Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 13 - Evidence for October 20, 2010
OTTAWA, Wednesday, October 20, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-10, An Act to amend the controlled Drugs and Substances Act and to make related and consequential amendments to other acts, met this day at 4:20 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Colleagues, welcome to this meeting of the Senate Standing Committee on Legal and Constitutional Affairs.
[Translation]
Today, we will be beginning consideration of Bill S-10, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts.
[English]
It is our pleasure this afternoon to welcome back to the committee, as our first witness on this important bill, the Honourable Robert Nicholson, Minister of Justice and Attorney General of Canada.
Welcome, Mr. Nicholson. I expect you have a statement for us.
Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Madam Chair. I am pleased to be joined by Paul Saint-Denis and Catherine Kane of the Department of Justice. I am pleased to be able to make an opening statement. I think it was exactly a year ago that I appeared before this committee to discuss the bill at that time, which is identical to the content of this bill.
[Translation]
I note that this committee held several days of hearings on Bill C-15 and heard from a wide spectrum of witnesses.
[English]
Consequently, members are aware of the amendments that this bill proposes to the Controlled Drugs and Substances Act to address serious drug crimes in this country.
Canadians want to be protected from offenders involved in serious drug crimes whose illicit activities, such as methamphetamine production and marijuana grow operations, threaten their safety and that of their families. Moreover, law-abiding Canadians are often the victims of drug gang turf wars. It is unacceptable that many Canadians feel too afraid to walk around in their own neighbourhoods. The truth is that the problem stretches beyond our own borders. In fact, the United Nations Office on Drugs and Crime said earlier this week that drug trafficking and smuggling generates $120 billion a year, benefiting criminal and terrorist organizations all over the world, including in Canada.
We believe that protecting society from criminals is a core responsibility of the federal and provincial governments. The provinces have primary responsibility for policing, which is the front-line defence of citizens. The federal government assists the efforts of the police by financing, through the RCMP, many national police services, and through such initiatives as the National Anti-Drug Strategy and the Aboriginal Justice Strategy.
Only Parliament, however, has the power to make criminal law to give the police the tools they need and to set penalties that those who choose to break the law face upon conviction. We believe that the protection of society demands that criminals serve serious time when they have committed serious crimes. The crimes targeted by Bill S-10, such as trafficking, possession for the purposes of trafficking, production, importing, exporting and possession for the purposes of exporting Schedule I drugs, such as cocaine and heroin, and Schedule II drugs, such marijuana, are serious crimes.
This is what this bill is about. Most Canadians would agree with us that drug producers and dealers who threaten the safety of our communities must face tough penalties and that prison sentences for those who commit serious drug crimes need to reflect the level of threat these crimes pose to our society.
Bill S-10 proposes an escalating scheme of mandatory prison sentences where there is an aggravating or safety factor. For example, if drug trafficking is carried out for organized crime purposes, or a weapon or violence is involved, the offender would be sent to jail for at least a year. If the drug is sold to youth or if trafficking takes place near a school or an area normally frequented by youth, the offender would serve at least two years' jail time. As well, drug producers would be sentenced to at least three years in jail where the production of the illicit drug constitutes a potential security, health or safety hazard to children or a residential community.
Overall, our government believes that our proposals represent a tailored approach to mandatory penalties for serious drug offences. Since these proposed changes have been before this committee recently and were considered in detail, I will not go into further detail. However, I will address the amendments that this committee proposed last December and explain why the government has reintroduced the bill as it was passed by the House of Commons.
The first amendment proposed by this committee would have changed one of the factors that would lead to a minimum one-year sentence for trafficking in a Schedule I or Schedule II drug. As passed by the House of Commons, the one-year mandatory sentence would apply to an offender who had been convicted or served a term of imprisonment within the previous 10 years.
The amendment proposed would instead impose a mandatory penalty on an offender convicted of the offence in the past 10 years and who had been sentenced to one year or more for that offence. We believe that one prior conviction in the last 10 years for these serious offences is sufficient to justify the mandatory penalty of one year in jail. The offender has obviously not mended his or her ways, and so a term of imprisonment should be imposed. The suggested requirement for a one-year sentence for a prior offence could lead to multiple convictions, with the offender never facing the mandatory jail time. Moreover, the offender can avoid the mandatory penalty by successfully completing a drug treatment plan. That should be kept in mind.
Your second amendment would have eliminated the mandatory term of imprisonment for a trafficker who has up to 200 marijuana plants. The house had already considered the issue and had amended the former Bill C-15 so that there would be an exemption for up to and including 5 plants. Having an exemption for up to 200 plants would, in our opinion, severely weaken the bill and invite traffickers to have multiple grow operations with fewer than 201 plants each to evade jail time.
The other amendments that were proposed I believe are unnecessary. There is a provision for a review two years after the bill comes into force. Parliament can then decide, after that review, whether there is need for further amendments and for yet another review, but there is no need to mandate a review after two years and another after five years. While I understand the concern surrounding Aboriginal offenders, the Criminal Code already directs courts to take into account their unique circumstances.
I would like to take this opportunity to point out that the government remains committed to supporting successful justice programs, such as the Aboriginal Justice Strategy, which committed $85 million towards Aboriginal Community Justice programs and achieves results in reducing and preventing crime in Aboriginal communities. We recognize that these programs do make a difference by helping to steer Aboriginal people away from a lifestyle of crime and help put an end to the cycle of violence.
In conclusion, Bill S-10 is essential to enable law enforcement agencies to crack down on drug producers and dealers who threaten our children, neighbourhoods and communities. It is not intended to punish those addicted to drugs but to send a message that the safety and security of Canadians remains among our government's most serious responsibilities.
I want to make it clear that the bill being tabled today is aimed at serious drug offenders, sending a clear message that grow ops and drug labs located in residential areas and selling drugs to youth, trafficking near schools, will not be tolerated, and offenders will be punished with the appropriate jail time.
The Chair: Thank you very much, minister.
Honourable senators, we have, as usual, a limited time with the minister, so I will ask everyone to be quite concise in your questions.
Senator Wallace: Thank you, Minister Nicholson. Bill S-10, as I read it, is a focused bill that targets particular types of activity involving drugs, which you have described as the serious drug offences. Those offences would include trafficking, production, importation and exportation of drugs. I know from the experience we went through with Bill C-15 that there seemed to be some misunderstanding about whether Bill C-15 would apply at all to charges relating to possession of drugs. I would ask you the same question regarding Bill S-10.
The response from certain people would seem to indicate they thought it does relate to that. What is the answer to that?
Mr. Nicholson: Thank you for raising that with me, Senator Wallace, and thank you for all the effort you have made with respect to this bill and with so many of the other justice initiatives that the government has brought forward. It is much appreciated by me and by all of us within the government.
Your comments are quite correct. The bill is not directed at the individual who for the most part becomes addicted or is experimenting, or the person with one or two plants. It is directed at traffickers, at organized crime and at those individuals who are bringing drugs into this country. These are not one-offs. I had law enforcement agencies tell me that very serious crime operations are involved with these.
Again, I appreciate that those who want to be critics of this would prefer never to talk about that but only talk about the misinformation that this is somehow targeted at people in possession of drugs. I have made that clear on a number of occasions. I appreciate there are some individuals or some groups who are not prepared to ever accept that.
However, I have reviewed this bill very carefully and I know this bill very well, as I have spent a considerable amount of time with this. This bill is directed at traffickers — the people who would sell drugs to children, those who bring narcotics into this country and those who are into the grow-op business for the purposes of trafficking.
I can appreciate there are some who do not want to hear that and will not accept that is what the bill is about, but that is what this bill is about.
I appreciate the fact that people who do not want us to get tough on drugs in this country will either misrepresent or misconstrue what is in this. I appreciate that says more about them than it does about this bill. However, I, the government and the department were very careful in the drafting of this.
Senator Wallace: When you refer to the trafficking provisions in the bill, perhaps you can explain them. Could you explain the types of activities that the trafficking provisions relate to? I know you touched on them in your comments. I will not go through the list of them. I prefer to hear it from you.
The trafficking involves organized crime, violence, weapons and so on. It seems to me that even the trafficking provisions are targeted. They are not broad-based and blanketed; there is something specific you have in mind. Can you describe in more detail how those trafficking provisions would impact our society?
Mr. Nicholson: Again, it is very specific, as you say, senator. In my opening remarks I touched on some of the factors, where young people are involved such as doing this out near a schoolyard or on school property. These are the kinds of aggravating factors that we are asking the courts to take into consideration when these provisions kick in.
With respect to the grow ops, yes, we are of the opinion that if you have 500 or 1,000 plants, you are in the business of trafficking. It is not some sort of a cute little experiment you have. You are not just taking one for your own purposes or needs; you are into the business of trafficking.
I have been told by reliable authority when I have gone across this country that this is what organized crime is involved with; gangs are involved with this kind of activity. I can tell you that it was made clear to me that people who are in the business of bringing drugs into Canada or exporting drugs are gangs and organized crime. Those are the groups doing this.
These are steps in the right direction. These are the kinds of tools that law enforcement agencies and others are telling me we need to have. We have to send out the right message to people that if you get involved with this kind of activity, there are serious consequences. This bill sends out that message. Thank you for that question.
Senator Wallace: I have one other quick question, if I could. The bill introduces mandatory minimum sentences to the act. I am sure you would view the introduction of mandatory minimums as a significant element in this proposal. Why are mandatory minimums included in this bill, and why do you believe they are important?
Mr. Nicholson: I think they send out the correct message that if you decide you would like to get into the production of marijuana, there will be serious consequences. If you bring drugs into this country, there are serious consequences. I think it is appropriate to send out that message.
We also reduce the victimization in our neighbourhoods. When you get people who are into the business of selling to children off the schoolyard, the schools are better places. If individuals who have decided schools are a great place to sell drugs are off the street and in jail, then schools are better places where children can be educated.
It helps on the victimization side, and it helps people to feel better about their communities knowing that this kind of activity is not and will not be tolerated and that there are serious consequences. In my opinion, this sends out the appropriate message we want to send out.
The Chair: Thank you Senator Wallace.
Senator Wallace: And disrupt criminal activity?
Mr. Nicholson: I believe it does. I have been told that if you want to disrupt these gangs, get them off the street and ensure they are not in a position to continue to conduct this kind of business.
The Chair: I am trying to give everybody a fair chance here.
[Translation]
Senator Carignan: Minister, welcome to this committee. It is always a pleasure to listen to you. We are dealing with a bill on minimum sentences. It is to be tied in with the much broader National Anti-Drug Strategy. Could you tell us about this whole strategy and explain how this bill fits in the National Anti-Drug Strategy?
[English]
Mr. Nicholson: I believe it plays a very important part, but it is only one part of the National Anti-Drug Strategy. I believe you will hear witnesses as early as tomorrow who will touch on a number of different aspects of this. We want to work with young people and get the message out there that drugs are a bad thing to get involved with. We want to do what we can to provide deterrence for individuals, give them assistance and get the message out there that we are concerned about them and we want them to not get involved with this business and thus lead a life that can lead to their own personal destruction.
This is one component of that. This is one of the reasons why I am a supporter of the Aboriginal Justice Strategy. It uses a number of different methods to try to work with people to assist them. I have been a supporter of the drug courts. They are not everywhere in Canada, but they are another tool for the individual who has unfortunately become addicted or who has become a problem and wants to change; they have an opportunity to change their lifestyle.
Again, it is all part of the process. Ultimately, we all have a stake in ensuring that individuals who get involved with this business get out of the business. It is better for them, better for their families and better for society. Therefore, with a comprehensive approach like the one we have under the National Anti-Drug Strategy, the Aboriginal Justice Strategy, the drug courts and the national crime prevention projects, we all have a stake in trying to get people out of this business of committing crimes in this country.
I am very supportive of all those measures, and I have had the opportunity to be at a number of different locations where people have successfully made applications that will assist them, particularly in guiding young people involved with this kind of activity, to get them to stop and lead productive lives. We all have a stake in this, and it has to be a complete approach. I am pleased to be a part of that and am very supportive of it.
[Translation]
Senator Carignan: Clause 8.1 provides for a report to Parliament on a comprehensive review of the provisions and operation of the act, including a cost benefit analysis of mandatory minimum sentences.
This is an impressive commitment. You are setting the bar pretty high. Experts say it is difficult to evaluate the impact of minimum sentences and prepare a report within two years. Minimum sentences are there, and we know they have a certain impact, but it seems quite difficult to make an evaluation and translate that into costs and benefits. It is a serious commitment and it is all to your credit, but do you have any idea of the kind of review or analysis that could be done? This question might be too technical and civil servants might be better prepared to answer it, but I am putting it to you nonetheless, and you could let your technicians answer it if you prefer.
[English]
Mr. Nicholson: I think I can. Any time we analyze and review any changes we have made, this is all helpful. I make the point on many occasions that we have to continuously be looking at the provisions of the Criminal Code, some of which have not been changed since the 1890s. The provisions were not new in the 1890s; they were a compilation at the time the first Criminal Code was put together in this country. There is a benefit when we review these provisions to see if they need updating. Changes in technology are one aspect. In the area of drugs alone, people I accept on good authority tell me how sophisticated some of these operations are becoming and how much money is involved. We see around the world some of the challenges with respect to drugs. This is an international problem. The face of the crime has changed over the years, and we want to ensure we are up to date.
In terms of what you would do, you probably want to hear from law enforcement agencies. For instance, with regard to our Tackling Violent Crime Act about changes with respect to bail and with respect to people who are committing serious gun crimes, I am starting to hear back that this is helpful to law enforcement agencies to get some of these people off the street so that they are not, immediately after being accused of a serious gun crime, back out on the street and back in the neighbourhood. People tell me this is a step in the right direction.
As I indicated, that particular clause was added by the House of Commons last time. In an effort to get this bill moved forward, we will put these provisions in, but they can be helpful overall in terms of trying to analyze where we are with these bills and what further improvements we need.
Senator Lang: I would like to welcome the minister to the committee. I have a couple of questions. First, I want to say that I am a proponent of the mandatory legislation. I feel strongly that there must be consequences and that there must be seen to be consequences. If people are going to commit these premeditated crimes, at the end of the day they have to realize they will pay for it if they get caught.
The other point I would like to make, which does not seem to be discussed much around this table, is the question of the victims. I am hopeful that next week a mother of a child from my part of Canada, rural Canada, will be here as a witness. She lost her daughter a year ago to a drug overdose at 17 years of age. You will hear a real human story about the effects of people preying on others for the sake of making money, and I think it is unforgiveable.
Minister, in your opening remarks you mentioned the provinces and territories. It would be beneficial to us if you could expound on your discussions with the provinces and territories, how they support the legislation and what their positions are.
Mr. Nicholson: You are probably getting tired of my talking about this particular bill, senator, quite frankly. In discussions with my provincial counterparts, I have reiterated, as I did at my most recent meeting in Vancouver, that we are proceeding with these, that we have been listening to law enforcement agencies that are operating particularly in the major cities of this country, and that we will continue to move forward on this.
One of the interesting developments that a number of them have pointed out to me is that these grow operations are moving out of the major cities. Many of the people who are in the business of trafficking and the gangs and the organized crime that are involved with these marijuana grow ops like to get outside the major cities. They are hoping there will be a little less scrutiny and a little more space between themselves and their next-door neighbours. They tell me this is a more recent development in the marijuana grow operation business, if I can call it a business.
I assured them that the bill I had reintroduced into this Parliament and that we were pushing makes it clear that we understand that this is a business and that these individuals are in the business of trafficking. I assured them that I would do my best to push this legislation, which has serious consequences for people who think it is a good idea to get into the production of marijuana.
This was one of the developments that I have seen in the last four years that I have been Minister of Justice. More and more individuals are telling me now that these difficult crimes, as they relate to drugs, are moving out of the big cities. They are still in the big cities, and there is still a problem there, but some aspects of the crime are outside the municipal boundaries. I gave them my assurances that I would do my best to obtain this particular piece of legislation, and I am pleased with all the feedback I have received from them on that.
The Chair: Minister, I am making the senators be as tight as I can, and I will ask you if could tighten up your answers a little, please.
Mr. Nicholson: I am in your hands, Madam Chair.
Senator Lang: Just for the record, do the provinces and territories support this legislation?
Mr. Nicholson: They are all aware of this legislation, and all the comments I received were supportive.
Senator Lang: Moving to another area you mentioned in your opening remarks, the Aboriginal Justice Strategy, I think a concern to all of us around this table is the number of First Nation people who are incarcerated and who have been involved in one way or another with law enforcement.
The government has committed $85 million toward the Aboriginal Community Justice programs. Do you have a yardstick to measure the success of those particular programs? Perhaps you can expand further on that.
Senator Wallace made the point that we are looking at two aspects here. We are trying to get people away from drugs or not involved with drugs, and we are trying to deal with those who are trafficking. We have to deal with a number of aspects, and I think the public should be aware of that. Perhaps you could comment on that.
Mr. Nicholson: You have raised a good point, senator. I am a big fan of the Aboriginal Justice Strategy. First, we have a constitutional and moral responsibility to everyone who lives in this country, and Aboriginal Canadians are part of that responsibility, which the Constitution has given and which we share with all fellow citizens.
When I became Minister of Justice, I received the usual number of briefings. I was aware of some of the areas where we are involved with Aboriginal Canadians before I became minister. I liked the idea that the program was flexible in terms of our ability to support different ideas and projects.
It is difficult to measure exactly how much of a difference there is, but each year I receive reports and briefings on all the different aspects of this department, and this is an area where I have continuously been encouraged. I believe the program works, and we have that responsibility.
Certainly when I have had my discussions with the territorial justice ministers, they are very much supportive of these initiatives. I have indicated to them that there is federal support for the projects they are undertaking and that that kind of cooperation and support will continue, because we all have a stake in helping each other. It has been good.
Senator Baker: First, the minister said this is exactly the same bill. It is not exactly the same bill because you have introduced now a short title to this particular bill that you did not have there before. That is number one.
Second, I will also ask you to verify, in answer to Senator Wallace who said that this bill does nothing concerning possession of drugs, that when you place drugs that are in Schedule III up to Schedule I, in a relative sense you do change the entire characteristic of it in the adjudications before the court.
Mr. Nicholson: Yes, the title is slightly different, senator, but the contents are the same. With respect to moving things like date rape drugs into making them more serious offences, it will become a more serious offence. If the person is in the business of placing date rape drugs into, usually, women's drinks, there will be more serious consequences.
Senator Baker: How about Ritalin? When I look at the drugs that are here in Schedule III, I do not know what these drugs are. That is the first thing. We have examined the content of this bill over and over, but I have never been told by the department — and I do not think anyone else has — what these drugs are.
I know from reading some judgments that drugs for example that are associated with attention deficit disorder are in Schedule III. The movement of that drug or Atasol-30 or any of these other common drugs — codeine is already up there — that are prescribed for children up to Schedule I makes the exchange of that drug a life imprisonment offence; that is the maximum you could receive for it if you give it to someone or pass it to someone.
Minister, everybody agrees with your intent here, which is to get at organized crime. My goodness, you have said that a million times in all the bills you have put through. Everybody respects that. No one disagrees with that.
However, in carrying out that intent, when you look at the word ``trafficking'' — the word that is used around this table and in the House of Commons on a daily basis — the Canadian public thinks trafficking, oh boy, this is organized crime. Yes, it is organized crime, but it is also just passing a joint of marijuana to someone or a pill of ecstasy to someone. The cases are countless kids; that is a fact.
The criticism against you in this bill, as I am sure you are aware, is that when you take away the discretion of a judge and you create a mandatory sentence — you go to jail for a year or two years if you have committed a designated offence — what is a designated offence? It is passing one joint in the previous 10 years.
In those Schedule III drugs, you have taken away the discretion from the Crown because they are hybrid offences. When you look at Schedule III, they are hybrid; the Crown makes a choice. You put them up to Schedule I and they are indictable.
When you take away the discretion of the judge but you do not change the definition of trafficking, you can understand why some people take great exception to having mandatory minimums when there is no discretion for someone to say, okay, this is not a serious case of trafficking.
The Chair: Will we take that as question, Senator Baker?
Senator Baker: Yes, sorry, Madam Chair. I got carried away.
Mr. Nicholson: In answer to your question, senator, what has been moved from Schedule III to Schedule I are only amphetamines and the date rape drugs. Those are the ones that are being moved. Yes, if you are trafficking in date rape drugs — and again, it is a question by the police and the Crown attorney as to whether an individual who is dropping these drugs into women's drinks should be charged with trafficking — that is where the discretion comes in. All of these turn on a question of fact, and that has not changed, Senator Baker.
However, as you pointed out, I have repeated on many occasion that the people who are involved with the importation, exportation, production of these and the trafficking of these things are organized crime and gangs. I stand by that, and this is why you should support this.
There is no problem with the definition of trafficking. In each of these cases, whether the person is charged with possession or with trafficking is in the hands of the Crown attorney in this country. It is a question of fact that each case will be decided on its own merits.
Yes, we are moving amphetamines and date rape drugs to Schedule I, and I think that is the appropriate place for them.
Senator Baker: Could the department verify to this committee — at a future meeting if they cannot do it today — that not one of these drugs being put up into Schedule I is prescribed to children for attention deficit disorder?
Mr. Nicholson: It is like anything else, senator; you can get a prescription for marijuana in this country, but if people are in the business of trafficking in marijuana, that becomes a crime. It depends on what you do with the drugs. If the drug is to intoxicate an unsuspecting individual, we believe that is a serious crime in Canada, and that is why we have moved that from Schedule III to Schedule I.
Senator Baker: The reason we amended the bill in the first place here was because of the definition of trafficking. In clause 2(1) of this bill, if you have been convicted of a designated offence in the previous 10 years — passing a joint of marijuana at university — and you do it now, under this bill, you will go to jail.
Mr. Nicholson: I will tell you what —
Senator Baker: You will be up for life imprisonment, which carries with it all kinds of ramifications under the Criminal Code for that offence.
Mr. Nicholson: You may have examples where the maximum sentence was given; I would be interested to see that. To use your example of minor trafficking, if that individual was convicted in the last 10 years and now is convicted again of trafficking, I would suggest that is an individual who is not getting the message, and there should be serious consequences for that individual who is not getting out of the drug business. He or she should get out of the drug business and, yes, there are serious consequences. That individual, who must be quite familiar with the legal system if he had one or more convictions of trafficking in the last 10 years, should get the message.
Such individuals will not like this bill, I am quite sure, because you are right: The next time they are caught trafficking, there will be very serious consequences.
Senator Runciman: Minister, I am a bit of hard-liner on this, and unlike Senator Baker, I have concerns about the abuse of judicial discretion with respect to dealings with individuals who engage in this kind of activity. Certainly, during my time in Ontario, I was very much aware of the frustration of police services with respect to the penalties or lack of penalties that were dealt out in many of these very serious situations.
However, I am concerned about some elements of the proposed legislation because when we talk about mandatory minimums, there seem to be at least one or two loopholes in this. An individual can apparently apply for drug treatment or indicate a willingness to apply for drug treatment, and I have a concern about how that will work.
The other element of this is the Crown's notifying the individual, before the plea is entered, about the imposition of a minimum punishment. I think that could be used as a loophole with respect to achieving the goal we hope to achieve here.
There should be some exemptions from this as well, such as the setting traps element. It seems to me that part of the purpose of mandatory minimums was to deter the kind of conduct that we are using as factors to trigger mandatory minimums. I have some concern about that.
The other element of this that I think you should consider as well is parole ineligibility. I know we are talking about two- and three-year sentences, which will get these individuals into a federal institution. However, I am not sure what the parole eligibility is in those situations. I know there are other areas where we have imposed parole ineligibility, and I think that should be a consideration here, as well.
Mr. Nicholson: You have touched on a number of areas, Senator Runciman, and I appreciate your interest and your concern about them. With respect to one aspect you talked about, it seems to me it is reasonable for the Crown to give notice to the defence that there will be an imposition of mandatory sentences. Individuals have the right to prepare a defence and may take other steps or take appropriate steps to assemble their defence if they have a better understanding of the consequences they are facing. It is reasonable.
At the same time, as Senator Baker points out, there are maximum sentences within the Criminal Code for a serious crime. Even where the Crown did not give notice that a mandatory sentence was being considered, there is nothing stopping the court in appropriate circumstances from handing down very serious offences.
We cannot deal with all aspects of every issue that touches on this, but I believe this is one more important component in ensuring that law enforcement agencies have the tools they need to deal with this very serious crime.
[Translation]
Senator Chaput: I listened carefully to Senator Baker's questions on the definition of trafficking and trafficker, and I also listened carefully to the minister's answer.
About this, I would like to make one point clear with the minister. Let us take the example of a kid who would traffic one or two prohibited pills in the schoolyard. Could this individual be considered a trafficker under the definition in this bill? If so, could he receive a two-year prison term in this case? I am talking about a first offence.
[English]
Mr. Nicholson: That is a very good question, senator. It will turn on the facts of each individual case. ``Trafficking'' means you are selling, administering, transferring, transporting, selling, offering, et cetera. There is a definition for it. It also includes giving, depending on the circumstances of the case.
You are right: If someone is on school property and is giving amphetamines, cocaine, heroin or any of the ones listed in here, that person could be charged with trafficking. It would turn on the facts of each case. You are right, and the message has to go out to individuals who think that schoolyards are a good place to get into the amphetamine, date rape, cocaine, heroin and marijuana business that they could be facing some very serious penalties.
Your question is a good one, but you are quite correct. I will not get into the Youth Criminal Justice Act, which has a whole different regime. You could be looking at something very serious if you are 18 or 19 years old, visiting your old friends at school, and you figure you will sell a little dope or are passing out date rape drugs; there could be serious consequences. We want them to get that message. Anything we can do to help get that message out will be of benefit to this country.
Senator Chaput: The definition stays the same, does it?
Mr. Nicholson: The definition of ``trafficking'' stays the same, yes.
Senator Joyal: I would like to bring the issue to a broader policy level, which is the war on drugs. That will put the issue in all its perspective. Did your department evaluate the effectiveness of the war on drugs launched by the United States?
Mr. Nicholson: The department realizes that the United States is not a perfect fit; the challenges they have are not identical. However, the department is aware of what takes place in the United States, Great Britain, Europe, Australia and other countries that face similar problems.
This is a made-in-Canada solution, as I think I told you one other time. We have a look at all information and all experiences, and we come up with our own laws in this country.
Senator Joyal: What puzzles me is the difference of opinion that exists among policy experts on the issue of prohibition. I will be candid with you: I was greatly surprised by some of the things Professor Tom Flanagan said. I think you know him very well; I think everyone around this table knows Professor Flanagan. He is a professor of political science of the University of the Calgary and was instrumental in Prime Minister Harper's campaign and the Conservative Party's election win. Therefore, he is a man with credentials in the Conservative Party.
I read the following by Professor Flanagan in The Globe and Mail on September 20:
The prohibition of drugs doesn't work any better than the prohibition of alcohol; drugs are now just as widely available as was alcohol before the repeal of that prohibition; and, like the prohibition of alcohol, prohibition of drugs is doomed to repeal in the long run.
I was stunned because he seems to share an opinion with the executive director of the Fraser Institute, Michael Walker, who is not also renowned for his liberal leniency. Neither is Conservative MP Scott Reid. They seem to be of the opinion that the so-called war on drugs is the wrong path.
What is your reaction to such an opinion at that level? We are not here dealing with hippies or with side groups on the streets; we are dealing with people who have long-standing credentials in thinking about policies that Canada should embark upon.
Mr. Nicholson: We all get surprised. You just indicated some shocking comments you believe came from a couple of individuals. In my position as Minister of Justice, I come across comments and opinions that shock me. Two weeks ago, it was brought to my attention that Michael Ignatieff, the leader of Liberal Party, said he favours the decriminalization of marijuana. I was shocked. I thought perhaps we had gotten past that idea and that it sends out the wrong message to young people about the seriousness of that drug.
Then again, I say that is a difference of opinion. He believes that it would somehow benefit Canada to decriminalize marijuana, but I could not disagree with him more. In the end we have to make up our own mind about what is good.
I can tell you I talk with provincial attorneys general, law enforcements agencies, police officers, victims and ordinary Canadians on a regular basis, and I am sure we are on the right track with this bill.
I hope this will get your support this time, senator. This is a very balanced approach, and it sends out the correct message on these very serious crimes we are talking about. However, yes, sometimes we do get surprised; I was quite surprised about Mr. Ignatieff, but then again we all have differences of opinion.
Senator Joyal: Professor Flanagan teaches to students in universities.
Mr. Nicholson: Mr. Ignatieff speaks to the country as the Leader of the Opposition. I am with you on that one. I get surprised and shocked sometimes, and it was a shock to see that opinion being resurrected again.
Senator Joyal: Let us see the arguments supporting the position of Professor Flanagan.
Prohibition leads to hypertrophic growth of the state's security and surveillance apparatus, arbitrary searches and seizure of property, pointless criminalization of innocent activities, and growth of genuine criminality as a spinoff from the trade in forbidden drugs.
There are arguments there. In other words, the intentions are not sufficient to reach the objective of making sure that those who use the drugs are the ones who should have access to it. As I said, if it were a Liberal, I would say, oh well, it is a Liberal, but this is not a Liberal. This is the epitome of Conservative politics, who seems to think, and I quote him again:
Instead of intensifying our own war on drugs, Canada should be prepared to move in that direction, within the limits of practicality.
There is a reflection there; it is not just a position off the cuff. My suggestion to you is that besides your good intentions, there are two very respectable Canadians, even at the highest level of the Conservative thinking brain trust, who think this approach is doomed to fail.
Mr. Nicholson: Senator, you were a cabinet minister yourself, and you get opinions from many people. You can have highly respected, high-ranking people — I gave the example of Mr. Ignatieff. I respect many things about Mr. Ignatieff; I completely disagree with him.
As a minister and as a government, we must take a position on these. I am asking you to have a look at this bill that deals with trafficking and with organized crime. People bring drugs into this country, people who are into the grow-op business, senator. This is a very balanced, reasonable approach that sends out the correct message to people who want to get involved with this activity.
Again, this is not a reflection of my opinion of Mr. Ignatieff or anyone else that you want. We have to take a decision on this.
In the case of Mr. Ignatieff, I completely disagree with him. I would go so far as to suggest to him, ``You want to go easy on people who get involved with drugs, but you are telling us on a day-to-day basis to crack down on people who do not fill out the census.''
This is where we should be concentrating our efforts. However, I respect people's different opinions. I have to agree to disagree with many people I hear from, but as you know as a former minister of the Crown, you have to listen to all the different advice that you get, and you put together a very reasonable approach. This is a great approach and one that I hope this time will get your support.
Senator Watt: I have some other questions, but I will ask only one because it is on the issue of why this and why not this. Minister, is it possible to include alcohol in this?
Mr. Nicholson: That is a very interesting suggestion, senator. Are you suggesting that we should include alcohol trafficking and bootlegging?
Senator Watt: Why are we leaving it out?
Mr. Nicholson: This bill is focused on the activities of organized crime and drug dealers. Usually I get asked why we are not into half a dozen different areas. If this is a private member's bill that you want to come forward with, that would be your business, but alcohol is well regulated in this country; for the most part, it is regulated at the provincial level.
Senator Watt: But alcohol kills many people. There are many people behind bars who have consumed alcohol.
Mr. Nicholson: Some of your colleagues think this bill is too tough, and now you want me to start including alcohol in it.
Senator Watt: I just cannot figure out leaving one element that is also —
Mr. Nicholson: Senators Baker and Joyal probably agree with me that we should not amend — what were you suggesting, put it into Schedule I?
Senator Watt: I am not suggesting; I am just asking you a question.
Mr. Nicholson: I am saying my bill is focused on what law enforcement agencies and others are telling me — that drugs are a very serious problem at the national and international level and that we have to have laws on the books to respond to that. That is what I am responding to.
Senator Watt: I would have to say I agree with you on that.
Mr. Nicholson: You could ask me why we are not dealing with auto theft. That is a reasonable question. I would say it is very specific. Today we are dealing with drugs.
However, as you know, I have many bills before Parliament. If this is a private member's bill, I do not think I would be supporting it, or if it is a suggestion to put alcohol under Schedule I or Schedule II of the act. Again, you might get a difference of opinion — I am just guessing — from Senator Baker and Senator Joyal, but that would have to be something you discuss within your own political party.
Senator Watt: My assessment of it is that alcohol is a drug. It is no different from any other drug.
Mr. Nicholson: Thank you for that.
The Chair: Before we sneak in a second round, I would like you to clarify something for me, minister, if you could. In your presentation, referring to the amendment that the previous incarnation of this committee made to the previous incarnation of this bill, you said: ``While I understand the concern surrounding Aboriginal offenders, the Criminal Code already directs courts to take into account their unique circumstances.''
I assume this refers to section 718.2(e), which is the bit that says ``all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.''
In the Criminal Code, as it stands, that gives judges a significant degree of discretion in connection with Aboriginal offenders in particular. However, this bill, as I read it, imposes mandatory minimums for everyone. I am not quite sure how the existing provision in the Criminal Code would square with that.
Are you telling us that the existing provision of the Criminal Code would override the mandatory minimums for Aboriginals?
Mr. Nicholson: The mandatory minimums are just one aspect of this. This particular section that you referred to would apply to any increases — we are setting a floor and we are setting a maximum with respect there.
If it is the opinion of a judge that a three- or four- or five-year sentence is appropriate under the circumstances and takes into consideration that particular section, the judge can deal with it. However, we are putting in mandatory minimums as we put in maximums with respect to a number of these offences.
The Chair: For everyone?
Mr. Nicholson: The mandatory minimums are for everyone, yes; but, again, that section kicks in and directs the courts to take into consideration a number of factors, one of which is the one that you just raised.
The Chair: But without affecting the standardized imposition of mandatory minimums.
Mr. Nicholson: Exactly.
Senator Wallace: Minister, in your presentation, you touched upon the issue of the exemption that was forced upon Bill C-15 for the production of marijuana plants, the 200 plants. In your evidence, you also mentioned that you see some changes occurring in the drug trade. For the most part it had been within the urban centres, and now you see elements of it going out into the rural regions.
In relation to the production charges, the mandatory minimums that would relate to the production of between 6 and 200 plants, I am reminded of evidence that we received with Bill C-15 that 200 plants could have a wholesale value of $350,000. I believe that was the figure.
Could you expand a bit on why you believe that particular inclusion in this bill is so important? As you remember, the Senate amendments would have removed it, but it is back in. Why is that so important to you?
Mr. Nicholson: The section is very specific. If you are under 201 plants, it must be proved that you are in the business of trafficking. Law enforcement agencies have told me that people who have 150 plants in the house are in the business of trafficking, so it may be a very easy point to prove. It may be less easy to prove if an individual has just seven plants, but as I indicated earlier, these things turn on the facts of each case. However, these grow ops become serious safety and health hazards in the areas where they exist.
I have been told many times that marijuana is used as the currency to finance organized crime, and there are serious consequences. Some of the marijuana gets shipped outside of the country to help finance and bring other drugs back into Canada. It is a serious problem. Everywhere I go they tell me about the problems they have on so many different levels with the grow ops, and I believe the provisions we have here are welcome.
As you can see from the penalties schedule, if you have 500 plants, they do not have to get into the business of whether you are trafficking. You are in the business of trafficking. It is not a question of proving what you are doing because having that many will make it obvious. We have the other standard when you have fewer than 201 plants.
Again, you are quite correct: I have been hearing over the last couple of years that even the production of marijuana is changing. As you say, many times it is moving out of the urban boundaries into the rural areas.
Senator Wallace: As was the case with the amendment to Bill C-15 at that time, would it be fair to say that if the production of plants between 6 and 200 were not part of this bill, it would create a serious loophole that would be exploited by organized crime?
Mr. Nicholson: I can never underestimate the ingenuity of organized crime. You correctly point out the possibility that, in order to avoid the serious penalties that this bill imposes, individuals or groups could have 150 plants in several locations and they would not be caught by that particular provision. However, notwithstanding that, this strikes the very balanced approach, and it is an approach that sends out the correct message.
Senator Joyal: Mr. Minister, I am still reflecting upon the fact our neighbour, the United States, which has devoted a lot of means to the war on drugs, seems today, after many years of very harsh intervention from all levels of American police forces, to be thinking of adopting a more modulated approach. I tried to put it in the softest terms possible.
As I see it, there are many states in the United States — even some among the largest ones — that are reconsidering their approach to fighting the drug crimes and the drugs market, generally, in a more targeted way. They feel that making harsh laws all across the broad drives much of it underground and creates more difficulties for the police forces to pin down the drug barons or the drug lords than the objective of the war on drugs policy should be aiming at.
That is why I am concerned. By insisting only on one aspect, it seems we will miss the target, much as the United States is realizing it has to readjust its policies.
I did not hear that from you. You seem to have only one motto: Let us get the message out; let us get the message out. We will repeat the message and repeat the message, and after having repeated it so many times, everyone will fall into place. It does not seem to me that you will reach the objective just as a matter of magical incantation.
Mr. Nicholson: Mainly, I am trying to get across to this committee the message of how important this bill is and how determined I am that this bill get passed and become the law of this country.
I appreciate there are different experiences from different countries. I get together on a regular basis with the attorneys general of the United States, Great Britain, Australia, New Zealand and others. I attend conferences of the Organization of American States and Commonwealth conferences, and I hear different people's experiences with this. Many times we read about different people's and countries' experiences.
We have to develop our own made-in-Canada remedies to these problems. You say that the laws are harsh around a person bringing drugs into this country for the purposes of trafficking. I do not think they are harsh. I think they are reasonable; you are helping this individual to get the message that there is a problem with the activity that he or she is involved with and that they better get some help. We want it break up the criminal activity that is on the streets of so many communities in Canada. We want to break that up, and we want to send a message out to anyone who is contemplating getting into this business that it is a bad business to get into.
I appreciate there are different experiences in different jurisdictions. I respect all of those jurisdictions. Again, we have to come up with made-in-Canada solutions, and this is a very reasonable, measured approach.
The Chair: Senator Joyal, we really are out of time. Can you put a question in 10 seconds?
Senator Joyal: Yes. We have been told by experts that the people who commit crimes are not looking so much at how many years they will get but at whether they have a chance to be caught by the police. You can put 10 times the amount of prison time in the laws, but it will not deter them from committing the crime if they have the intention to commit the crime.
Mr. Nicholson: I appreciate that. It will make it a little tougher to do their business. If you are into the grow-op business and now you find yourself in jail, it will be pretty tough. Again, if you like to bring drugs into this country, finding yourself in jail makes it a lot tougher for that individual. I appreciate that. They will have a much more difficult time getting back into the business.
The police officers tell me it actually disrupts the activity, too. When you start taking people off the street who are involved with this, it makes it much harder for them to continue to conduct business. There are many aspects of that, and that certainly is one of them.
The Chair: Minister, thank you very much. We are very grateful for your time.
To help us as we study Bill S-10, we have with us from the Department of Justice Canada, Ms. Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section; and Mr. Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section. You have both been here before. We are delighted to have you with us again.
In this case, I do not think you have opening statements, so we will go straight to questions.
[Translation]
Senator Carignan: I read the bill, and it includes very technical items on drugs and derivatives. I have been told about various situations, including the possibility to buy from abroad on the Internet the components of rape drugs, have them delivered here by mail and use them to make these drugs. I am not a chemist, and my knowledge on this is limited. I would like to know whether you are aware of these practices and the possibility to buy on the Internet the components of a drug. In this list of drugs are the components of these drugs also included for the purposes of sections on importation, or does this list include only the chemical result of the mixing of various components? I am not sure this is clear enough.
Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Yes, it is quite clear. We are aware of these activities. Components are imported through the Internet. This bill does not target this type of activity except production. If a drug is produced, it would be targeted by this bill. As to the importation of components, these would not be included, because they are precursors. If precursors were on the list, they would be in Schedule V, which is beyond the purview of this bill.
Senator Carignan: When you talk about precursors, these are components of drugs? Is there a legislation of this already?
Mr. Saint-Denis: Yes, there is. We already have controls and regulations on precursors. But if a drug is produced from these precursors, this activity would be included in this bill, and minimum sentences would apply.
Senator Carignan: Fine. Thank you.
[English]
Senator Watt: I have a question related to young offenders, mainly in the North. The high cost of transportation is not something that everyone feels comfortable with, but the fact is that we have to deal with it.
Has the government determined what the costs are related to this? Has the government studied the cost of transporting a person from the North to the South before that person is put into jail? These people should at least have an opportunity to go through rehabilitation at the treatment centres. No treatment exists in the North, and most likely it will not exist for a long time because of the cost. Has the government conducted feasibility studies regarding what this bill means in additional costs that the government will have to bear, considering the fact that you are dealing with people from the Far North and the transportation is not easy? For example, my community is 900 air miles away. We are talking about over $2,000 return.
Who will pay for all this? Will the Government of Canada pay to bring the people down to get treatment? I would like to know if there is a strategy in place. I would like to have a clear idea on that.
Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: I can indicate that the problem you raise is not unique to drug treatment facilities but pertains to a whole host of issues that present in administering justice in the North. Often people from the North have to be transported to the South for assessments and for a variety of purposes because the facilities do not exist in the North. As time progresses, hopefully there will be more facilities in the North.
Some of our colleagues will be appearing tomorrow, and they will be talking about the overall National Anti-Drug Strategy. They will have examples, based on information we have gathered from our prosecutors in the North about the facilities that already exist in the North. Some of my colleagues may be able to talk to you about how some of those facilities are funded. There is the Aboriginal Justice Strategy, as the minister noted. Also, a range of programs are funded through the Youth Justice Program in combination with other justice programs. I cannot say for certain which programs fall into the category that you have in mind, but those colleagues will be able to provide more information on that.
The costs are high when people are moved south, and hopefully, as time progresses, we will see capacity built in the North so that accused persons in the North will not have to be moved to the South for those programs.
Senator Watt: I would like more clarification on this. Who has the responsibility to cover the cost? Is it the Government of Canada or that individual person, the offender? Who is covering the cost? Who is paying for this?
Ms. Kane: It will depend on what exactly is contemplated. If it is the cost of sending an accused person to the South for an assessment of their fitness to stand trial, that is an administration-of-justice cost.
Senator Watt: I am talking about access to treatment.
Ms. Kane: If treatment is ordered as part of the sentence, it will depend on the type of treatment and where it is administered and on whether there is an understanding of who will cover the cost.
The Chair: We do not have a whole lot of time with these witnesses, Senator Watt.
Senator Watt: This is important.
The Chair: I know it is.
Could you please provide us in writing a description with some detail of the way the system works, what is available, how much it costs and who pays?
Senator Watt: I would like to know what takes place in the South as compared to in the North so that I can compare.
The Chair: What are their treatment centres? If you have the numbers, what are the comparative rates of use of treatment centres in the justice system in the North and in the South?
Ms. Kane: We will provide whatever information we have at our disposal, but the question is very broad in terms of nature of treatment. It will not be possible to give the cost of treatment for X or Y. It depends on the type of treatment. There is no homogeneous treatment program that anyone has in mind.
The Chair: We have no information at all on this matter in this committee. It has for a long time been a concern of this committee to understand the implications of the bills we pass for all Canadians, but also for Aboriginal Canadians. Therefore, if you can, please provide us with ranges, or with examples. Whatever information you can provide us will be more than useful to us.
Ms. Kane: Tomorrow colleagues from Health Canada will be here, and they may have information that will elaborate on that issue.
Senator Runciman: What factors were considered when you were deciding the length of the mandatory minimum sentences, that is, whether incarceration would be in a provincial institution or a federal institution?
Mr. Saint-Denis: The factor that probably weighed the most was concern about imposing minimum penalties that would fly in the face of the Charter. We had to find ranges that were reasonable and rational and were reasonably connected to the government's objectives. That was the main factor.
Senator Runciman: I raised with the minister a mandatory delay in parole eligibility. That is done for organized crime offences under the Criminal Code. Was there any consideration of incorporating that?
Mr. Saint-Denis: No, that was not done. We did not think of it at all. Given the minimal penalties that we have, which are not 10 years or anything like that, we did not consider that.
Senator Runciman: When an individual is sentenced to a provincial institution for one year, there is a strong possibility that he or she will be released in four months or five months. That concerns me with respect to the impact.
Regarding the ability to avoid mandatory minimums if an individual consents to drug treatment, is there a test for this? Does simply consenting provide that avenue for them?
I look at it as a possible backdoor loophole. Are there any other criteria for that?
Mr. Saint-Denis: Is your concern that someone wishing to avoid minimum penalties would say they are interested in taking treatment?
Senator Runciman: Yes.
Mr. Saint-Denis: The criteria to get into drug treatment programs are fairly stiff. If most of the factors that are here were present in the commission of the offence, the chances are that the person would not be admitted into the drug treatment core program. There are programs under provincial schemes, using section 720 of the Criminal Code, to which the court may choose to refer the individual, but I cannot speak to those programs.
Again, we are talking about minimum penalties of one or two years. Those programs tend to be fairly demanding. I believe that many of these offenders would choose to do the time because they do not believe that they can adhere to the criteria of a successful program.
I am not sure that many people would resort to choosing the treatment avenue rather than the minimum penalty avenue.
Senator Runciman: Could an individual utilize that option more than once? If an offender had gone through this kind of process, failed, and in the future committed another offence, would this avenue still be open to them?
Mr. Saint-Denis: I do not know. I am not aware that there is anything prohibiting that, but I could not tell you.
Tomorrow you will hear from a panel representing the National Anti-Drug Strategy program. There will be an expert on that panel who may be able to answer that question.
Senator Joyal: Ms. Kane, you are responsible for the Criminal Law Policy Section at the department. In the process of developing the legislation that we are considering, what kind of impact studies did you do of the vulnerable populations of Canadians that could be affected by this legislation, if any?
Ms. Kane: Senator, in the policy development process we look at a number of considerations and how various options will impact on the full range of vulnerable populations in Canadian society, including women and Aboriginal persons.
Senator Joyal: Did you study people who have diabetes and HIV, permanent diseases that cannot be cured but can be controlled, for instance?
Ms. Kane: Not necessarily to that level of specificity, but we are looking at the implications of reforms to the Controlled Drugs and Substances Act to deal with trafficking and production. We are not looking at issues with respect to the use of drugs by people with medical conditions who may be prescribed them, if that is what you are referring to.
Senator Joyal: That is not exactly it. I am talking about the vulnerability of people. I will give you an example. If you have a person who has HIV and that person is found guilty under this act, that person is sent to prison. Doing so adds to the overall responsibility of the federal government to deal with the prisoner who suffers from HIV. The head of the Correctional Service of Canada will tell you there are all kinds of implications related to that.
When you draft the legislation at the Department of Justice Canada, are you measuring the impact the proposed or contemplated legislation — or the options you are considering — will have on vulnerable clients who will be in the net you throw over the Canadian population?
Ms. Kane: The example you gave is a good one. When we are looking at the implications of the proposed legislation, in this case we looked at the impact that more people would be serving time in federal institutions, and some people would be serving time in provincial institutions. Due to that, our colleagues at Correctional Service of Canada provide for the consideration of ministers information about how they deal with vulnerable populations in the correctional system. All of those factors are considered when options are considered and developed. We provide those options, and the government decides which options it will pursue.
I believe you are hearing from colleagues at the Correctional Service of Canada who have a variety of programs to address the many needs of offenders who are housed in their institutions. They might be able to indicate how they deal with people who have long-term chronic illnesses or other serious illnesses in prison.
Senator Joyal: Are you saying that when you are dealing with or appraising the options when you draft the legislation, you have in front of you impact studies on vulnerable populations?
Ms. Kane: I would not necessarily refer to such things as impact studies. We look at all the considerations and all the information about implications of various options when legislation is being developed.
Senator Joyal: However, impact is a different ``evaluation'' than just an increase of population in prisons, for instance. I want to try to get from you how much refinement you have of your understanding of the impact of the proposed changes to the Criminal Code vis-à-vis the vulnerable population that will find itself caught by that legislation. You seem to circle around and not want to answer directly. That is the impression I have.
Ms. Kane: I answered to the best of my ability that we look at all the various options. We do not always start out with the option you see before you in a bill. We present various options for the reform of the law to the government for its consideration. There are pros and cons of various options.
When we are looking at anything that has penalties that will have an impact on the prison population in the provinces or in the federal system, the Correctional Service of Canada looks at the implications for the prison population, male or female, and where they would be housed. They have sophisticated techniques for trying to estimate where that population will increase. It will not necessarily be in one region or another. They also look at how they will house these individuals and what the costs will be into the future, which includes the special programs.
That information is considered in assessing the options. At the end of day, there are many pros and cons with various options, and the government chooses the option best able to implement the policy objectives.
Senator Joyal: You have access to those studies in considering the options that you will recommend to the minister, do you not?
Ms. Kane: Those implications are looked at.
Senator Joyal: By whom?
Ms. Kane: They are part of the process when we develop options for the consideration of the government, where they are available. I cannot speak for the Correctional Service of Canada regarding the level of detail they pursue for the impact on a particular offender who maybe has HIV or any other illness you noted who might be convicted and sentenced to time in a federal institution. I do not know whether they go to that level of specificity. They certainly look at gender, Aboriginal population, age and so on.
The Chair: They are looking at gender and at Aboriginal people, and I hope they are looking at income distribution — the poor versus the well-off people who can afford to hire fancy lawyers. They do look at those things.
There are analyses available of the implications of the option that was ultimately chosen. Can this committee have that information?
Ms. Kane: I will have to inquire about what can be made available. I understood Senator Joyal's comment to be about people in prison. Information about income distribution and your question about whether they would be hiring representation is a slightly different question. I do not want to overcommit to what we may be able to provide to the committee.
Senator Joyal: I ask those questions because we are asked to say yes or no or to qualify our answer to this bill. As a rational and reasonable person, I try to understand the information at the root of this option that has been enshrined in this piece of paper. I am not trying to deconstruct the legislation; I am trying to have the rational approach any reasonable person would have to try to understand the impacts of this bill when it is enacted.
The Chair: I will have to stop you there, Senator Joyal, so the witness can respond.
Ms. Kane: I do not think I can add anything more.
Senator Joyal: Please put me on the second round.
Senator Lang: I know time is moving on here. It is 5:55, and I hope we will be completed by 6:15, as per our schedule.
I want to go back to the question of mandatory sentencing. There seems to be an ideological divide between members of the committee here as to whether these mandatory sentences should exist versus the discretion of the court. I get the impression as I am a new member here —
The Chair: You are not that new anymore.
Senator Lang: The impression is being left that the mandatory sentencing is something new and something just being brought in by the present government. For the record, could you tell us if there are other pieces of legislation with mandatory sentences and maybe give us an idea of when we started putting in mandatory sentencing?
Mr. Saint-Denis: We do have mandatory sentences for firearms. I believe those came into force in the mid-1990s. We have had mandatory minimums for impaired driving that have been around longer.
We did have a mandatory minimum for the importation of drugs since the 1960s. However, that was struck down because the minimum in that case was seven years and it was blanket minimum; there were no aggravating factors at all, so it did not matter what the quantity was. That predated Mr. Trudeau; such things have been around for some time.
Senator Lang: I want to follow up on this because I think it is important. I am sure Senator Baker would agree that we do not want to leave the impression that this is some draconian thing that has been brought in over the last two days.
Could you give us a brief overview on other countries, such as the United States and others in the free world? I assume they have mandatory sentences for certain crimes that the society feels are appropriate. Perhaps you could expand on that.
Mr. Saint-Denis: Mandatory minimums in the drugs area are fairly common in foreign legislation. It is not just in Asia or in South America, for instance. I believe even countries like Sweden and Germany have minimum penalties. I am not familiar with them, but I know they exist. They are likely structured differently than the way this is structured. They are out there, though, and that is the extent to which I can provide you information on that.
The Chair: I will put a supplementary, if we are asking for information to be provided.
There are studies on the impact in Canada of the mandatory minimums that we have had, particularly anything we may have learned about their deterrent effect. Would you provide those? We are giving you lots of homework.
Forgive me, Senator Lang.
Mr. Saint-Denis: Are you asking whether there are studies?
The Chair: Yes, in use in the department. I know university professors have been busily studying these things madly, but I am more interested, as is Senator Joyal, I suppose, in understanding the evidence that led to the reasoning that led to the drafting of this proposed legislation as it is. The minister has given us an eloquent explanation of the political philosophy that underlies this bill and, indeed, others. We are now looking for the technical work at your level.
Senator Lang: I am satisfied; I do not need the studies, frankly. I am quite satisfied with the fact that there should be mandatory sentences for certain crimes that have been committed, and it depends on how we around this table view those crimes and how serious those crimes are. I believe trafficking in drugs in a schoolyard is dangerous and calls for consequences.
I want to make a point on the treatment question and availability in the North. My friend Senator Watt made the sweeping statement that there are no treatment facilities available in the North. In our part of the country there are some programs in effect. I just want to put that on the record.
Senator Watt: That is in the Yukon.
The Chair: That would be how far from Iqaluit? Would it be a couple of thousand miles?
Senator Lang: I am in the North.
Mr. Saint-Denis: Madam Chair, you asked about studies that the Department of Justice has done.
The Chair: Yes, or used.
Mr. Saint-Denis: We did submit two reports that were commissioned by the department dealing with mandatory minimum penalties, and I believe you received those the last time we were here.
The Chair: Is there anything else we can add to that?
Mr. Saint-Denis: I do not believe anything new has been done.
The Chair: Okay. This incarnation of the committee has taken on board all the evidence that was presented a year ago, both by witnesses and through documentation, so we can double-check that. I, at any rate, have found it a little frustrating to try to get beyond passionate and deeply held political and moral views to get down to a ground of evidence in many of these cases. The more ground of evidence that you can provide for us to work with, the better. Certainly I, and I think other committee members, would be extremely grateful.
Senator Baker: Is the drug ecstasy affected in this proposed legislation?
Mr. Saint-Denis: I do not believe it is.
Senator Baker: I will go to your vetting of the legislation for purposes of the Charter. Under clause 2, if someone is found guilty of trafficking in a drug under Schedules I or II, trafficking could be passing someone something, giving someone a small amount of something, or selling a small amount of something to someone. If that person has been convicted in the previous 10 years of a designated offence — a designated substance defined as being the same type of offence, but it could be a joint of marijuana passing from one person to another — that person will then have a minimum sentence imposed upon him or her of one year and face a maximum of life imprisonment. Do you agree so far with what I am saying?
Mr. Saint-Denis: Well, I follow you, but you posit a situation that I do not believe is likely to arise. I am not familiar with any prosecution of anyone where a joint was given. At best, there would be a possession charge laid. I honestly have a hard time believing that a prosecutor would even contemplate a trafficking charge in that situation.
Senator Baker: I can show you case law on that. I can show you case law in fact of every single raid that takes place of trafficking in ecstasy — one tablet, two tablets. I have brought them before this committee and have read out the cases.
Mr. Saint-Denis: That is fine. You were mentioning a marijuana joint. If we are talking about other drugs, perhaps ecstasy or heroin or cocaine, I cannot speak to that. I was speaking to the giving of a joint.
The Chair: Senator Baker, for your information and for the committee's, we will be hearing from the Director of Public Prosecutions next week, and there may be some questioning there.
Senator Baker: I will tell you the line of questioning. I just have two questions for you. This is the first one, and I should get to it.
The first question is this: The two offences are relatively minor in the amount that is being transferred. It is trafficking, but the person is giving it to someone, giving someone a pill or two, or one. There was a previous offence. In other words, this is the second offence. When you vet that for purposes of the Charter, the first question I imagine would be is whether this cruel and unusual punishment. That is section 12 of the Charter. Then the second thing you would consider is whether it would be saved by section 1 of the Charter as reasonable. This has been gone through many times in the courts, various sections of that act.
What you are saying is you have already vetted this. Can you tell the committee, because your advice to the minister is supposedly secret, what the result of that vetting would be in the circumstances that I just gave to you, as I imagine you considered, and was your conclusion that it would be saved by section 1 and that it would not violate section 12?
Mr. Saint-Denis: You must remember, of course, that the way this bill is structured, it is not just a simple giving; it would be giving under specific circumstances. If there are no aggravating factors present and it is given, then yes, it is an act of trafficking, but there is no minimum penalty involved.
Senator Baker: I am sorry; I meant if you have previously been convicted of a designated offence.
Mr. Saint-Denis: The aggravating factor is a prior conviction then.
Senator Baker: Yes; that is what I thought I explained.
Mr. Saint-Denis: That is fine. We did have our constitutional experts look at this, and they concluded that the regime here would pass constitutional muster.
Senator Baker: Would it pass clause 12 or clause 1; or violate clause 12 or both?
Mr. Saint-Denis: I am afraid I cannot speak to the specifics. The net result of their consideration though was that it would pass constitutional muster.
Senator Baker: My second question is this: Every single police force that has appeared before this committee on this bill — the RCMP, the Ottawa Police Service, and one other — all made a point that under this bill, when you make the minimum penalties, more cases will be tried. This is the opinion of the organization of Crown prosecutors and so on. They said more cases would be tried. The courts will be busier.
The RCMP and the Ontario police force made a point of saying that for them to prosecute one case under the Controlled Drugs and Substances Act that has any complexity to it at all, a conspiracy case, is expensive. They gave an example recently of $1.4 million just for disclosure. Did you read that committee report where the RCMP singled out a case — $1.4 million? There are huge costs associated with disclosure as it relates to the opening of sealed packets and so on, as I am sure you understand. They say it is an incredible cost.
Has the department given any thought to sitting down with the police and trying to figure out a solution to this huge cost of prosecuting a case, under the Controlled Drugs and Substances Act, that deals with a conspiracy?
Ms. Kane: The department engages in discussions with the police on many occasions. The police often bring their concerns to our attention. A number of committees exist.
The issue you raise about the implications of mandatory minimums perhaps leading to more guilty pleas and longer trials has been articulated very well by police and Crown attorneys. At the end of the day, there is still wide support for the approach of this bill to address the aspects that this bill focuses on.
Senator Baker: No problem there, but my question to you was quite simple. They told this committee that there is a huge problem of expense. It is a huge expense — $1.4 million on disclosure in just one case, and they gave examples.
Have you initiated any discussions with them regarding putting in the legislation perhaps something that could quell this financial burden that they have placed upon the police relating to the prosecution of these cases as it relates to disclosure?
Do you understand my question, Madam Chair?
The Chair: Yes, I think so.
Mr. Saint-Denis: To answer the question, no, we did not. That was not part of our mandate in developing this legislation, so that issue was not considered.
Senator Baker: I see. This committee should consider that.
Senator Wallace: Senator Baker commented that someone who could find himself involved in trafficking — and I think he said one joint of marijuana — could somehow find himself wrapped up in the mandatory minimum provisions of this bill. My understanding is that there is a minimum quantity of marijuana or cannabis that would have to be involved in that trafficking in order for the bill to apply. Is that the case? If so, what is the minimum?
Mr. Saint-Denis: The trafficking offence with respect to cannabis is split into two. I think it is under three kilograms and over three kilograms, or three kilograms and less and then over three kilograms. The minimum penalties apply to both versions of that trafficking offence, so there is no distinction to be made there, providing one of the aggravating factors is present.
Senator Wallace: Senator Baker refers to one joint; three kilograms is quite a quantity.
Senator Baker: Madam Chair, on a point of order, the witness understood my question as being related to the designated offence and not the primary offence. I think the witness understood my question, and I think the witness should probably have taken my side as far as Senator Wallace was concerned.
The Chair: That is not a point of order, Senator Baker.
Senator Wallace: I am just trying to clarify the point you made.
The Chair: That is not a point of order. It may be fun, but it is not a point of order.
Senator Wallace: I believe you answered the question that there would be a three-kilogram minimum for the trafficking charge. That was the point.
The Chair: There are also minimums for production for the purpose of trafficking, and that comes down quite low to five plants.
Senator Raine: It is unfortunate that Senator Baker has tried to muddy the waters here. Designated offence?
Senator Baker: Yes, designated offence.
Senator Raine: That is not what we are talking about; we are talking about trafficking more than three kilograms of marijuana.
Senator Baker: That is in a primary offence. The witness can explain that, though.
The Chair: Senator Baker, I will ask Senator Greene Raine to address her question to the witnesses.
Senator Raine: Could you clarify this for me, please?
Mr. Saint-Denis: If I understood correctly, Senator Baker had as the primary offence the giving of a small quantity of cannabis.
Senator Baker: Could be cocaine, could be anything — I said ecstasy.
The Chair: Senator Baker, please let Mr. Saint-Denis complete his answer.
Mr. Saint-Denis: The primary offence is the giving of a small quantity of a Schedule I drug, or a Schedule II drug in this case; it does not matter. The individual is convicted, and the Crown can demonstrate that within the last 10 years, he has been convicted of a designated substance offence. He therefore is liable to a minimum penalty. The question was whether we considered this scenario when we did our constitutional evaluation. The response was yes.
Senator Baker: And the designated offence was a joint of marijuana being passed.
The Chair: We have concluded this round. I think we have been over this ground. Thank you, Senator Lang and Senator Baker.
Senator Raine: There are obviously many costs involved in the trafficking of drugs, and there will be costs involved in mandatory minimum sentences; but there will also hopefully be many fewer costs in terms of crime and creating new drug addicts. You have to balance those. I think that mandatory minimum sentences are a step in the right direction.
The Chair: Is that a question?
Senator Raine: No, that was not a question. My question had already been asked by Senator Wallace.
The Chair: I think it has been quite a long day. Senator Joyal, you were down for a second round. We have time for one question from you and one question from Senator Wallace.
Senator Joyal: My question is to Ms. Kane. Could you give us the estimated cost that you calculated for the implementation of that bill at the federal level and at the provincial level?
Ms. Kane: Do you mean the cost for the Public Prosecution Service of Canada for the prosecution?
Senator Joyal: No, everything — the prisons, all the costs that this bill will compel the federal government to incur.
Ms. Kane: I am not at liberty to provide you with all that information. That was provided as a cabinet confidence. However, some is in the public domain — for example, the cost to the Public Prosecution Service of Canada for prosecution, investigation and advice to the police for prosecution, because that is noted as part of the funding for the National Anti-Drug Strategy.
Senator Joyal: You do not want to inform Canadians or us, who are parliamentarians voting on this legislation, what kind of financial responsibility we put on the shoulders of the Canadian taxpayer when we vote that legislation?
Ms. Kane: As I said, I am prepared to indicate the amount that is already in the public domain for the Public Prosecution Service of Canada because they are the ones who will prosecute these offences under the Controlled Drugs and Substances Act.
Senator Joyal: What about the federal prisons, for those who will be incarcerated three years or five years, for instance, as this proposed legislation provides?
Ms. Kane: It is my understanding you have invited colleagues from the Correctional Service of Canada; they will give you that information to the extent that it has been noted in the estimates process.
Senator Joyal: The last time we asked that question, we were told they are cabinet documents.
Ms. Kane: As I indicated, but the Correctional Service of Canada is better placed to indicate what information it can provide with respect to the cost for the Correctional Service of Canada.
Senator Joyal: What is it for the provinces?
Ms. Kane: I cannot provide that information.
Senator Joyal: Why not?
The Chair: Were cost estimates taken into account when this bill was being drafted?
Ms. Kane: The costs for the federal government were definitely taken into account, as they are for all legislation.
The Chair: It is just that we, the legislators, are not allowed to know. That is what you are hearing frustration about.
Ms. Kane: I appreciate that, but I believe that you will have the right people invited to your committee who can provide that information.
Senator Joyal: No, they will provide only, as you said, according to the limits that you yourself established within a segment of information. That is why I think that we were asked here by the minister, who said he wanted us to support this legislation, but he asked us to support the legislation with at least one hand on our eye, which is the cost to the Canadian taxpayer.
Ms. Kane: You can take the information that I can give you today with respect to the Public Prosecution Service of Canada. You can add it to the information that colleagues from Correctional Service of Canada may be able to provide you. I cannot speak on their behalf. I am a representative of the Department of Justice. You would then have a broader sense of both costs.
Senator Joyal: We will not have the cost for at least half of the people who will find themselves under the scope of this legislation, those who will be sentenced to one year or two years. What is unacceptable to me as a legislator is that here I have to sign off on this bill, but I will not know at the end how much greater will be the burden for the Canadian taxpayer and how much that will be reflected in other priorities of the government. That is why it is sensible for us to request from you the information that you have on your table when you drafted the legislation. That is essentially what we are asking for, not something that is outrageously a state secret. This does not involve federal-provincial secrets; it does not involve foreign affairs; and it does not endanger the national security of Canada, the three counts for which normally the government refuses to give information.
Ms. Kane: Senator, I appreciate your concern, but I have indicated the information that I am prepared to provide to you, and that is all I can provide to you. The other information will have to come from other sources, to the extent that it is not a cabinet confidence.
The Chair: Ms. Kane, we do have to break. You said you can provide some information today. I ask that when you return to your office you scrape the bottoms of the drawers to find as much information as you can legally provide to us. We understand that you operate under the constraints of any civil servant who is dealing with cabinet documents. You understand, I believe, probably better after the last five minutes than you did before, this committee's natural desire to understand as much as it can about the impact of the proposed legislation before it. Any information that can be provided is better than none. The more information that can be provided, the better.
I will ask you to go back and see whether there is any information that can be provided to us that you do not have with you today in your file that you could give us today.
Ms. Kane: Do you want the figure now?
The Chair: Yes, please.
Ms. Kane: Fine. I just want to ensure I give the right amount. This is information that is publicly available on the Treasury Board of Canada website with respect to funding provided for the National Anti-Drug Strategy, for the Public Prosecution Service of Canada, for this bill; $33.5 million over five years has been set aside for the provision of prosecution-related advice and litigation support during police investigations and the prosecution of the drug charges under this act resulting from the mandatory minimum penalties. This funding is being held in a frozen allotment that would be provided upon proclamation of this bill.
The Chair: We really are out of time, but how do you allocate money once a law is passed? How do you single out which bit of a prosecution relates to that fund and which does not? Does that not become a rather costly business in its own right?
Ms. Kane: There is a Treasury Board process to allocate the money that will be provided in the course of the estimates when the legislation is proclaimed into force, and that money will be provided to the Public Prosecution Service of Canada. That amount is the amount that has been estimated as being the incremental amount needed for the prosecution of either an increased number of prosecutions or, as noted, longer trials perhaps — all of those factors that are taken into account.
Obviously, the Public Prosecution Service of Canada has capacity now for the prosecution of the Controlled Drugs and Substances Act across the country, and they do prosecute those offences. This is the incremental amount that will be needed for this particular piece of legislation.
The Chair: They do not have to apply on a case-by-case basis; it just goes into their general pot.
Forgive me, Senator Joyal; I have really eroded your time.
Senator Joyal: That is fine. I think the witness understood what we are trying to get as information. We are not trying to block the proposed legislation; we are trying to understand the impact on the overall system. I think it is a fair question to try to understand what will put additional pressure on the prison system, which is overcrowded, as we have heard from past witnesses and testimony here. It is fair for us to ask you those questions and to try to understand the impact that that will have on the prison system and the prosecutorial system of Canada.
The Chair: We will, of course, put those questions to the Correctional Service of Canada, but the people who were around this table a year ago will recall that when we did, we got very little information.
Senator Joyal: We got zero information, and it took an investigation of the Parliamentary Budget Officer on the two-for-one bill to get statistics. We are still floating around with numbers, because no one seems to be able to pin down the additional cost. We were told at the time of the original testimony that there would be no incremental costs, and we finally end up with billions of dollars.
The Chair: That is for tomorrow morning's meeting, which will begin at 10:30.
Senator Wallace: In view of the witnesses and the evidence they have given, I understand fully where Senator Joyal is coming from when he makes the point that these are legitimate questions, and I do not think any of us would debate that, but there is a suggestion that we are educating the witnesses and telling them that, whether they want to or not, they have to provide us with these figures. I did not sense any reluctance on their part to provide the information they had; quite the contrary. Ms. Kane told exactly what the incremental cost would be, which is the question that relates to the evidence she can give. What we will hear from Public Safety and other witnesses about other related costs is for another day, but I want to make the point that I did not sense any reluctance on the part of these witnesses to provide the information they had.
Senator Joyal: It only took five questions coming back before we got an answer.
Senator Wallace: Maybe it took a while to understand the question.
The Chair: In fairness, Ms. Kane did say, around about question 2.5, that she could give us the numbers she could give us.
What you do see, though, and I think we are all agreed on this, is that, not just for this bill, but in general, we do tend to be frustrated by the lack of factual information that underlies decisions. You can go back and say, ``Those senators are really building up a head of steam,'' or you can say whatever you want, but I would reiterate, Ms. Kane, if there is any further information about other financial implications of this bill that you can upon reflection provide for us, they would also be appreciated.
As I was saying, tomorrow, beginning at 10:30, we shall hear from the Correctional Service of Canada and after them from the officials responsible for managing the National Anti-Drug Strategy. We will hear from people representing Health Canada, Justice Canada — again you lucky guys — and Public Safety Canada.
We are grateful to you very much. This has been a little more rancorous than it is sometimes. It is not personal; it is institutional, but real.
Thank you very much indeed.
(The committee adjourned.)