the country, for all kinds of good reasons. Ms. Barr-Telford has alluded to that. It is a decision taken by police authorities to invest, and we heard yesterday from witnesses talking about priorities in drug efforts. That is why in some jurisdictions they will do more in labs and production.
If you look at page 5, depending on the city or urban area, it could be that in Windsor proximity to the U.S. could be part of the answer. I am only deducting that. The best witnesses to have appear would be police representatives from those areas, and they could explain.
The Chair: You are absolutely right about all of that.
Senator Watt: On this chart here, I am shocked to see the availability of drugs in Nunavik, as well as other areas.
Regarding import, export and production, I see a little sign under Nunavik, a little higher than NWT. Does that mean there is production in the North as well?
Ms. Barr-Telford: There is some evidence on the chart of import, export and production offences within the territories, if that is the question.
Senator Watt: In other words, they are growing cannabis in the North?
Ms. Barr-Telford: We have combined into one category import, export and production offences. This is a combination of those three different types of offences.
Senator Watt: I would imagine this is the greenhouse thing?
Ms. Barr-Telford: It is very difficult for me to answer that question or say what types of production may be occurring.
The Chair: Please continue.
Ms. Barr-Telford: Slide 6 shows trends in the rates of youth accused and adults charged with drug trafficking and import, export and production offences. Of the approximately 24,400 individuals accused of a trafficking offence in 2008, youth made up 12 per cent. Of the approximately 2,200 individuals accused of an import, export or production offence in 2008, youth made up 4 per cent. In comparison, youth accounted for 35 per cent of those accused of a drug possession offence and 29 per cent of all persons accused of crime in general.
While there are annual fluctuations, the rate of youth accused of drug trafficking offences is higher now than a decade ago. The rate of adults charges with trafficking offences has been increasing steadily through most of the decade. Of note, the drug trafficking offence rate for youth remains higher than the rate for adults. For youth, however, it is cannabis trafficking rates that are highest, while for adults it is cocaine trafficking rates that are highest.
A different picture emerges for rates of those accused of import, export and production offences. First, very few youth are accused of this offence type; 86 in total or about 3 youth per 100,000 population in 2008. Second, the rates for both youth and adults have dropped over the decade.
Slide 7 shows that almost half of the police-reported drug trafficking offences in 2008 occurred in a public place, such as a street, parking lot or park. About one third occurred in a residence, and about 3 per cent in an elementary or secondary school.
Thus far, we have looked at police-reported incidents of drug offences and seen that the overall drug offence rate has increased; most drug offences in Canada are possession offences; and the rate of possession offences has gone up over most of the last decade. We have also seen increases in cocaine and other drug trafficking rates.
On slide 8 we turn our attention to questions of how youth and adult criminal courts process drug offence cases with at least one charge of trafficking, importing or exporting, or production, that is, at least one charge under sections 5, 6 or 7 of the Controlled Drugs and Substances Act, CDSA. These are the paragraphs referenced by Bill C-15.
Slide 8 provides a summary of how many cases with at least one section 5, 6 or 7 CDSA charge were completed in the courts in 2006-07 and how much of the court case load these cases represented.
As you can see, there are about 13,000 such cases disposed of in adult courts and about 1,650 cases in youth courts. This did not change much over a five-year period. Further, about half of these cases in adult court and about one third in youth court had more than one CDSA section 5, 6 or 7 charge.
Slide 9 provides further information on the nature of completed cases with at least one section 5, 6 or 7 CDSA charge. Most of the time there was a trafficking charge in these cases. Far fewer cases had an importing or exporting charge. About one in five adult cases had a production charge, but the proportion of youth cases with a production charge was much smaller.
On slide 10 you can see that in 2006-07 there was a guilty finding in just under two thirds of the cases with at least one section 5, 6 or 7 CDSA charge. In terms of numbers, there were about 9,000 such guilty cases. This does not necessarily mean that the drug charge was convicted in these cases. In fact, in about three quarters of the guilty cases there was a finding of guilt on a section 5, 6 or 7 drug charge. This represented about 6,000 cases in adult criminal court and about 800 cases in youth court. This means that in a quarter of these cases, about 2,000 cases, the drug charge was not convicted.
When a CDSA section 5, 6 or 7 charge was found guilty, more often it was for only one section 5, 6 or 7 charge and very often the drug charge was the most serious charge in the case. In total in 2006-07, there were about 5,800 adult cases and 730 youth cases with a guilty finding where a CDSA section 5, 6 or 7 charge was the most serious offence in the case. These are the cases that we are able to look at to see what types of sanctions were imposed; that is, in these cases it is clear from the data that the sanction imposed was for one of these CDSA charges.
Slide 11 shows the proportion of guilty cases sentenced to custody when a CDSA section 5, 6 or 7 offence was the most serious offence in the case. In total, about 2,800 cases were sentenced to custody for a section 5, 6 or 7 offence.
You can see that custody was more often awarded for adults than for youth and more often used for importing and exporting offences. For adults, custody was awarded in just over half of guilty cases of drug trafficking but for 78 per cent of guilty cases of importing and exporting. In guilty cases of production offences for adults, 17 per cent were sentenced to custody. Over half of these cases received a conditional sentence.
Finally, slide 12 shows the length of sentences awarded for the section 5, 6 or 7 CDSA cases sentenced to custody in adult criminal courts. The chart shows that the sentence lengths tend to be one year or less for trafficking, importing or exporting, and production offences. However, there are some notable differences in the sentence durations. Importing and exporting offences have a relatively large proportion of very short and long custody sentences. This may indicate a degree of variability in the nature of the infractions being sanctioned. Unfortunately, it is not possible to evaluate the impact that the type of drug has on the custody sentence imposed using our criminal court data.
There is also some variability in the custody sentences for trafficking and production, but those differences are less pronounced than they are for importing and exporting cases. The majority of trafficking and production cases with custody are sentenced to greater than one month to twelve months in custody, and most of these are sentenced to six months or less.
In summary, with respect to the courts, in total in 2006-07 there were about 6,800 cases with a guilty finding on a CDSA section 5, 6 or 7 charge. In many of these guilty cases, the CDSA charge was the most serious offence in the case. There are about 6,500 such cases. Of these 6,500 guilty cases, about 2,800 were sentenced to custody. Adult custody sentences tend to be one year or less in duration.
While it is not shown on the slides, we have also been able to look at the number of court cases where there was a guilty finding on a section 5, 6 or 7 CDSA charge and where there was also a violent charge or a weapons charge present in the case. Here we defined weapons charges fairly broadly. In total, there were about 1,200 such cases in 2006-07.
The Chair: Thank you. That was fascinating.
Senator Nolin: Thank you for accepting our invitation to be here.
The study entitled Trends in police-reported drug offences in Canada states that for the year 2006-07, about half of all cases involving drug offences were stayed, withdrawn, dismissed or discharged by the courts. How does that compare to other criminal infractions? That seems to be a bit disproportionate compared to others areas. Do you have an explanation for that?
Craig Grimes, Unit Head, Canadian Centre for Justice Statistics, Statistics Canada: In adult criminal court, approximately 65 per cent of cases are disposed of with a guilty finding. About 30 per cent of the cases are stayed, withdrawn, dismissed or discharged. The stayed, withdrawn, dismissed or discharged would also include matter where the individual was diverted into an alternative measures program or involved in a restorative justice program.
Senator Nolin: I think the latter part of your answer would interest Senator Watt.
Can you segment alternative measures? Is it global, or can you slice it into various options?
Mr. Grimes: Not consistently across the country, because some of our respondents do not have the ability to differentiate stayed, withdrawn or dismissed as a result of alternative measures or diversion. I could not do it consistently, and I would not know whether there is variability in one jurisdiction's use of programs of that type. I could not prepare an estimate for Canada.
Senator Nolin: Over the years we have witnessed a decrease in the crime rate in Canada. I assume it is the same in the U.S. and probably in Europe. Is my understanding correct that we do not have such decreases in crime rates in the drug crime world?
Ms. Barr-Telford: I will draw your attention to slide 2 in the presentation deck, so we can take a closer look at that.
Senator Nolin: That is the one you looked at when I was out of the room. Excuse me for that.
Ms. Barr-Telford: Not a problem. On that particular slide, the graph on the left shows those two trends juxtaposed. You can see that over the course of the last decade, they have been going in opposite directions. The police-reported overall crime rate has been going down, while the police-reported drug offence rate has been increasing throughout the course of the decade.
Senator Nolin: If we overlap the age of the person who is arrested, do we see a correlation between youth and drug offence rates? Do we have a younger population as those who are part of the drug offence rate? Do we have a younger ``image,'' or do we have a similar trend as we see in other types of crime?
Ms. Barr-Telford: Ms. Dauvergne can speak to the trends. In this presentation, we have been able to take a look at the trends for youth accused of various types of drug offences and compare those to the trends for adults accused. You will find it on slide 6.
In the case of trafficking, for example, in the graph on the left of slide 6 you can see that the rate of youth accused of drug trafficking is higher now than it was a decade earlier. You can also see the steady increase in the rate for adults charged with trafficking. We know that in 2008, youth made up about 12 per cent of those accused of trafficking offences.
Mia Dauvergne, Senior Analyst, Policing Services Program, Canadian Centre for Justice Statistics, Statistics Canada: We can say the rate of youth accused of drug offences has been going up over the last decade. However, we see in the data that there is a difference between youth who are charged and youth who are cleared otherwise. That is related to what you were asking before.
When the policing data for youth comes in, we are able to differentiate between whether the person is actually charged by police or whether the person is cleared by other means, such as discretion of police services, alternative measures or programs at the police service level. We are seeing that the proportion of youth who are cleared by other means is actually going up and the proportion of those who are charged is actually declining. Overall, however, we end up seeing an increase when we join them together.
Senator Campbell: Thank you for coming today. These are truly amazing figures.
If we compare slide 5 and slide 2, there is quite a variation in slide 5 between the various jurisdictions. Is the line in slide 2 for drug offence rate the average of all of these that are in slide 5? Therefore, it averages out and you start to see that climb.
Ms. Barr-Telford: Slide 2 shows a national rate, so it is a combination of all of the data sources from across the country.
Ms. Dauvergne: Slide 5 shows only the census metropolitan areas. However, slide 2 takes into account all areas in Canada, such as rural areas or smaller urban areas that are not included on the other slide.
Senator Campbell: It averages out.
The Chair: It is also all the different offences — possession, trafficking, et cetera.
Senator Campbell: I am just comparing drug offences here.
When I look at the trafficking and import and export slide on page 2, I am astounded, because if I followed the press and the media, it would be like we are inundated with trafficking and exporting and importing. I look at Vancouver for importing and exporting and, supposedly, we have the biggest grow ops in Canada, but that does not show up here.
I really need to put this to the police. These statistics come from the police, correct?
Ms. Barr-Telford: That is correct.
Senator Campbell: That should be a police matter.
I do not know whether you can answer my next question. The last thing I am surprised at is that Canada is listed now as a source country for marijuana, ecstasy and meth — in whatever form it might be. Yet, I look here and I see that import, export and production are dropping. Again, that comes from police statistics; is that correct?
Ms. Barr-Telford: That is correct.
At the outset of the presentation, I commented that police enforcement practices can have an impact on the information that is provided on the trends in the drug offence rates overall.
There are also other bits of information that we do not currently have. For example, we do not have any information on the size of drug production operations, nor do we have any information on the amount of drugs that may have been seized by the police. Those are factors of information we simply cannot provide to add context to this information.
Senator Campbell: Who could provide us with that? I am interested in that, because we have put sizes into the sentencing — number of plants, quantity of drugs, et cetera. Where would we be able to get the information that tells us meth labs average X pounds of meth?
Ms. Dauvergne: I could speculate and suggest that perhaps the RCMP might collect that information. Police services themselves, through the course of their investigations, would likely collect that information. We do not have it.
Senator Campbell: Would you agree that it would be an important statistic to have when you are setting rules for sentencing based on quantity?
Ms. Barr-Telford: We certainly have recognized that as a gap in information within the statistics we do collect. Sometimes the difficulty of collecting that type of information also has to be considered.
Senator Milne: I want to welcome you back again, because it is always fascinating when you provide us with all this information. You may be a little discouraged by what the minister said when he was before this committee. He said, and I am quoting him, ``We are not guided by statistics.''
I am certainly discouraged by that, particularly when I look at slide 2. In the public's eye right now, crime and drug- related crime are being greatly exaggerated. Crime rates are dropping.
On the first slide on page 2, the red line indicating the drug offence rate goes up from less than 250 to a little over 300. If you actually put that in the same scale as the crime rate, which is dropping, it would be a little wiggly line there a quarter of the way between 0 and 1,000 and one-third of the way between 0 and 1,000. That gives you the true picture of drug-related crime. Am I right?
Ms. Barr-Telford: You are right that we have used different scales, and you are correct that the overall police- reported crime rate is at a higher level than the drug offence rate. That is correct.
Senator Milne: I know that you cooperate with the police, because we heard from a police officer here last night who said she is working on a committee along with Statistics Canada, I believe, to try to properly collect data.
Do you have any idea how much it costs to incarcerate one person for a year?
Ms. Barr-Telford: If you turn to the end of your presentation package, we have provided some supplemental information for the consideration of the committee. You will find the second slide on page 15 provides some information around per capita costs. I draw the committee's attention to the note that explains what is included in these particular cost figures; they are operational expenditures, and they do not account necessarily for the complete range of costs that one might associate with correctional services. The note explains exactly what these figures refer to and provides the committee some information on per capita costs for provincial-territorial community sentences — for example, provincial-territorial custody — as well as for federal custody.
Senator Milne: Have you done any work at all to predict? For example, looking at present statistics, how many people last year were charged with offences that would now, under Bill C-15, be subject to mandatory minimums?
Ms. Barr-Telford: Providing one precise number that would respond to your question is difficult to do. Bill C-15 has different criteria built into it, and we do not have data for all of those criteria. What we have put together today regarding how many individuals are accused, how many are charged and the number of cases that are processed and convicted within the courts summarizes the information we can provide to the committee around this particular bill.
As I mentioned, we have been able to look at the number of guilty cases where there was a trafficking and import- export or a production offence, as well as a violent or a weapons charge within that offence. However, we cannot capture the range of the various criteria within the bill with all the available data sources.
Senator Milne: I thank you for all this information. When you look at the background data in the other deck you gave us, particularly on slide 4, the extraordinary rates for the Northwest Territories and for Nunavut are frightening. Nunavut's population is 31,000, and the total number for possession is 132. The rate per 100,000 population is 419. These are absolutely extraordinary and terrifying rates when you look at the total drug use across Canada. In our northern territories, this is very distressing.
Ms. Barr-Telford: It is not uncommon to see much higher crime rates in the northern territories than you would see across the country. For example, the overall police-reported crime rate within Canada is higher in the territories than you would find nationally.
Senator Milne: Is that on the same type of scale as this?
Ms. Barr-Telford: Let me give you some rates, and it will give you an indication with respect to that. We are talking about the overall police-reported crime rate.
In Canada, in 2008 — and this is per 100,000 population — it was 6,588; in the Yukon, 21,805; in the Northwest Territories, 43,509; and in, Nunavut, 34,867. It is not uncommon to see higher rates in the northern territories.
Senator Watt: This is quite interesting. Do you have the slightest idea why the number is so high? You mentioned that it is not unusual for the rates to be higher in the northern area. Could you give me an explanation of why that could be? Is it because the population is smaller, everyone knows everybody else, and the police do not have all that much to do other than run around in the communities to see who has drugs? I also know they pay people to be informers so they can inform. It is a lucrative thing for the police.
Ms. Barr-Telford: It is very difficult for us to speak to underlying reasons and underlying factors. We simply do not have the range of data to allow us to explore all the underlying factors that may be at play in the various territories.
Senator Watt: Does what I am saying make sense, that you are dealing with a small population in isolated communities and everyone knows each other, so you can point to everyone?
Ms. Barr-Telford: I really cannot comment.
The Chair: Senator Watt, I suspect that other witnesses from whom we will be hearing may have some light to shed on that kind of question. Like me, you want Statistics Canada to explain the entire universe. They can do a lot, but we have to accept some limits to what they can do professionally.
[Translation]
Senator Carignan: I am trying to find some information in the statistics. The crime rate is established from the number of charges. We know of course that not every body gets arrested and that some people are charged. It is for that reason that I usually take with a grain of salt the crime rate and also because of what you said, that if a police service is efficient, if it focuses on an area, it will increase the crime rate in this particular area. The local priorities about certain type of criminality also exert some influence.
Do we have victimization enquiries or surveys on reported criminality? We sometimes see in surveys that 40 per cent of the young from ages 12 to 17-year have used, at least once in their life, marijuana. It means there are a lot of possessions that do not appear in the statistics. Do you have this type of study or survey?
[English]
Ms. Barr-Telford: We do provide information and we do conduct a victimization survey. It is our general social survey on victimization, which we conduct every five years. Generally speaking, we do gather information on incidence of victimization. We gather it for a select number of offence types, because there are some offence types for which it is difficult to ask various questions. Generally speaking, we do have information on victimization, and we do have some information on reporting or not to police when an individual has been victimized.
With respect to drug offences, we do not gather from the general social survey information on drug use. We do have within that survey some information on when alcohol or drugs may be involved in violent crimes. We ask respondents whether they believe an incident when they have been victimized was related to a person's alcohol or drug use. I know that is not exactly what you are looking for, senator.
The last general social survey we have available information for was in 2004. That survey indicates that in just over half of violent incidents, the victim believed that the accused's alcohol or drug use played a role in the incident. That is the nature of the information gathered on our victimization survey with respect to drugs; it is more about involvement in the incident.
[Translation]
Senator Carignan: Could you send us the data relating to those surveys?
Ms. Barr-Telford: Yes, absolutely.
Senator Carignan: As well, you have giving us an other set of explanatory documents. It mentions on page 2, incidents of possession of drugs. I understand that by ``incidents of possession,'' you mean are cases where the police has seen or seized cultures, where drugs are involved and have been reported here; but they do not necessarily show up in the crime rate?
[English]
Ms. Barr-Telford: That is correct. In our official calculation of the overall total police-reported crime rate, we do not include the drug offence rate. We also do not include in that Criminal Code traffic offences. One reason we do not include that in the overall rate is the variability in these offence types, because they are affected by differing police enforcement practices. However, that does not mean that we do not publish them and provide them at the same time as we provide the overall police-reported crime rate.
Senator Nolin: I would like to explore that a bit more. Senator Carignan is asking whether the police-reported incidents are or are not part of the crime rate.
Ms. Barr-Telford: In the crime rate, for example if you look at slide 2, there are two lines on the graph on the left. You have the crime rate, the national crime rate as well as the drug offence rate.
Senator Nolin: You are back to your major slide?
Ms. Barr-Telford: Yes, slide 2. The crime rate, in blue, includes Criminal Code incidents but excludes Criminal Code traffic incidents and CDSA drug offences. They are not included in the overall crime rate.
Senator Nolin: That is what I understood from your answer. However, if we look at your sub-package, page 2, the police-reported incidents of possession, are they included in the drug offence rate?
Ms. Barr-Telford: They are included in the drug offence rate, yes. The drug offence rate includes possession, import and export, trafficking, and so forth.
Senator Nolin: A police-reported incident of possession is not only visual but is also reported, which means the law enforcement officer or authority acted on that incident. Is that correct?
Ms. Barr-Telford: The incident can be cleared in various ways. It can be cleared by laying a charge and it can be cleared otherwise. What it means is that the incident has been reported as an incident of possession, and we have received that information. It can be cleared in different fashions.
[Translation]
Senator Carignan: Do you have statistics about seizures in particular? We often see cultures which are, for example, on farms, we see seizure of cannabis plants, in such cases obviously nobody is accused, the inquiry and the file must be closed. Do you have statistics dealing only with seizures of drugs, of cannabis or with the production of marijuana, for example?
Ms. Barr-Telford: No, we do not have those statistics.
Senator Carignan: Fine, thank you.
[English]
Senator Wallace: Thank you for the presentation.
As I believe you are probably aware, Bill C-15 is very much focused on serious drug crime, according to what Minister Nicholson has said and from a reading of the bill, and, in particular, on how drug crime has been infiltrated or controlled by organized crime. Bill C-15 deals with trafficking, production for the purpose of trafficking, importation and exportation. I suspect you are well aware of that, because the information you presented, your charts and your statistics deal with trafficking, importation, exportation and production. When you prepared these, was it with a view to what you would see as the direction of Bill C-15 and to provide information in that regard? Was that your intention?
Ms. Barr-Telford: We did examine Bill C-15, and we did prepare statistics to inform the committee's discussion of that bill.
Senator Wallace: Bill C-15 refers to aggravating factors, and the extent to which those aggravating factors are present in any particular situation could affect whether the mandatory penalty would apply. For example, a drug crime that is committed near a school would be one of the aggravating factors. I see where you have provided us with information about drug trafficking occurring in or around elementary or secondary schools. That is helpful. We thank you for that.
What I do not see — and I wonder whether this information exists — are any statistics on the extent to which organized crime has been involved in these offences. The evidence we have heard from Minister Nicholson and from representatives of the RCMP yesterday and the Ottawa Police Service is that the drug trade relates to trafficking, and production for the purpose of trafficking, importation and exportation is very much driven by organized crime.
Why have you not presented information that relates to organized crime, which I think is highly relevant for our purposes, and information that would tend to show the trends, where it is going? I think it would give us an opportunity to place Bill C-15 in that context. Do you have that information? If you do, why was it not presented?
Ms. Barr-Telford: I will offer you some comments and then will invite Ms. Dauvergne to offer further information.
We do not presently have information that we can offer to the committee around the involvement of organized crime in drug offences. However, we have been working with our police services partners to look at ways organized crime information could be gathered reliably. It is a difficult concept to gather with statistics in a reliable way. We have been working on that area with the partners, but right now we do not have that information to offer.
Ms. Dauvergne: I think that pretty well sums it up. We began a few years back in recognition of this gap not only in our drug-related information but in other crimes as well, trying to ascertain information on the role of organized crime operations in all crime. As Ms. Barr-Telford said, we work closely with police services trying to ascertain the best way to accurately reflect that information in our data. It can be very difficult to determine how best to measure that information in terms of counting the complexity of what goes into these types of investigations. There are many complicating factors we are trying to work out, including gathering information on the number of accused persons and the extent of the types of violations that can go into one particular incident.
Senator Wallace: Yes. I would suggest that when you look at the trend in the code and new offences that are being created, there is very much a focus on organized crime. It has a definition. I think you will hear these types of questions come up even more in the future.
From the information I have, Criminal Intelligence Service Canada and Canada's 2008 National Criminal Intelligence Estimate suggest there are 900 organized crime groups operating in Canada. I present that to you as an example that there are obviously statistics that do exist. With respect to those trends, I think all of us would have the impression, and I think it is the reality, that organized crime is continuing to make its impression felt in the drug trade and how that impacts on our citizens. Anything you could provide us in the future on that would be relevant to us.
Senator Milne: I want to follow through. Senator Wallace has talked about the definition of organized crime, but is that definition used? Is one of your problems that the definition is not used uniformly across Canada or through the various police forces?
Ms. Dauvergne: As I mentioned, we began this work a few years back. Through consultations with police services and a variety of organizations, we came up with a uniform definition of what we would want to capture as being organized crime. Since establishing the definition, the difficulty is more in the complexity of the cases.
For example, something we could count as one incident could have stretched across two or three years of investigation with multiple branches of people being arrested or multiple types of crimes having occurred with multiple layers. We are working more on how to count that and accurately reflect that in our data. If we capture that as one incident, according to the police services, that is not an accurate reflection of what is happening in their services and through their investigations.
Mr. Grimes: With the court's data, it is possible only to identify whether or not a criminal organization was involved in the case, if there is also a charge under section 467.11, 467.12 or 467.13, which are the criminal organization charges in the Criminal Code. To date, there are very few of those charges in the data set.
Senator Baker: I would like to congratulate the witnesses and thank them for appearing. They did a most excellent job.
However, I am interested in something that does not appear to be here. In your charts you talk about the numbers ``found guilty'' or ``deemed guilty,'' but you have no breakdown of the numbers who pled guilty, do you?
Mr. Grimes: There are none in the charts. For the most part within criminal courts, 90 per cent of those with a guilty finding also have a guilty plea.
Senator Baker: That is a fascinating statistic.
The Chair: I thought I remembered a slightly different figure. Is that drugs or just in general?
Mr. Grimes: In general.
Senator Baker: It is 90 per cent. That is why it is said a guilty plea is the grease of our court system. You cannot exist without the option of these cases, the numbers of cases of guilty pleas; 90 per cent plead guilty. Of course, with minimum sentences, that number would be reduced substantially.
My second question is in relation to the Controlled Drugs and Substances Act and your slides. You said that 65 per cent of people appearing in court were found guilty or pled guilty. Then you said 30 per cent have either had a judicial stay entered, a stay brought on by the Crown or a dismissal of the case and a lifting of the charges. That makes 95 per cent — 30 per cent and 65 per cent — so we are missing 5 per cent.
Do we have numbers of those who were found to be innocent at the conclusion of the trial? Do you have any figures on that?
Mr. Grimes: We have those numbers, and I can try to find them for you. They are in the supplemental tables. I am sorry the tables are not numbered. It is quite an extensive deck. Would you like me to count the pages?
Senator Baker: That is all right. Just give us the numbers. You are on the record.
Mr. Grimes: There are a number of cases completed in adult criminal court, and there are numbers provided for CDSA sections 4, 5, 6 and 7 by type of final decision in court. I will deal just with the percentages.
For CDSA section 5 in 2006-07, 1 per cent were acquitted. This is a different breakdown than what we had in our slides. Fifty-three per cent were found guilty or pled guilty; 45 per cent were stayed, withdrawn, dismissed or discharged; and 1 per cent were other decisions.
Senator Baker: Yes.
Senator Nolin: What page does that appear on?
The Chair: It follows immediately after the page referring to slide 12. I think that is the table we are looking at.
Ms. Barr-Telford: It is fourth from the end.
The Chair: That is different, then.
Senator Baker: That is fine. That is good.
Mr. Grimes: For CDSA section 6 in 2006-07, once again, in adult criminal court: 75 per cent guilty; 0 per cent acquitted; 23 per cent stayed, withdrawn, dismissed or discharged; and 2 per cent other. For section 7: 76 per cent guilty; 1 per cent acquitted; 22 per cent stayed, withdrawn, dismissed or discharged; 1 per cent other.
Would you like the numbers for youth court?
Senator Baker: Yes, for the last year would be nice. Do you have that?
Mr. Grimes: I do have that.
Senator Baker: This is fascinating.
Mr. Grimes: I have the numbers for possession as well. Do you want those as well?
Senator Baker: It does not matter; go ahead.
Mr. Grimes: For CDSA section 5, 2006-07, in youth court: 56 per cent guilty; 2 per cent acquitted; 42 per cent stayed, withdrawn, dismissed or discharged; 0 per cent other decision.
Senator Baker: That was section 5 you just provided. You skipped section 4, possession.
Mr. Grimes: Yes, I did skip section 4.
Senator Baker: Now you are doing trafficking?
Mr. Grimes: I did not do section 4 for adults, either. I will go back to that.
Senator Baker: That is all right.
Mr. Grimes: CDSA section 6, 2006-07, in youth court: 86 per cent guilty; 0 per cent acquitted; 14 per cent stayed, withdrawn, dismissed or discharged; 0 per cent other decisions.
CDSA section 7, 2006-07, in youth court: 54 per cent guilty; 5 per cent acquitted; 41 per cent stayed, withdrawn, dismissed or discharged; 0 per cent other decisions.
Would you like the rates for possession?
Senator Baker: No, that is fine. We know it is there and we can search for it.
There is one caveat to this that I would say, my personal opinion: the high numbers of cases where the charges are withdrawn are usually instances where the Crown more or less folds its case and comes to the judge and stops the prosecution. Stays and withdrawal of charges by the Crown usually indicate that the Crown does not have a sufficient case to continue. Thank you very much.
Senator Joyal: Thank you for your contribution to our study.
My question relates to page 12 of your general presentation, which refers to the supplemental table in the additional documentation corresponding to slide 12 where you give a breakdown of the length of custody.
As you know, Bill C-15, on page 3 and at the top of page 4, lists a series of sentence lengths different from the statistics you have given us today. On slide 12 you have 1 month or less, and then 1 to 12 months and so forth.
Mr. Grimes: That is right. They do roll up, though. They roll up into that greater than 1 to 12 months.
Senator Joyal: Is it possible, through the statistics you have, to have a projection of what changes would be brought to all the scales that you have in the different colours if Bill C-15 were adopted? In other words, what kind of results would we have in the future on the basis of the length of sentences included in Bill C-15?
Mr. Grimes: It is difficult for us to do any projections with the criminal court data because we do not have information on all the various aggravating and mitigating factors associated with the cases. We are dealing with imperfect information when trying to estimate the things a judge is considering. Doing a projection using the court data would be extremely difficult.
Senator Joyal: Even so, you can certainly redraft the scales on the basis of the statistics that you have on the supplemental table here and how that would have been represented if the bill had been in force in 2006-07.
Mr. Grimes: Assuming that everyone receives the minimum sentence.
Senator Joyal: Exactly. You do not need to answer today, because I know the question needs some rejigging of the statistics, but it would give us an idea of what the chart could have looked like in 2006-07.
Mr. Grimes: The aggravating factors we do have available within the case are whether there is a violent offence also in the case.
Senator Joyal: Of course. As you know, the first section of the bill deals with that.
Mr. Grimes: Also whether or not there is a weapons offence. We have defined that very broadly; it includes all the sections under Part III of the code plus the 10 offences with the mandatory minimum of 4 years. All of those have been included in those estimates. There are 1,200 such cases. Yes, we can go back and try to produce something.
Senator Joyal: It is not to take it by a fraction of percentages; it is just to give us an idea of what the picture would generally be.
Ms. Barr-Telford: Regarding the 1,200 cases Mr. Grimes referred to, we could provide to the committee a table that shows how we arrived at that particular figure and whatever criteria we can place around it.
It is extremely difficult for us to come up with any one number that would summarize for you the impact in its totality. There are missing pieces of information, from our point of view, on when the penalties would be at play. That is difficult.
What we can do for the committee is provide information in table format that shows the number of guilty cases, for example with a violent charge. We can also show the number of guilty cases not only with a violent or a weapons charge but with a guilty finding on a weapons or violent charge, if the committee would find that helpful.
Mr. Grimes: For those 1,200 cases, I could identify and provide a table showing the sentence as it exists now.
Senator Joyal: That would be very helpful. I am looking at Chart 7 now and at section 1 of the bill at the top of page 2, which establishes a minimum punishment of two years for a person who committed the offence near a school, near school grounds or near any other public place usually frequented by persons under the age of 18 years.
Of course, if I look at Chart 7, there is elementary and secondary school, 3.3 per cent; residence is excluded; bar is excluded. I am trying to understand the impact of that section on the information you are giving us on Chart 7.
Mr. Grimes: We need to be clear that those two charts — the chart on the sentencing and the chart you just referenced — are from different data sources. For the criminal court data, we do not have any information on the location of the offence or the characteristics of the victim. We do not have that information. It really is just whether there was a violent offence and whether there was a weapons offence.
Senator Joyal: You cannot give us more detailed information about that chart in relation to that section of the bill I am referring to?
Ms. Barr-Telford: No, we cannot.
Senator Baker: On a point of order. I am sorry, Madam Chair, but I think Senator Joyal omitted that in the chart there is also ``public place.'' That is the exact wording. That is the terminology in that section Senator Joyal was referring to.
Where did you get the definition of ``public place''?
Senator Joyal: If I may comment on Senator Baker's question, I asked myself the same question. When I was looking at that paragraph of the bill and the definition in the charts, I tried to match the two so I could understand the impact of that section of the bill.
Senator Milne: ``Public place'' includes the first eight feet of my front lawn.
Senator Joyal: It is a street, a parking lot, a park.
The Chair: How did you arrive at the definition of ``public place''?
Ms. Dauvergne: As Mr. Grimes mentioned, this information comes from police services. This is our police-reported drug offence data. We capture up to about 20 or 21 different locations. I could break this out further. To put the data into a more presentable format, we group the categories into logical and appropriate categories; basically, we look at various locations that have similar characteristics.
The first bar, which is says ``public place,'' would be those locations occurring outside but not on a private property, which is what the second bar is. Residence would be people's homes, on your lawn, in your backyard.
Senator Milne: But eight feet in, because the town road allowance comes eight feet up on my front lawn.
Ms. Dauvergne: If the committee is interested, I can give you a detailed definition of how each is defined.
The Chair: That would be helpful, because the bill does get into ``public place.''
We are well into overtime.
Senator Campbell: Perhaps we could have the witnesses back again.
Senator Joyal: In Chart 2, the statistics on the right-hand side, possession has increased; trafficking has been pretty stable in the last five years; and import, export, and production have decreased. I am trying to understand how that could happen.
Would it be because police forces are concentrating on import and export? We heard from the RCMP last night. They concentrate on trafficking. As Senator Nolin said, possession involves all users — that is, the general public — while trafficking and import and export involve, as Senator Wallace said, organized crime.
I am trying to understand the phenomenon behind those statistics. Do they reflect the police's priorities for intervention? The police witnesses last night told us that they decide where they will focus their resources. They said they go to the source of bigger crimes.
Ms. Barr-Telford: The trends you see in the graphs do reflect police-reported incidents. They tell us what has been entered into the system from the policing perspective. With respect to drug offence crimes, these trends can be impacted by differing and changing police enforcement practices. If there are changing enforcement practices that may divert resources either to or away from a particular type of criminal incident, we could see that impact in the data. That is true.
There are offence types where that also tends to be the case. Criminal Code traffic offences, such as impaired driving, can be very much impacted by differing and changing police enforcement practices.
[Translation]
The Chair: Senator Carignan? No more than a minute, please.
Senator Carignan: It will not be long, because the supplementary of Senator Joyal told me what I wanted. Because of the various attenuating factors, I understand that it is impossible to predict with a small margin of error what could happen with the adoption of Bill C-15, because you are missing a lot of basic information. This has answered my question.
The Chair: And the answer is in fact yes, if I understood correctly.
Senator Carignan: Exactly.
[English]
Senator Milne: Senator Wallace cited statistics that we do not have before us. Could he table them for us all to look at?
Senator Wallace: If I had them, I would. It was information given to me. I can follow up on that, but I do not have it with me.
The Chair: It is always helpful, when statistics are referred to, for everyone to have them.
Senator Wallace: I was not giving evidence.
The Chair: No, we know that.
Senator Wallace: I will follow up on that.
The Chair: To the extent you can so that we all operate on the same information, it would be helpful.
I wish to thank you, Ms. Barr-Telford, Ms. Dauvergne and Mr. Grimes. We will probably be inviting you back, because I suspect that as we continue our work on this bill more questions will arise that we will want to ask you.
Ms. Barr-Telford: Thank you.
The Chair: We are very pleased to have with us again, from the Canadian Association of Crown Counsel, Mr. Jamie Chaffe, who is the president of the association.
Your input is particularly valuable to us, Mr. Chaffe, because your association represents people who have a unique viewpoint.
Jamie Chaffe, President, Canadian Association of Crown Counsel: The Canadian Association of Crown Counsel, CACC, is comprised of organizations of Crown prosecutors and civil lawyers employed by the Crown in the federal government and each of the provinces. These member organizations represent the front-line prosecutors in each province and in the federal Public Prosecution Service of Canada. We strive to represent the interests of these prosecutors to their respective ministries of justice and to the justice system at large on a national level. As such, we are delighted to be here to give evidence with respect to Bill C-15.
I want to make it clear that when the CACC comments on proposed legislation, it strives to do so from an apolitical, non-partisan perspective. As befits the quasi-judicial role of Crown attorneys in the criminal justice system, we do not comment on whether a particular proposed change to the law reflects good or bad policy but strive to provide input on the likely systemic impact of the proposed change on the ground from the perspective of a front-line prosecutor. We are strongly of the view that this perspective is critical to your work in making effective criminal law.
In preparation for these submissions, each provincial and federal prosecuting attorneys association was canvassed regarding its views on the likely impact on the ground of Bill C-15. We have tried to analyze and predict the impact of Bill C-15 on the following practical areas of day-to-day practice in Canadian criminal courts. I will briefly review what we believe the impact will be.
Bill C-15 would likely increase the frequency and duration of judicial interim release — bail — hearings for accused facing the charges for which Bill C-15 would create a reverse onus. The reverse onus would make it less likely for Crown attorneys or federal prosecutors to consent to bail, thereby triggering more bail hearings.
By far the greatest impact, from the perspective of all the associations across the country, would be the impact on plea negotiations and trial rate. Bill C-15 would create new minimum jail terms for persons charged under the CDSA. All jurisdictions are of the view that these mandatory minimum sentences will reduce guilty pleas and increase the rate at which matters go to trial on the charges affected by Bill C-15.
We also expect that Bill C-15 will increase the workload at the sentencing hearing stage, and of course we anticipate that there will be more work for our trial prosecutors and appeal Crown prosecutors as the new provisions are challenged constitutionally.
Bill C-15, as with other recent Criminal Code amendments that have enshrined new offences, new mandatory minimum sentences and new procedures for dangerous offender designations, will lead to a significantly increased trial rate and fewer guilty pleas.
In jurisdictions that have workloads that are already over capacity and where there is a significant delay between the date of charge and detention and trial date, Bill C-15 could result in a necessary adjustment of sentencing incentives. In these overburdened jurisdictions, Crown prosecutors and pretrial judges may well need to offer lower sentences or diversion to offenders charged with other offences to compensate for the reduction of trial capacity caused by this new, added trial load.
Where such work pressures exist, prosecutors will need to create trial capacity and will likely do so by triaging non- violent cases out of the trial courts, usually cases that involve offences against property, cases that involve theft, fraud, possession of stolen property, break and enter, for example.
Absent a significant increase in funding to add sufficient criminal justice infrastructure for more prosecutors, courts, judges, probation and parole officers and corrections, these new provisions represent a new focus for the criminal justice system that would necessarily be resourced at the expense of prosecutions of other criminal offences.
Unless a significant part of the $67.7 million said to be committed to the Enforcement Action Plan is earmarked for the above-noted criminal justice infrastructure, the added workload created by Bill C-15 would have an impact on front-line prosecutors, particularly the federal Public Prosecution Service, which conducts a higher proportion of these types of charges as part of their everyday work. Given that most jurisdictions in Canada currently have formal or informal hiring freezes on and are not regularly, if at all, backfilling prosecutorial positions for people who have retired or people who have gone on leave, these added resources would be even more critically important now.
When I am talking about criminal justice capacity, I am not just talking about having enough Crown prosecutors to deal with the volume of charges. We are also talking about the expertise and experience of those prosecutors, their ability.
Because the federal Public Prosecution Service conducts a higher proportion of the offences that are directly impacted by Bill C-15, I cannot let the events of last week go without comment. The question for this board, for me, will be whether there is adequate capacity to prosecute very serious drug cases. We certainly take the legislation and intent in good faith, that the focus will be — and we hope it to be — on the very serious cases that are facing our jurisdictions across the country.
The actions of the federal government of last week regarding the Public Prosecution Service need to be commented upon with respect to this issue of capacity. The government has chosen to freeze the hiring of LA-2-category lawyers to December 31, 2009. These are the most experienced prosecutors, who would be doing these serious drug cases. Those who have been promoted to LA-2 status in an acting capacity will be allowed to stay in those positions until March 31, 2010. The presumption is that at that point they will go to the lower category of LA-1.
The stated goal is to increase the population of the federal Public Prosecution Service of LA-1 lawyers, the cheaper, less-experienced lawyers, to a 60 per cent population control. That can occur only by reducing the number of the most experienced people who are in the prosecution service.
It needs to be said that before these announcements, the Public Prosecution Service of Canada was already experiencing serious retention issues with regard to keeping the best and brightest lawyers from going to other legal markets. What happened last week can only ensure that the number of our most qualified lawyers, along with their cumulative experience, their historical knowledge, and their mentoring skills, will decrease significantly.
The Chair: Thank you very much, Mr. Chaffe. Before I go to the list, I have a question. In your presentation, you referred to triaging non-violent cases out of the trial courts. Does that mean not laying charges?
Mr. Chaffe: No. We receive the charges late for most jurisdictions. It may mean that in some jurisdictions we engage in charge approval. However, for the majority of the country, we are talking about plea bargaining out non-violent offences so we can create trial court capacity to deal with other cases.
Senator Nolin: Good afternoon, Mr. Chaffe.
Let us try to understand the testimony we received last night from Mr. St. Denis from the Department of Justice. He is the drug expert in the department.
The production of six plants produced for the purpose of trafficking would trigger a six-month minimum sentence. This is in the bill, page 4 at top of the page, proposed new subparagraph (i) under clause 3(1).
For the sake of the discussion between you and the committee, imagine that law enforcement officers find six plants in the room of a student at the University of Ottawa, and the search is done legally. I know it says ``residence,'' but let us not get into the illegality of the seizure. There are six cannabis plants. Through the investigation, you have enough evidence to convince yourself that the student is giving that cannabis to his friends; it is not only for him. What will you do, faced with that situation?
Mr. Chaffe: It is a personal question.
Senator Nolin: No, no. I want your expertise.
Mr. Chaffe: There is a provision at section 8 of the CDSA that requires the Crown to provide notice with respect to seeking the minimum sentence. I am trying to lay out the discretion that is at play for a prosecutor to do something other than seek the mandatory minimum sentence. You have given me scant facts, which I will use to my advantage in the answer.
The obligation of a Crown attorney and federal prosecutor is to see that justice is done — that is our overarching duty, our constitutional duty — and to uphold the rule of law. It appears there is some discretion from proposed new section 8 under clause 4 in the bill that would allow us not to file that notice. This has happened before. We have a long history of this around impaired driving offences and mandatory minimum sentences.
I will not say one way or the other what I would do or what the average Crown attorney would do, but the intent of the legislation would seem, on a plain reading of it, to seek a six-month sentence. If that would work an injustice, I think it would be our submission that we would have that discretion in proposed new section 8 not to file a notice.
Senator Nolin: Would you use your interpretation of proposed new section 8, which is on page 5 in clause 4 of the bill? Would you use that new section 8 of the CDSA? What would be the limit? Is that the number? Is that the intent?
Mr. Chaffe: No.
Senator Nolin: Suppose that it is for a grower who is producing cannabis, and it is all evidence. He is producing a specific organic type of cannabis, and his sole client is the compassion club of Vancouver, or whatever compassion club. We are talking about 500 plants. Would you do the same thing?
Mr. Chaffe: I am in dangerous ground here, senator.
Senator Nolin: You know you are protected by a privilege here.
Mr. Chaffe: I feel completely protected, sir.
I have had some time to think, though, and I have come up with an even better answer. Practically speaking, what federal prosecutors will do on the ground is look to the policy that is generated by their particular directors of public prosecutions and attorneys general. I will use for example the policy that surrounds mandatory minimums for impaired driving.
In Ontario, there is a policy with respect to considering a five-year window before the offence for previous offences, and impaired driving offences that have occurred outside of that window need not be considered when you are trying to deal with the service of notice for your mandatory minimum.
Do senators know that in impaired driving offences, for subsequent offences within a five-year period, by policy and by law, we can seek a mandatory minimum sentence?
Senator Nolin: Yes.
Mr. Chaffe: Practically speaking, the answer to your question is how each provincial attorney general and the federal Director of Public Prosecutions will direct its agents in the field with respect to this legislation and the use of notice. I do not know whether that has been contemplated.
That is a much better answer than asking me what I would do in a particular set of circumstances. It was a very good question. I felt the heat.
Senator Baker: I would like to continue along the same line, but before I do, I am shocked to hear the news that the federal government took the action yesterday of freezing, in an effort to rejig the Crown prosecutors in this nation, so that we would end up with less-experienced people. Do you have any further comment to make on that? I know you are in a difficult situation, but to a great many of us, this came as a complete shock.
Mr. Chaffe: It is not just applicable to federal prosecutors. It is my understanding it is applicable to all members of the Department of Justice. It is a little broader than that.
Senator Baker: I see.
Mr. Chaffe: I think the announcement was last week, just to be clear about that.
We are not here before the Senate to attack a particular bill. We do not do that. That is not our job. We want to talk about the practical impact on the ground. There has been a long history, not with respect to this government or the last government or the previous government, of writing criminal law without dealing with the foreseeable impact on the ground. We are here to talk about a law that will create workload, and that workload has to be supported. If it is not supported by additional resources, it will have to come out of a refocus of the criminal justice infrastructure to these offences, to the exclusion of others. That is a very important discussion and consideration, we think, when criminal law is made.
The situation in the Public Prosecution Service of Canada is a dangerous one from the position of the Canadian Association of Crown Counsel, as it is across the country with respect to provincial prosecutors. At a certain point, this has an impact on public safety, and you want to retain the best and the brightest when you are prosecuting these serious offences. Already, the Public Prosecution Service has trouble keeping these people, and this will make it far more difficult. There have already been retention issues.
Capacity is an important consideration when new criminal law is made. I do not want anyone to take this as a partisan attack. This is about how it works, and it is what it is on the ground.
The Chair: I think you have made the point that successive governments have engaged us along this road.
Mr. Chaffe: This is not a new pattern.
The Chair: I want to stress that this committee does not consider a statement about the policies of successive governments to be a partisan statement.
Mr. Chaffe: Okay.
Senator Baker: Of course, it is important in the consideration of the Controlled Drugs and Substances Act. Would you agree that this is very complex litigation that is prone to linger on for years, in some cases, with multiple pretrial arguments, with complex matters dealing with the Controlled Drugs and Substances Act? That is my first question.
I will put my second question with it. There are two parts to this bill that involve discretion by the Crown. The first is whether someone can escape the minimum sentence and go to a drug treatment court; the second is the one you referenced, proposed new section 8. Those both involve prosecutorial discretion; would you not agree?
Mr. Chaffe: With respect to the first part of the question, senator, those types of questions are Charter-intensive. The serious drug offences carry serious penalties as outcomes. They attract very able defence counsel. They are high- intensity, labour-intensive prosecutions and defences. It is an area that takes up a lot of the time of all parties, including the court. That is certainly true.
I do agree with your interpretation with respect to discretion around the two areas — first, filing notice; and, second, with respect to whether a person is eligible to get into the drug court.
Senator Baker: This leads to the principal question I have. You are working in the jurisdiction of Ontario; is that correct?
Mr. Chaffe: I am.
Senator Baker: Are you aware of several recent cases in which judges have proclaimed that this prosecutorial discretion in establishing a minimum sentence is contrary to the Charter and a violation of section 7 of the Charter? Are you aware that there are certain of these cases?
Mr. Chaffe: I am aware of those cases.
Senator Baker: Let me ask you the question, then. I first saw it in a case called R. v. Singh 2008, Carswell, Ontario, 7644, in which this sentence appeared:
``. . . vesting minimum-triggering discretion in the Crown offends fundamental justice.''
In R. v. Gill (2008), Carswell, Ontario, 6139, this sentence is found at paragraph 40:
I agree with the British Columbia Court of Appeal in Kumar where it found that a sentencing regime in which the minimum sentence applies only where the prosecutor chooses that it will apply, would result in a deprivation of liberty brought about in a manner that was contrary to section 7 of the Charter.
That is the British Columbia Court of Appeal.
Paragraph 41 states:
I also agree with Justice Knazan, in R. v. King . . . where he writes:
I find that it is a principle of fundamental justice that a judge determine sentence. Parliament can set the range, including a minimum, but cannot set a minimum which may or may not apply depending on the decision of the prosecutor, that is not subject to review by the Court.
It appears to me that these recent judgments are saying that this entire bill is contrary to law because it gives you the discretion to institute a minimum sentence. Take away all of the shading here, and that is basically what it says.
Do you have any comment on that?
Mr. Chaffe: I feel the heat.
The two Ontario cases you have mentioned are currently on appeal to the Ontario Court of Appeal. This is a live issue across the country. The issue has not yet been considered by the Supreme Court of Canada. I am reluctant to comment on these two provincial court judgments in Ontario and the singular decision in Kumar. I have read the case now. The issue they were grappling with was whether the discretion of the Crown attorney to file notice of minimum sentence was a core prosecutorial function.
Senator Baker: Yes.
Mr. Chaffe: As such, if it was a core prosecutorial function, it would have been fine. The issue is that if it was not, is it subject to review by a court of law and does a Crown have to give reasons.
Senator Baker: Abuse of process would be the only way.
Mr. Chaffe: That would be the only way to do it.
I have given notice with respect to minimum sentences for my entire career, when I deemed it appropriate in impaired driving cases. I really have no comment until it is decided by the highest or higher courts. It seems to be a viable practice currently in terms of the state of law across the country, though.
The Chair: Senator Nolin had a supplementary. Would this be a good point to let him do that?
Senator Baker: The only further point I was going to make was if the government had inserted that it is mandatory that this take place as a minimum sentence.
Senator Nolin: That is exactly my point. Otherwise, you do not have discretion. I understand your use of section 8.
Mr. Chaffe: Yes.
Senator Nolin: I will go through that in the second round. Do you really have an option? That is the real question. Do you want to take a few minutes and give your answer in the second round?
Senator Baker: He is already on the record saying that his opinion is that he does have discretion.
Senator Nolin: We will go through proposed section 8 to find out exactly how he can use that.
The Chair: I would remind you, Mr. Chaffe, that in addition to what we may discuss during second rounds you can always add to your testimony by writing back to us. For those senators who are interested in these things, such a letter would be appended to the record.
Mr. Chaffe: I am not sure this is within my competence to answer. I gave you my gut reaction to my reading of proposed section 8. I think the practical reality for all prosecutors across the country is that once their individual directors of public prosecutions and attorneys general take a position vis-à-vis how that section is to be used, that is what we do. My opinion is of no moment on this. I am happy to engage, but it may not be particularly helpful.
Senator Nolin: To ensure that we all understand, it is not only you, per se, as the acting prosecutor; you are part of a global group of individuals called the prosecutors' discretion. The discretion could be the minister sending a note to all the system in his or her province. That, too, is discretion. It could be the provincial minister.
Senator Baker: Could I clarify?
The Chair: We are limited as to time. The discussion is fascinating, but we are going to supplementary upon supplementary here.
Senator Baker: It is the key, though.
The Chair: Senator Baker, continue your line of questioning for one more minute.
Senator Baker: This is surely the key in the bill. Would the witness not admit that this appears to be similar to the scheme in section 255 of the Criminal Code, impaired driving, and the authority given the Crown prosecutor? It is your authority whether you will enter the notice. This is exactly the wording here. It says ``the Attorney General.''
Mr. Chaffe, can you see any other interpretation to be given to this except that it will follow the same line, where each province will hand down the Crown attorneys' handbook, which states, as you referenced, five years, or whatever is contained in there? The handbook will give you instruction as to what would be the normal way of exercising your discretion but will not tie you necessarily to that discretion. Would you admit that this is, perhaps, what the result of this will be, which will, in substance, create a violation of section 7?
Mr. Chaffe: If the three authorities that you provided were to be followed across the country and were to be adopted by the Supreme Court of Canada, you would be right with respect to the last part of your intervention. Practically, that is the way I see this legislation. I do not think I can comment any further. I am already well beyond the consideration that I gathered information from the various provincial associations and the federal prosecutors. It does read, to my eye, like the legislation around impaired driving. I cannot help you any more than that.
Senator Baker: Thank you.
Senator Milne: You will be delighted to know that my question is just one for clarification.
Mr. Chaffe, you said Bill C-15 would likely increase the frequency and duration of judicial interim release bail hearings for the accused facing the charges for which Bill C-15 would create a reverse onus.
Mr. Chaffe: Yes.
Senator Milne: When you say ``reverse onus,'' do you mean mandatory minimums?
Mr. Chaffe: No.
Senator Milne: What are you referring to, then, in the bill?
Mr. Chaffe: The reverse onus provision deals with who has to prove what in a bail hearing. If it is a Crown onus, we have to prove on the three grounds that the person ought to be detained. If it is a reverse onus, it is up to the accused to prove why he ought to be released.
Senator Milne: Where is this in the bill?
Mr. Chaffe: I can help you with that. I am sure some other senators will get there faster than I. It appears at paragraph 10. It amends section 515(6)(d) of the Criminal Code, which is the reverse onus section dealing with judicial and term release.
Senator Milne: I am looking at clauses 1 and 2.
Mr. Chaffe: It is on page 8.
Senator Milne: I generally do not get beyond the list.
Mr. Chaffe: It is in the code, which I do not have with me.
Senator Baker: Your citation was right.
The Chair: It is clause 10 on page 8 of the bill.
Senator Milne: Thank you.
Senator Campbell: Mr. Chaffe, you are truly one of the bravest men I have ever met.
Mr. Chaffe: You should expand your circle, sir.
Senator Campbell: Clearly, you are aware of the limitations of the Senate.
My first question is this: Was your organization called to testify before the House of Commons committee on Bill C- 15?
Mr. Chaffe: No, we were not.
Senator Campbell: Did you offer your services?
Mr. Chaffe: No, we did not.
Senator Campbell: What concerns me most is one of your statements with regard to the pressures. Since 1969, I have watched not the majority but certainly a good portion of the best and brightest leave the prosecutorial services. While most people say that it is because of money, I know that it is not because of money. I know it is because the pressures brought to bear on you through bills such as Bill C-25 and the raft of those coming mean that you cannot practice your profession as you would wish to do.
Another concern is that not only the prosecutorial service is under pressure but also a number of government services are under pressure. Can this committee do anything to ensure that the passage of these bills, some of which have great merit in part, will not impact further on Crown counsel in this country? Can we do anything to ensure that you receive the resources you require? A minister will come before the committee and say that we do not have overcrowding in prisons, to which I say, ``Bunk.''
How can we help you to act on our behalf in enforcing the law?
Mr. Chaffe: It would be helpful to be aware that the criminal justice system is a holistic unit. Changes to any part will impact all other parts, in particular changes to sentencing and creating new criminal legislation. Those kinds of amendments will create serious workload issues for every part of the criminal justice system. Being aware of that, you could take it into account when drafting bills so that some attempt is made to ensure that resources will be available to support new legislation or changes to the Criminal Code, the CDSA or other criminal legislation. I do not presume to know how you do what you do, but the first step in the goal of our organization is to make you very aware of it.
I have enormous respect for Minister Nicholson. Ministers of justice take their jobs seriously and are concerned about public safety issues. Unless they are aware of how changes impact on the system as a whole, they will not be able to follow through on those good faith intentions. It is our goal that Parliament and the federal government as a whole be aware of this reality.
For too long criminal justice and the administration of justice have not been a spending priority at the federal or provincial levels. We are at or over capacity, and adding workload to these structures will not produce successful results overall. We need Parliament, the federal government and all provincial governments to be aware of that. We know that you are people of good faith who will want successful legislation. I cannot help you with how to do it, senator. I simply know how it will impact.
Senator Campbell: In the drafting of any bill dealing with the Criminal Code, is the CACC routinely consulted?
Mr. Chaffe: No.
Senator Campbell: I will not put you any deeper in the water. I consider you one of the best and brightest, and I appreciate your testimony today.
Senator Baker: Hear, hear!
Mr. Chaffe: You put me in danger, senator.
Senator Campbell: I always have an position open in my office.
Senator Milne: Not at the same salary.
Senator Wallace: Mr. Chaffe, as you are well aware, the focus of Bill C-15 is on the production, trafficking, and exportation and importation of illicit drugs. There is a particular focus on how those crimes are being handled. From your practical experience as a Crown prosecutor, are you able to share anything with the committee about the trends or that experience in dealing with such charges as they relate to organized crime? Is this to be taken seriously? Is it increasing? Is it taking more of your prosecutorial time?
Mr. Chaffe: I will speak personally, senator, because I am not sure I have the mandate to respond for my association. Certainly, the Canadian Association of Crown Counsel is of the view that it is a serious problem, and we want the capacity to deal with it. I will not speak to my personal experiences but I will be happy to talk to you off the record. The CACC has not sent me here to talk about my war stories, with my apologies.
Senator Wallace: That is fine. I understand from what you have said that the CACC recognizes the role of organized crime in the drug trade as being a very serious role that should be dealt with. You have made your point clearly that to do your job to the extent that Canadians would expect, you need resources. It boils down to that, which makes sense to me.
Mr. Chaffe: All right.
The Chair: We were trying to explore this earlier with Statistics Canada as well. We understand the difficulty of getting any concrete information and hard facts about the trends and the involvement of organized crime. The next time you are doing a whip around of your members, perhaps you could ask them whether, in their view, the role of organized crime is growing or is stable. Do you understand what we are trying to understand?
Mr. Chaffe: I do.
The Chair: We need to know whether the problem is growing.
My supplementary is about the nature of the organized crime involved. Senator Wallace had an interesting statistic, which I believe I have seen elsewhere, that 900 organized crime groups operate in Canada, some of whom are pretty small. They are in the county of East Upperton, if there is such a place, where there are a dozen people who are well organized and might terrorize the villages there. However, they are not broad in scope, whereas we know some organized crime is not only international but intercontinental and transoceanic.
Therefore, what are we talking about here? Do you understand? I am not asking you to go out and take the valuable time that your members have to devote to their jobs to get final statistics. However, since you are some of the key front-line people, even impressionistic feedback from your members if it were available might be interesting to us as we go forward in our study of this bill.
Mr. Chaffe: I would be happy to do that. Crown attorneys live in the community, but we see in court what the police bring us.
The Chair: Sure, but that is what this bill is about.
Mr. Chaffe: If a tree falls in the forest and no one is around — that philosophical question is easily answered for a Crown prosecutor: no, it did not fall.
We are probably at a disadvantage to give anything other than anecdotal and impressionistic information with respect to that.
The Chair: I do understand that.
Mr. Chaffe: We have recognized trends, and I can certainly ask our membership about that.
The Chair: That would be kind and useful. Thank you. Forgive my interruption.
Senator Wallace: That is fine.
Senator Joyal: Mr. Chaffe, I would like to come back to your presentation, particularly to your qualification that, when we deal with the justice system, we should have a holistic approach. I read your bullet conclusion following your evaluation of Bill C-15, and the first point is under the heading ``The Frequency and Duration of Bail Hearings.''
Mr. Chaffe: Yes.
Senator Joyal: When you testified before us two weeks ago on Bill C-25, on the basis of your practice, you described the impact the sentencing changes in Bill C-25 would bring to the bail court. To use an expression used at that time — and I think it was Senator Milne who used it — it would have a tendency to clog the courts.
You come back today and say this bill ``. . . would likely increase the frequency and duration of judicial interim release (bail) hearings for accused facing the charges . . .''
If I understand your statement today, we are adding another layer of pressure on the bail hearings. Am I right or wrong, following from what you said today and what you have said before on the previous bill we were studying?
Mr. Chaffe: Yes. However, to put that into perspective, I must say the amendment, with respect to this set of reverse onuses, will have much less impact because of the particular offences it relates to. The reverse onus provisions are quite specific in this. The two-for-one amendment would potentially impact on every bail hearing.
To answer your question, it will, but not to the extent of Bill C-25. I cannot gauge this with any kind of precision. It is just our reasonable expectation about what would happen if we were in bail court and one of these cases caught by the new provision came in. The net is much wider in Bill C-25.
Senator Joyal: Let us move on to the second conclusion, which you present under the heading, ``The Impact on Plea Negotiations and the Trial Rate.''
Your conclusion says:
All jurisdictions are of the view that these mandatory minimum sentences will reduce guilty pleas and increase the rate at which matters go to trial on the charges affected by Bill C-15.
I conclude, then, that it will have an impact on the remand detention. With reduced guilty pleas, people who are the object of a remand decision will have to stay in remand longer because the trial will take place. We all know trials take place and the procedures are heavy and so forth.
Is this also a side impact of this bill as it is framed?
Mr. Chaffe: That is a reasonable conclusion.
Senator Joyal: I will move on to the following conclusion. You say: ``. . . we anticipate that there will be more work for our trial prosecutors and appeal crowns as the new provisions are challenged constitutionally.''
On which part of the bill are you concluding there may be constitutional challenges?
Mr. Chaffe: I think you have heard some discussion already about certain parts of the bill. The best place to look for where these might come from is defence counsel. I had the benefit of reading the submissions from the Canadian Bar Association and the Canadian Civil Liberties Association regarding Bill C-15.
These are sort of ordinary constitutional attacks. We have had them in the past, with similar legislation. All I am doing is regurgitating what is in their papers. I think that is a good guide. Those organizations have canvassed their members regarding what they might do with it if it came in. They are pretty accurate, I think, in determining what the new legal attacks will be.
I will not particularize those, only because my memory is not very good. However, the ones I was referring to in our position paper are the ones that have been suggested by the CBA and the CCLA, if that helps.
Senator Joyal: We will have an opportunity to hear from those witnesses, of course.
There is, then, one more problematic conclusion, which is in the fourth paragraph:
Where such work pressures exist Crown prosecutors will need to create trial capacity and will likely do so by triaging non-violent cases out of the trial courts, usually cases that involve offences against property.
Then you mention theft, fraud, break and entry and so on.
In other words, this bill will have unintended consequences in that some accused will finally see their charges treated differently because there will be a selection of more important cases than others. We cannot conclude that justice would be done normally if the capacity is maintained at what it was before the bill was adopted.
Mr. Chaffe: Only if the new legislation is not resourced properly. We do not have an open system. We are not in Adam Smith's economic world; it is a closed, finite system.
If you take resources and focus on one area of the Criminal Code or federal legislation, that trial capacity must come from somewhere. We cannot create it out of whole cloth. It is the submission of the CACC that the infrastructure across the country is either at or over capacity now. Therefore, additional resources will have to be added. That is the logical conclusion, senator. We will have to create capacity by dealing with those other types of charges in a different way.
Senator Joyal: Have you had an indication at this point that additional capacity will be provided to you?
Mr. Chaffe: Quite the opposite.
Senator Joyal: What you outline as being indirect consequences of this bill could happen; is that correct?
Mr. Chaffe: Yes. That is our prediction, based on experience as front-line prosecutors.
[Translation]
Senator Carignan: Do you have statistics on the number of Crown counsel and the number of cases dealt with by Crown counsel over the years? Does this type of statistics exist?
[English]
Mr. Chaffe: The manner in which each province and the federal prosecutors keep these statistics is slightly different. It is very difficult to compare jurisdiction to jurisdiction.
For instance, one jurisdiction may keep their statistics based on cases, which may include multiple charges; other jurisdictions may keep statistics based on the number of charges and not pay attention to the fact that maybe they are all wrapped up in one case. We have a variable set of statistics across the country that are difficult to cross-compare.
What we do have — and this is perhaps more meaningful — is a wealth of experience around the level of preparation that is required to complete particular cases. In our Crown policy manuals, we have the best practices that are required for us to execute our duties as Crown prosecutors.
We know what the workloads are. It would be useful to have one set of statistics that we could cross-compare. We do not have that.
[Translation]
Senator Carignan: I understand that you do not have statistics by provinces, by Crown counsel, the ``case load''?
[English]
Mr. Chaffe: I can think of one jurisdiction where we may have cases per prosecutor. In Ontario, we do not; we have the bulk number of charges across the spectrum of charges that appear in our courts, and we know how many prosecutors there are in each jurisdiction. That is difficult.
When you are dealing with workload issues, the menu of charges that the police bring you in any particular office is perhaps the most critical thing to work at. If I was prosecuting first degree murders only, I might be able to get two done in a year and run a number of other preliminary inquiries; but the tally for me at the end of the year might be six cases. As a younger prosecutor, I might deal with anywhere between 700 and 1,200 charges a year.
It is the charge menu per jurisdiction that determines workload. It is an analysis that requires a good deal of sensitivity and a good deal of experience around what is heavy and what is not.
For instance, impaired driving cases and drug trafficking cases are Charter-intensive cases. They do not have that many charges, but they take a long time because of all the various applications that are brought. Other cases are not so labour intensive.
Just counting the raw number is not useful, from our perspective. If you want to know about the workload, you need a much more sensitive analysis.
[Translation]
The Chair: We could ask Statistics Canada to give us data on that subject, as far as that is possible.
Senator Carignan: Yes, this is what I was thinking.
[English]
Mr. Chaffe: I think I have seen scores from Statistics Canada on charges by population. That would be something for you to look at per prosecutor.
I think they are out there, but my advice to this committee is that it is difficult to know what they mean without a pretty sensitive analysis.
[Translation]
Senator Carignan: Talking about the sensitive and considered analysis, the aggravating circumstances which will be taken into account to ask for a minimum sentence are elements like, I list them here, for the benefit of a criminal organization, use or threat of use of violence or of a weapon, offence committed with near a school or in a place frequented by youth. I understand that all these elements are already aggravating factors, which will be taken into account in a trial to get a conviction and/or a heavier sentence, depending on the case.
[English]
Mr. Chaffe: That is true.
Senator Nolin: I want to go back to proposed section 8.
Mr. Chaffe: My favourite section.
Senator Nolin: Proposed section 8 has the use of discretion. I am rereading it and I am trying to understand how you can build that section as a discretion. Basically, the judge will satisfy himself or herself that the person accused was informed, first, of the mandatory minimum sentence possibility and, second, that the Attorney General will prove the factors that need to be proven to come to that conclusion. How can you use discretion? Is it by not saying that? Maybe the court will ask you to say it.
Mr. Chaffe: Maybe the court will. I have only the context of the impaired driving situation.
Senator Nolin: That is why I was rereading section 255 of the Criminal Code. Maybe we will have to revisit that in the future, because I do not think it is the same thing.
Mr. Chaffe: Senator, you may well be right about whether that section gives us some discretion. I read it as having done so, but —
Senator Nolin: It is up to you — you do not have to answer — but I think personally that your discretion will be reading the case file and convincing yourself — or not — that Bill C-15 or the amended CDSA will be applicable.
The new section 7 paragraphs 2(b)(i), (iii) and (v), under clause 3(1) on page 4 of the bill, set out minimum punishments of six months for production with the purpose of trafficking of more than five and fewer than 201 plants, a year for more than 200 and fewer than 501 plants, and two years for more than 500 plants.
Is it part of the actus reus of those three infractions or possible set of infractions? Does it need to be committed for the benefit of, or at the direction of, or in association with a criminal organization as defined in section 467.1 of the code?
Mr. Chaffe: I do not know the answer to that question. I apologize.
Senator Nolin: You do not know?
Mr. Chaffe: I do not. We will have to learn about that. I am sure the technical drafters you speak to can help you better than I.
Senator Nolin: We have heard the minister telling us that the intent of the bill was to go after criminal organizations in the production of cannabis or other substances within the realm of a criminal organization. I am trying to find out whether the three infractions I referred you to need to be committed for the benefit, at the direction of, or in association with.
I think the answer is clear; the answer is no. However, you are entitled to your opinion.
Mr. Chaffe: Okay. Am I here to answer from my perspective questions around the drafting of the bill per se? I can tell you what the plain reading of it means to me. I do not think my opinion on that is particularly helpful. Please do not take me as any great authority around its operation.
The Chair: Nor are you the only witness we hear from, Mr. Chaffe. Do not worry.
Mr. Chaffe: We are good at telling you how it will work on the ground.
Senator Nolin: That is what I want to hear.
Senator Baker: I think Senator Nolin is on the right track in his interpretation of proposed section 8. I would remind Senator Nolin that the impaired driving section started as a section that would simply give notice to the person. It has turned into a whole new scheme that has been adjudicated over and over. We are now to the point where it appears to contravene the Charter in some opinions.
When your members refer to increased constitutional challenges, perhaps they would be referring to the matter. You compared it to the impaired driving provisions raising constitutional issues. However, nothing compared to charges under the CDSA — trafficking and conspiracy to traffic. When one of those cases is prosecuted, it can go on for years in court, pretrial and during trial. Most of it is occupied with Charter challenges — sections 7, 10(a), 10(b), 11(b), et cetera. Would you not agree that the CDSA stands out as being, perhaps, the longest of prosecutions under our federal law?
Mr. Chaffe: I would not say the longest.
Senator Baker: Which is the longest?
Mr. Chaffe: I do not know. I have had homicides that take a very long time. If you are asking me whether there is a difference between the impaired legislation and the CDSA, of course there is. They are from a different category in terms of workload for the complex trafficking cases we have been talking about today.
Senator Baker: You have one prosecutor on a case for two or three years.
Mr. Chaffe: That is not unusual.
Senator Joyal: I have a comment regarding your response to Senator Nolin's question. It seems to be clear in the bill as I read it that the trafficking in substance amendments the bill introduces in clause 1 have direct reference to criminal organizations.
Senator Nolin: Section 5 of the CDSA is in regard to trafficking.
Senator Joyal: Yes, section 5.
Senator Nolin: My question was in regard to section 7.
Senator Joyal: Yes, but the title of section 7 is ``Production of substance.'' The bill amends only 1(a) and (b). It does not have any reference to organized crime. There is no mention in the bill of anything about the organized crime.
Senator Nolin: Thank you for your answer. You are trying to influence the witness.
Senator Joyal: No, I am not. The witness has already answered.
The way I read the CDSA and the amendments, they are tightly conceived. There is no general provision that covers trafficking, importing or production in relation to organized crime. Organized crime activities are strictly concentrated on trafficking in substance, importation and export, but not the production. Production is a totally different kind of thing as I read it.
Senator Nolin: Thank you very much for your testimony.
The Chair: It is always interesting to work in this committee, Mr. Chaffe.
Mr. Chaffe: I can see that.
The Chair: Not only, we hope, for witnesses but for the members of the committee.
We thank you very much. It was very helpful. We look forward to hearing from you. To the extent that you can provide further information, it would be gratefully received, as has been your main testimony.
(The committee adjourned.)