Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Minutes of Proceedings
OTTAWA, Wednesday, December 2, 2009
(42)
[English]
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:05 p.m., in room 257, East Block, the Chair, the Honourable Joan Fraser, presiding.
Members of the committee present: The Honourable Senators Campbell, Carignan, Fraser, Joyal, P.C., Milne, Nolin, Rivest, Wallace and Watt (9).
In attendance: Jennifer Bird and Robin MacKay, Analysts, Parliamentary Information and Research Service, Library of Parliament.
Also in attendance: The official reporters of the Senate.
Pursuant to the order of reference adopted by the Senate on Thursday, September 17, 2009, the committee continued its 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. (For complete text of the order of reference, see proceedings of the committee, Issue No. 15.)
WITNESSES:
BC Compassion Club Society:
Jeet-Kei Leung, Communications Coordinator.
Beyond Prohibition Foundation:
Kirk Tousaw, Executive Director.
Vancouver Island Compassion Society:
Philippe Lucas, Founder/Executive Director.
Canadian AIDS Society:
Lynne Belle-Isle, Programs Consultant, National Programs.
Department of Justice Canada:
Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section.
The chair made an opening statement.
Mr. Tousaw, Mr. Leung, Mr. Lucas and Ms. Belle-Isle each made a statement and, together, answered questions.
At 5:48 p.m., the committee suspended.
At 5:54 p.m., the committee resumed.
Mr. Saint-Denis answered questions.
At 7:32 p.m., the committee adjourned to the call of the chair.
ATTEST:
OTTAWA, Thursday, December 3, 2009
(43)
[English]
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:52 a.m., in room 257, East Block, the Chair, the Honourable Joan Fraser, presiding.
Members of the committee present: The Honourable Senators Baker, P.C., Carignan, Carstairs, P.C., Fraser, Joyal, P.C., Lang, Mercer, Milne, Rivest, Stratton, Wallace and Watt (12).
In attendance: Jennifer Bird and Robin MacKay, Analysts, Parliamentary Information and Research Service, Library of Parliament.
Also in attendance: The official reporters of the Senate.
Pursuant to the order of reference adopted by the Senate on Thursday, September 17, 2009, the committee continued its 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. (For complete text of the order of reference, see proceedings of the committee, Issue No. 15.)
WITNESS:
Department of Justice Canada:
Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section.
The Honourable Senator Milne moved that the following document be appended to the committee proceedings:
the written answer provided by John Conroy to a question asked during the meeting of November 25, 2009 (see Appendix 5900-2.40/L1-C-15, 21 "9'').
The question being put on the motion, it was adopted.
The Honourable Senator Joyal, P.C. moved that the following material be filed as exhibits with the clerk of the committee:
Submissions from John Conroy (Exhibit 5900-2.40/L1-C-15, 21 "11''):
R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, 2003 SCC 74
PHS Community Services Society v.Attorney General of Canada,2008 BCSC 661
Sentencing Reform, a Canadian Approach, Report of the Canadian Sentencing Commission, February 1987, Chapters 4 and 8
Comparing the Perceived Seriousness and Actual Costs of Substance Abuse in Canada, Health Canada, CCSA-CCLAT, March 2007
Taking Responsibility, Report of the Standing Committee on Justice and Solicitor General on its review of sentencing, conditional release and related aspects of corrections, David Daubney, MP, Chairman, August 1988, Chapters 4 and 6
Directions for Reform, Sentencing, Department of Justice Canada, 1990
Canadian Bar Association, Submission on Directions for Reform, April 1991
Concern with Leniency: An Examination of Sentencing Patterns in British Columbia by Anthony N. Doob Cheryl Marie Webster
Canadian Bar Associaiton Report — Introduction, Overview and Summary of Recommendations of the Special Committee on Imprisonment and Release
Supplementary submission from Scott Wheildon (Exhibit 5900-2.40/L1-C-15, 21 ''12'')
Email correspondance from Scott Wheildon
McGill Group for Suicide Studies Report to the Nunavut Research Institute, January 2009
R. v. Aqqiaruq, 2009 NUCJ 26
Letter and Submission from Dr. Perry Kendall, Provincial Health Officer, Province of British Columbia (Exhibit 5900-2.40/L1-C-15, 21 "13'')
Submission and Appendix (The Equality Project, Human Rights Fact Sheet) from the Empowerment Council (Exhibit 5900-2.40/L1-C-15, 21 "14'')
Supplementary submission (email correspondance and Chart - Outcome of Initial Detention Reviews) from Ivan Zinger (Exhibit 5900-2.40/L1-C-15, 21 "15'')
Supplementary submission from Kirk Tousaw (Exhibit 5900-2.40/L1-C-15, 21 ''16'')
R v. Beren and Swallow, 2009 BCSC 429
R v. Beren and Swallow, Oral Reasons for Sentence
Proposed amendments to Bill C-15
The question being put on the motion, it was adopted.
It was agreed that the chair be authorized to seek an extension to the reporting deadline for the study on the the provisions and operation of DNA Identification Act to June 30, 2010.
It was agreed that the committee proceed to 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.
At 10:57 a.m., the committee suspended.
At 11:06 a.m., the committee resumed.
It was agreed that the title stand postponed.
The chair asked whether clause 1 shall carry.
The Honourable Senator Rivest moved 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) to (a.3), 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 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 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 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)''.
After debate, the question being put on the motion in amendment, it was negatived.
The committee resumed consideration of the question that clause 1 carry.
The Honourable Senator Milne moved 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''.
It was agreed that Mr. Saint-Denis be invited to the table and, during the consideration of Bill C-15, he answered questions from time to time.
After debate, the question being put on the motion in amendment, it was adopted on the following vote:
YEAS
The Honourable Senators
Baker, P.C., Carstairs, P.C., Joyal, P.C., Mercer, Milne, Rivest, Watt —7
NAYS
The Honourable Senators
Carignan, Lang, Stratton, Wallace —4
ABSTENTIONS
The Honourable Senator
Fraser —1
It was agreed, on division, that clause 1, as amended, carry.
It was agreed, on division, that clause 2 carry.
The chair asked whether clause 3 shall carry.
The Honourable Senator Joyal, P.C. moved 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 subparagraphs (i) to (v), and any cross references thereto accordingly.
After debate, the question being put on the motion in amendment, it was adopted on the following vote:
YEAS
The Honourable Senators
Baker, P.C., Carstairs, P.C., Joyal, P.C., Mercer, Milne, Rivest, Watt —7
NAYS
The Honourable Senators
Carignan, Lang, Stratton, Wallace — 4
ABSTENTIONS
The Honourable Senator
Fraser — 1
It was agreed, on division, that clause 3, as amended, carry.
It was agreed that clause 2 be reconsidered.
The Honourable Senator Rivest 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 one 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''.
After debate, the question being put on the motion in amendment, it was negatived.
It was agreed, on division, that clause 2 carry.
The chair asked whether clause 4 shall carry.
The Honourable Senator Joyal, P.C. moved 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.''.
After debate, the question being put on the motion in amendment, it was adopted on the following vote:
YEAS
The Honourable Senators
Baker, P.C., Carstairs, P.C., Joyal, P.C., Mercer, Milne, Rivest, Watt —7
NAYS
The Honourable Senators
Carignan, Lang, Stratton, Wallace — 4
ABSTENTIONS
The Honourable Senator
Fraser — 1
It was agreed, on division, that clause 4, as amended, carry.
The chair asked whether clause 5 shall carry.
The Honourable Senator Watt moved 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
(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''.
After debate, the question being put on the motion in amendment, it was adopted on the following vote:
YEAS
The Honourable Senators
Baker, P.C., Carstairs, P.C., Joyal, P.C., Mercer, Milne, Rivest, Watt —7
NAYS
The Honourable Senators
Carignan, Lang, Stratton, Wallace — 4
ABSTENTIONS
The Honourable Senator
Fraser — 1
The committee resumed consideration of the question that clause 5 carry.
The Honourable Senator Rivest moved 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.''.
After debate, the question being put on the motion in amendment, it was negatived.
It was agreed, on division, that clause 5, as amended, carry.
It was agreed that clause 6 carry.
It was agreed that clause 7 carry.
It was agreed that clause 8 carry.
It was agreed that clause 9 carry.
It was agreed that clause 10 carry.
It was agreed that clause 11 carry.
It was agreed that clause 12 carry.
It was agreed that clause 13 carry.
It was agreed that clause 14 carry.
It was agreed that clause 15 carry.
It was agreed that the title carry.
It was agreed, on division, that the Bill, as amended, carry.
It was agreed not to append observations to the report.
It was agreed that the bill be reported to the Senate by the chair.
At 12:49 p.m., the committee adjourned to the call of the chair.
ATTEST:
Jessica Richardson
Clerk of the Committee