Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence, December 3, 2009
OTTAWA, Thursday, December 3, 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 4:05 p.m. to give clause-by-clause consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Good morning, colleagues. The first thing we will do this morning is dispose of a little housekeeping. I believe you have all received this piece of paper that lists things that the committee has received.
I will ask for two motions, the first that the written answer provided by Mr. John Conroy to a question we asked be appended to the committee proceedings. Could I have such a motion?
Senator Milne: So moved.
The Chair: Moved by Senator Milne. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Terrific.
The second is that all the other material listed on this piece of paper be filed as exhibits with the clerk of the committee. Can I have that motion from somebody, please?
Senator Joyal: So moved.
The Chair: Moved by Senator Joyal. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
The other item, colleagues, is that you will recall that this committee was doing and needs to complete, when we can, a study of the DNA Identification Act. That is a statutory review. We have been interrupted in that study by the flood of government legislation. Therefore, I am proposing, and the steering committee agreed, that we should extend the deadline for that study from December 31 of this year to June 30, 2010, if the Senate so agrees. Would you agree that I should make the motion in the Senate to extend the deadline?
Hon. Senators: Agreed.
Senator Milne: That will still be too tight a deadline.
The Chair: We will try. If you give yourself eternity as a deadline, then the work will never be completed. That is an important study, and there are so many developments in the field of DNA. I feel guilty that we have not gone back to that study.
Before we start clause-by-clause consideration, I will ask that any senator who has an amendment or amendments to propose to give me a copy of those amendments and, indeed, circulate them to all members of the committee so that we have a sense of whatever package of material we will be looking at and can handle it in order.
Colleagues, as you see by your agendas, we are meeting this morning to conduct clause-by-clause consideration of Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts.
Is it agreed that the committee proceed to clause-by-clause consideration of this bill?
Hon. Senators: Agreed.
The Chair: Opposed?
Senator Wallace: Before we do proceed, could we have the amendments, if there are any?
The Chair: Could we conclude this vote? I will not call any further proceedings, and I certainly will not call for amendments, but we are voting on whether we should proceed to clause-by-clause consideration. I heard a chorus of those in favour. Opposed? Abstentions? Carried.
I have asked the clerk to collect and circulate copies of proposed amendments so that committee members will be in a position to understand what is before us.
Honourable senators, would you be willing to proceed with clause-by-clause consideration based on the amendments you now have before you? Understand that a proposition for an amendment is coming, concerning the review clause at the end of this bill. Is that a reasonable way to proceed?
Senator Joyal: It is a reasonable way to proceed. When we arrive at clause 4 on page 5, we —
The Chair: We will distribute the amendment. By that time, we will have it. I know some senators have meetings that they are hoping to attend. Therefore, if senators do not object, we will proceed. Senator Wallace, is that agreeable to you?
Senator Wallace: Is it only the review clause that we do not have?
The Chair: I am only talking about an amendment to the review clause. To the best of my understanding, we now have all other proposals for amendments. We can proceed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry? I see that someone is proposing an amendment to clause 1, on pages 1 and 2.
[Translation]
Senator Rivest: Everyone has the amendment. Do I need to read the amendment, it is quite long.
The Chair: Unfortunately, yes.
Senator Rivest: To help everyone understand, the amendment has two purposes: to limit the scope of Bill C-15 to criminal organizations trafficking drugs; and, the second purpose of the amendment I would like to move is to restrict the spatial definition in the reference made to schools.
That is in essence the objective. The amendment reads as follows. I move
That Bill C-15 be amended in clause 1:
a) on page 1, by replacing lines 7 to 23, and on page 2, by replacing lines 1 to 20 with the following:
" a) subject to paragraphs (a.1 and (2) a.3), if the subject matter of the offence is a substance included in schedule 1 or 2, is guilty of an indictable offence and liable to imprisonment for life;
(a.1) if the subject matter of the offence is a substance included in schedules I or II and if the offence was committed for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code, is guilty of an indictable offence and liable for imprisonment for life and to a minimum punishment of imprisonment for a term of one year;
(a.2) if the subject matter of the offence is a substance included in schedule I or II and if the offence was committed:
(i) in a school attended mostly by persons under the age of 18 years, or on or near the grounds of such a school,
(ii) in a prison, as defined in section 2 of the Criminal Code. or on its grounds, or
(iii) using the services of a person under the age of 18 years, or involved such a person, in committing the offence,
is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;
(a.3) if the subject matter of the offence is a''; and
(b) on page 2, by replacing line 35 with the following:
" (6) For the purposes of paragraph (3)(a.3) and''
The Chair: Before moving on to the discussion and the explanation, I must officially move the motion. May I dispense?
[English]
It is moved by Senator Rivest that Bill C-15 be amended in clause 1(a) on page 1 — shall I dispense?
Hon. Senators: Dispense.
[Translation]
The Chair: Senator Rivest, would you like to explain?
Senator Rivest: This is a bit of high-level legalese. Essentially, this amendment seeks to limit the imposition of mandatory minimum sentences for drug trafficking offences — proof of which must be provided in keeping with the scope of the amendment — to ensure that the accused or the individual on remand truly does belong to a criminal organization.
Therefore, this eliminates references to everything we heard in the testimony concerning individuals, small drug dealers, et cetera. If the government's intention and purpose is to truly target criminal organizations, my amendment considerably restricts the scope of the bill by limiting it to criminal organizations. If you like, that is the meaning of the first part of the amendment.
The second part is obviously the reference to the proximity to a school, a reference that was much broader in the bill before us. With regard to persons under the age of 18 years, my amendment truly restricts the application to on or near the grounds of such a school, to avoid situations, as we saw yesterday when a witness came to tell us that a compassion club had been set up in an area where a school had been built. That is the meaning of the amendment regarding clause 1.
Once again, there are two objectives: the first is to considerably restrict this scope of the bill to criminal organizations and evidence will have to be produced before the courts showing that the accused is or are members of a criminal organizations; the second, still with regard to clause 1, is to restrict the idea contained in the bill and in the Criminal Code concerning proximity to a school.
[English]
Senator Wallace: Thank you, Madam Chair and senator.
I want to make sure that I understand the difference between Bill C-15 as written and your amendment to the bill. I see that in your amendment you have deleted the reference to the use of or the threatened use of violence, that it would no longer form any part of the consideration under your amendment.
[Translation]
Senator Rivest: No. No, we are taking all that out.
[English]
Senator Wallace: Despite the evidence we heard from many law enforcement officials and community leaders about violence, that would not play a role in your amendment. Violence would no longer be a criterion to be considered. The use of a weapon would no longer be considered.
[Translation]
Senator Rivest: It is criminal organizations, period.
[English]
Senator Wallace: Whether or not weapons are used, that would make no difference.
[Translation]
Senator Rivest: Obviously, this could be taken into consideration during sentencing if is admitted into evidence, but with regard to "a minimum punishment'', it is tied to a criminal organization. If violence is used, or a firearm, and the individual does not belong to a criminal organization, the judge will make in a determination based on established jurisprudence.
[English]
Senator Wallace: In that example, one or two individuals who were involved in drug trafficking and did not meet the definition of criminal organization, but were involved with weapons, violence, threat of violence, you would not want them to be captured.
[Translation]
Senator Rivest: It depends on what is in the Criminal Code currently, as is the case every day before the courts. People who do not belong to a criminal organization and who use a firearm are sentenced based on the circumstances and the way in which the crime was committed.
[English]
Senator Wallace: The point of Bill C-15 is to impose mandatory minimum sentences for these offences. That would not apply here.
[Translation]
Senator Rivest: Exactly. The mandatory minimum sentence would only apply to criminal organizations; that is the purpose of the amendment.
[English]
Senator Wallace: As well, you would delete the reference to if a person had been convicted of a designated offence, served a term —
[Translation]
Senator Rivest: My answer is the same as before: The current Criminal Code.
[English]
Senator Wallace: Thank you for this. As you appreciate, looking at this quickly, I just want to make sure I am not overlooking something in comparing the two.
There seems to be a change involving if the services of a person under the age of 18 are involved in the commission of the crime. Is there a change there?
[Translation]
Senator Rivest: It was mixed up and it disappeared.
[English]
Senator Wallace: Again, the reference that appears in the bill with a view to reducing any opportunity for drug trafficking in or around schools and other areas that are frequented by persons under the age of 18, the current bill extends that protection beyond schools and talks about other areas. We have had discussions around community centres, which could be picked up in the bill, but you would restrict that to schools.
[Translation]
Senator Rivest: Yes, because, in French, the expression "any other public place'' can have a very broad meaning. Since the purpose is to have very specific targets, my amendment seeks to restrict this essentially to schools, or on or near the grounds of such of schools, because "public place'' can be almost anywhere.
[English]
The Chair: Senator Wallace, are you now clear about what is proposed?
Senator Wallace: I have one final comment. The purpose of Bill C-15 is to be comprehensive and cover a number of activities that many would think were the worst kind of activities involving trafficking. However, the result of your amendments would be to reduce that dramatically, as I see it, by restricting violence and particular reference to firearms, which is a major problem.
[Translation]
Senator Rivest: Yes, because, once again, the Criminal Code continues to apply as it does now, but to the extent that mandatory minimum sentences are being introduced, it is in this regard that my amendment would in fact reduce the scope of the bill with regard to mandatory minimum sentences. They would essentially apply to criminal organizations.
[English]
Senator Wallace: Thank you for that clarification.
[Translation]
Senator Carignan: I am happy, because the amendment nonetheless retains the idea of mandatory minimum sentences. I think that, with regard to the objectives, this is important. However, the expression "restricted to on or near the grounds of a school'' is questionable.
I think it is easy to imagine a number of areas where it would be just as terrible for criminal activity to take place as on school grounds. I can give you the example of a day care where a grow op could be set up without arousing too much suspicion. In fact, we were alerted approximately two weeks ago to the seizure of counterfeit money at a day care in Montreal. I could also mention youth centres as being public places.
I understand your reasoning when you state "public place usually frequented by persons under the age of 18 years,'' but I think that this would be casting a rather wide net. There are shopping centres also, for example, or places like that. I understand what you are saying, but I think that the bill essentially targets those under 18 years of age frequenting such public places.
In short, I am afraid that the amendment, while seeking to correct an incongruity, will create others. Have you thought about youth centres or day cares?
Senator Rivest: Of course. But judges will have judicial discretion. Under the current Criminal Code, if a drug offence is committed by adults, this is part of the accused's case file.
If the offence involved young people, the judge can consider what is the most reprehensible and if it were committed in front of a youth center, this would be taken into consideration in sentencing. The purpose of my amendment is to restrict this to schools for mandatory minimums.
Senator Carignan: When legislation is drafted, legal guidelines are given to judges in order for them to exercise judicial discretion. If we do not indicate a day care or youth centre, are you not afraid that by mentioning only school grounds, the judge will say in assessing the aggravating factors: "it could have been worse, it could have been at a school,'' so, the judge will give out less than one year because the legislator would not have identified these as areas requiring specific protection?
Senator Rivest: Perhaps, but on the other hand, given the bill as it stands, if you add "any other public place,'' what does this tell the judge? It is extremely broad, it is unlimited. My amendment only eliminates this, judges will appreciate that.
Senator Carignan: The second point concerns the issue of criminal organizations. What we have understood, well, what I have understood about evidence under section 461.1 of the Criminal Code, is that it is extremely difficult to prove that somebody belongs to a criminal organization. It is even quite onerous. We had police officers testify that this would be the impact if we limited the scope only to criminal organizations. Do you not feel that this will significantly reduce de number of cases where crown prosecutors will try to prove that the mandatory minimum sentence applies, since it is so difficult to prove that someone belongs to a criminal organization, when they could previously introduce other evidence about the use of a weapon or other things to facilitate evidence and cut down on the trial time?
Senator Rivest: I recognize the difficulty involved. But criminal organizations are set out in the Criminal Code already, it is possible to prove people belong to one and it has been done in a large number of trials. As the minister indicated, he is attempting to target criminal organizations, so my amendment seeks to ask the minister to be consistent in what he is saying.
Senator Carignan: Evidence for committing an offence with a weapon.
Senator Rivest: In my opinion, it is already provided for in the criminal code; it is an aggravating factor that the judge can assess as he already does. All of this is tied to the concept of a mandatory minimum sentence.
The Chair: Senator Carignan, I did not want to limit the debate, but there are other amendments that we must get to. The principles are very important.
[English]
Senator Stratton: I am trying to understand the logic of including schools. If, by your logic, you would not include daycare centres, community centres or shopping centres, why would you include schools? Why would you not put schools under the definition of "public space''? I do not understand the logic.
I have young grandchildren who go to the community centre, and guess what. Drugs are trafficked there. Drugs are also trafficked in other places, such as shopping centres. Why not take schools out?
[Translation]
Senator Rivest: First of all, regarding day cares, the reason why we do not add schools is because in day cares, there are not a lot of drug users, contrary to what we might see in the schools. To limit it to "all public places'' is very broad. The objective of the bill, once again, is to set out mandatory minimum sentences, which does not mean that the provisions of the Criminal Code are no longer in effect. For example, a judge can always assess, given circumstances close to a community center for youth, as he currently has the discretion to do.
There will still be an indication for mandatory minimum sentences, given the social problem we are facing that is centered on schools, we should put in a restrictive amendment on schools. That is precisely the point of my amendment.
[English]
Senator Stratton: I understand what you are trying to do, but I cannot understand your logic.
[Translation]
Senator Joyal: If you read the actual paragraph that refers to schools in the text of the bill as drafted, on page 2, from lines 8 to 12.
the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,
When we read "by persons under the age of 18 years,'' we are essentially targeting the school age population. But the day care population, in my opinion, is not covered by the bill, not in the literal interpretation that we must make of this section because its objective is schools. We understand that it is schools or places frequented by young people who go to school. The day care is not covered in the current text.
Senator Carignan: Can we discuss this?
The Chair: If we can do so concisely.
Senator Carignan: I believe it is covered. It states "or any other public place,'' so it is a disjunctive not a conjunctive or. That allows us to cover "any other public place'' for those under the age of 18 years. The beauty of it is that it removes the school element. What do we do when the school is closed and the municipality is using the gyms for leisure purposes and the trafficking happens in that place? Is that covered by "school''? It would however be covered by "any other public place.''
Senator Joyal: Yes, but that does not cover daycares as such. It is really the school age population that is targeted in the text.
Senator Carignan: If we take it for granted that the day care is a public place and that it is for those under the age of 18.
The Chair: I believe, once again, that both perspectives have been well-expressed.
[English]
Senator Wallace: I want to clarify a point. I thought that Senator Rivest suggested that Minister Nicholson's intention, or the department's intention, with Bill C-15 was to restrict it to criminal organizations. I do not believe that is what the minister said. Certainly, there is a desire to target criminal organizations, and that is referred to in Bill C-15; however, it was never the intention to limit it to criminal organizations. Obviously, there are other individuals with weapons, and there is violence and so on. The intent of Bill C-15 is to expand the protection.
In the same sense, with Senator Stratton's point, I think the difference between your amendment and Bill C-15 is the extent to which the public would be protected, and in particular our youth. Under Bill C-15, we would see the need to protect youth beyond simply a school, since there are many other areas that are frequented by youth. I think that is the major difference.
The Chair: That is a point that we have explored.
Senator Wallace: I think it is an important point that people should appreciate.
The Chair: I do not dispute that. Senator Wallace, these are important issues, but we have a long way to go on this bill.
Senator Wallace: Important matters take time, Madam Chair.
The Chair: I think the views have been well expressed on each side of this particular question. Therefore, I will put the question.
Shall the amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: Nay.
The Chair: In my opinion, the "nays'' have it. The amendment is defeated. Shall clause 1 carry?
Senator Milne: I have an amendment to clause 1 on page 2. I move:
That Bill C-15 be amended in clause 1 —
[Translation]
Senator Rivest: Could I ask that the question be put on the amendment?
The Chair: That would be unusual, but if the members of the committee so wish.
[English]
Senator Stratton: You cannot go back. It is over.
Senator Milne: Next time, ask earlier. I move:
That Bill C-15 be amended in clause 1, on page 2, by replacing lines 2 to 5 with the following:
"designated substance offence within the previous 10 years and served a term of imprisonment of one year or more for that offence, or''.
The Chair: Thank you, Senator Milne.
[Translation]
It is moved by Honourable Senator Milne,
That Bill C-15 be amended in clause 1, on page 2, by replacing lines 2 to 5 with the following:
"designated substance offence within the previous 10 years and served the term of imprisonment of one year or more for that offence, or''
[English]
Would you explain your amendment, Senator Milne?
Senator Milne: It essentially replaces the word "or'' with the word "and'' to ensure that both the conviction and the term of imprisonment must relate to the same offence and both must have occurred within the past 10 years.
The Chair: It specifies the term of imprisonment. The one year is also an addition. Is there discussion?
Senator Wallace: We had considerable discussion yesterday, concerning this clause. Mr. Saint-Denis gave an extensive explanation of the current clause 1(a)(i)(D) in the bill. I wonder if perhaps Mr. Saint-Denis has had an opportunity to see the amendment as I would be interested to hear his comments. I say that because when we are talking about amendments to the Criminal Code, some are lawyers around the table, some are not, and even those that are lawyers are probably not qualified to be making amendments to the Criminal Code. I would be interested to hear Mr. Saint-Denis' comments.
The Chair: This is an amendment to the Controlled Drugs and Substances Act.
Senator Wallace: Indeed. It feels like the Criminal Code.
The Chair: Shall we invite Mr. Saint-Denis, who is in the room, to join us at the table?
Hon. Senators: Agreed.
The Chair: Mr. Saint-Denis, would you be willing come forward? I did not say "happy.''
Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you.
Senator Wallace: Mr. Saint-Denis, as you pointed out yesterday, you were closely involved in the drafting of the clause that Senator Milne is proposing to amend. Perhaps you might explain the difference between the current provision in Bill C-15 and Senator Milne's suggested amendment. What is the difference?
Mr. Saint-Denis: Senator Milne's amendment seems to deal with two different issues. The commission of an offence in the previous 10 years remains the same, and then it adds "and served a term of imprisonment of one year or more for that offence.'' I am not sure exactly how that would work. I am afraid I did not hear Senator Milne's explanation of her intent. Could the senator perhaps repeat her explanation?
Senator Milne: It is that both the conviction and the term of imprisonment must relate to the same offence and both must have occurred within the past 10 years. This would no longer apply to a person convicted more than 10 years ago or been given a major sentence more than 10 years ago.
The Chair: Mr. Saint-Denis, perhaps while you continue your reflections we might allow Senator Baker to make a comment, if you do not object, Senator Wallace.
Senator Baker: To help Mr. Saint-Denis, we heard evidence that someone who is convicted of a designated substance offence means you are convicted of an offence that does not fall within 4(1), simple possession, and that the passing of a joint could constitute, under the act, trafficking. Therefore, the way it is worded in this bill, if someone were convicted of passing a joint, trafficking in marijuana, to someone else, they would fall within the confines of (D). Therefore, the purpose of the amendment is to change that so that it would not just be the passing of a simple joint, but it would be of a much larger offence that caused imprisonment for at least a year.
You are likely wondering why we did not simply put in, except as in (1)(a), this section would apply. I imagine that is what is on your mind right now. Why not import into that subsection (1)(a), which magnifies the amount of marijuana you would need to have in order to come within the boundary of the designated substance offence as it says right now in (D)? Is that what is on your mind?
Mr. Saint-Denis: It was not, but you raise an interesting element. We are not thinking quite along the same lines. This addresses a different kind of purpose. Your example is a good one. Someone gives a joint, therefore is theoretically committing a designated substance offence, is found guilty, and then is convicted. If that person is caught again and convicted of a subsequent designated substance offence, then (D) would apply, in which case the minimum penalty would apply to this individual.
By inserting this served a term of imprisonment of one year or more, you eliminate the individuals who are convicted of a designated substance offence and for whom no imprisonment is served. I think we all agree that, normally, passing one joint will not result in a term of imprisonment. However, I do not think it agrees with the second part of (D), which proposes to deal with a person who served a term of imprisonment for a designated offence generally. The idea being, as I explained yesterday, we wanted to ensure that the individuals who were being caught by the 10-year span were not being spared from a possible minimum penalty for a subsequent designated offence simply because they were in prison in the previous 10 years. An individual, for instance, in the previous 10 years, let us say year 11 going back, is convicted of an offence and is then sentenced to eight years because there was a considerable amount of drugs involved. Suppose he spent eight years in prison, and that brings him to roughly three years before the 10-year span. If he leaves prison and commits another offence, we want the minimum penalty to apply to this individual because he would not have been free of convictions for a 10-year span.
Senator Baker: Yes, but the word "or'' separates those two sections. That is the problem.
Mr. Saint-Denis: We wanted to cover both situations and not use "and.''
Senator Baker: She is correct in the first instance.
Mr. Saint-Denis: That is a qualification you can certainly bring about.
Senator Baker: Would it have read better if it had simply said in clause 1(1) at the beginning of the bill, "subject to (a.1)''?
Mr. Saint-Denis: I do not think so.
Senator Baker: Then this is the best way.
Mr. Saint-Denis: Yes, to deal with that particular element of Senator Milne's concerns.
[Translation]
Senator Carignan: If a person is found guilty or served a term of imprisonment of less than one year, it is because the situation was less serious. We therefore turn to the section as it is written in the Bill. In the case of a second offence, for example, within a 10-year period, there is a mandatory minimum sentence imposed of one year. We are therefore bringing about increments to the penalties.
By passing the amendment that you have moved, we are really saying "for that offence''. A person who has already been found guilty of an offence for which they have served at least a one year sentence, if found guilty during the next 10 years will in any case receive at least the one-year term.
I am trying to see how this bill adds to and respects the principle of an escalating scale in the case of repeat offenders. I am having difficulty understanding the amendment given the objective of escalating penalties.
The Chair: I believe that incremental increases in penalties remains, however it is changed. The incremental increases remain, but it is no longer exactly the same thing as in the original version of the bill.
[English]
Senator Joyal: That was the point I wanted to make. If I may, Senator Carignan —
[Translation]
In other words, if the person had already been sentenced to six months in prison, this information could always be adduced in evidence in the Crown's submissions on the criminal tendencies of that person. The bill results in any sentencing to a term of imprisonment, whatever it may be, becomes an aspect that the judge must take into consideration. In the case of a previous term of less than one year, the judge must also take that into account. However, it would not automatically result in a one-year sentence. That is the distinction between the two.
[English]
That is where the nuance remains.
Senator Wallace: The difference is that the objective of the bill is to take a stricter position on repeat offenders. That is the point. Those who do not get the message and want to continue to be involved in the trafficking of drugs, under Bill C-15, would serve a minimum punishment of one year. Your amendment would water that down somewhat.
Senator Milne: No. My amendment keeps the minimum punishment of one year, but it ensures that it is for a second serious offence.
Senator Wallace: Or an offence for which one year or more was served. If someone served eight or nine months, it would not attract the mandatory minimum.
Senator Milne: No.
Senator Wallace: I think we understand the difference. Thank you.
Senator Joyal: It will be taken into account by the judge. As I said to Senator Carignan, the Crown will take that as proof of someone who has previously offended under the Controlled Drugs and Substances Act, but in a minor way. That is sure to be the position that the defence will take.
Senator Wallace: It will be taken into account, but not in terms of mandatory minimums, only in terms of sentencing.
Senator Joyal: Yes, exactly and there may be other circumstances that the judge will want to take into account. It will depend on the quantity of the drug that is the object of the designated offence.
Senator Wallace: They are clearly two different ways of approaching the issue of repeat offenders. The difference is obvious.
The Chair: Shall the amendment carry?
Some Hon. Senators: Agreed.
The Chair: All those in favour please say "yea.''
Some Hon. Senators: Yea.
The Chair: All those opposed please say "nay.''
Some Hon. Senators: Nay.
Senator Wallace: Could we please have a recorded vote?
The Chair: Yes. The clerk will call the roll.
Senator Fraser: Abstain.
Senator Baker: Yes.
Senator Carignan: No.
Senator Carstairs: Yes.
Senator Joyal: Yes.
Senator Lang: Nay.
Senator Mercer: Yes.
Senator Milne: Yes.
Senator Rivest: Yes.
Senator Stratton: Nay.
Senator Wallace: Nay.
Senator Watt: Yes.
Jessica Richardson, Clerk of the Committee: We have seven yeas, four nays and one abstention.
The Chair: Thank you. The amendment is carried.
Shall clause 1, as amended, carry?
Senator Joyal: On division.
The Chair: Carried on division.
Shall clause 2 carry?
[Translation]
The Chair: You have an amendment, senator Rivest? We did not receive it?
Senator Rivest: Yes.
The Chair: Does it concern clause 2? The next amendment, according to the documents that I received, would be at clause 3. Do you have an amendment for clause 2?
Senator Rivest: Yes. I do not know where it is or if I have copies.
The Chair: I apologize to all of the honourable senators.
Senator Rivest: Perhaps we could suspend and move on to the next clause, while we make copies.
The Chair: We can always come back and reopen a clause before the final vote on the bill. That is what I propose, honourable senators, in order to save time. We did not receive the proposed amendment.
[English]
I propose that we vote now on clause 2 as it stands. If Senator Rivest wishes to return and propose an amendment, he can move that clause 2 be reopened. This is a procedure we can do in committee before the final vote on whether the bill carries. It is slightly unusual, but it would save us a little time. I am willing to proceed that way if honourable senators are in agreement.
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Senator Joyal: On division.
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3 carry?
Senator Joyal: I have an amendment to clause 3. The amendment involves the paragraph at the top of page 4. I will read the amendment. I move:
That Bill C-15 be amended in clause 3, on page 4,
(a) by deleting lines 1 to 4; and
(b) by renumbering subparagraphs (ii) to (vi) as (i) to (v) respectively, and all cross references thereto.
The purpose of the amendment —
The Chair: I have to put the motion.
[Translation]
It is moved by Senator Joyal:
That Bill C-15 be amended in clause 3, on page 4. . .
[English]
Shall I dispense?
Senator Joyal: Dispense.
The Chair: Senator Joyal, please explain.
Senator Joyal: The purpose of this amendment is to delete the first paragraph on top of page 4 that deals with minimum imprisonment for six months when the trafficking involves the possession of more than five and less than 201 plants.
I feel that it is a small quantity, and it is already covered by the introductory phrase of section 7 of the Controlled Drugs and Substances Act, which maintains that if a person produces a substance — that is, marijuana — under that condition of designated offence, the person is still guilty.
It leaves discretion to the judge to appreciate the circumstances in cases where the quantity is minimal. We heard yesterday the context under which such a quantity can be produced in the case of the compassion societies.
I feel that the production of marijuana is still an offence, according to the act. It is still prohibited by the introductory sentence of section 7, and it leaves the discretion to the judge. I feel that in the cases we have heard, especially with the objective of the bill, which is to limit or target the criminal organization and the usual dealers, that one is too harsh a sentence for the quantity involved.
It maintains the nature of the offence, which is criminal, but it leaves the discretion to the judge to impose a sentence within the context of the rest of the section in a more appropriate form. That is the purpose of the amendment.
The Chair: Just so I am sure I understand, your amendment would delete the mandatory minimum of six months, assuming that none of the aggravating factors apply, but would retain the mandatory minimum if the aggravating factors like public safety hazards and that kind of thing apply, is that correct.
Senator Joyal: All those other circumstances can be pleaded. The Crown can still put into proof all the other elements, such as if a person was linked to a criminal organization, if the person has already been sentenced in the past and so on. We are dealing here with production essentially.
It will be up to the Crown to put forward those arguments, and for the judge to appreciate them in the sentence that he or she would have to impose under that offence.
The production is still criminal in the context of the Controlled Drugs and Substances Act, but it leaves the sentencing decision to the judge. The judge could impose six months but he would not be compelled to impose six months. That is the distinction between the two.
[Translation]
Senator Carignan: I am somewhat surprised at this amendment. I feel you are making sentences stiffer. You are being stricter than the bill requires, which somewhat surprises me. Perhaps I misunderstood, but if you are deleting lines 1 to 4, you are deleting "imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking'', is that right?
Senator Joyal: That is correct.
Senator Carignan: And the rest of the bill remains the same, therefore subparagraph (ii) becomes (i), and we will have a mandatory minimum "of imprisonment for a term of nine months if the number of plants produced is less than 201,''. It is the same thing. If there is one plant or four plants, it will be nine months?
Senator Joyal: Yes.
The Chair: If there are aggravating factors.
Senator Carignan: It is only because of the addition of aggravating factors?
Senator Joyal: Absolutely.
[English]
It is for the purpose of trafficking. It must be the object of trafficking.
[Translation]
Senator Carignan: It is because there are no aggravating factors.
Senator Joyal: Precisely.
Senator Carignan: That is clearer, thank you.
[English]
Senator Wallace: I just want to make sure I understand the consequence of the deletion. With the amendment, if the number of plants is less than 201 and it is for trafficking, which is the same as in (i) right now, would your objective be to capture someone that is in possession of one plant? If it is less than 201, that is from one to 201.
Senator Baker: The factors in clause (3) would have to apply as well. Look at clause (3).
Senator Joyal: Any factors set out in clause (3) apply.
Senator Baker: Those are the aggravating factors.
The Chair: The aggravating factors, plus the purpose of trafficking.
Senator Wallace: I know it is background and not necessarily completely relevant for our purposes, but my understanding was that the bill as originally presented in the house was amended; instead of starting at a level of one, it was changed to five.
Senator Joyal: Yes.
The Chair: Further discussion? Shall the amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: Nay.
The Chair: Those in favour will please say "yea.''
Some Hon. Senators: Yea.
The Chair: Those opposed will please say "nay.''
Some Hon. Senators: Nay.
The Chair: In my opinion, the "yeas'' have it.
Senator Wallace: Could we have a recorded vote on that, chair?
Senator Fraser: Not voting.
Senator Baker: Yea.
Senator Carignan: Nay.
Senator Carstairs: Yea.
Senator Joyal: Yea.
Senator Lang: Nay.
Senator Mercer: Yea.
Senator Milne: Yea.
Senator Rivest: Yea.
Senator Stratton: Nay.
Senator Wallace: Nay.
Senator Watt: Yea.
Ms. Richardson: That is 7 yeas, 4 nays, 1 abstention.
The Chair: The amendment is carried. Shall clause 3 as amended carry?
Some Hon. Senators: Agreed.
The Chair: Opposed? Carried, on division.
I believe colleagues have copies of the amendment that Senator Rivest wished to put to clause 2. Senator Rivest, are you moving that we reopen clause 2 for consideration?
[Translation]
Senator Rivest: Yes, if you wish, we could go to clause 2.
[English]
The Chair: Shall we reopen clause 2?
Hon. Senators: Agreed.
[Translation]
Senator Rivest: It is moved:
That Bill C-15 be amended in clause 2, on page 2, by replacing lines 42 to 45, and on page 3 by replacing lines 1 to 12, with the following:
"(a) subject to paragraphs (a.1) and (a.2), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;
(a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than 1 kilogram, or in Schedule II, and if the offence was committed for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of one year;
(a.2) if the subject matter of the offence is a''.
The Chair: I have a question.
[English]
It has been moved by Senator Rivest:
That Bill C-15 be amended in clause 2, on page 2, by replacing lines 42 to 45 — shall I dispense?
Hon. Senators: Dispense.
The Chair: Senators, the French version of this motion refers to lines 43 to 46 while the English version refers to lines 42 to 45. It is my understanding that the difference in numbers simply reflects the difference in the original text.
[Translation]
Senator Rivest: I do not want to prolong the debate. It is essentially the same initiative, the objective of which is to limit the scope of the bill. This provision in clause 2, truly refers to a criminal organization. Therefore, the scope is essentially the goal of the amendment.
[English]
The Chair: Shall the amendment carry?
Some Hon. Senators: Nay.
Some Hon. Senators: Agreed
The Chair: Those in favour will say "yea.''
Some Hon. Senators: Yea.
The Chair: Nay?
Some Hon. Senators: Nay.
The Chair: In my opinion, the "nay''s have it. The amendment is defeated.
Shall clause 2 carry?
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 4 carry? Senator Joyal, do you have an amendment to clause 4? Is this the amendment you gave me in case some other amendment did not come through?
Senator Joyal: That is it.
The Chair: We have copies, colleagues. You will be glad to know we have copies. Perhaps while they are being distributed, Senator Joyal, you could move the amendment.
Senator Joyal: I move:
That Bill C-15 be amended in clause 4, on page 5, by replacing lines 11 to 18 with the following:
"8.1(1) On two occasions, within two years and five years respectively after this section comes into force, a comprehensive review of the provisions and operation of the Act, including a cost benefit analysis of mandatory minimum sentences, shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established for that purpose.''.
[Translation]
The Chair: It is therefore moved by Senator Joyal:
That Bill C-15 be amended in clause 4, on page 5, by replacing lines 11 to 18 with the following:
"8.1(1)'' "On two occasions. . .
[English]
Does everyone have a copy of this proposed amendment? We are open for discussion. Senator Joyal, could you explain your amendment?
Senator Joyal: It is more procedural than substantial in terms of the objective of the bill. Clause 8.1 provides for a review after two years, and we have heard repeatedly from expert witnesses that two years is too short a period to really be in a position to measure the impact, taking into account the time it takes to bring somebody to court, to get the decision to appeal, the level of appeal and so forth. Within two years, we would not have a clear picture of the impact of the bill because it would be too short a period. The police officer from Victoria testified on that basis, and I thought his arguments were compelling. The first element of the amendment would be for Parliament to review the bill within two years and after five years so that we get a better appreciation of the impact and implementation of the bill.
The second element of the amendment is that the section as it is printed does not give the Senate the opportunity to initiate the review. According to the section as it is now, it is by such committee of the House of Commons, so the House of Commons can undertake a review, but the Senate per se cannot undertake a review. It can undertake a review only if both houses decided to create a joint committee. It is a reoccurrence of a situation we have found in the past. When such reviews are proposed in the House of Commons, they always omit the Senate. History tells us that the Senate undertakes those reviews more often than the House of Commons, because we have time to do it and the House of Commons is pressed by other kinds of amendments. The amendment is to restore the capacity of the Senate to itself initiate the amendments. That is the two purposes of the amendments I am proposing to clause 8.1.
Senator Wallace: As I understand it, the purpose behind existing clause 8.1(1) of the bill was to put on a rather tight leash the review of the impact of Bill C-15, and I think we would probably all agree it is better to do it in the shorter term than the longer term. I am sure, as recognized by the Department of Justice, we will all learn something from this as it unfolds. Because of that, the two years is what appears in the bill. The result of that comprehensive review is impossible for us to say. I do recall the evidence. However, I did not take from that that there would not be examples that would be relevant to a review of the bill within the two years. I think it would be better to insist that it is reviewed in the shorter term, at the end of two years, and then it would be a matter, depending the result of that, of what further reviews would be undertaken.
As for the reference to the review being initiated by the Senate, this bill has passed through the House of Commons. I do not think it is unreasonable for the house to feel a responsibility to initiate the review, but again, as the bill does say, it could involve, and I am sure it would involve, both the Senate and the House of Commons.
Senator Baker: I believe that if Senator Wallace checked, I am sure he would find that this provision was initiated in the bill by the Liberal and NDP members of the committee of the House of Commons and was not in fact a government provision when the bill was originally introduced. That is my understanding.
The Chair: Is that an accurate recollection of events, Mr. Saint-Denis?
Mr. Saint-Denis: Yes, that is an accurate recollection.
Senator Baker: I do not know if Senator Wallace wishes to put forward his support for the Liberal and NDP amendment.
Senator Wallace: It is encouraging to see that democracy is alive and well. If good ideas are brought forward, regardless of where they originate, we should seize upon them, and I am glad the government recognized that.
Senator Baker: For people who were not here, and Senator Wallace and Senator Joyal both alluded to it; several witnesses pointed out that the two-year period of time was not adequate for prosecutions under the Controlled Drugs and Substances Act. One witness verified that he was into the sixth year, and they were just at the point of voice identification.
The defence lawyers we heard from and Ms. Joncas also verified that the two-year provision was much too short and that pre-trial arguments take up to three and four years. This amendment put forward by Senator Joyal brings an air of reality into the provision.
[Translation]
Senator Carignan: My question is for Mr. Saint-Denis. I am trying to understand the legal repercussions of non- compliance with this clause. I am trying to see what the legal penalty for non-compliance with this kind of clause would be first of all.
Second, despite the fact that I have been here for a very short time, I understand that Senate committees may propose to undertake studies on certain issues when they feel it is appropriate. This could be a study the Senate might undertake without any obligation.
Mr. Saint-Denis: Parliamentary procedure is unfortunately not my area. You are right to say that the Senate may, on its own initiative, start certain studies. As far as the non-compliance with this provision is concerned, I do not believe there are any penalties provided for.
[English]
The Chair: For purposes of clarification, I might observe that there are too many occasions when a statutory review, although it has been written into a bill, does not occur within the deadline. However, writing it into a bill obviously increases the chance that the review will occur.
It is almost habitual for the Senate to write into these review clauses the possibility for a Senate committee to conduct a review if the House of Commons has omitted to mention a Senate committee. That is not an innovation, nor is the existence of a review clause. There is no sanction of which I am aware.
Senator Milne: For at least the last 10 years, when the House of Commons has had a review clause in a bill, the Senate has always insisted on being part of that review clause. We have amended many bills in this manner.
Senator Stratton: The issue here is that if Parliament — including the Senate — decides to review this bill, it is not limited that it shall be done only in year two. It can be done in year three, four, or five. That is our choice and the choice of the House of Commons.
I view this as substantial within the existing clause. It covers that and leaves the option open for further review in three, four or five years or no review in two years, but a review at other junctures by both houses.
Senator Joyal: I remember the debates when we passed the DNA bill more than 10 years ago. When the bill came to us, considering that it was moving into "unknown territory,'' we wanted to reappraise the impact of the bill after a time. Therefore, we introduced that clause although there was a Liberal majority in the House of Commons. We amended the bill and introduced that obligation to review it. We reviewed it and the house did not review it.
I say this for the benefit of our new colleagues around the table. We usually get — and I turn to Senator Milne — all the bills that have obligations for a review at the beginning of their implementation and determine which we will prioritize. It is part of our agenda planning at this committee since most of those reviews are untaken by the Standing Senate Committee on Legal and Constitutional Affairs. It is an important element for us.
We have heard many experts speak about the impact of mandatory minimum sentences. We understand the deterrence objective of the government and the objective of the bill to fight against criminal organizations and the reduction of drug consumption, et cetera. We will certainly want to measure those impacts.
The witnesses we heard have called upon us to extend that review to ensure we get real results. Those reviews are very important when we find ourselves in a situation where the objective of the bill, its impact and the criminal reality are challenged.
If my memory if correct, I think, we did this eight times. Each time the House of Commons introduced such an amendment and it comes to us, they forget about us because that is their privilege. However, we are one house in a Parliament that includes two houses. We have always restored our status and we do this regularly, whatever government is in power. I do not know how many times I have done this against my own government.
Senator Carstairs: Too many.
Senator Joyal: Senator Carstairs did not love me for doing this at the time. I think both sides of the Senate have always voted in favour of it because we want to maintain the status of the Senate in the review of those important bills.
[Translation]
Senator Carignan: For the reasons that you have stated, I do not believe we should pass this amendment in my opinion. I do not believe we can bind the future discretion of the Senate or of Senate committees to the priorities that will be set out in two or three year's time. Very significant bills will probably be delayed by studies of statements of fact, that could happen six months or one year later, according to the organization of Senate committees at that time.
Senator Joyal: When a government bill is referred to a Senate committee, it takes precedence over any other committee study. In that case, we suspend study on another bill in order to give priority to the government bill. That is how it works.
Senator Carignan: So it is of no use in the end?
Senator Joyal: Not at all. Furthermore, we have in the past reviewed bills — for example the DNA Identification Act. These revisions were very important for the amendments that were made to the bill afterwards.
The Chair: I believe our positions are clear.
[English]
Shall the amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: We shall have a recorded vote.
Senator Fraser: Not voting.
Senator Baker: Yes.
Senator Carignan: No.
Senator Carstairs: Yes.
Senator Joyal: Yes.
Senator Lang: No.
Senator Mercer: Yes.
Senator Milne: Yes.
Senator Rivest. Yes.
Senator Stratton: No.
Senator Wallace: No.
Senator Watt: Yes.
Ms. Richardson: We have seven yeas, four nays and one abstention.
The Chair: The amendment is carried.
Shall clause 4, as amended, carry?
[Translation]
Senator Rivest: I had distributed copies of an amendment. My concern is more or less the same as that found in Senator Joyal's amendment. As a result, I have no amendment to move on this clause.
The Chair: That simplifies our task.
[English]
Shall clause 4, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 5 carry?
[Translation]
Senator Rivest: I move that Bill C-15 be amended —
The Chair: Do we have your amendment, Senator Rivest?
Senator Rivest: I believe so.
I move:
That Bill C-15 be amended in clause 5, on page 6, by replacing line 6 with the following:
"if the offender completes a''
The Chair: Senator Rivest, once again, we did not receive that amendment.
Senator Rivest? No?
The Chair: No.
[English]
I have just been handed a very short amendment. Senator Rivest, perhaps, since I believe Senator Watt also has an amendment to clause 5, might we discuss his amendment while yours is being distributed?
[Translation]
I have it, but the senators have not yet received it. Do you have another amendment to clause 5?
Senator Rivest: Yes.
The Chair: Have we received and distributed this amendment? Senator Rivest, could you give the clerk a copy of your second amendment to clause 5 and we will ensure that it is distributed.
[English]
Meanwhile, Senator Watt, do you have an amendment to propose to clause 5?
Senator Watt: I do have an amendment. It is a straightforward one, I believe.
I move:
That Bill C-15 be amended in clause 5, on page 6, by adding after line 9 the following:
"(6) The court is not required to impose a minimum punishment of imprisonment if it satisfied that
(a) the person to be sentenced is an aboriginal offender;
(b) the sentence would be excessively harsh because of the offender's circumstances; and
(c) another sanction is reasonable in the circumstances and available.
(7) If, under subsection (6), the court decides not to impose a minimum punishment, it shall give reasons for that decision.
The Chair: Senator Watt, do you care to explain your proposal?
Senator Watt: I will try. This is straightforward amendment based on what we have heard from the witnesses. I believe that every colleague on both sides has heard the witnesses say that there are high numbers of Aboriginals in the provincial and federal penitentiaries.
There was also some worry, when we dealt with Bill C-25, about the removal of the discretion of the judge. I am trying to think, in looking forward, how the Aboriginal person would be dealt with by the judge.
We do not want the judge to automatically use the mandatory sentence. We felt that it was necessary for the judge to be able to have some say on the matter of how that person will be dealt with in terms of being given a sentence.
I am not sure whether it makes it clear enough. If not, I would suggest that maybe the legal minds can also step in to provide a clearer explanation than I can.
Senator Milne: Senator Watt, if I may ask you, is this then re-establishing the judge's discretion when he is sentencing Aboriginal people?
Senator Watt: That is correct.
The Chair: Discussion?
Senator Stratton: I agree completely with the senator that there are a disproportionate number of Aboriginal people in Canadian jails. However, in my view, this is not an appropriate way to deal with the problem. We have to deal with the problem through education of the young Aboriginal individuals. As you know, I believe firmly in that, and to help them in every way possible.
My concern is that it may exacerbate the problem with gangs. You are proposing an exclusionary practice and that, to me, could make the situation much worse. That concerns me.
I think that needs to be seriously considered. If we are going after gangs, to be exclusionary will cause serious problems.
Senator Watt: Let me respond to the first part. I fully agree with you that education is an avenue that we should take. I share that view with you and I am happy to hear what you have indicated your concern on this matter. However, on the other part, the gangs issue, I will leave that to Senator Joyal to respond, if he wishes.
The Chair: I would be happy to turn the floor over to Senator Joyal, but I believe before we do that, Mr. Saint-Denis may have a point to make that might help us in our deliberations, if that is agreeable to you, Senator Watt?
Senator Watt: Yes, please go ahead.
Mr. Saint-Denis: Thank you. I look at 6(a) and that is fairly easily circumscribed as a category of offender, but 6(b) offers no direction or parameters for the court. I am not saying there should not be something like that, but I am saying that it is very open as to what "harsh'' may be. It opens the door to significant discretion, if that is the best way to put it. I want to make it clear that 6(b) is in relation to the Aboriginal offender. It is not as an alternative.
The Chair: That would be covered, would it not, by the fact that the structure here is that the conditions to be met include (a), (b) and (c)?
Mr. Saint-Denis: That is correct. I wanted to make sure that was understood.
Senator Joyal: Essentially, the Criminal Code already provides in the sentencing recognition of the status of Aboriginal people. It is 718.2(e).
Whatever the criminal offence in the Criminal Code, be it criminal organizations, murder — think about the most serious crimes — they still have a status under the code whereby the judge has to take into account that they are Aboriginal people. That amendment was brought to the code and exists under the sentencing principles.
This amendment circumscribes 718(e) in relation to drug offences because the way that section 718 recognizes the status of Aboriginal people is much broader.
With the kind of labelling proposed by Senator Watt, it is much more circumscribed. There has to be another sanction that is reasonable and available, which might not be the case, because of the situation we have seen with the drug court might not be available. It might be a good option, but it might not be available in the territory where the person is brought to court.
It is the same with the evaluation of the harshness of the sentence and the various circumstances. In fact, it circumscribes what we already have in the Criminal Code. However, by imposing minimum sentences we remove the application of the code. We are restoring the application of the code but in a much more circumscribed and defined way.
Senator Stratton: I stand by my original statement.
Senator Lang: I have a lot of difficulty with this clause from the region of the country that I come from. It certainly brings in certain implications on a day-to-day basis in these small communities where people dealing in drugs could be treated differently even if they had committed the same offence, the way I read it.
In many of our communities in the Yukon, — and I think Senator Watt is probably aware of this — there is a good- sized First Nations population intermarried throughout the community. I think that goes for many of the provinces as well. We would be going in the wrong direction to bring in a clause like this, especially in view of the seriousness of the situation we face. It is not just in these big cities; it is in small communities.
Drug use is a scourge on our society and is becoming more and more evident in our First Nation communities. Why we would treat someone who knowingly is flaunting the law, who is knowingly providing drugs to young people for their own personal gain and say they perhaps would be dealt with differently and would not have a mandatory sentence?
We have young people dealing in drugs and view the courts and the judicial system with disdain; there is no fear or respect. One of the reasons is there is very little — if any — penalty. I think that must be changed. It is evident in this bill. That is why this bill is here. Society is saying that if you commit the crime, there will be a penalty. There will be a penalty and it will be administered.
For example, the other day I was informed that in one of the First Nation communities there is a sign that says the community is drug free, and within half a block there is a known drug house. The people in that community know it and they laugh at that sign. That is wrong. It is wrong for our society.
I think we are abrogating our responsibilities if we do not come down hard on this trafficking.
[Translation]
Senator Carignan: I am afraid this amendment will have an adverse effect. We have seen presentations that dealt with criminal gangs' abilities to adapt. The example that always comes to mind is the confiscation of assets in cases dealing with traffic or production. They buy houses but they mortgage them to the hilt, so that if they are seized, there is no real loss. I fear that criminal gangs may adapt and target aboriginals in order to pressure them into trafficking or production, because they would not be subject to mandatory minimum sentences, and they would therefore increase the incentives and pressures on groups that are already vulnerable.
Therefore I think that the solution to the problem is real for aboriginals, much more than investing in treatment, prevention rather than in a distinction that is provided for in the legislation.
[English]
Senator Wallace: Having sat through the evidence of the various witnesses, we have heard from and describing the circumstances of our Inuit and First Nations population, there is no question that there are special circumstances that must be addressed. There have been attempts to address them, as I understand it, from the information provided by Health Canada, Public Safety and the Department of Justice, but there is no question there is more work to be done.
With the existing present clause that grants potential relief from the mandatory minimum provisions, if the convicted person participates in a drug treatment court or another provincial-territorial program and successfully completes it, as we know, the mandatory minimum would not apply. We have all heard that the availability of those services and facilities varies across the country. There certainly is work to be done in the North to provide those facilities.
From what we have heard, it is well recognized by the government that more money must be and is being invested to provide those types of treatment facilities that would provide relief for offenders from the implementation of mandatory minimums. In particular, in 2009 there has been an additional $100 million over five years committed for that very purpose.
The Chair: Senator Wallace, I do not dispute the importance of what you are saying but the clock is ticking now quite loudly.
Senator Wallace: I am getting to the end. It is an important issue. I hear what you are saying. We must ensure we are doing the right thing for our Aboriginal people.
The Chair: It is of concern to us all.
Senator Wallace: There is new money in 2009 — $100 million over five years — dedicated to addressing these treatment issues, in particular for First Nations, Inuit, as well as our youth offenders. The ultimate ideal must be to get people away from drugs. Our government is obliged to provide those facilities. I believe the government is addressing that obligation and will continue to invest money to that end.
The Chair: Are we to assume that you are opposed to the amendment?
Senator Baker: The present provision in the Criminal Code that asks, in judicial determinations on sentencing, that all other sanctions other than imprisonment be considered in sentencing with particular attention to the circumstances of Aboriginal offenders was brought in when I was a member of the House of Commons. I recall the decision of the Supreme Court of Canada that spoke about systemic discrimination.
When the amendment was brought in at that time, the statistics showed two provinces where six out of 10 persons in jail were Aboriginal. That particular measure we brought in then, if you look at it today — as Senator Watt has pointed out — in one province eight out of 10 people in jail are Aboriginal persons. That is nine times the percentage that it should be if you took the entire prison population.
This amendment put forward by Senator Watt is an amendment that allows for judicial discretion in that the judge will decide. Is this excessively harsh in the circumstances? Is there another sanction reasonable in the circumstances and available? If it is not available, there are six drug treatment courts in Canada in six cities. The minister said we do not have any anticipation of increasing that number. They are Superior Court judges paid for by the Treasury. He stated categorically that they do not intend to extend those courts. This will reiterate what is already in the Criminal Code after the imposition of these minimum sentences, so I support his amendment.
Senator Carstairs: Very briefly, I come from a province where up to 70 per cent of the inmates are Aboriginal. In the northern part of my province, there is no drug court. There is not one drug treatment program. I think that it is essential that special provision be made.
I would remind colleagues at this table that the statement that "the court is not required'' is the most important aspect of this amendment. It does not mean the court cannot impose; it says the court is not required to impose. I support the amendment, clearly.
The Chair: Thank you. Proceeding to the vote, shall the amendment carry?
Some Hon. Senators: Nay.
Some Hon. Senators: Yea.
The Chair: All in favour?
Some Hon. Senators: Yea.
The Chair: Opposed?
Some Hon. Senators: Nay.
The Chair: In my opinion, the "yea''s have it.
Senator Fraser: Not voting.
Senator Baker: Yes.
Senator Carignan: No.
Senator Carstairs: Yes.
Senator Joyal: Yes.
Senator Lang: Nay.
Senator Mercer: Yes.
Senator Milne: Yes.
Senator Rivest: Yes.
Senator Stratton: Nay.
Senator Wallace: Nay.
Senator Watt: Yes.
Ms. Richardson: Seven "yea''s, four "nay''s, one abstention.
The Chair: The amendment is carried. Senator Rivest, you said you wanted to propose other amendments?
[Translation]
Senator Rivest: I have two other amendments.
[English]
Senator Stratton: Are these all the amendments now? Is anyone bringing forward anything further?
The Chair: It is my understanding that this is now all of the proposed amendments.
[Translation]
Senator Rivest: I had two amendments, one of which I withdrew. It was the one whereby a judge should take into account whether or not a person had completed a program "successfully'', and since no one seems to know what that means, it does not appear important to me, so I am not tabling it.
The Chair: You are not moving it.
Senator Rivest: Yes. The last amendment seems more important to me. It is quite substantive. I must read it first.
That Bill C-15 be amended in clause 5, on page 6, by adding after line 9 the following:
"(6) The court is not required to impose a minimum punishment of imprisonment if it is satisfied that doing so would result in a sentence that
(a) constitutes cruel and unusual punishment;
(b) constitutes excessive punishment; or
(c) would bring the administration of justice into disrepute.
(7) If, under subsection (6), the court decides not to impose a minimum punishment, it shall give reasons for that decision.
(8) Notwithstanding subsection 730(1) of the Criminal Code, where a court applies subsection (6) in sentencing a person who is convicted of an offence under this Act, the court may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the person, by order direct that the person be discharged under section 730 of that Act on the conditions prescribed in a probation order.''
The intention of this amendment is to reaffirm the discretion of the judge at any stage of the proceeding, on the very principles of the Charter of Rights, to apply and to render a decision and to impose a sentence that is appropriate under the circumstances, the nature of the crime, the individual, and to the person and not as a blanket provision, as unfortunately the mandatory minimum system does.
The Chair: Thank you very much, it is therefore moved by Senator Rivest:
[English]
That Bill C-15 be amended in clause 5 on page 6 by adding after line 9, the following —
shall I dispense?
Some Hon. Senators: Dispense.
The Chair: Discussion?
Senator Baker: I would just like to point out that I do not think there is anything extraordinary in the amendment that suggested it repeats cruel and unusual punishment, the section of the Charter. It says it would bring the administration of justice into disrepute. That is one of the subsections of section 24, which is either a judicial stay of proceedings or to exclude evidence at trial. I do not find anything extraordinary about this amendment, but it asks us to respect the Charter of Rights and Freedoms in the imposition of minimum sentences.
Senator Joyal: Senator Baker made the arguments that I was to propose. There is nothing new there. It is contained in the essential elements of the Charter in relation to the part devoted to the administration of justice.
The Chair: Shall the amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: Nay.
The Chair: In my opinion, the "nays'' have it. The amendment is defeated.
Shall clause 5, as amended, carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried, on division. Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried. Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry, as amended?
Senator Milne: On division.
The Chair: Carried, on division. Does the committee wish to consider appending observations to the report? No. Is it then agreed, colleague, that I report this bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chair: So agreed. I shall do that this afternoon. This will require some fast footwork on the part of the staff, but they are up to the job.
Mr. Saint-Denis, thank you very much.
This has been a long study. I thank all senators for their participation in this study and in today's proceedings. We meet in this room Wednesday next, when the Senate rises or at 4 o'clock, and we shall be beginning our study on Bill C- 26, which is the car theft bill. You can start preparing yourselves for that, colleagues. If you have witnesses that you would like to suggest, please forward the suggestions to the steering committee or the clerk.
(The committee adjourned.)