Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence for November 4, 2010
OTTAWA, Thursday, November 4, 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 10:35 a.m. to give clause-by-clause consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We have gathered to deal with a few housekeeping motions and then will proceed to clause-by-clause consideration of Bill S-10.
Turning first to the housekeeping motions, honourable senators, I believe you all have this sheet. The first motion requires a bit of explanation. For those of you who do not know — I have tried to let senators know — I shall be absent for the first two weeks after the break on parliamentary business. Senator Wallace as deputy chair will chair the meetings. However, we need a motion to replace me on the steering committee. Consultation on our side has concluded that the obvious logical perfect candidate is Senator Joyal. That was considered a biased presentation. You have before you the text of the motion to that effect.
Senator Angus: I so move.
The Chair: All in favour? Opposed? Abstentions? Carried.
We then have the following items that need to be filed as exhibits with the clerk of the committee. First is the update to the government response from the Honourable Peter MacKay, Minister of National Defence, relating to the committee's final report on reforming Canada's system of courts martial.
Senator Angus: Have we seen that, Madam Chair?
The Chair: Yes, all the documents have been circulated.
Next is the response from Mr. Spicer of the Halifax Regional Police to a question we put to him when he appeared via video conference last week.
[Translation]
The response from Ms. Catherine Kane, from the Department of Justice Canada, has been distributed to committee members. Might someone move the tabling of the documents with the Clerk?
Senator Carignan: I so move.
[English]
Senator Angus: I wanted to comment on those things. We have had the discussion before, Madam Chair, and I wrestle with it also on the committee I chair: When we receive these documents filed later there is no chance for colleagues to question on the document. These are quite relevant.
The Chair: The courts martial document may not be relevant to today's proceedings, but the others are.
Senator Angus: In the future, we should try to find some way around it. It is a work-in-progress.
The Chair: Definitely a work-in-progress. We try to get documents out as quickly as we receive them. We cannot actually take a cattle prod out and prompt people to respond to us.
Senator Angus: We have such a heavy load of legislation. With the chair's desire to have all senators put their questions to the witnesses, quite often it ends up that the last four questions will be answered in writing, and then the answers either come or do not come, but they give rise to other questions. It is not an ideal way of dealing with it, obviously.
The Chair: I know; it is not ideal. There is no ideal way of proceeding, in my experience, Senator Angus. We try various avenues to get to good results, and we do the best we can.
[Translation]
Senator Carignan moves that these documents be tabled with the Clerk. In favour? Opposed? Abstentions?
[English]
Carried.
As agreed and as the committee has been notified both by notice and at yesterday's meeting, we now proceed to clause-by-clause consideration of Bill S-10. We have in the room, from Justice Canada, Mr. Paul Saint-Denis, who is a familiar face. He can come to the table as we continue our proceedings if need be. Senators may ask him to come forward if they wish.
[Translation]
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-10, An Act to Amend the Controlled Drugs and Substances Act? In favour? Opposed?
[English]
Hon. Senators: Agreed.
The Chair: Against? Abtensions? Carried.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: It is agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: It is agreed.
Shall clause 2 carry?
Senator Baker: Madam chair, I have a proposed amendment to clause 2.
The Chair: Do you have copies of it?
Senator Baker: Yes. I gave copies to the clerk, and she will now distribute it. Perhaps I could explain what the amendment is before reading it.
The amendment will be to change the section dealing with the designated substance offence. The amendment will say not just that someone was convicted of a designated substance offence in the previous 10 years but also that for the designated substance offence within the previous 10 years that person served a term of imprisonment of 1 year or more.
The amendment would be in clause 2 on page 2 by replacing lines 5 to 8 with the following:
designated substance offence within the previous 10 years and served a term of imprisonment of one year or more for that offence, or
The Chair: Are you moving that, Senator Baker?
Senator Baker: Yes, I am moving that.
The Chair: Let me read the French version of that, which is on the other side, and then if you would explain it, please.
[Translation]
It is moved by Senator Baker that Bill S-10 be amended in Clause 2, on page 2, by replacing lines 5 to 8 with the following:
. . . designated substance offence within the previous ten years and served a term of imprisonment of one year or more for that offence, or.
[English]
Senator Baker: This will not be something new to members of the committee because this same amendment was proposed on the previous occasion that this bill was before committee. I might note that at that time it was passed in the wisdom of the committee.
The amendment will prevent a situation where the previous offence could be viewed as relatively minor compared to other offences in the same classification. For example, a designated substance offence under the act is any offence under the Controlled Drugs and Substances Act that is not captured by section 4(1). That section is simple possession. Any offence of conspiracy or with intent to conspire, such as trafficking, possession for the purpose of trafficking or any of the other provisions, would be considered to be a designated substance offence.
In a situation where someone was convicted in the previous 10 years of passing — and I use this as an example — a joint of marijuana or a Tylenol 3 pill or an Atasol-30 pill, then that person would be captured with the mandatory minimum sentence. The amendment says not only should you have to be convicted of an offence here but in the previous 10 years that you served a term of imprisonment for one year or more for that offence. I think committee members understand the rationale for that.
The Chair: Discussion?
[Translation]
Senator Carignan: I am in disagreement with the proposed amendment. I believe that the clause is clear when it states that when a term of imprisonment is served, then the trafficking offence must be sufficiently grave and serious in order for the judge to hand down a sentence of imprisonment.
There are several sentences, before imprisonment, that can be handed down, and if the court has deemed that it is a term of imprisonment that must be served for the infraction, then it is that the infraction was grave and serious.
The examples that you give regarding handing over a joint or a Tylenol pill are extreme situations. When I mentioned these examples to police officers and consulted them on the matter, they somewhat smiled because they were saying to themselves that they have so much other work to do than running after people handing out Tylenol pills and that it is utopian to think that these people could be accused in such cases. It is even more utopian to think that they might be sentenced to prison for so little.
I believe that the spirit and letter of the bill serve its aim, which is to be a disincentive to repeat offenders.
[English]
Senator Wallace: When I compare it to the existing provision in the bill, the difference is that the existing word "or" is replaced by the word "and." Is that correct?
Senator Baker: Yes.
Senator Wallace: The significance of that, I believe, cuts against one of the underlying purposes of the bill, which is to create more severe sentencing for repeat offenders. I believe that is the purpose of this previous-conviction subsection.
One of many problems I have with the suggested amendment is that it requires this previous offence to have resulted in actually serving a year of imprisonment. With the present provisions we have for early release, where one could be released on one sixth of a sentence, the person could have been convicted of an offence with a sentence of five years, a serious offence, and yet that person may end up serving only one sixth of that, which would be less than the year and which, with this amendment, would not be picked up.
With all due respect, I cannot agree with the amendment. It is a fundamental departure from the focus and principle of this bill.
The Chair: Further discussion?
Senator Baker: Both are excellent points, but in response to the suggested amendment that I have made, in the first instance, Senator Carignan's point, I think I have demonstrated to the committee with case law instances where persons have been convicted of trafficking when they gave to a police officer, without the exchange of money, one ecstasy pill. I have read that into the record many times in the Senate and in this committee, so I should not do it again.
However, these cases are out there, and that is no reflection on the police. The police have a job to do. Once we pass a law, they must follow that law.
In response to the second point, which is another excellent point, if you are given a five-year sentence, do not forget that the one sixth of the sentence only applies to provincial institutions where it is up to the warden on application to the warden under provincial law that you serve one sixth of your sentence. It would be in extremely extraordinary cases that Senator Wallace's example would apply. I still maintain that it is good logic to have this here and that someone could end up being jailed for a mandatory minimum period for the commission of a previous offence that is relatively minor in nature.
The Chair: I see no further hands for discussion, so we will proceed to the vote on the amendment.
Shall the amendment carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
Senator Lang: Disagree.
The Chair: I think I need a little more certainty. All those in favour?
Some Hon. Senators: Yea.
The Chair: All those opposed?
Some Hon. Senators: Nay.
The Chair: I think the nays have it. Do you want a roll call vote, Senator Baker?
Senator Angus: On division.
Senator Baker: On division.
The Chair: Okay. The amendment is not carried.
Shall clause 2 carry?
Senator Baker: On division.
The Chair: On division.
Shall clause 3 carry?
Senator Baker: On division.
The Chair: Carried on division.
Shall clause 4 carry?
Senator Baker: Madam chair, I have an amendment at clause 4. This does not come as a surprise to committee members. A similar amendment was moved the last occasion that this bill was before us.
Let me briefly explain, as the amendment is being distributed, the rationale for it.
The present provision says at clause 4 on page 4, replacing line 8 with the following —
The Chair: You are now making the motion?
Senator Baker: Yes, let me make the motion because I think everyone has it in front of them.
That Bill S-10 be amended in clause 4, on page 4, by replacing line 8 with the following:
"than 201 and more than 20, and the".
[Translation]
The Chair: I will now read the amendment in the other language:
It is moved by Senator Baker that Bill S-10 be amended in Clause 4, on page 4, by replacing line 8 with the following:
"than 201 and more than 20, and the".
[English]
Senator Baker: The explanation for the amendment is that the present bill says imprisonment for a term of six months if the number of plants produced is less than 201 and more than 5 and the production is for the purpose of trafficking.
The reason why this amendment is being proposed to establish not 5 plants but 20 plants is based upon the present law, which is reflected in many court decisions. I refer to James and Moynan v. City of Salmon Arm, 2009 BCHRT 285, the British Columbia Human Rights Tribunal, at paragraph 24. This is instructive. It says here:
The Production Licence allowed Mr. James to grow 30 marihuana plants indoors in his home.
That licence is granted by the minister in charge of this bill, the Minister of Justice. If you take another case, the Alberta Court of Appeal, R. v. Stoyko, 2008 Carswell Alberta, ALTA, 190. At paragraph 2 it states:
The maximum number of marihuana plants that you may have under production at the production site at any time under this Personal-Use Production License is 25 Plants (indoor).
What is happening here is that the Marihuana Medical Access Regulations passed by the government allow the issuing of licences to persons for personal medical use ranging anywhere from treatment of pain due to cancer to any condition of the spine to dramatic weight loss. There are any number of reasons why this licence for personal use is issued, and the minister issues the licence under section 30 for personal use in someone's home, and as you see from those two examples, 30 plants and 25 plants.
We are passing a law that says if you have more than 5 plants it brings into force a mandatory minimum sentence and an assumption of trafficking. Two individuals could be growing marijuana for personal use — one with 6 plants, the other with 30 plants — and the 30 would be legal because the person has a ministerial licence. However, the question is the same: What number of plants could be considered for personal use? Our point is that if the minister considers 30 plants for personal use, then perhaps we should be saying in this bill something not too distant from that number for personal use.
We are suggesting 20 plants — not to bring it up to what the ministerial licence is for personal use, which is 25 and 30; it will not go that far, but at least up to 20 plants so that we respect the ministerial authority under the regulations under this act to issue permits for personal use. Basically, that is the rationale.
The Chair: Discussion?
Senator Stewart Olsen: On a point of clarification, if I may, Senator Baker, you were quoting cases dealing with medical marijuana where licensing is for the purpose of medical use. Are you mixing apples and oranges, personal use versus medical use? Could you clarify that for me?
Senator Baker: Both are for personal use.
Senator Stewart Olsen: I understand what you are saying.
Senator Baker: You cannot distribute it to someone else if you have a permit from the minister for personal use.
Senator Stewart Olsen: That is for medical use, and you would get it issued from the minister for medical use.
Senator Baker: Yes, for yourself.
Senator Stewart Olsen: I see that the bill before me does not deal with that.
Senator Baker: No.
Senator Stewart Olsen: Thank you.
Senator Baker: That is why we made it lower than what the minister would regard as being personal use. In this section, not only is there the assumption that it draws the mandatory minimum, but also there is an assumption of trafficking. How can you have an assumption of trafficking for someone with 20 plants for personal use, and not for someone else next door with 30 plants for personal use because it is for medical reasons? Surely, you cannot say that one is trafficking and the other is not. That is our logic.
Senator Stewart Olsen: I would say, though, that I can see the difference, and I can see most people can see the difference.
Senator Baker: I am glad to see you support it.
Senator Wallace: I thank Senator Stewart Olsen. I was drawing that point to everyone's attention. I was having the same difficulty. I believed I understood what you were saying, but the continual reference to personal use, to many, equates to recreational use. I know that was not your intention, but I was left with much the same impression. You are talking about medical use, and there is a regulatory process for the minister to approve the medical use of marijuana. There is nothing new about that. There is nothing in this bill that relates at all to that.
Just to go back in history, we have incorporated the materials from the previous Bill C-15 into this proceeding, and although this one is another bill, its content is similar, if not identical, to the previous bill.
With Bill C-15, if you remember, originally the number of plants that would have resulted in a charge of production was one. It was increased from one to five, and that change occurred in the house.
The purpose of this section is part of the government's approach to send out strong messages to do as much as can possibly be done to discourage the production of drugs and, yes, the production of marijuana — the illegal production of marijuana — and the non-medical use of marijuana. As a consequence, when I think of that history, I think of the changes that were made from the number that was prescribed originally in Bill C-15.
I have to disagree with Senator Baker. I believe that five is a reasonable number. I believe we should maintain that in this bill.
[Translation]
Senator Boisvenu: I have tremendous admiration for Senator Baker. He is my mentor with regard to legal issues. However, I believe that here he is venturing onto a slippery slope. He is attempting to lend to a clause of the bill intentions that do not fit with those of the legislator. A great weakness of the Criminal Code is that, in several areas, we have attributed to the legislator intentions that he has not avowed.
Senator Baker wishes to introduce into the bill medical intentions. But it would be better to leave that matter aside. Furthermore, the use of marijuana for medicinal purposes has begun to be challenged. In Montreal, six months ago, two distributors of marijuana for medical use were shut down by the police because they constituted a sales network.
The intent of the legislator, in this bill, seeks to avoid that stream. The minister will continue to have the authority to grant licences for personal use. The idea is not to restrict that aspect, but rather trafficking. In my view, it would be dangerous to include medical use purposes in the bill. It would be preferable to abandon the bill rather than to put such intentions before a judge. The intent of Bill S-10 is to protect young people who start using drugs very early in their lives. The aim is to prohibit people from producing marijuana for the purpose of selling it.
Having seen a marijuana plant, I would consider that having five plants in one's house would suffice for one's personal use. A greater number of plants could constitute an over-supply. This is why, Senator Baker, I believe that this is a slippery slope.
[English]
Senator Joyal: We should not forget that the clause Senator Baker is proposing to amend does not remove the fact that for any other circumstance, it is still an offence. The offence remains. It is just the terms of imprisonment that are removed.
In accepting the amendment, we are not legalizing here. On the contrary, we are maintaining exactly the same weight of the law against anyone who would be under the number of 20 or over the number of 20. The law would remain the same. The only thing that is removed is the six months for those who have between 5 and 20 plants. That is essentially what we are doing here. It is important not to create the impression that we are giving a free hand to anyone who has between 5 and 20 plants. That is not at all what the amendments would do.
The Chair: Senator Baker, would this amendment restore judicial discretion? Someone could still be sent to prison by the judge if that was appropriate, but the judge would have the freedom not to do that. Is that the effect of this amendment?
Senator Baker: Yes. A judge is always faced with the question, when there are marijuana plants in a home, and believe me, over the years we have passed some very stringent laws. You lose your home. It is forfeited to the Crown if you are found to have modified your home in any way for the illegal production of marijuana that is trafficked. Every day, homes are forfeited. That is what we passed. We have that in the law. It is a very strict law.
What we are dealing with here has nothing to do with that law as it relates to forfeiture.
Here, we are talking about the number of plants and when the mandatory minimum kicks in. The question of whether or not the plants are for trafficking is, in the judge's mind, about the numbers. You cannot have 200 plants for your personal use. What number do you arrive at that says this is for your personal use, and this is perhaps for trafficking, and now you have gone over the limit?
The point is that there could be two individuals, and one person is permitted to have 30 plants for personal use for medical use for pain or any number of things. Then the person next door should not be allowed to have as many as 30, but certainly not far off that, because the assumption would be made that that is also for personal use. It very well could be for personal use.
We are suggesting that the 20 number would be a realistic number, compared to what is presently allowed for personal use.
[Translation]
Senator Carignan: I too have great respect for Senator Baker. I must admit that, on this point, he had me stop and think. In my opinion, one must not confuse personal use and medical use. The latter does not necessarily imply personal use.
Medical use will also depend on the prescriptions granted to individuals, and such individuals can also ask a designated producer to produce marijuana for them. The regulations concerning the production of marijuana for medical use, if you look at them, do not talk about the number of plants, but establish a formula to arrive at a number of grams, whether or not the marijuana is dried, based upon the production space; it is much more complex and technical in the regulations. Therefore, there is ministerial discretion; in the cases mentioned, based, I imagine, on the calculation formula and the evidence provided to the minister, in sufficient quantity, he concluded that he should grant a licence for 30 or 31 plants, based on the very precise circumstances outlined to him. A distinction has to be made, and one should not necessarily take that decision and quote it out of context, inferring that it is a decision in favour of personal use.
It perhaps goes even further than that. The intent of the bill is to target production for the purposes of trafficking and not that for medical use, personal use. We do not have this calculation formula, that is rather complex, but we can understand that it would perhaps be unreasonable to import this formula within the confines of the Criminal Code, if only for reasons of precision, where there might be a risk that the Act be declared unconstitutional for reasons if imprecision.
The people in the community know full well that with regard to personal use, one or two plants are normally sufficient, and that five plants would be for a consumer with a solid constitution. Beyond that, I believe it is easy to presume that the intent is to provide marijuana to others, in other words, indulge in trafficking. That seems reasonable to me.
The other element, that of increasing the number to 20 plants, would, in my view, make things easier for traffickers who might want to split things up into smaller production units of 20 plants each, in order to circumvent the law. It is perhaps not an open door, but it is at least a key to open the door if the level is moved up to 20 plants. For all of these reasons, I am in disagreement with the amendment.
[English]
Senator Wallace: First, Senator Carignan has clarified my point that for production levels of 6 to 200 plants under the bill, the onus would be on the Crown to prove that it is for the purpose of trafficking. I will not repeat what Senator Carignan said so clearly.
Second, when Bill C-15 was before the house, I believe there was unanimous agreement to increase the low number from one plant to five plants. That does not bind us today, I realize, but it is important to realize how we arrived at where we are today.
Also, with Bill C-15 and to some extent with Bill S-10, we have strong indication of support for the bill in its present form from the offices of the provincial attorneys general as well as from law enforcement. It was not created in a vacuum. Arriving at five plants as the maximum limit did not happen through a take-it-or-leave-it approach. Rather, it was through the Bill C-15 process, and it is at that level today.
Third, Senator Baker's reference to forfeiture of homes and the consequences faced by those involved in the production of marijuana in homes reminds me of the graphic evidence we heard with both Bill C-15 and Bill S-10 of the problems that grow ops create in homes: the risk of fire, the risk to neighbourhoods and the danger that creates. Some who are involved in those types of activities also use weapons and violence. I believe we heard a strong plea from community leaders that this situation is getting out of hand in some neighbourhoods and that grow ops should not be encouraged, all of which brings us back to the need to take action. From the government's perspective, that is what Bill S-10 is all about.
Obviously, it will not surprise Senator Baker that I strongly believe that the limit of five plants for the purposes of production and trafficking is a reasonable limit at this stage. I could not agree with your amendment.
[Translation]
Senator Chaput: I believe that the intent of the bill remains the punishment of organized crime. In my view, the judge is the one who is in the best position to determine if organized crime is involved in the production of a quantity of less than 20 plants. I therefore support the amendment.
[English]
Senator Banks: I have a question for clarification: Senator Baker, the two cases you cited, one from the Alberta Court of Appeal and one from B.C., pertained to licences issued. Were they issued to a person to grow marijuana for personal medical use, or were they licences granted to a person to grow marijuana for others' medical use?
Senator Baker: They were issued for personal use of medical marijuana. As I read to you, and Senator Carignan is right, the regulations involve a formula. A permit can be issued that identifies the number of grams of dried marijuana and so on. I could read 100 more decisions from every province that deal with people who have gotten into trouble over their permits. These people are growing more than is allowed by their permits. I read out the numbers simply to illustrate how the regulations are interpreted by the minister in issuing the permits for a specific number of plants to be grown indoors by persons for personal use. The permits also specify the amount of dried marijuana for personal use that can be possessed at any one time as well. I cited the cases to identify the numbers of plants permitted for personal use.
Senator Banks: In those two and perhaps other instances, the minister has determined that for personal medical use, a certain number of plants is required in order to get whatever those persons need.
Senator Baker: Yes. It is not exactly the minister. Rather, it is someone designated by the minister in the department to issue the permit. The minister does not have to bear the burden of issuing permits.
The Chair: He would never get any sleep if he had to sign.
[Translation]
Senator Carignan: Just to underscore the "purposes of trafficking", if the individual has 20 plants and demonstrates that they are for legitimate personal medical use, even with the clause as it now stands, he or she would be acquitted of this infraction because there must be an intent to traffic. Therefore, the Crown will have to prove, beyond any reasonable doubt, and the burden is considerable, that the individual wished to indulge in trafficking. If the individual has five, six, seven or eight plants and creates a doubt as to the purpose not being trafficking but personal use, even if the individual has more than five plants, he or she will not be able to be convicted of that infraction.
In my view, the notion of "committed for the purposes of trafficking" grants judicial discretion to the court in order to avoid that a person found in possession of more than five plants be systematically sentenced to six months in prison. This rather means that the individual must be in possession of more than five plants as well as having committed an infraction for the purposes of trafficking, all of this having been established beyond any reasonable doubt.
I do not know if that appeases your concerns, but as far as I am concerned, I can say that this reassures me.
[English]
The Chair: Senator Baker, I will come back to you for response.
Senator Stewart Olsen: I will be brief, Senator Baker. The cases you have raised are very different from those addressed by this bill. You include in your arguments comments about ministers determining different numbers of plants. Forgive me, I am not a lawyer, but I would say that this bill goes a long way to clarify things for everyone, not just judges and ministers. However, your cases present different issues and different case law around medical use versus trafficking. Therefore, I cannot support your amendment.
Senator Baker: The wording of the bill triggers not only trafficking but also a mandatory minimum sentence. At what number of plants should it trigger a mandatory six-month jail term? With Senator Carignan's point, the person would not be convicted of possession for the purpose of trafficking. However, if the person is found innocent of possession for the purpose of trafficking, that person is found guilty of possession under section 4(1).
The question remains: What number of plants do you determine for a six-month jail sentence? That is the question before the committee in this clause. I agree with Senator Wallace that the government had introduced one plant but the House of Commons, in its wisdom, amended it to five plants.
The Chair: Are we ready to proceed to the vote?
Senator Banks: I am sorry, chair, it is probably unnecessary but I want to make an observation on Senator Carignan's comments. He is right that the accused does not have the job of proving his or her innocence and that the Crown has the onus of proving beyond a reasonable doubt that the purposes are for trafficking. However, it seems that government members are suggesting that the number of plants has an effect on the likelihood of trafficking being involved, which is to say that a lower number of plants would indicate a lesser likelihood of trafficking being involved and conversely a higher number of plants would indicate there is a higher likelihood of trafficking being involved. The onus of proof for the purposes of trafficking does not change in either case. If that is so, it would seem easier to prove that trafficking is involved when a greater number of plants is involved.
The Chair: Those in favour of the amendment will please say yea.
Some Hon. Senators: Yea.
The Chair: Those opposed will please say nay.
Some Hon. Senators: Nay.
The Chair: The nays have it. The amendment is defeated.
Shall clause 4 carry?
Some Hon. Senators: Agreed.
The Chair: Carried on division. Shall clause 5 carry?
Senator Baker: I have an amendment to clause 5, which members will not be surprised about because a similar amendment was considered on the previous bill. I will read the amendment as it is being distributed. I move that Bill S- 10 be amended in clause 5, on page 5, by replacing lines 15 to 22 with the following:
8.1(1) On two occasions, within two years and five years respectively after this section comes into force, a comprehensive review of the provisions and operation of this Act, including a cost-benefit analysis of mandatory minimum sentences, shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established for that purpose.
Two major changes are proposed to this section as it relates to Bill S-10. First, the bill in its current form says that a review will be done by the House of Commons or by a committee of both Houses of Parliament, which omits a committee of the Senate. My amendment includes a committee of the Senate. This is in keeping with the existing practice regarding such reviews.
Second, a comprehensive review after five years as well as two years, as Bill S-10 states, will be put forward by the government. As committee members know from the evidence that has been presented, it takes at least five years for someone to pass judgment on what a review report to Parliament would entail. These organized crime cases normally take beyond five years to litigate in our courts. At the end of five years, you would have some indication of the effect of the legislation. If it were reviewed only two years after the passage of the bill, you would have to wait a year or so before you would see determinations of the court. The law in effect at the time of the commission of the offence would apply to the court proceeding taking place.
The new law would apply to cases where the offence was committed after the new law came into force. The illegal action occurs after the law is changed, then come the charge and the trial. At the end of the trial is sentencing and, in sentencing, the mandatory minimums come into effect.
How long that takes is anyone's guess depending upon the case. Certainly, it would not be captured in a two-year period. That is why we suggest a five-year period and that the Senate committee be recognized for the review.
The Chair: Is there discussion?
Senator Wallace: I believe that Senator Baker makes a good point. It is consistent with some of what we heard about the practical implications of trying to do a comprehensive review after two years, including a cost-benefit analysis. I think his comments make a lot of sense.
I would propose, Senator Baker, that rather than requiring that section 8(1) provide for two different periods of time when this review could take place, namely within two or five years, we simply limit it to the five-year period. Similarly, the comments you make about the inclusion of the committees of the Senate are good suggestions. I would be prepared to support that with that five-year limitation and deleting the two-year reference.
The Chair: Are you moving a sub-amendment?
Senator Angus: It sounds like that.
The Chair: Could I assume, Senator Wallace, that you have moved this? I am sure the clerk can produce the appropriate wording.
Senator Wallace: I can give you the language.
The Chair: You can? Splendid.
Senator Wallace: I will work from Senator Baker's amendment. Simply delete the words "on two occasions," begin the sentence with "within," delete the words "two years and," and then following five years delete "respectively."
It would read, "Within five years after this section," and then it continues on in the form that Senator Baker has proposed.
[Translation]
The Chair: In the other language, and I am consulting my colleagues, we would simply delete the words "on two occasions", begin the sentence with "within", delete the words "two years and" and then following five years delete "respectively". The sentence would therefore read:
Within five years after this section.
That would work.
Senator Carignan: Are you removing the word "respectively"?
The Chair: Yes.
Within five years after this section.
[English]
Do you want to give further explanation of your sub-amendment, Senator Wallace? You explained it quite clearly.
Senator Wallace: No, unless there is some question.
The Chair: Is there discussion of the sub-amendment?
An Hon. Senator: I think it is excellent.
The Chair: Shall the sub-amendment carry?
Hon. Senators: Agreed.
The Chair: All in favour? Opposed? Abstentions? Carried.
[Translation]
Senator Carignan, my apologies with regard to the amendment itself.
Senator Carignan: I had asked for the floor after Senator Wallace. It was to emphasize that Senator Baker had convinced me of the appropriateness of his amendment. It was to suggest the sub-amendment. But Senator Wallace took care of that. I am in agreement and I support the main amendment.
The Chair: We will now proceed with the vote on the amendment as amended.
[English]
Senator Wallace: I thought it was my compelling presentation that convinced you, but whatever it took to get you in the right direction, I am comfortable with that.
The Chair: Shall the amendment as amended carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5, as amended, carry?
Hon. Senators: Agreed.
The Chair: It is agreed.
Shall clause 6 carry?
Senator Baker: As committee members know, I am the critic for this bill. Other committee members would certainly be moving some of these amendments if they were in my position. Again, this amendment is nothing new to the committee because it was presented before the committee in a previous proceeding.
This amendment adds a new subsection to the bill at line 14 on page 6. I will read it out so that it is clear. I notice everyone has received it by now. I move that Bill S-10 be amended in clause 6, on page 6, by adding after line 14 the following:
(6) The court is not required to impose a minimum punishment of imprisonment if it is satisfied that
(a) the person to be sentenced is an Aboriginal offender;
(b) the sentence would be excessively harsh because of the offender's circumstances; and
(c) another sanction is reasonable in the circumstances and available.
(7) If, under subsection (6), the court decides not to impose a minimum punishment, it shall give reasons for that decision.
The Chair: I will read the motion in French, and then we can have a discussion.
[Translation]
It is moved by Senator Baker:
That Bill S-10 be amended, in clause 6, on page 6, by adding after line 14 the following:
"(6) The court is not required to impose a minimum punishment of imprisonment if it is satisfied that:
(a) the person to be sentenced is an Aboriginal offender;
(b) the sentence would be excessively harsh because of the offender's circumstances; and
(c) another sanction is reasonable in the circumstances and available.
(7) If, under subsection (6), the court decides not to impose a minimum punishment, it shall give reasons for that decision."
[English]
Senator Baker: We heard substantial evidence on this point recently before the committee, and the rationale is that the Criminal Code outlines at section 718 a regime whereby a consideration is given to an Aboriginal offender. Moreover, this follows Supreme Court of Canada decisions that point out that a judge in sentencing must consider similar factors. I think all committee members are familiar with those Supreme Court of Canada decisions.
We heard testimony before the committee by some lawyers and a professor of law to the effect that the mandatory minimum sentence would violate sections 12 and 15 of the Charter and section 35 of the Constitution as well. We also heard that the provision as worded should not stand.
As we all know, we have passed mandatory minimum sentences in the past, and they do apply — the firearms legislation, for example.
The point is that if you keep applying mandatory minimum sentences and allow no discretion whatsoever to the judge, then you arrive at a point where you negate or negative section 718 of the Criminal Code, another act of Parliament, and you negative the intent of the decisions of the Supreme Court of Canada.
Basically, that is the rationale for the bringing forward of this amendment. Members will also note that it would be up to the judge whether the mandatory minimum sentence would be excessively harsh and whether there is another sanction that would be more reasonable in the circumstances, and the judge would have to give reasons, thereby allowing the Crown to appeal the judge's decision if the decision states that the mandatory minimum would not apply.
The Chair: Thank you, Senator Baker. We have a raft of people who wish to speak on this one.
[Translation]
Senator Boisvenu: Indeed, this is a question I have, especially with regard to paragraph:
2(a) the person to be sentenced is an Aboriginal offender.
I would give an example to Senator Baker, in order to try and understand his reasoning. In the Estrie region, where I live, there are Aboriginals, Malecites, I believe, who have Indian status. They have the Aboriginal ID card. They do not live on a reserve, they are integrated with the White community.
Would such people, indulging in trafficking, be excluded from any minimum sentence? Yes, according to this amendment, because it says "the person to be sentenced is an Aboriginal offender". In my view, an Aboriginal is a person who has this card, who is recognized as Aboriginal, whether he or she lives on a reserve or not. That person enjoys the same rights.
With regard to justice, ordinary citizens would say that that individual, residing in Sherbrooke, would be excluded from any sentence.
The Chair: The amendment says "is not required."
Senator Boisvenu: That individual would be treated differently from a White citizen. I would understand that, because that is what was done for hunting and fishing, because the Quebec law regarding hunting and fishing grants ancestral rights to Aboriginals. They are allowed to hunt outside of the normal hunting season. In this instance, are we going to grant them an ancestral right to indulge in trafficking?
[English]
The Chair: Senator Baker, could you keep a list of the points you need to respond to here? We could go on forever.
Senator Baker: Yes.
Senator Lang: I want to go over a couple of areas that make this amendment unrealistic and that do not confront the real world that we face on a day-to-day basis, especially in rural Canada.
Many Aboriginal communities are now integrated because as time has moved on, people have moved in and out of these communities, and there is a combination of First Nations and other Canadians living in these communities. I do not understand how you can have a law where an Aboriginal person and a non-Aboriginal person were caught trafficking and would have to appear in a situation where a different law would apply to each of these individuals. That is not common sense or realistic. The reality of it is that in these communities at the end of the day, when people are allowed to traffic and have had free reign for a long time, the result can be the death in a somewhat innocent situation of a substance user. This was pointed out last night in a tragic situation where I come from. We heard the story last night.
I would submit that the reality we face in the composition and demographics of these communities is far different than it was 30 years ago.
An amendment of this kind does not confront the problem that some small communities face where two, three, four or five of these individuals effectively have control of a community and are exercising fear and are involved in the substance abuse and the trafficking that is going on in those communities. Perhaps it is not politically correct to talk about it, but the reality is that is happening across Canada in some of these communities.
We have been told countless times in this committee that if we put laws into effect that will remove these people who are consciously preying on their fellow citizens and are trafficking drugs and put them elsewhere, in this case incarcerated, then those communities can find peace and security. At the present time, it is a revolving door. If they are caught, after a very short period of time they go back and prey on their neighbours.
I, for one, cannot support a double standard, and I cannot support the premise that because I am of a certain ethnic group we would allow the trafficking in that community, or at least appear to allow the trafficking in these communities over and above what we would do with any other community. I think that is wrong.
Senator Angus: First, if I understand this well — I am not sure I agree with my friend Senator Lang — I believe the amendment is saying that the judge will have a bit of discretion in the case of an Aboriginal offender. I am troubled by that. Maybe we need a definition unless you can explain it to me. That speaks to your point, Senator Lang.
What we heard last night about fetal alcohol spectrum disorder was compelling. I think that is the main thrust of your amendment, Senator Baker.
However, I have a problem with paragraph (c). Would you be comfortable if that were removed? That is where you are sneaking in a wider reach. It is like a complete reach to apply widely.
The Chair: That sounds like a suggestion of a sub-amendment.
Senator Angus: It is a question, really.
The Chair: Sub-amendments we should go to straight away, but you had a question there, Senator Baker. Would you be receptive to a sub-amendment to remove subsection (c) here?
Senator Angus: As well as possibly a definition. Maybe there is a generic definition.
The Chair: There is not one in the Criminal Code now in section 718.2(e), and the courts have presumably figured out how to deal with it.
Senator Angus: That was my question. Is it clear?
Senator Baker: Subsection (c) places a further onus on the judge because before he can so proclaim, not only must the judge determine or feel that it is excessively harsh but also he must find another sanction available that is reasonable.
Senator Angus: You see it as restrictive rather than widening it?
Senator Baker: Yes, because of the word "and." It would be different if an "or" were there.
Senator Angus: Yes, I might have seen an "or." Thank you. I will think about it and consult with my leaders here.
The Chair: Thank you, Senator Angus.
[Translation]
Senator Chaput: For me, the aim or the objective of the amendment moved by Senator Baker is not the right to recognize the right of Aboriginals to indulge in trafficking, but rather to recognize that, in the case of Aboriginals, the problem must be viewed differently.
It is a matter of respecting their rights and respecting their customs and traditions. That is what works for them, in their particular situation. One size fits all, in the case of Aboriginals, does not work. We know that. The question is determining how to proceed.
Minimum sentences, as defined under the bill, could be discriminatory towards them, given that it does not work. So how should this be dealt with?
[English]
Senator Wallace: I have a couple of comments. I think we all realize that the Aboriginal community does have special circumstances that certainly must be considered, and I think of some of the evidence that we have heard.
I know the government has tried to react and respond to that. Some programs are geared specifically to the Aboriginal community. I will not repeat everything that we discussed yesterday, but the Aboriginal Justice Strategy is there specifically because of the demands and special circumstances of the Aboriginal community. I think we all feel that and realize that there are historical differences, and we must be cognizant of that and think about it. However, it is balancing that against developing a two-tier legal system where those convicted of serious crimes, whether they be Aboriginals or any other Canadian citizen, be treated in a similar manner.
Fundamentally, that is one of the greatest difficulties I have with your proposed amendment, Senator Baker. I think it leads towards a two-tiered system. The bill focuses on serious drug crime, and the implications of that are felt throughout the Aboriginal communities, those who have gone through all the devastation that activity can create. We have heard that in our evidence. As legislators, we must respond to that and balance how justice will be administered both in the Aboriginal communities and in the rest of the country. We can acknowledge the special circumstances of Aboriginal offenders, but I certainly would not be supportive of a two-tiered legal system.
With Bill S-10, the offences involve aggravating factors. As I said earlier, I know we are well aware of it. It is addressing serious drug crime. It is focusing on the implications for those involved in organized crime, weapons, violence, very serious stuff. Whether those on the receiving end of those problems are Aboriginals or other Canadians, we must treat it as much as we can in a similar way.
Senator Baker, I know we have discussed many times, and not simply in the context of how it impacts Aboriginal communities, the issue around mandatory minimum sentencing removing the discretion of the court. I do not believe Bill S-10 does remove the discretion of the court. It does limit it — indeed it does, in some circumstances — but it does not remove it. The sentencing room that exists between the mandatory minimum and the maximum is where judges can exercise their discretion.
As legislators, we have a responsibility to create as much definition and be as clear as possible about what our intent it is. The courts are not there to make the law but to interpret the intention of the legislators. If we collectively agree, perhaps not unanimously, that the mandatory minimum does reflect our intention, I do not believe that in doing so we are encroaching on the territory and the authority of the courts. It is the other way around. The courts interpret what we prescribe as the laws of the land. In this case, we say they would maintain their discretion above the mandatory minimum level.
The final point I wish to make is to remind all of us, though I know we are all aware of it, that relief is provided in the bill, not only for Aboriginal offenders but for all who may run afoul of Bill S-10, because any offender who is prepared to and makes application to a drug treatment program can escape the problems of mandatory minimum sentencing.
We have heard that the availability of those services in Aboriginal communities in some cases may need to be addressed further, but it is being addressed. We have heard that more funding is being provided for that purpose, and it will continue to improve.
In conclusion, there is a need obviously to be aware and to think of the special circumstances of our Aboriginal offenders, but we should not be creating a two-tiered legal system.
Senator Runciman: I share the concerns about this amendment with respect to two-tiered justice as well. That is not my only concern. I think this amendment goes a long way to dramatically weaken the government's intent with the introduction of this proposed legislation.
In Ontario, certainly, we have had serious concerns with public perception if not reality of different treatment for different folks in the province. We saw it in Caledonia, which has been a sore point — there is no question about that. We saw it with the concerns with respect to contraband cigarettes, with guns and with human smuggling. What Senator Baker seems to be doing here is in effect entrenching in legislation this principle that people will be treated differently under the law of the land, and I certainly have a great deal of difficulty with that.
When you are opening the door with some of the other provisions of your amendment, you can drive a truck through these loopholes that would be built into the bill with respect to the opportunity for offenders to look at avenues to escape mandatory minimums. I have a great deal of difficulty with the amendment and unfortunately will not be able to support it.
Senator Banks: Colleagues, there is, in a sense, at present a two-tiered justice system in this country. At the end of the pipe, it is a two-tiered justice system. Depending on what province you are talking about, the number of incarcerated Aboriginal persons, whether they are on- or off-reserve, is somewhere between seven and twenty times the rate of everyone else. We have a two-tiered justice system.
In response to that end of the pipe, if I understand it correctly, the Criminal Code already recognizes that judges must take into account whether an offender is an Aboriginal person, and if an Aboriginal offender is found to be guilty, alternative measures of sentencing must be taken into account. I stand to be corrected on that, but I believe that I am correct.
I want to call to the attention of senators that Senator Baker's proposed amendment is not prescriptive or restrictive. It does not say that Aboriginal offenders, having been found guilty, will not, must not or cannot be sentenced to a minimum sentence. As I read it, it says that the judge in these circumstances can say, "You are getting the minimum sentence, buddy," and plus, plus, plus if the judge wants to do so. As I read the proposed amendment, it does not put a ceiling on it.
Paragraph (c) in the amendment, to which some senators have referred, talks about another sanction as reasonable in the circumstances. I expect that in Senator Baker's mind that refers to those other sanctions specifically set out in the Criminal Code as it presently exists. For those reasons, I will be supporting the amendment.
Senator Joyal: I want to emphasize three points.
First, in answer to Senator Angus, the Criminal Code already contains the same wording regarding Aboriginal offenders in section 718.2:
(e) 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.
This paragraph follows the decision of the Supreme Court of Canada in the Gladue case. At that section, the Criminal Code has enshrined the principles the court elaborated in the Gladue case. In other words, the courts already settled the issue of the principle of sentencing in relation to Aboriginal people. There is no doubt about it on the basis of the Charter. Essentially, it is based on the fact that Aboriginal people have been the object of systemic discrimination throughout the history of Canada, and that is why the judge who is faced with the obligation to sentence an Aboriginal person must take into account a certain number of factors. Those factors are codified in the amendment proposed by Senator Baker. In other words, the judge must be convinced that another sanction is reasonable and available.
With respect to the opening provided by a drug treatment court or a drug treatment program, we have heard the witnesses say they are not available for most of the Aboriginal people. In other words, we are creating an opportunity for a judge to suspend the imposition of the minimum sentence when there are a certain number of circumstances present, which are the drug courts and drug treatment programs. However, we heard yesterday from the police officer that those drug courts are not available in Quebec nor in the whole of the Maritime region of Canada.
Senator Angus: You are saying that because the minimum one-year and two-year terms are mandatory, they overrule the Gladue principles?
Senator Joyal: That is it.
Senator Angus: Are you sure of that?
Senator Joyal: That is what we asked the legal expert last night.
If we do not give a judge the same principles that already exist for any other offence, we are entrenching the systemic discrimination that the Aboriginal population is suffering.
Let us take the most horrific crime according to the code, which is killing someone. When an Aboriginal person is found guilty of killing a person — first-degree murder — the judge, in sentencing that Aboriginal person, must take into account the Gladue principle.
Senator Angus: In this case it would be the same.
Senator Joyal: Here we are offering the judge the opportunity to see an alternative to a minimum if the judge is satisfied that the sentence would be excessively harsh and another sanction is reasonable and available. There are two compelling conditions.
There is another sanction that is reasonable, and that sanction is available. In some communities it might not be available, as Senator Boisvenu has said. Most of those sentences imposed on Aboriginal people involve the community at one level or the other. If the Aboriginal person happens to live in a place where there is no Aboriginal community, the judge cannot conclude that that alternative is available. Those are the principles that are clearly stated in the Gladue case.
It is not a free ride for any Aboriginal person to get out of court. The judge is still compelled to impose a sentence under specific conditions that are spelled out in the Gladue case. Therefore, that is, in my opinion, a way to protect the constitutionality of this bill in relation to Aboriginal persons, as much as minimum sentences are concerned.
There is no question in my mind that that section will be challenged at some point in time in the courts on the basis of the Charter, on the basis of the Gladue principle and on the basis of the other sections of the code where those sentences apply.
Senator Angus: Senator, I will have to think about it. I listened to you carefully, and I respect your legal opinion. However, if a judge can deal with the mandatory sentencing that is required for first-degree murder, as you suggest, but exercises the Gladue principles, I do not see why we need to carve it out here. The same thing would apply to Bill S-10.
Senator Joyal: There is a different circumstance, because here we are dealing with a minimum, where the judge cannot modify it. As you know, in the case of murder, the judge can — as we saw two weeks ago in relation to a famous murder case that I do not need to quote here — decide when the person is eligible for parole. There is still a capacity for the judge to modulate the penalty, even though there is a minimum of 25 years or a life sentence.
That is why I think maintaining those principles is very important. That section, in my opinion, could be challenged easily by an Aboriginal person on the basis that a drug court is not available or the treatment program is not available. We have heard how difficult it is to operate those treatment programs in the Aboriginal community and that there is no possibility for a judge to impose a different sentence. I feel it is important to state those principles.
Senator Angus: Madam Chair, we are on a point of law here. I wonder if we could hear from the representative from Justice Canada on this point.
The Chair: I would invite Mr. Saint-Denis to join us.
Senator Angus: If he wishes.
The Chair: He does not look happy.
Senator Angus: They always throw great light on these issues.
Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you, Madam Chair. As you see, I even brought my identity card here.
Senator Angus: Do the Gladue principles not apply to this provision without such an amendment?
Mr. Saint-Denis: I think that the Gladue principles would apply, but in respect of the maximum that can be imposed, not in respect of the minimum.
Senator Joyal referred to the minimum penalty that is imposed in cases of homicide, first-degree murder, and the court does not have any discretion there. The minimum penalty is imposed. Where there is some discretion in the court is at the time when parole can be brought into play.
I would also say that in cases of the minimum penalty for weapons in firearm offences, again, the court has no discretion. The Gladue principle would apply for the maximum, but not for the minimum. The minimum would still be imposed, whether the individual was an Aboriginal person or not. That would be the situation here as well.
Senator Angus: The minimum obviates that.
Mr. Saint-Denis: In terms of the minimum, yes.
Senator Angus: This is not a precedent?
Mr. Saint-Denis: No, because we have a great number of minimum penalties in the code.
Senator Angus: They are constitutional.
Mr. Saint-Denis: By and large, they have all been found to be constitutional, with respect to firearms, impaired driving and the minimum penalties for first- and second-degree homicide.
Senator Joyal: It could be challenged, if an Aboriginal person was concerned?
Mr. Saint-Denis: I could not tell you that.
Senator Joyal: We asked the question yesterday to witnesses we heard from. I do not know whether you have read the transcript.
Mr. Saint-Denis: No, I have not had the chance yet. In the area of firearms, I know there have been a number of challenges by Aboriginal people, but I do not know whether they are on point for this discussion here.
Senator Baker: What you have just said and brought to our attention still leaves open the question, though, would you not admit, that with an increased number of mandatory minimum sentences, perhaps you could arrive at a point where you would be negating section 718.2(e) of the Criminal Code and negating the wishes of the Supreme Court of Canada in previous decisions, R. v. Wells or R. v. Gladue, that each mandatory minimum would bring with it its own baggage to be determined by the court, and that a previous decision made on weapons, for example, would be re- litigated with a new provision on mandatory minimums contained in this bill. It certainly would not prevent such litigation; would you not agree?
Mr. Saint-Denis: I am not sure I would agree fully. Certainly one could put forward that argument, but, again, a counter-argument would be that Gladue still has an impact, but more so towards the maximum that the courts would impose or the penalty that is greater than the minimum, in which case the court can take into account the special circumstances surrounding the Aboriginal offender.
The other thing, though, is that in Gladue the court did recognize that there are certain offences. The court did not specify which offences, but did say that there are offences where, regardless of the special circumstances of the Aboriginal person, that offender should be treated exactly in the same manner as the non-Aboriginal offender.
The counter-argument would be that it is open for Parliament to decide, in some instances, which offences merit being dealt with on a more serious basis and that therefore every offender should be dealt with in the same manner, Gladue notwithstanding.
Senator Baker: That is contrary to the intent of section 718.2(e).
Mr. Saint-Denis: Section 718 is still applicable, even in instances of minimum penalties, but it would be applicable to instances where a penalty more than the minimum penalty would be applied.
Senator Baker: I have one final question, Mr. Saint Denis: In a decision last month, an Ontario Superior Court justice struggled with the same question we are putting forth today. Judges are regularly confronted with violations of the Charter as it relates to mandatory minimums and Aboriginal persons. The solution put forward in this bill would settle this question.
Mr. Saint-Denis: That is possible, but the issue of Charter challenges to mandatory minimum sentences generally, and more specifically to Bill S-10, was pointed out by some previous witnesses. It would not be unusual or unexpected if the first line of defence for individuals now charged with an offence for which there is a minimum penalty was to raise the Charter as an initial salvo in their attempts at acquittal. That would be normal. If I were a defence counsel, the first thing I would do is raise a Charter challenge to these minimum penalties.
However, one of the elements that courts will examine will be whether these penalties are unreasonable. As far as minimum penalties go, they are not as serious as those set for homicide and many of the firearm minimum penalties. They range from six months to three years and are imposed when aggravating circumstances are present. That is what makes this a tailored approach to what we want to do in the area of drug offences. Given that these aggravating factors are considered to be fairly serious — weapons, organized crime and the sale of drugs to children and so on — in my view the courts will agree that these are reasonable and therefore constitutional.
Senator Baker: The official puts forward a very good case for the government.
[Translation]
Senator Carignan: The decision in the Gladue case was handed down in 1999, and it deals with the application of paragraph 718.2(e) of the Criminal Code, therefore the section already existed when Gladue established the principles for sentencing, particularly in the case of Aboriginals, because the judge was applying paragraph 718.2(e) of the Code and this does not necessarily mean that these were ancestral rights or tied to any guarantee set out in the Charter. The judge simply applied the provisions of paragraph 718.2(e) of the Criminal Code as they could apply to people other than Aboriginals, to Africans or to the personal situation of individuals of other races, other than Aboriginals. Because the section does say: "and more particularly with regard to Aboriginal offenders". The others are not excluded. It is not a provision that is specific to Aboriginals.
Mr. Saint-Denis: You are absolutely right. The section is not limited to Aboriginals, but it targets them particularly.
In essence, we are asking the courts to take into account factors that mitigate the circumstances of the commission of the infraction and we are asking the courts to take particularly into account the circumstances surrounding the accused Aboriginal individual.
Senator Carignan: And my second question is rather precise. Before declaring unconstitutional a section of an act such as one laying out a minimum sentence, that would apply overall based on the race of the individual, we should recognize that, in the case of an Aboriginal, we must, when determining the sentence, apply certain remedial principles. To my mind, if there is differential treatment for Aboriginals, it is because of the remedial justice tradition vis-à-vis Aboriginals and not because of facts pertaining to the absence of treatment. These are the traditional principles of Aboriginal justice, which are principles of remedial justice.
But we would have to go further than that and say that these remedial principles are ancestral rights, in order to conclude that this is unconstitutional. Before declaring a clause unconstitutional, there are Supreme Court decisions that talk about reading in, reading out. Therefore, there is a high probability that the Supreme Court, rather than treating as unconstitutional a clause that applies to the entire population, would apply a principle of reading out and simply consider that there is non-applicability to Aboriginals.
There are several tools that the Supreme Court might use.
Mr. Saint-Denis: That is absolutely right. There are different possibilities for the court in dealing with these provisions, if it wishes to conclude that there were constitutional issues with the provisions.
Senator Carignan: Without necessarily declaring them unconstitutional.
Mr. Saint-Denis: Without necessarily declaring them unconstitutional.
[English]
Senator Wallace: Mr. Saint-Denis has covered the point in responding to Senator Baker. I have no further questions.
The Chair: Does anyone have a question for Mr. Saint-Denis?
Senator Joyal: I listened carefully to Mr. Saint-Denis. I still think there is doubt about the application of some of those sections to Aboriginal people in the context of the systemic discrimination that they have been the object of in the legal system of Canada. In some provinces the numbers of Aboriginal offenders in prisons are so high that there is a societal problem with those Aboriginal peoples in relation to criminal justice generally.
As I said earlier, that does not suspend the sentencing. The judge is compelled to impose a sentence. It is not a free ride for Aboriginal persons to traffic drugs any time they want. They still go before the court, and if they have a previous criminal record, the judge has to take that into account. A judge has to ponder whether another section is reasonable under the circumstances. In each case, the judge has to adjudicate on the basis of the history of the Aboriginal person before him.
I am still convinced that there is a possibility of challenge under the Charter.
Mr. Saint-Denis: I cannot disagree that there is a possibility. The first line of defence by the defence will be to challenge the constitutionality of these provisions. We simply do not arrive at the same conclusion on the likelihood of a successful challenge.
I remind you that these minimum penalties would arise only in the presence of serious aggravating factors. You mentioned, for instance, a previous record as something that the court would bear in mind when dealing with an Aboriginal offender. That is one of the aggravating factors. The court would also bear in mind the use of a firearm or the use or threat of violence. This bill says that when those circumstances arise the court has to impose this minimum. It can impose a higher level of penalty depending on how serious those factors were, but I cannot convince you that these will not be challenged. I think they will be, and we will have to see how that goes. The Department of Justice Canada is of the view that they will be defended successfully.
The Chair: I would ask colleagues to keep side conversations to a minimum and as soft as possible, please.
Are there any further questions for Mr. Saint-Denis?
Senator Baker: Mr. Saint-Denis, I am sure you will agree that when officials like yourself give evidence before the Standing Senate Committee on Legal and Constitutional Affairs, that evidence is sometimes used in court decisions with regard to the intent of the legislation. Do you agree with that?
Mr. Saint-Denis: I believe the comments and views of honourable senators are taken into account much more.
Senator Baker: Mr. Saint-Denis, I can show you many examples where you and other officials of the Department of Justice Canada have been quoted.
Madam Chair, it is nice to have Mr. Saint-Denis give us an honest opinion, but know that there are parameters and limitations to the expression of any opinion regarding the success of a Charter challenges, given that his very department will be called upon to try to defeat such a proposition.
[Translation]
Senator Carignan: With regard to the main issue, I believe that the desire to protect a given group of individuals might be laudable. I am not prepared to say that there is systemic discrimination, but there certainly is a distinction. Is this distinction justified? We must be extremely prudent before introducing into the Criminal Code any distinction justified by race or ethnic origin.
I have not found many examples. I took a quick look at this but, to my knowledge, there are no examples of discrimination, of distinctions based on anything but the age of the individual in the context of the commission of an infraction. With regard to race, I do not see what might constitute an infraction. It nearly becomes an infraction when you talk about a minimum sentence of two years with five plants or an intent to traffic versus something else. It is nearly an infraction.
We must therefore be careful. Secondly, there could be a perverse effect to this. We see this, criminal groups adapt their methods, based upon the law, in the commission of their crimes. If we exclude Aboriginals and reserves under this act, they could become targets that organized crime will continue to use for trafficking, because they would not be subject to minimum sentences, and would therefore be less likely to be punished. It would therefore be easier to convince them to fall into trafficking. There are several Aboriginal reserves along the Canada-U.S. border that could become even larger targets than they already are.
Therefore, even though your intention is to avoid charging Aboriginals, the amendment might have the reverse effect, in other words increase the number of charges due to organized crime, which will simply adapt itself to the situation. I therefore disagree with the amendment.
Senator Boisvenu: For having done a lot of work with Aboriginals, I believe that we rather find ourselves faced with two two-tier social systems rather than two two-tier justice systems.
In my opinion, establishing within the Criminal Code a specific way of dealing with Aboriginals is to maintain Aboriginals within a two-tier social system. We must go beyond that. We are not aiming at the right target when we have Aboriginals in the justice system and we tell them: "We are going to treat you differently because you have different social problems". The solution is not to treat them differently before the courts, but to resolve their problems at the social and economic level. It is very simply that.
[English]
The Chair: Senator Baker, do you have a final response?
Senator Baker: I think that everything has been said. The fact is that section 718.2(e) does exist in the Criminal Code, and the decisions of the Supreme Court of Canada exist for us to follow. This provision was simply an attempt to further provide for these matters that are a part of our law in Canada.
The Chair: Thank you, Senator Baker.
We shall now proceed to the vote on the amendment. Those in favour of the amendment will please say "yea."
Some Hon. Senators: Yea.
The Chair: Those opposed to the amendment will please say "nay."
Some Hon. Senators: Nay.
Senator Joyal: May we have a recorded vote?
The Chair: Yes, you may.
Shaila Anwar, Clerk of the Committee: The Honourable Senator Fraser.
Senator Fraser: Yea.
Ms. Anwar: The Honourable Senator Angus.
Senator Angus: Nay.
Ms. Anwar: The Honourable Senator Baker.
Senator Baker: Yes.
Ms. Anwar: The Honourable Senator Banks.
Senator Banks: Yea.
Ms. Anwar: The Honourable Senator Boisvenu.
Senator Boisvenu: No.
Ms. Anwar: The Honourable Senator Carignan.
Senator Carignan: No.
Ms. Anwar: The Honourable Senator Chaput.
Senator Chaput: Yes.
Ms. Anwar: The Honourable Senator Joyal.
Senator Joyal: Yes.
Ms. Anwar: The Honourable Senator Lang.
Senator Lang: No.
Ms. Anwar: The Honourable Senator Runciman.
Senator Runciman: Nay.
Ms. Anwar: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: No.
Ms. Anwar: The Honourable Senator Wallace.
Senator Wallace: Nay.
Ms. Anwar: Yeas, 5; nays, 7.
The Chair: The amendment is defeated.
Shall clause 6 carry?
An Hon. Senator: On division.
The Chair: It is carried on division.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: It is agreed.
Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: It is agreed.
Shall clause 11 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried on division.
Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Carried.
The Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Carried.
[Translation]
Shall Clause 1, which contains the short title, carry?
Some members: Agreed.
The Chair: Carried.
[English]
Did you say, "Carried on division," Senator Banks?
Senator Banks: Yes, I guess so.
The Chair: On division.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill, as amended, carry?
Senator Joyal: On division.
The Chair: On division.
Senator Wallace: A recorded vote, please.
The Chair: A recorded vote.
Ms. Anwar: The Honourable Senator Angus.
Senator Angus: Yes.
Ms. Anwar: The Honourable Senator Baker.
Senator Baker: No.
Ms. Anwar: The Honourable Senator Banks.
Senator Banks: No.
[Translation]
Ms. Anwar: The Honourable Senator Boisvenu.
Senator Boisvenu: Yes.
Ms. Anwar: The Honourable Senator Carignan.
Senator Carignan: Yes.
Ms. Anwar: The Honourable Senator Chaput.
Senator Chaput: No.
Ms. Anwar: The Honourable Senator Joyal.
Senator Joyal: No.
[English]
Ms. Anwar: The Honourable Senator Lang.
Senator Lang: Agreed.
Ms. Anwar: The Honourable Senator Runciman.
Senator Runciman: Yes.
Ms. Anwar: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: Yes.
Ms. Anwar: The Honourable Senator Wallace.
Senator Wallace: Yes.
Ms. Anwar: Yeas, 7; nays, 4; abstentions, 1.
The Chair: The bill, as amended, carries.
Does the committee wish to consider appending observations to the report?
Senator Stewart Olsen: Was there one abstention?
The Chair: Yes; I abstained. As chair of the committee, I generally abstain. I voted in favour of the last amendment for reasons best expressed by Senator Joyal. Normally I do not vote.
Honourable senators, is it agreed that I report this bill, as amended, to the Senate and that, should I be absent, the deputy chair, Senator Wallace, report this bill to the Senate?
Hon. Senators: Agreed.
Senator Angus: This day.
The Chair: Thank you, honourable senators and Mr. Saint-Denis.
This committee will meet in two weeks from yesterday in this room at 4:15 p.m. or when the Senate rises. At that time, as previously discussed, Senator Wallace will be in the chair. I hope everyone has a splendid break.
Senator Angus: Thank you, Madam Chair.
(The committee adjourned.)