Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 18 - Evidence, November 4, 2009

OTTAWA, Wednesday, November 4, 2009

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other acts, met this day at 4:06 p.m. to give consideration to the bill.

Senator Joan Fraser (Chair) in the chair.


The Chair: Honourable senators, we are continuing our study of Bill C-15.


For our first witness today, we have the great pleasure of hearing from Joëlle Roy, Vice-President of the Association québécoise des avocats et avocates de la défense, followed by Professor Eugene Oscapella, from the Department of Criminology at the University of Ottawa. You have decided that Ms. Roy will start.

Joëlle Roy, Vice-President, Association québécoise des avocats et avocates de la défense: Madam Chair, this is our first appearance before the committee, and it is a pleasure to be here. I sent a short brief late yesterday afternoon; it may have been too last minute.

The AQAAD wants to voice its opposition to Bill C-15 for a number of reasons, the first being that we wonder about the reason for passing such legislation; what purpose would it serve? To my mind, and I am speaking on behalf of the AQAAD, there is no urgency in Canada, no social pressure being exerted to have this type of legislation passed.

It is not just any bill because it is only minimum sentences that are found throughout. These are not minor minimum sentences; we are talking about prison terms when we know that there are alternative solutions out there, solutions such as conditional sentencing, fines and community work. Nowhere in this bill does it mention alternative sentences, which is deeply concerning.

The Chair: Ms. Roy, could you speak a bit slower for our poor interpreters.

Ms. Roy: What we find very troubling are the minimum sentences that this bill is littered with. I do not know where the correlation comes from, but why does an offence merit one year, two years or three years?

What is the justification for that? What is the formula used to determine that for X number of plants, from 5 to more than 200, the sentence is 6 months? Why 6 months? Is it one month per plant? It makes no sense because the bill is totally repressive, in my opinion.

Perhaps the professor to my right is more suited to talk about repression, but it has not been proven. In other words, it seems there is a strong desire to believe that, at the end of the day, the more repressive the law, the more crime will decrease. That correlation does not exist; criminology reports will tell you that this is not the case. It is wishful thinking that the harsher the legislation, the more crime will go down.

Something else that stands out, as all the statistics show, is that crime in Canada is on the decline. So what is the justification for passing a bill such as this? What is also troubling is the fact that, added together, these bills, each more repressive than the next, will create quite a severe climate of repression in Canada.

This may have been based on the U.S. model, but I do not believe that is the model we should follow. The U.S. has a prison overpopulation problem. Their way of dealing with it is not to go to the source and say that our laws are too harsh and are not doing the job; the solution in their eyes is to transfer federal inmates and build more prisons. Is that what we want to happen in Canada? Are those the kind of solutions we seek? I think not; we are hastily making amendments to the Criminal Code, one after the other.

For the AQAAD, the stakeholders, it is hard to prepare and be consistent, to put together documentation. If the government were as aggressive on the environment, we would have the greenest country on earth. What is so urgent on the criminal front? I have worked in this field for 16 years, and I can tell you that there is no one, not a single stakeholder, be it a judge or a crown prosecutor, who will say that you need to take action, that you need to pass repressive legislation for this type of crime. That was my editorial comment.

Now, as for the legislation, the imposition of minimum sentences also puts a muzzle on us. It muzzles not only the judges who impose sentences, but also the defence lawyers, the crown prosecutors and the probation officers. We are on the ground, and we see it every day. There are exceptions. This bill totally contradicts the provisions of section 7.18 and those following of the Criminal Code; I would even say that it violates section 12 of the charter because, before imposing a sentence, a judge must consider all mitigating and aggravating factors, and exceptional circumstances related to the offender, the victim and society. And that sentence must be fair and appropriate, as set out in the code. But that cannot happen with a minimum sentence, because when you have 2 years, 3 years or 18 months, your hands are tied.

Not only does this bind the judge, which has very serious consequences, but, we as officers of the court, are also muzzled. We cannot do our job. Our job is to argue a case, to be heard. In a so-called legal system, the parties have to be heard before a ruling is made; that is a basic premise, the basis of the legal system, even.

If a lawyer can no longer represent his client, or if a crown prosecutor can no longer make representations, what good are we? What good is the legal system? In the document I sent you yesterday, I said that this bill is nothing more than an attempt to control the Canadian legal system. That is what is happening. We are being told that we are not capable of doing our jobs; we are being muzzled, prevented from expressing ourselves. Because there are exceptions.

It is not true that if we take the legislation as is, there are problems in sentencing, someone who will sell a joint in a schoolyard or nearby, for example. The bill contains a lot of vague terms, terms that are not specific. What does that mean? The corner store where kids congregate? It is very broad. Who will sell drugs in a schoolyard? Most likely an 18- year-old kid, someone to whom the adult legislation will apply. I find that this bill really targets youth. Do we want a kid who sells a joint on the schoolyard to receive a two-year sentence? We are talking a penitentiary, not a provincial prison.

No distinction is made whether you have a record or not, whether you are a repeat offender or not, no distinction. Two years, do you think that is appropriate? You sell a joint in a schoolyard, and you are automatically sentenced to two years in prison; that is completely ridiculous.

There may also be a desire to believe that the young person who gets such a sentence will never re-offend, that he will learn his lesson. That is wishful thinking.

In my brief, I said that there will be a rise, even a massive rise, in at least the federal prison population and maybe the provincial one, too. The makeup of the inmate population will change. Imprisonment is a judge's last recourse in sentencing. The last solution. The Criminal Code supports that, as well. We have to consider all the alternatives before putting someone in prison; it is the ultimate punishment.

We will end up with a prison population that has no record or criminal history, made up of youth, who may be disadvantaged, people with mental health issues, people who are vulnerable and susceptible, who will find common ground with much more experienced criminals. Inside prison walls, you have to protect yourself, you have to find common ground, band together with a group, and we all know it, we see it.

I am not so sure that the young person who gets a two-year sentence will get out of prison and say to himself that he will never re-offend. He may be led astray and fall into organized crime, with much more experienced criminals. And that leads to problems related to inmate overpopulation, as we know; the lack of programs, the dangerous conditions, a lack of hygiene, and that is not what we want.

As far as marijuana production goes, what we are seeing is minimum sentences all the time, always prison terms. We are talking about sentences that are up to three years. The rest of the bill contains very vague terminology, such as a ``potential security, health or safety hazard to persons.'' What does that mean? It still has to be defined.

I truly believe that this bill is unnecessary. We have been working in the legal system for years, and we do our job very well. Judges, lawyers, we are all doing a good job, because we have tools to do so. When there are mitigating circumstances, we are capable of highlighting them. There are no mitigating factors in this bill; it does not mention any mitigating circumstances.

There is absolutely no rehabilitative aspect to be found in this bill, when we know that it is mentioned in 17 and 18. Ultimately, what we want as a society is for offenders to be rehabilitated when they are released from prison. That is what society wants. We do not want someone to come out of prison more bitter and more firmly entrenched in the criminal lifestyle.

The Chair: It is always very interesting to hear what witnesses have to say. We want to listen to everyone and ask questions.


Eugene Oscapella, Professor, University of Ottawa, Department of Criminology, as an individual: I am an Ottawa lawyer. I have been a lawyer for about 30 years. I have worked in the field of criminal justice policy for much of that time. For the past 20 years, I have worked, to a great extent, in drug policy. I was the first chair of the Law Reform Commission of Canada Drug Policy Group and am a founding member of the Canadian Foundation for Drug Policy, which is an independent drug policy research group. For the past 10 years, I have taught drug policy in the Department of Criminology at the University of Ottawa. Some of you may disagree with my remarks, but I would urge you not to think that they are coming from a point of naïveté. I have been around the block a few times on this.

Under this legislation, as under the current drug legislation, 80 per cent of the students I teach at the University of Ottawa are criminals. The criminal law is supposed to be used as an instrument of last resort when other means of dealing with social issues have failed. We have, with drug policy, used the criminal law as an instrument of first resort. About 80 per cent of my students are criminals. About 10 per cent of them would qualify under this bill for a mandatory term of incarceration of two years in a federal penitentiary. I suggest to you, honourable senators, that this is a patently absurd result. When this many people who will otherwise grow up to be absolutely fine, productive citizens are criminalized by a law, there is something fundamentally wrong with this approach.

I have a quote from a 35-year-old Black American man who talked about his drug use during his youth. I will read this quote. It is a bit blunt, but you will get the sense of it. He said, ``You might just be bored, or alone. Everyone was welcome into the club of disaffection, and if the high didn't solve whatever it was that was getting you down, it could at least help you laugh at the world's ongoing folly and see through all the hypocrisy and bullshit and cheap moralism.'' Under the proposed law, Bill C-15, this man would have been sent to prison, in all likelihood. He admitted to using cocaine as a young man, and using it in a social circumstance is quite common, and the simple fact of sharing cocaine with someone, under our law, constitutes the offence of trafficking. He would have done it with other young people, so he would have qualified as committing the offence in an area normally frequented by other youth. He would never have become President of the United States. That was Barack Obama writing in his autobiography. This is the same man who politicians and many other people around Ottawa were drooling over at the prospect of having their picture taken next to when he came to Ottawa. However, if he had been a young Black man in Canada, subject to these laws, we would have sentenced him, as my colleague Ms. Roy has said, to a mandatory minimum of two years in a federal penitentiary. Surely, in the 21st century, we can do better than that.

This bill essentially tinkers with the cosmetics of a prohibitionist system, and by prohibition I mean using the criminal law as the primary instrument for dealing with drug problems, and there are drug problems in the world. The issue is what is the best way to deal with them? We have chosen the criminal law for the past 100 years in this country. We are now into our second century of prohibition, the first real prohibition being the prohibition of opium in 1908.

There is a fundamental problem with prohibition. If you turn to the last page of the presentation that I made, you will see a slide where I talk about the impact of prohibition on price. This is why prohibitionist laws are bound to fail. This is very simple economics. These are figures from the United Nations in the mid-1990s. They are talking about the farm gate price of opium, the price a farmer, in this case in Pakistan, would get for a kilo of opium. It was about $90. A farmer in Afghanistan today is getting 40 or $50 for a kilo of opium. It takes about 10-kilos of opium to make a kilo of heroin, so the cost of production of a kilo of heroin today is about $500 U.S. By the time that kilo is transported and sold and retailed in the United States, it may be worth several hundred thousand dollars. In this example from the slide, there is a profit margin of 32,000 per cent from the farm gate price to the final retail price of this product.

All the King's horses and all the King's men and all the police of the realm and all the prisons of the realm cannot overwhelm or defeat the power of the laws of economics. Prohibition creates an enormously lucrative black market. The laws of economics have not changed since the era of alcohol prohibition. The government's laws may have, but the laws of economics have not. This is why prohibitionist laws are doomed to fail.

The most powerful nation on earth, the United States — I believe it is still the most powerful nation on earth — has spent perhaps $1 trillion in the last 20 or 30 years fighting its war on drugs. It now incarcerates 2.3 million people, about 500,000 of them, almost one quarter of them, for drug related offences. The United States incarcerates one quarter of all the human beings imprisoned on earth. Surely if this model of dealing with drugs through the criminal law could work, the United States, with all the resources at its disposal, could have made it work. Instead, it has an ongoing drug problem. It has exported drug violence to producer countries around the world. It has left a trail of destruction around the world because of its domestic drug policy.

This bill continues that very same trend. As I say, it is tinkering with the cosmetics of prohibition while the structure or the foundation of prohibition is seriously flawed. I am non-partisan when I say this. I have been very critical of many governments that have perpetuated these prohibitionist laws. I wish we were here today reviewing Senator Nolin's report of the Senate Special Committee on Illegal Drugs from 2002. That was the most comprehensive report on drugs done almost anywhere in the world in the last 30 years. It is a travesty that we are looking at legislation now instead of that report. We could actually get somewhere if we looked at the recommendations of that report. Prohibition sows the seeds of its very own failure by creating this lucrative black market. We cannot overwhelm this economic fact with law.

The other thing I will point is that we have people talking about all the harms associated with drugs right now. All the harms that we are seeing from drugs in our society now — not from alcohol and tobacco, but the illegal drugs — have occurred under a system of prohibition. It is not as if we had a free-for-all with drugs and now we are saying we need prohibition to correct the problem. All these problems — the spread of disease, the growth of organized crime, the violence associated with drug gangs in Canada — happened under a system of prohibition.

What are we doing? We are taking what I call the Humpty Dumpty approach to drug policy. If we do not have enough horses or men, let us get more. We are going to try to win the war using the same tactics that we used before. It makes no sense.

This government, and previous governments, of course, are concerned about violent crime. What is one of the major sources of violent crime in this country? It is drug prohibition. Why do we have so many illegal weapons in this country? It is because the illegal trade in drugs is regulated not in the courts but by weapons. If we really want to deal with drug-related violence, we need to deal with the violence associated with the trade. The only way you can deal with that is to move away from a system of prohibition.

In fact, I have quite often heard groups like the RCMP and many government spokespeople over the years say that the major source of financing for organized crime in Canada, and this is true in many other western countries as well, is the drug trade. Why is the drug trade the major source of financing for organized crime? Because of prohibition. We create the problem by prohibiting these substances rather than dealing with them as health issues, and then we call for ever stricter and more punitive measures, such as those typified by this bill, in order to address the problem.

What will we do? We will clog the prisons. We may be a long way from the U.S. rate of incarceration but we are getting there. We probably incarcerate about 115 to 120 people per 100,000. The United States incarcerates 700 per 100,000. It is the most punitive nation on Earth.

Let me give you an example of what will happen if we toughen the drug laws for the production of cannabis, one of the provisions in this bill, to make the maximum penalty for cannabis go from 7 years to 14 years. As you know, it is not a mandatory minimum. They have just increased the maximum penalty.

I suspect it will turn the trade more and more over into the hands of organized criminals. The ``mom and pop'' producers might be sensitive to the risk of more serious penalties. Organized crime does not care about that, and they always have enough underlings who can do the work for them. This provision might actually have the effect of basically clearing the way for organized crime.

I will turn back to the materials I brought. I am not just a lone voice calling in the wilderness. Starting in 1988, The Economist magazine came out with a lead editorial called ``Getting gangsters out of drugs.'' The Economist magazine is not the most liberal magazine in the world. It is a conservative, widely-respected magazine. What did they say? ``Legalize, control, discourage.'' In 1993, they said the same thing: ``Bring drugs within the law.'' In 2001, they came out with one of their economic surveys called ``The case for legalizing drugs.'' In March this year, they came out with yet another lead editorial called ``How to stop the drug wars.'' Again they discuss legalize, control, discourage.

In 1996, the National Review, again, a very conservative American publication, came out and said ``The War On Drugs Is Lost,'' and again the approach is kill it and go for legalization. Of course, there was also the Senate Special Committee on Illegal Drugs, which made enormous progress in helping people to understand the need to move away from a prohibitionist model into a regulatory system.

For me, to speak to the specific aspects of this bill seems like tinkering with the paint job on a building with foundations that are crumbling. I would like to see this bill defeated in its entirety. I would like to see a more honest look at drug policy in this country. However, I also know how politicized the issue is. We saw last week that the head of the U.K. Advisory Council on Misuse of Drugs was fired for going against government policy — for speaking truth to power. This happens all too frequently.

The greatest difficulty we have right now is that some people say drugs are a political problem. Politicians have boxed themselves into a corner with all the rhetoric about the need to criminalize drugs. It is very difficult for them to move away now and say it has not worked; we have had 100 years of prohibition and it has not worked. We need to move away and treat drugs as a health issue. We need to look at why people are using drugs in problematic ways, and not just punish them for using it.

There is much more I could say, but I want to leave myself available for questions and comments, to which I will be pleased to respond.

The Chair: Indeed, we do have questions.


Senator Nolin: Thank you for accepting our invitation. First, Ms. Roy, I gather from your understanding of this bill that it would apply to young offenders?

Ms. Roy: It is an adult sentence.

Senator Nolin: This bill does not exclude minors who commit these offences?

Ms. Roy: The reason is that the legislation cannot apply at the sentence level. The way I see it, the legislation that applies to minors is the Criminal Code, but, in terms of sentencing, except in very specific cases, unless the youth is given an adult sentence . . .

Senator Nolin: That is where I am going with this. So when a judge hears the case of a young person from Quebec who is not yet 18 — for example, the 16-year-old schoolboy from your testimony — that boy is definitely included in the federal youth criminal justice legislation.

Ms. Roy: Yes.

Senator Nolin: This legislation, Bill C-15, applies to that individual? So where is the problem?

Ms. Roy: At the sentencing level, it does not work. I was not expecting this question. As for sentences for adults, the bill applies, but the sentencing system is not the same for young people and adults. Even when a young person is subject to the adult legislation, in the case of murder or a more violent crime, for instance, it has to be requested at the time of the young person's appearance in court, and it is in a specific case. The same sentence does not apply. With murder, it would not necessarily be life for second-degree murder with the possibility of parole between 10 and 25 years. The sentences are much less harsh.

Senator Nolin: We have minimum sentences, and what does the judge do?

Ms. Roy: In terms of the legislation for young people, that is a good question, but I do not think that it can be applied.

Senator Nolin: What would not apply? Bill C-15 or the legislation that deals with organizing the criminal justice system?

Ms. Roy: That is a good question. I understood that it was for adult sentences, but if those sentences apply to young people, that is even more disastrous. It makes absolutely no sense.

Senator Nolin: Could you do a bit of research and get back to us in writing?

Ms. Roy: Yes.

Senator Nolin: Madam Chair, I think it is important to get a very clear picture of the application if Bill C-15 is passed, and it creates a conflict between a law that has already been passed and a new law that is being applied. It would be a good idea to be clear on that before we pass Bill C-15.

The Chair: We would need to ask the Department of Justice the same question to see what their understanding was in drafting the legislation.


Senator Nolin: Mr. Oscapella, I want you to expand with more detail on how 10 per cent of your students would be subject to incarceration for two years.

Mr. Oscapella: If we take a look at clause 1 of the bill, it says under the subject matter ``. . . is a substance included in Schedule I. . . .''

Senator Nolin: That section deals with trafficking.

Mr. Oscapella: Yes. Under the beauty of our drug law, the simple fact of transferring a drug to another — sharing a drug, such as passing a joint to someone or passing cocaine to someone in a social situation — constitutes the offence of trafficking under the law.

Senator Nolin: I do not want to interrupt you, but we need to be clear. Paragraph 1(1) refers to the new Paragraph 5(3)(a).

Mr. Oscapella: Yes.

Senator Nolin: This new infraction would apply not only to Annex 2, which is all the derivatives of cannabis, but also to Annex 1, which is poppy, cocoa —

Mr. Oscapella: That is the primary case I am speaking of. I am not entirely clear of how it will work with cannabis. About 20 per cent of my students have used cocaine at some point in their lives. If they did it, as most people do, in a social situation and transferred it to someone else and were in an area normally frequented by youth, which now includes universities, since many universities have students starting at 17, they qualify for a minimum imprisonment term of two years.

If we go to paragraph 1(a)(ii):

. . . to a minimum punishment of imprisonment for a term of two years if

(A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,

Senator Nolin: That deals with any amount of cocaine. It is different when we are talking about cannabis, because we need three kilos.

Mr. Oscapella: Yes.

Senator Nolin: Also, there is the issue of the traffic zone. We are dealing with Annex 1, which is poppy and cocaine.

Mr. Oscapella: And others.

Senator Nolin: Yes, all the other substances. Cannabis is not included in that. The amount is not important.

Mr. Oscapella: The amount is immaterial.

Senator Nolin: The issue that a student in your class who gives any amount of cocaine to a friend is subject to two years in prison.

Mr. Oscapella: In a place normally frequented by youth. Where do young people use drugs? They use them in places normally frequented by youth. It is problematic.

Even the simple fact of offering to give, as you know, constitutes the offence of trafficking under the law. If you offer to give cocaine to someone in or near an area normally frequented by youth, you have committed this offence. This would apply to an 18-year-old kid who offers to give cocaine to a 17-year-old girlfriend.

I am not saying this is a good thing to do; it is not appropriate.

Senator Nolin: It is a reality.

Mr. Oscapella: Do we want to put someone in a federal penitentiary for two years for that infraction? That person's life will be destroyed. It goes beyond the level of absurdity when I look at this law.

Senator Baker: Let us use the example that you just raised, but let us say that section 1 of the bill deals with paragraph 5(3)(a) of the Controlled Drugs and Substances Act, which is the trafficking section, as Senator Nolin pointed out. It goes on to say, ``subject to paragraph (a.1)''; if you look at paragraph (a.1), it deals with a substance under Schedule II that is of a certain amount, but let us keep with Schedule I.

The minister announced that ecstasy — the name for it has about 16 syllables — is being raised from Schedule III to Schedule I. Now we have a substance under Schedule I, under section 5(3)(a), the trafficking section. A young person exchanges an ecstasy pill with another young person, in preparation for what they call the ``rave,'' whatever that is; it is a dance, apparently, that takes place all night.

Now this says ``liable to imprisonment for life,'' and to a minimum sentence ``if.'' If you go to one of the ``ifs,'' (D), it says:

. . . the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years,

In other words, a designated substance offence is anything except for (A)41, possession, anything but that, as I recall.

If you had, in the previous 10 years, exchanged a joint with someone, you fall within the minimum sentence of one year if you now exchange an ecstasy pill with someone, because it is in Schedule I.

Mr. Oscapella: If it is going into Schedule I with opium, heroin, cocaine and oxycodone, then the same situation that I described to Senator Nolin will apply — a mandatory minimum period of incarceration of two years, federal penitentiary.

Senator Baker: I have not gone that far, but on the face of it, do you agree with that — if you exchange an ecstasy pill, and you have exchanged a joint within the past 10 years, you go to jail for a minimum of one year, up to a maximum of life imprisonment?

Mr. Oscapella: Yes.

Senator Baker: If you did the reverse, it would not work, would it? If you gave the joint now and you gave an ecstasy pill within the past 10 years, you would not receive the same sentence, would you?

Mr. Oscapella: Perhaps not. These are the mental gymnastics that we have to go through to deal with these laws. To be frank, I have not parsed every sentence of every clause of every paragraph in this bill, because I think the foundation of the bill is so fundamentally flawed.

What we are doing here, in essence, is pointing out the absurd consequences of some of these provisions, which are even more absurd than they purport to be. The government's position is we are going to deal with organized crime and get at traffickers. This will get at a lot of people who would otherwise grow up to be perfectly fine and upstanding citizens who engage in the risk-taking behaviours that people engage in while they are young.

Senator Baker: Can you think of anyone who would be in favour of putting someone in jail for that period of time for exchanging an ecstasy pill if they had had a previous conviction of exchanging a joint in the previous 10 years — a normal, reasonable person, as we say under the law?

Mr. Oscapella: No one wants to put their own children in jail on a situation like that. Unfortunately, there are plenty of people who are willing to think in the abstract: This is what we have to do to other people. It is almost an authoritarian instinct.

Senator Baker: Ms. Roy, you are a very experienced criminal defence lawyer who is very well known in the province of Quebec. I would like to ask, what will this do to your profession? I imagine you will be very busy after this bill passes, because now you will have people who will not want to plead guilty.

Ms. Roy: Of course.

Senator Baker: What will happen to you? What will you now be faced with — busier times and the courts will be tied up with this, would you suspect?


Ms. Roy: Yes, indeed, because it will create a logjam. Even now, the Crown and defence counsel are dealing with minimum sentences; in a possession of firearms case, for example, there are minimums of one or four years. We look for ways to avoid that, meaning, we realize that there are exceptions where we say we will not send this little guy to prison for four years or for one year for this type of offence, which results in cases being postponed. We postpone cases, and we try to find another solution, another way out, some other offence to settle the case, one that does not require a minimum sentence.

It is not true that the Crown is glad to have minimum sentences because it binds us; it prevents us from making our points and from properly representing our clients. There are exceptions, as well.

I just want to quickly address the issue of basically giving out a pill, that is part of trafficking. And even if we use your example, Senator Baker, even if you have been found guilty in the past ten years and even if you have a conditional or absolute discharge, because you have a reputation of not being convicted, but you were found guilty.


Senator Baker: A conditional discharge, yes.

Ms. Roy: Yes, so you could have a year sentence.

Senator Wallace: All of us around this table are trying to find answers to a very difficult social situation. We all want to provide the best protection we can for the public, security for the public, protection of our children. While doing that, we also recognize that for those who find themselves involved in crime, we have an obligation to provide them rehabilitative services to try to get them out of that criminal track and into the mainstream of everyday Canadian life.

I think we probably all agree with that. However, the answers are very difficult, and it is apparent from all of the opinions.

Ms. Roy, just so I understand, you are vice-president of the defence counsel?

Ms. Roy: Yes.

Senator Wallace: And you have been involved as a defence counsel for 16 years?

Ms. Roy: Yes.

Senator Wallace: In this large scheme of things — this is probably not the best way to put it — your focus is to provide the best protection possible for those who are accused and those who are convicted. That is your focus. You look at this law and other laws from that perspective; is that correct?


Ms. Roy: I would like to answer in terms of public safety and security. We are safe in Canada; we are a safe country. We have laws that have been proven; we have a legal system that has been proven, in other words, judges impose sentences that are appropriate to the crime.

To my mind, there is nothing to justify passing this kind of bill because we are talking about cannabis production. Courts are becoming increasingly tough. I have been practising for 16 years, and I have seen the progression. We started with a simple fine for 500 plants, but that is no longer the case. The courts are already providing for stiffer sentences. Quebec's appeal courts have also rapped us on the knuckles. Imprisonment overrides everything else.

We already have a system of repression, of public protection, in place. This bill is not necessary — to paraphrase, Judge Boilard, it is superfluous — because Canada is a safe country.


Senator Wallace: You argue very well, obviously. You are very experienced. I am trying to have a perspective. We hear many opinions being expressed, and I like to understand where a witness is coming from and what motivates them. Your concern is about the accused and the convicted and safe society, and I understand that, but I would rather doubt you would be here advocating for stricter sentencing than what might be proposed in a bill. I appreciate that. That is your role.


Ms. Roy: I am strictly opposed to this entire bill. It is not necessary, and its short-term effects of prison term upon prison term create a societal problem. You talk about public safety. I am telling you that there is no danger to the Canadian public. We are not in Burundi. We live in a safe country, indeed, very safe. But, in the short term, we will experience social problems because of these prison terms, which are tragedies for the family. For example, when a young boy goes to prison for two years, it does no good in the long term. It does not make society safer to have harsh sentences. I wish I could say the opposite were true, but repression has not been proven. Giving out heavy sentences does not result in fewer crimes. Unfortunately, that is just not the case.


Senator Wallace: I would not expect you to be advancing tougher sentencing.

Mr. Oscapella, I just want to make sure I understand the root of what you are saying. You have pointed out some particular issues that you take exception with in the bill. You have given some examples, and I will not make you repeat those. They were very interesting. However, my sense of it is that, underlying all of this, and I probably am stating the obvious to everyone, you effectively have a problem with any prohibition. The whole issue of penalizing people for trafficking and producing drugs is something you feel is futile and should be legalized. It is a battle we cannot win, so why take it on. Is that what you are saying?

Mr. Oscapella: First, I would like to say that, though we have had 101 years to provide it, I have yet to see a justification of how prohibition works. I am not in favour of uncontrolled access to drugs. There are many ways of intelligently regulating access. We have a heroin maintenance program in Canada, so you can medicalize access to drugs. There is the regimen that Senator Nolin's committee proposed in his report. I am not promoting drugs. I am saying that prohibiting drugs, using the criminal law, creates this fantastically lucrative black market, which all the criminal law in the world cannot defeat. Meanwhile, it creates all sorts of other significant ancillary harms, such as violence in society, drug-related murders. It does not get at the root issue.

If we are really talking about dealing with drugs in this country, we have to get at why most people use drugs, be it alcohol or cannabis or the other drugs, in a way that does not cause significant damage and why do some people use them in a way that is problematic? Our focus should be on dealing with those people who are using drugs in a problematic way. The criminal law is incapable of doing that. The criminal law sows the seeds of its own failure by creating this fantastically lucrative market. Drug traffickers are not nice people, but they are smart people. They say, ``The government has given us a wonderful economic opportunity; let us exploit it.'' That is what happened.

Senator Wallace: You are well aware that this bill is not dealing with use or possession; it is dealing with trafficking and production. I take it you would say that the issue of trafficking and production of what is today illegal, illicit drugs, should be dealt with as a health issue and that there should not be criminal sanctions for that activity.

Mr. Oscapella: In the vast majority of cases, yes, that is correct. Some people have characterized it as prohibition on one side, legalization on the other. There is a whole range of alternatives in the middle, and you can have strict regulation. I take the example of one of the most dependence-producing drugs we know today, which is nicotine. Fifty years ago, half the adult population of this country smoked. Now it is down to around 20 per cent, and the number is significantly lower among young people. All the while keeping this powerfully addictive drug legal, we have managed to reduce the consumption of that drug enormously in this country, by using health-based measures, by restricting advertising, restricting places of consumption and getting people to understand the consequences of using these drugs. We have nicotine replacement therapy as well. There are other ways to deal with drugs. You do not have to turn everything you disapprove of into a criminal offence, and I am not saying you are doing that, but particularly when turning it into a criminal offence actually magnifies the harm. It is not neutral. It creates further harms than there would otherwise be.

The Chair: If we have time for a second round, you will be on it.


Senator Carignan: My question is directed first at Ms. Roy, who is an experienced lawyer in my region and who is very familiar with the type of crime that is rampant there. Am I mistaken that, in our region specifically, the Laurentides, quite an idyllic place, a place that is surrounded by nature, there has been an increase in hydroponic greenhouses in cottages in the past 10 or 15 years? Have you noticed such an increase in your practice?

Mr. Roy: Yes, in the Laurentides, Lanaudière even. That is why the courts are using much more draconian measures when it comes to cannabis production. Before, 500 plants would get you a fine. And today that is no longer the case.

Senator Carignan: What is it now?

Mr. Roy: It can be a firm 18 months. Courts are making adjustments because it is spreading, because of the major profits. We are talking about producing marijuana, and obviously, it is very lucrative.

The problem with that is the people who are being arrested are the gardeners, those who do the dirty work, who are at the bottom of the totem pole, who have limited financial means, who have mental health issues, those who are being used. These people do not have criminal records; they are being used and are at risk of being arrested. They are the ones who will receive these sentences. They are not the ones making the real profits, which go way above them.

As I said, the courts are imposing firm prison sentences. But they also need to be able to make the distinction; in other words, since we do not have minimum sentences, the court has the ability with a pre-sentencing report to assess an individual and often does so. Is this someone at risk of re-offending? Why did they do what they did? What is their family like? What is their background? The Crown and defence counsel are heard; they represent the individual. If applicable, we determine that the person was used and did not profit, so a distinction needs to be made, which this bill does not do. If someone is arrested with six marijuana plants, they get six months. It makes absolutely no sense.

Even then, the courts can give conditional sentences for that. Was that considered in this bill? No. Were fines? No. It is firm time. You get the worst punishment right off the bat.

Senator Carignan: You noticed the increase. I saw it in our region, as well. My question is for both of our witnesses. You talked about the increase in the inmate population, and you do not want Canada to end up in the same situation as the United States. Canada is a far cry from the U.S. as far as incarceration rates go. But we should not go to the other extreme, either. The U.S. has the highest incarceration rates, whereas Canada is around the 115th or 120th country on that list.

Production and trafficking have gone up. Officials from Statistics Canada testified before you and gave us some rather astounding numbers on the increase in cannabis production, in particular. Our current solutions do not seem to be doing the trick as far as trafficking and production go, so what solutions do you suggest?

Ms. Roy: I agree with the professor on this. Cannabis production is lucrative, we cannot deny that. If you can make $1,000 to $1,200 from one plant, the money is definitely there.

Senator Carignan: Is one plant really worth $1,000?

Ms. Roy: Well, that may be its value, according to the police.

Senator Carignan: So, five plants are worth $5,000?

Ms. Roy: Depending on the volume of the operation. Small plants are not worth much. But even then, with the seizure of small plants, baby ones which do not produce THC, which do not require menial labourers — it sounds like I am some kind of expert — the sentence is the same. Each case is specific, and the bill does not take that into account. Even if you impose very tough sentences, I do not believe that it will reduce the rate at which offences are committed.

Senator Carignan: So what is the solution? That is what we are doing here, looking for it.

Ms. Roy: There has always been crime, and there will always be crime. Unfortunately, every country has to deal with this problem. But, in targeted areas, the imposition of tougher sentences by the courts is also directly linked to an increase in this type of crime.

Mr. Oscapella: Senator Carignan, if you do not mind, I will answer in English.

Senator Carignan: Go ahead. I understand.


The solution was suggested by the gentleman sitting to your right with the Senate Special Committee on Illegal Drugs; namely, an intelligent but firm regulation of the production and distribution of cannabis, accompanied with education, discouragement from use and looking at why people use it in a problematic way.

Ultimately, that must be the model. As long as we have a model based on prohibition, it is extremely lucrative. Again, this is the consequence of having the black market. Cocaine is worth many times more than its equivalent weight in gold, so should it be any surprise that people will try to produce cocaine? As long as we have a system that creates this incredible financial incentive for people to produce and distribute these drugs, all the criminal law in the world will not work.

Ironically, they had a major bust in Ottawa about four or five years ago. What were they saying? They were saying it might raise the price of drugs in Ottawa. What will happen, then? It means the dealers, who did not get busted, all of a sudden have a more valuable commodity because there is a shortage of the drug in the market. It means the people who are dependent on the drug must commit more crimes in order to afford the even more inflated black market price of the drug.

As long as we have a system based around the black market, we will always fail. I point to United States and other countries around the world: As long as we have this model we are doomed to fail. It is a bitter pill for some to swallow, for those who think we can bludgeon drugs out of our society. We cannot. Criminal law will not work. Laws of economics are simply more powerful.

It is a very difficult position to take because it is diametrically opposed to the philosophy espoused by so many in our society. However, after looking at this issue for over 20 years, legalizing and controlling is the only way I can see it disappearing. As long as there is a financial incentive, it will continue. We are financing organized crime in Canada and terrorist groups around world. Through prohibition, we are financing the people in Afghanistan who are killing Canadian soldiers. This makes no sense.

It is a product of the criminal prohibition of drugs. At the end of the day, we must move away from that philosophy and move it towards a health-based approach as we do with caffeine, tobacco and alcohol.


Senator Carignan: One other quick question, because I think we have an expert on production. We were looking for one last week. You mentioned the number of plants. How much marijuana or how many joints can a mature plant produce?

Ms. Roy: I do not have that knowledge, Senator Carignan. I imagine that it would depend on whether the plant was grown indoors or outdoors and on what size it was, for example. I will say that the courts do take it into account in sentencing. Is the operation sophisticated or not? Is it small scale? Is it for the benefit of organized crime? Are there 5,000 plants with lamps, lifts and so forth? Obviously, the experienced grower will not be punished to the same extent as the amateur. But we need to make distinctions that Bill C-15 does not make.

Senator Joyal: My question is for Ms. Roy, first. I see that you have the penal code in front of you. Could you please go to page 1909, the Youth Criminal Justice Act?


I refer to the Youth Criminal Justice Act. You certainly have the Youth Criminal Justice Act in the appendix. In mine, it is the last one before the index.


Ms. Roy: I have it, but I do not think I have the same page as you, Senator Joyal.

Senator Joyal: In that case, have a look at section 73(1) of the act.


This is following the question put forward by Senator Nolin.


Ms. Roy: I would have thought that minimum sentences did not apply to the youth criminal justice system.


Senator Joyal: Section 73(1) is entitled ``Court must impose adult sentence:''

When the youth justice court makes an order under subsection 64(5) or 70(2) or paragraph 72(1)(b) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

In my opinion, an adult sentence is a mandatory minimum sentence.


Ms. Roy: I believe, and I may be wrong, that minimum sentences do not apply to youth. Being under the influence with a minimum sentence of a $1,000 fine, I think we can do things differently. And I may be wrong. I will indeed look into it.


Senator Joyal: Please look at section 62 of the same act, ''Imposition of adult sentence:''

An adult sentence shall be imposed on a young person who is found guilty of an indictable offence for which an adult is liable to imprisonment for a term of more than two years in the following cases:

If you read this bill, they are caught in everything over two years, in my opinion.


Ms. Roy: In the example I gave earlier of the youth who sells a joint in the schoolyard, the sentence is two years, so it applies.


Senator Joyal: Absolutely. They are caught there unless three scenarios arise, and the Youth Criminal Justice Act provides for them: where the youth accepts to be judged under adult sentencing; where the youth fails to request to be omitted for it; or where the judge decides that the penalty of less than two years would not be serving the objective of justice.

Those are the three exceptions whereby the judge would be prevented from giving an adult sentence. It seems to me that a young person would be caught for anything in that act that deals with a sentence of more than two years, unless those three exceptions have been raised. That is the way I see it.


Ms. Roy: That is the way I read it, as well.


Senator Joyal: My next question is about the statement you made to the effect that section 12 of the Charter might be raised in an allegation of non-constitutionality in relation to some of those penalties in a particular context. Section 12 reads, as everyone knows, that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

If you were in a situation whereby you conclude that you should allege a breach of the Charter, on which jurisprudence would you base your arguments?


Ms. Roy: In the Vaillancourt case, it was a minimum sentence for importing, seven years, and it was declared unconstitutional. There are two Vaillancourts. That is what comes to mind right away. It was before I started practising.

Senator Joyal: Do you recall the circumstances of that case?

Ms. Roy: I think it involved the importing of heroin, if memory serves. I could check and give you the answer, but it was a while back. Indeed, the case we are talking about is a classic example, Senator Joyal. It is exactly the situation for cruel and unusual punishment: two years for an exchange between two buddies in the schoolyard, where there is no question of trafficking money or making a profit for an organization but where someone is giving a friend from school a joint. Two years. To my mind, that completely contradicts section 12.

Senator Joyal: In your assessment of the impact that this clause of the bill will have, without an amendment to protect the discretion of judges in certain specific circumstances, thereby restoring a judge's discretion in certain specific circumstances, do you think that the constitutionality of this provision could be challenged in similar situations?

Ms. Roy: I would do it with pleasure. That would really make a very good case for application: a young man without a record, no pending cases, from a good family. We are not necessarily talking about someone with a substance abuse problem, who will harm society. It is a commonplace case, but with an application that is, and pardon me for being extreme, completely ridiculous.

If absolutely necessary, it could say that dealing drugs on school grounds is an aggravating circumstance to be taken into account by the judge, and it could be included in section 7.18 if it falls within the scope of organized crime. That would give the judge the flexibility to apply it, and that is what we need to maintain. All stakeholders in the legal system need to retain that flexibility. That is vital, it is our lifeblood.

Senator Joyal: The purpose of the bill, according to the minister, was to target those on top, as they say. It was really to go after the source. The example you just gave us, where a young person gives an ecstasy pill to a friend because they are going to a party Saturday night, does not target those at the top of the organized crime pyramid.

Ms. Roy: No, and I will tell you that, much to the dismay of those present, this will have little effect on organized crime. The individuals who are at risk, the ones putting themselves on the line, are being arrested for growing the plants for others, not the crime bosses. They are people who are being used, people with money problems who think they are going to fix those problems by making a fast buck growing drugs for X. But this will not affect the crime bosses or organized crime. It will be the little guys, the regular joes we see in court every day. Just think, every day, and I am talking about Saint-Jérôme, an area with a high crime rate for the size of its population, but if we impose minimum sentences on those people, it would make no sense.


Senator Milne: I have several questions but I will pose them all at once so you can both reply as you wish.

Particularly to Ms. Roy, this language in proposed section 1(ii)(A), ``in or near a school,'' appears in several other places in the Criminal Code. Have you seen any cases where this language has been interpreted by the courts? In your experience, what is the court's overall view of this type of language? Have you been caught up in situations that, because of this language, would adversely affect, for example, young people because they have been thrown into penitentiary.

Second, both of you would like to see this bill defeated, but that is highly unlikely because governments generally have their own way. How can it be corrected? Is there something we can do to make this bill better? Is it saved at all by the fact that there is a mandated two-year review of this legislation?


Ms. Roy: It is a bit depressing to know that this bill will move forward. I cannot help but think what a disaster that is. We should not have minimum sentences. The combination of minimum sentences, one after another, will create a Molotov cocktail. In five years, if all these amendments are passed, and there will be others — I do not know where this idea comes from — the Harper government is very aggressive on amending the Criminal Code, but I do not see the point of this bill. I would like to give you an answer, but I think we need to do away with the entire bill.


Senator Milne: Are there examples in the Quebec courts of this type of language?

Ms. Roy: You mean ``in or near a schoolyard?''

Senator Milne: Yes.

Ms. Roy: I have never seen it before.

Mr. Oscapella: I agree with my colleague that this is a disaster. The issue is how we could make it less so. One thing we could look at doing is changing the definition of trafficking. Under the current Controlled Drugs and Substances Act, trafficking consists of offering to give a drug to someone or giving a drug to someone; there does not have to be any financial consideration involved. Passing a joint at a party is trafficking.

One of the ways that governments have tried to make this unworkable law work, by expanding these definitions to mean all sorts things that, in common language, do not work. Limiting the definition of trafficking to something that is being done for financial profit would be one minor improvement to it.

Another provision, and I think it is one of the aggravating factors, is people using real property of another person to commit an offence. Most of my students are renters. I do not rent. I have the good fortune to have my own house. Most of my students would be hit by this. On the surface, they are looking at people renting a house and using it for a grow op. On its surface, it may make some sense, but who will it hit? It will hit generally the less well-off people in society, the people who cannot afford their own homes. That should go out, certainly.

It is so difficult to find anything that can actually save this bill, apart from the total abandonment of these mandatory minimum penalties or, as in some other jurisdictions, a provision that allows the judge to depart from mandatory minimums and, if need be, give reasons for doing so. A number of cases in the Department of Justice survey handed to me from the research and statistics division spoke of that. There would be a mandatory minimum penalty, but the harsh edges of that penalty could be softened by giving the judge the discretion in cases where the judge articulated certain reasons for not administering a mandatory minimum penalty. Again, the bill is a disaster as a whole, but that might help to mitigate some of the harshest consequences of the legislation.

The Chair: On the real property matter, I have been assuming all along that one of the targets of that provision would be those marijuana cultivators who move in and take over some farmer's field or a portion of it. This has been, at times, a significant problem in Quebec, and I think also in B.C. We can perhaps again come back at the department or the minister and ask what precisely they were targeting with that provision. I do not recall hearing the minister say that a student renting a basement apartment someplace was his target.

Mr. Oscapella: Madam Chair, I do not think you will hear the minister say that. He will say they are going after the big guns in organized crime. That may be a perfectly noble sentiment, but that will not be the net effect of the bill.

The Chair: Thank you both. Your testimony has been interesting and helpful.

Colleagues, we now have the pleasure of welcoming as witnesses Chief Len Garis of the Surrey Fire Services in B.C., His Worship Peter Fassbender, Mayor of Langley, B.C. and, from the Canadian Police Association, Mr. Charles Momy, President, and Mr. Ray Massicotte, Member of Board of Directors. Thank you all for agreeing to be with us this evening.

Charles Momy, President, Canadian Police Association (CPA): Good evening, honourable senators. I would first like to make some quick introductions. Ray Massicotte is a staff sergeant with the Waterloo Regional Police and also full- time President of the Waterloo Police Association, as well as a Director of the Canadian Police Association. I am also an active police officer with the Ottawa Police Service, and I am presently the full-time President of the Canadian Police Association.


The Canadian Police Association (CPA) welcomes the opportunity to appear today before the Standing Senate Committee on Legal and Constitutional Affairs, concerning your study of Bill C-15, which provides for mandatory minimum sentences for serious drug crimes.

The Canadian Police Association is the national voice for 57,000 police personnel serving across Canada. Through our 160 member associations, the CPA includes police personnel serving in police services from Canada's smallest towns and villages to those working in our largest municipal cities, as well as provincial police services and members of the RCMP.

The CPA is acknowledged as a national voice for police personnel in the reform of the Canadian criminal justice system. We are motivated by a strong desire to enhance the safety and quality of life of the citizens in our communities; to share the valuable experiences of those who are working on the front lines; and to promote public policies that reflect the needs and expectations of law-abiding Canadians.

Our goal is to work with parliamentarians from all parties to bring about meaningful reforms to enhance the safety and security of all Canadians, including those sworn to protect our communities.


On the national drug strategy, every day, our members see the devastating effects that drug traffickers and producers have in all of our communities. Those police officers are the ones who constantly have to arrest the same drug dealers and producers over and over again, and stop them from poisoning your children, our children, our grandchildren, and robbing youth of their future.

Whether these criminal organizations are in larger urban centres, like Vancouver, Toronto, Montreal, Halifax, or in smaller communities, like Saint John, Gander, and, yes, even Kuujjuaq, front-line police officers see on a daily basis how organized crime supply dangerous and illegal drugs, with not only disregard for the law, but having no consideration for the lives and families that they destroy. I say ``dangerous'' because drugs that exist today are often even more dangerous than years past. Oftentimes they are laced with a variety of different chemicals to make them more potent.

For a number of years, the Canadian Police Association has been advocating for a national drug strategy that incorporates a balanced approach to reduce the adverse effects associated with drug use, by limiting both the supply of and demand for illicit drugs and enabling an integrated approach to education, prevention, treatment and enforcement. In our view, this legislation is critically important in addressing the enforcement component of this strategy.

Minimum sentences can, in fact, make a difference. Some officials and academics are often prone to argue against minimum sentences. They advocate greater discretion for the judiciary, alternatives to incarceration and an emphasis on rehabilitation.

Violent offenders are not deterred by our current sentencing, corrections and parole policies. Chronic offenders understand the system and work it to their advantage. Criminal gangs have taken over prisons and have taken over some of our neighbourhoods. We need stronger intervention, which combines general deterrence, specific deterrence, denunciation and reform.

Canada's experience with impaired driving legislation over the past three decades demonstrates that mandatory minimum sentences has had a deterrent effect, both in general terms with respect to potential impaired drivers, and in a specific respect with regard to repeat offenders.

Mandatory minimum sentences for serious drug crimes will help in our fight against organized crime in the trafficking and production of drugs. Whether it is by keeping dealers and producers off the streets and out of business, or by serving as a deterrent to potential dealers, Bill C-15 will help our members in doing their jobs and keeping our communities safe. In simple terms: Keep these criminals in jail longer and you take away their opportunity to traffic in drugs.

Repeat offenders are a serious problem. There has been considerable debate about the use of minimum sentences and the frequency of repeat offenders. Make no mistake about it: Repeat offenders are a serious problem. Police understand this intuitively, as we deal with these ``frequent flyers'' on a routine basis. Statistics released by the Toronto Police Homicide Squad for 2005 demonstrate this point: Among the 32 people facing murder or manslaughter charges for homicides in 2006, 14 of them were on bail at the time of the offence; 13 were on probation; and 17 were subject to firearms prohibition orders. The revolving-door justice system is failing to prevent further criminal activity by these repeat, violent offenders.

What will Bill C-15 do? Here are actual scenarios that illustrate how provisions in Bill C-15 are seen from a front- line police officer's perspective.


One-year mandatory prison sentences for dealing drugs such as marijuana, when carried out for organized crime purposes or when a weapon or violence is involved.

Scenario 1: With organized drug trafficking come weapons in many cases. Recent investigations on mid-level drug traffickers who were arrested revealed that the mid-level drug dealers were being supplied with weapons from the crime organization they belonged to, in order to assist them in their drug collection activities.

As part of the warrants that were executed, weapons, drugs and bulletproof vests were seized. Some of the individuals charged and convicted received limited jail time of less than two months.


Scenario No. 2: A Kitchener drug dealer moved to B.C., where he learned to grow marijuana. After his arrest in B.C. for operating a home-grow operation, he returned to Kitchener and started a garden supply business where he set up a network of grow operations. While being investigated in Kitchener for his illegal operation, he returned to B.C. to plead guilty to production of marijuana and was placed on house arrest. He returned to Kitchener unmonitored, where he was once again arrested for production of marijuana.

This person was responsible for introducing sophisticated grow operations to the region of Waterloo, which quickly spread from Ottawa to Windsor. This male's activity would have been thwarted had he been incarcerated.

Bill C-15 provides for a two-year mandatory prison sentence for the offence of running a large marijuana grow operation involving at least 500 plants. With health and safety aggravating factors, it goes up to a three-year mandatory prison sentence.

Scenario No. 3: Children are the victims of grow ops, as well. One such incident existed in Kitchener where a marijuana grower was living in his grow house with his wife and two children. During the night, the house erupted into flames due to a defect in the illegal electrical bypass. The flames spread quickly due to the intricate ventilation system installed in the grow room. The male fled the house by himself, leaving his family inside. Neighbours noticed the flames, arrived and rescued the woman and children from the inferno.

Firefighters arrived on the scene and extinguished the blaze. One firefighter described fighting this fire as trying to put out a fire in a high-efficiency woodstove. The fire burned uncharacteristically hot, causing concern and danger to neighbours and responding emergency service workers.

Unfortunately, Canadian communities from coast to coast to coast are plagued with this type of criminal activity on a daily basis.

As police officers, and more so as members of our community, it concerns us that our youth and many adults have been getting the wrong message on drugs. The use of drugs has been trivialized by what people see on TV, and also by misguided public policy. What they do not see, at the beginning, is that drugs will most likely take over their lives. The message to our youth should be clear: Drugs are dangerous and they are just not worth it.

The production and trafficking of illegal drugs go hand in hand with other criminal activities such as prostitution, extortion, human trafficking, homicides and violent sexual offences. Drug and sexual assault investigators have told us that date rape drugs, such as GHB, often serve to rape and assault unsuspecting victims. Production and traffickers of these types of drugs are therefore directly linked and responsible for serious sexual, and often violent, offences.

Organized crime is a very lucrative business and is run in that manner. They are very knowledgeable about the revolving-door criminal justice system we now have in Canada. The message to drug dealers, producers and organized crime has been that, even if you get caught, chances are you will be back in business in a matter of weeks.

With this bill, the message to drug dealers and producers is clear. Bill C-15 is part of a well-coordinated assault on organized crime. Cutting off the production and distribution of these dangerous and illegal drugs takes away the lifeblood of organized crime.

On behalf of the Canadian Police Association and our 57,000 members, we strongly encourage all senators to pass this bill and give our officers the tools to keep your communities safe.

Chief Len Garis, Surrey Fire Services: I am the Fire Chief for the City of Surrey in British Columbia. I am pleased to be invited here today to speak on behalf of Bill C-15 and on behalf of the City of Surrey. As you will see in my written submission, our city sees a minimum mandatory sentence and harsher penalties as being a positive step towards the battle against Canada's illegal marijuana trade.

Surrey has taken a leadership role in fighting marijuana grow operations because we know they expose our neighbourhoods to violence, a greater risk of fire and electrocution, and many other safety hazards we have experienced. Our position is that mandatory sentences would help provide a further deterrent to those who are currently involved in the marijuana trade, as well as those who are considering becoming involved.

Growing marijuana is a lucrative business in Canada and up until now the risks associated with it have been quite low. I am talking about deterrence for grow operations, or running a grow operation.

You could say that growing marijuana in British Columbia and in Canada, since the 1990s, has been a growing commercial business. Here are some statistics that we would like to share with you about our experience in B.C. I believe you have probably received submissions from Dr. Darryl Plecas from the University of the Fraser Valley, and I will be quoting some of those for emphasis.

Between 1997 and 2003, police marijuana files in B.C. tripled. In that same period, the amount of marijuana plants police seized in those years doubled and the amount of harvested marijuana seized tripled. These statistics come from the study that I have just referenced.

According to RCMP statistics in other parts of the country, they have also experienced a similar increase in marijuana activity since the late-1990s. The study by the University of the Fraser Valley is particularly interesting because it shows that while the marijuana trade is booming in B.C., the consequences for those involved were severely on the decline.

For instance, between 1997 and 2003, the number of no-case seizures tripled. This is when police dismantle a grow operation and they do not lay charges. Also, 20 per cent fewer charges were laid for growers in 2003 than in 1997, and only 16 per cent of growers convicted in those years served any jail time at all. Only 7 per cent of the convicted growers were sentenced to three months or more.

It is interesting to look at our neighbours to see how they might have handled these criminals. Research shows that in Washington state, which uses sentencing guidelines, these same offences would have been resulted in a sentence of at least three months in 77 per cent of the time. Our figure in B.C. was only 7 per cent.

Even in Alberta, 34 per cent of the growers convicted went to jail between 1997 and 2003. That is more than double B.C.'s rate during the same time period.

The university study I mentioned helped open our eyes. It showed us what was happening to the marijuana trade and what kinds of safety hazards associated with grow operation were being brought to our neighbourhoods. For example, we learned that grow operations are 24 times more likely to catch fire than a normal home. When a grow operation does catch fire, the damage is twice as much as a normal house fire.

To put it into perspective, between the years of 2003, 2004 and 2005 in the city of Surrey, our fire crews were attending one house fire a month associated with a grow operation and dealing with those situations. We learned these health hazards, unsafe structural alterations and illegal electrical work were common in grow operations. We also learned that children were found at more than one fifth of the grow operations in our province.

Once we had this knowledge, we realized that we had to act on it. Our community spearheaded a task group in 2004 that led to the creation of public safety inspections in the city of Surrey, as well as many other B.C. cities. These inspections allowed cities to enter grow operations and force the owners to move out, making them safe by removing any public safety hazards. Surrey also fought for legislation that now gives cities in B.C. direct access to electrical consumption data that identifies them as grow operations to root them out.

These safety inspections have proven to be a strong deterrent. In fact, a study released this June showed that in Surrey, we experienced an 81 per cent drop in the number of files coming to the attention of police between 2004 and 2008 by attacking them from a public safety perspective.

The Chair: That is marijuana production.

Mr. Garis: Yes. Our experience shows that strategic deterrents do work, and we are committed to supporting initiatives that show promise in reducing the safety threats associated with growing marijuana in our neighbourhoods.

In addition to our submission today, we have championed other potential deterrents that we are working on with government. They include regulating hydroponic outlets that sell equipment to growers as precursor equipment; and regulating medical marijuana grow operations, which share many of the same safety hazards in our communities but lack any regulatory inspections, to make sure they are safe. You would not know the difference between an illegal grow and one that was licensed by the federal government.

We would like to exploit technology used to detect hydroponic equipment and clandestine drug labs. We are working on initiatives in those areas with various universities. We also believe we could exploit tax audits by Canada Revenue Agency for individuals that are caught growing marijuana that are not paying their fair share of taxes. We have had some great experiences, but we lack resources in Canada Revenue Agency to do those investigations on a consistent basis.

It should be noted that a lot of these positive things are happening across Canada to combat marijuana and the industry. Some progress has been seen in recent years, as I mentioned. However, we also know this is a highly lucrative industry with strong links to organized crime. We know that Canadian-grown marijuana is traded for guns and other drugs, largely south of the border.

We also know that criminals involved are sophisticated and adapt and are willing to go to great lengths to foil the new volley we throw at it. Any recent gains that we believe we have made will be lost if we do not remain one step ahead.

Minimum mandatory sentences and harsher penalties are certainly not the only answer; I will be the first one to admit that. However, they will bring some fairness and consistency to how criminals convicted of drug crimes are treated across Canada. As a case in point, British Columbia is woefully low in comparison to the rest of Canada in terms of convictions and penalties associated with drug production. In conjunction with other deterrents, they will help make the marijuana industry less of an attractive career choice, certainly in British Columbia and the rest of Canada.

I believe that these negative consequences that come with this bill will help us to deter what is going on in our communities.

The Chair: Colleagues, you have before you Mr. Garis's more detailed written submission, complete with footnotes. I would ask for a motion that we append that to the proceedings.

So moved by Senator Baker. In favour? Done.

His Worship Peter Fassbender, Mayor, City of Langley, B.C.: I will use a world series analogy. I am the closer of these intelligent and well-presented presentations today. You need to know that I have had the opportunity to watch and also to read a fair amount of the testimony before this committee.

I come today not with a written presentation, with more research and all of those things. I am a firm believer that you leave the good work of research and all of the academia to those people. I am here to talk to you from a community perspective about the issues that Mr. Garis has talked about. I will put a human face on it, if I can, and that human face is my community.

I know that the solution to the drug problems in Canada will not be found in the halls of Parliament, in these august chambers or in my city hall. They will be found on the streets of the communities, when we as communities work together to find solutions that deal with all the social issues and all of the mental health issues that relate to the drug issue.

I think what happens often when we are debating things like this bill, which, in my view, is a step in the right direction in terms of providing the kinds of consequences for what I see on my streets every day, we need to look at each of these in terms of what they contribute to the whole.

We are all looking for the silver bullet to solve the drug problems in this country. I do not think there is one single silver bullet to do that. However, what I do know is that when we look at what is happening in the drug industry — and I use that word advisedly, the drug industry, because that is what it is and that is what I see — we need to provide our police forces, our fire and protective services the tools and the teeth to deal with that industry effectively in order to make a change in the pattern that we see in the province of British Columbia and, I believe, right across this great country.

I will use another analogy. I do not think the perfect bill has ever been crafted. You may disagree with me, but I think they all have challenges. I will leave it to the legal scholars and so on to look at the detail of bills.

However, I do know that this bill does make that correction that is necessary to deal with organized crime, to deal with the industry that it is and the people who are not drug addicted, who are not in our community's homeless. I am talking about the people who are using this industry to make a lot of money and are parasites in our community, sucking the lifeblood out of our community in so many ways, whether it is the safety of our police departments or our fire and rescue services or the safety of neighbours.

Three days ago, I visited a home in my community, in a beautiful residential area, that had burst into flames at 5:00 in the morning. I visited there with my fire chief, and we walked around. He took me around the back and showed me that it was a marijuana grow op in the basement. It was not a small one, but a large one. I said that there must have been some sort of an electrical problem. He said no. He said this house was attacked by rival group who wanted to put this particular person out of business, so they came and set the house on fire. They did not even want the plants that were in the basement. They wanted to eliminate not only the plants but the structure and everything that was in it.

You cannot tell me that that has anything to do with the person that I see on my streets who is addicted to marijuana and is a user. It has everything to do with people who are out to eliminate each other in our communities so that they can take over the business. I come from the private sector, and part of that world is you want to do the best you can to get rid of the competition, but this kind of getting rid of the competition has deadly consequences, not only for the people involved but also for the people who have to work in our communities and serve our communities to be able to deal with these issues. Bill C-15, in my view, gives the tools.

If I can use an analogy, and please understand this analogy in the positive context, you are like the captain of the Titanic. If you had known far enough in advance that you could make a slight course correction and miss that iceberg, I suspect as the captain of that ship you would have done that. This is what this is all about. This is a small course correction, in my view, but an important one to ensure there are consequences for those individuals in our society who are using everything they can to take advantage of every part of our community, and that has to stop.

I have heard many debates, and I just heard the other witnesses tonight. Often, honourable senators, we start looking at the whole drug issue when we are dealing with a bill that has a specific and targeted purpose. We put our focus on all of the other issues. We will be opening a facility in our community to help the homeless, the drug addicted, et cetera. We are doing our part in our communities to invest in helping people who need help and who want help. However, I will make this clear statement, and I have made it in my own community. I will not take umbrage when people say to me that you have to do something to get rid of the problems in our community, and you have to be a part of the solution.

Honourable senators, I am asking you to be part of the solution. I know you have much more debate to come and you may look at nuances in the bill, but I am here today to say to you, simply, that my community is affected by the drug industry, by the people who profit from that drug industry, by organized crime, by the people who are lying dead on my streets because they are in a drug war and they are trying to eliminate each other. I see that. I feel it. My community feels it, and the citizens of my community are saying they are tired of the lack of action and the lack of fortitude to make changes that need to be made, imperfect as they might be.

I compliment you on passing through the elimination of the two-for-one legislation. That was a positive step forward. I think it is time we stop politicizing these issues and bring them down to the streets of our communities. I am telling you that we are willing to work with you. We want you to work with us. We want you to work with our police departments and with our fire and rescue services, and we want to challenge all of us to be a part of that solution.

I urge you to have the fortitude to pass this bill as another signal to all Canadians in every community across this country that you are leaders who have heard them and are willing to be a part of the solution. I and my council and my community and the city of Surrey and many other communities across this country are willing to be a part of that solution. We have to stop dragging our feet. We have to get on with it and move forward in a way that we do put consequences where consequences deserve to be.

Senator Nolin: Good afternoon to the four of you. Thank you for accepting our invitation. Most of you have come quite a distance, and we appreciate it.

Your Worship, I agree with you. We have to be part of the solution. We have before us a bill that is nothing more than it is. We want to make this bill workable in all possibilities. We heard before you the testimony of Professor Oscapella, who gave persuasive, first-hand testimony about his students. He is saying 10 per cent of his students could be caught in the application of this law.

We have limited power. If we try to do anything with the bill, we will probably have to amend it. At the end of his testimony, he put on the table a start of a solution, which leads to my question. You are all convinced of the deterrent capability of mandatory minimum sentences, but if, by mistake — and this will be within your jurisdiction, Mr. Momy — 10 per cent of the students will be caught in the system, we need a valve somewhere. The minister was right there in your chair, Mr. Mayor, saying this bill is there to go after the parasites and those who are making big money out of this trade. The way the law is built, the way the CDSA has evolved with time, we know the interpretation of trafficking. We know that an exchange of any amount of cocaine or ecstasy between two students will lead to two years in prison, minimum. We need a valve. What about this idea of reopening the law and giving the judge the authority to use his discretion and to explain why, in writing, he is not applying the MMS? What would your reaction to that be?

Mr. Fassbender: Maybe I can start and then my colleagues can speak. I hear this quite a bit, and I hear quite a bit in my community as well about the youth that are using and passing a joint to each other or passing around ecstasy or some other pills. We need to lighten up on these young people, because they are just part of a more liberated society, and this is part of who we are, and we need to understand that.

I take exception to that. I think the message we need to send to our youth is there are consequences for actions. If you feel there are applications in this bill where judges need some latitude, I will defer to the legal experts on them. However, I think the young people of this country need to know that the lifestyle of the drug culture — the money that can be had, the cars, the parties, the girls and all of those kinds of things — is a road leading nowhere. That is what our police deal with all the time. They see the effects of these things on our streets. I think anything we do to send a clear message that this is not a lifestyle that you want to choose and there is no benefit to going down this road is beneficial.

I hear a lot of people. I have talked to people who have been in gangs who said they were smoking dope, out on the streets and having a good time. They saw the other guys with big cars and thought they could make a few bucks. It started small, but they got into bigger and bigger situations. Some of them got trapped by the organized crime gangsters in a lifestyle they could not get out of.

Any legislation we pass must send messages, not only to the people who will be affected by the legislation in the courts but also to the rest of society, that we have had enough and we will stop the train.

Senator Nolin: I am not saying that we should not prosecute. I am asking whether we should apply a mandatory minimum sentence. Under our judicial system, judges, who must deal with these individuals at the end of the day, are independent and will make decisions in the best interests of justice. We have books of principles, jurisprudence and case law to assist judges in making their decisions, but at the end of the day he or she is alone. If the judge is wrong, there is provision for appeal. However, the judge will decide in the best interests of society and of the convicted, and that includes young offenders. That is why I am asking you the question.

I am all for deterrence if it works, but that is another ball game. We will not get into that tonight. We have heard plenty of witnesses on that.

I am all for the 10 per cent, Mr. Momy, who are under your jurisdiction and can be caught by that provision. What will we do?


Mr. Momy: I will let Mr. Massicotte answer, but I just want to say, Senator Nolin, that with respect to the 10 per cent mentioned by the professor, I would like to see a case with my very own eyes where someone sells one joint or one ecstasy pill . . .

Senator Nolin: I differentiate between the two.


I differentiate because there are two sections in the bill before us. I am not talking about a joint. I know Ms. Roy mentioned a joint, but I am talking about a small quantity of cocaine, which is the reality. Let us not kid ourselves. It is around and someone is buying it. We know the market is there. I am talking about cocaine or a pill of ecstasy. I am not saying there should not be a process, but do we really need a mandatory minimum sentence to cure that problem?

Ray Massicotte, Member of Board of Directors of CPA, Canadian Police Association (CPA): I appreciate the opportunity to be here. I am from the Waterloo region where we have three universities and a couple of colleges in close proximity. I have been a police officer for 31 years. Much of my career has been spent working in covert operations, specifically drug operations, et cetera. In my experience, we do not lay those charges for a person passing out an ecstasy pill. It is not something that we do.

My concern, as a father of three children who went through university, is that I do not want someone dealing ecstasy at the university. We have seen cases of a person taking one ecstasy pill and dying, or they take ecstasy and it causes other medical problems. That is what it is all about.

People say that what we seize on the street is ecstasy, but only about 33 per cent is actual ecstasy. Most of the time it is other chemicals.

Senator Nolin: I think it is closer to 15 per cent of the real substance. It is the rest that is dangerous.

Mr. Massicotte: It is all dangerous. What price would you pay for the mind of your child? In my community, vibrant, good young people have started with marijuana and gone down the path of addiction. What is the price of a child's brain? If one of your children had a brain injury, what would you pay, as a parent?

Senator Nolin: Why are you speaking of brain injury? We have many studies that show that gateway drugs do not exist. You know this very well. We are trying to have a rigorous study.

Mr. Massicotte: From my experience dealing with many addicted people, every heroin addict and cocaine addict started by using marijuana.

The Chair: Mr. Momy, in your presentation you said that mandatory minimums do work, and you gave the example of mandatory minimum sentences for drunk driving working as a deterrent. We have been trying hard to get statistical evidence, studies or anything else that show that mandatory minimums do deter. Were you basing that on lived experience of your members, or do you have data to back it up?

Mr. Momy: That is lived. It is the experience and knowledge of front line police officers who are providing us information. They are no longer seeing as many repeat offenders.

The Chair: I am not disputing the validity of your members' experience. I am just wondering if there are some statistics you could give us.

Mr. Momy: No, it was not information from StatsCan or anything like that.

Senator Baker: I thank the witnesses for their very interesting presentations.

The numbers of no-case seizures that you gave seem unusual. The police lay the charge. Are you criticizing the police, saying that they do not lay the charges upon seizure?

Mr. Garis: No. The study I am referring to was commissioned by the RCMP for the province of British Columbia. Charges are laid by the Crown in British Columbia. A federal Crown administrator advised us anecdotally that the system cannot accommodate these people. For that reason, people started to throw up their hands, especially in Vancouver and other larger regions such as the city of Surrey. They did not have the resources to process the cases, so they decided to try a deterrent factor. They decided to do their best to get the drugs out of their hands, seize their equipment and move on. The system simply cannot accommodate the volume. Forty-five hundred to 5,000 cases came to the attention of the police in 2003.

Senator Baker: As the police will tell you, it is they who swear the information and they who have to sign a document laying the charge. We all know that under the system in British Columbia the Crown is consulted on the laying of the charge, which is quite unusual in some provinces.

If the system cannot handle the numbers now, how would the system handle it if, because of minimum sentences, everyone who is charged pleads not guilty?

Perhaps the police would like to comment on that.

Mr. Garis: I would like to comment on one aspect of it. Dr. Plecas's report will tell you that the cast of characters going through the system are multi-repeat offenders. I am not talking about once or twice but dozens of times that they have been arrested and charged with the production of marijuana.

Once there is a deterrent factor for multiple charges, we will either take them off the street or take them out of business. That is part of the problem we are experiencing in Surrey. I am not sure what it is like in the rest of Canada.

Mr. Momy: Again, it is a resolving door, so these individuals are reoffending. We have all heard how lucrative a business it is. It is a fact that drug trafficking, importing is a mid-level, high-level business. If the assumption is the jails will be full of people because of these mandatory minimums, the fact is that the individuals who are charged today will be in jail for two and three years.

On the enforcement side of things, if that individual is charged today and comes out two months from now, there is a high percentage of those individuals who will be charged again, and again, and again. I am sure you have heard the testimony on that particular issue.

From a law enforcement perspective, we have to do a lot more work arresting these individuals, doing undercover operations, doing wiretap operations, over and over again on the same types of organizations, the same individuals, instead of having them in jail, where they belong. Again, I am only speaking from a law enforcement perspective. It provides us that ability, when they are in jail for one or two or three years minimum, to be able to work on other organized crime groups because we do not have to worry about those individuals recommitting and starting up their businesses again.

Senator Baker: We all read case law here; the reported cases. I do understand that a lot of cases that appear before the courts are not reported. However, we have a general sentencing principle in Canada of similar sentences for similar offences, for similar offenders in similar circumstances. The law applies right across Canada under the CDSA. I do not see in the reported case law those few examples you gave in your testimony, instances where someone has committed a serious offence and is out within weeks. I do not see that.

Let us assume though that you are correct. Of course you are the witness so we are not questioning your accuracy. All of these cases will plead not guilty because of the minimum sentence. You have already referenced how complicated some of these cases are. I do not know if you have ever sworn an information to obtain. You have 50, 60 pages and then you have police officers who have to appear in every case beginning with the preliminary inquiry, on to the trial, pre-trial arguments and so on. That will tie up your officers forever because no longer will there be a plea bargain and someone pleads guilty, with the understanding that here is their offence.

Have you thought about that consequence to your police force? You will need a huge increase in personnel to manage such a bill as this?

Mr. Momy: It is a presumption on our part. There are many other factors we have to consider. If you are asking me if there will be an excessive amount of extra work involved in putting people in jail, ultimately, for a period of time, I could only guess about there being an excessive amount of work.

Senator Baker: In conclusion, would you agree with the position put forward by Senator Nolin a moment ago, concerning the unintended consequences where you have some people who would be caught initially exchanging an ecstasy pill at a rave dance facing a minimum sentence in jail, thereby destroying the person's life forever with that sentence?

I will conclude finally with this question: You sing the praises of the impaired driving section but constantly we see in the newspapers people who have been convicted eight and nine times before and are still being convicted again. It all goes back to the discretion given by the Crown in the legislation to enter the previous record. It is in this legislation as well, so do you degree with the built-in discretion given to the Crown as to whether or not trigger the minimum sentence in some cases?

Mr. Momy: To answer the first question, I would disagree. From experience — and I am sure my colleague to the right will most likely disagree as well — the exchange of drugs, whether it be ecstasy, cocaine, amongst individuals is not something for which we realistically would lay charges. There are many different components.

Senator Baker: You could though.

Mr. Momy: You could theoretically, but I would like anyone to show me a case where an individual exchanged an ecstasy pill and was charged with trafficking. All I can talk about is my own experience, the experience of other police officers and the information that I have received from members.

We cannot forget that the CPA has always advocated the four main issues when it comes to drugs. Prevention and treatment is all part of this. This legislation, as far as we are concerned, sir, is only one piece.

Senator Wallace: It is helpful and refreshing I think for all of us to hear from people like you who are dealing with this at ground level. You are dealing with the public; you are dealing with those who are impacted directly by the evils of the drug trade. It is one thing to talk about it around a boardroom table and it is one thing to talk about it in the classroom, but it is quite another to live it and see it, and see that house go up in flames as you pointed out, Your Worship. It obviously has a strong impact on you.

The first question I would have, and I would not direct it to any one of you in particular, concerns the issue of mandatory minimums that is an essential element of Bill C-15, as you are well aware. We have heard from different witnesses who have questioned the effectiveness of mandatory minimums. From some of the testimony I have heard they would suggest mandatory minimums will do nothing to enhance the safety and security of the general public. That is really what this is all about. We are trying to protect the 99 per cent of the population not involved in criminal activity.

The question I have for you is: Would you care to comment on the effectiveness of mandatory minimums in enhancing the security and safety of our citizens?

Mr. Massicotte: In the Waterloo region we had occasion to have a number of grow operations and we ended up inundated with them and we began the court processes. At first our judges were giving conditional sentences and house arrests to the offenders. We took extra steps, working through the Crown, and we were able to present victim impact statements from all aspects of our community and a trend began where they were giving a minimum of one year in our community. That effectively drove the growers out of our community. Instead of growing in the Region of Waterloo because they knew they would get a minimum of a year sentence there, they would move to Stratford, London, York, Toronto, Halton or Ottawa. In that case I believe that they were deterred by what they knew they would get in Kitchener-Waterloo, or the Region of Waterloo, so they moved on.

This is a matter of business. If these people are in jail, they cannot do business. This is not a street-corner, one-ounce dealer. This is a faction or a spoke of organized crime that is making a product that drives other criminal activity. They cannot afford to be out of business. We do the investigations and get them before the courts. In my view, it does have a deterrent effect. My experience in the Waterloo region has shown me that it does.

Will the bill work? I think it is a step in the right direction. I reiterate what Mr. Momy said. It is one fork in a three- or four-pronged approach to the problem in Canada with drugs, the four prongs being enforcement, education, rehabilitation for those affected by addiction, and judicial support. That support for us is what we are asking for here.

Senator Wallace: It is not ``one size fits alls.'' A comprehensive approach is needed and is being taken.

Mr. Massicotte: Absolutely, sir.

Mr. Garis: I would like to draw your attention to my written submission on page 5, the third-to-last paragraph. That paragraph talks about deterrent factor. We did an evaluation on our programs in the City of Surrey about what was happening with these individuals in terms of the propensity for re-establishment.

We hired a masters student to evaluate the re-establishment of marijuana growers in our city and what deterrents were actually having an effect on them. We looked at whether they were charged by police — a traditional approach — or whether they were approached from an inspection process.

Then the city brought in sanctions which was basically a bylaw that allowed us to cost recover every ounce of time that went into the investigation into that particular occupancy. It allowed us to remove occupancy from the homes. In other words, it could not be habited. It said you must hire registered professionals to come in, test the pesticides in the house, test the mould, and come up with a remediation strategy that brings it back to normal health and safety standards, along with the electrical system and building system.

After we implemented that, nobody came back. I would say, in essence, we have taken the profit out of their business and we have sent them on their way.

Mandatory sentences might do the same thing. It takes them off the field of play and puts them in jail where they cannot earn their living, because it is illegal. It is the same deterrent factor. It is a little different, but it has the same effect. There was a masters thesis written and I would be happy to share it with you.

The Chair: If you would send it to the clerk, please, we would be glad to see it.

Mr. Fassbender: In terms of the house that I told you about, the gentleman who owns it is known to police throughout region: Surrey, Abbotsford, Langley. I am speaking of the one with the fire. He was not living in it. He had someone working for him who was living in it. That person was running the grow operation. He has a number of other operations, as well.

This gentleman has been charged and has had minimum sentences on every one of his convictions. He is still operating. The problem is that it is seen as just a slap on the wrist and he keeps on doing business. He simply finds another creative way to do business. I think these are the people we are talking about, and this bill will definitely assist in eliminating and dealing with them effectively.

I suspect you will receive lots of other legislation on a whole bunch of other issues that will help deal with the whole crime issue. We need to deal with these things and give the police more search and seizure opportunities, reduce the red tape and deal with organized crime as it relates to drugs operations. Then we have a whole world of issues in dealing with society about drug culture, how it happens and how young people get involved.

I will say again: I believe young people today feel that there is no real risk getting involved in drugs and the drug culture, even the drug business. It is easy to get into and easy to make money. I believe this also sends a strong message that, if they choose to go down that road farther than being at a party and passing a joint or a pill — not that I support that, anyway — and take the next step and the next step, there will be consequences. I believe they will stop and think about that. This bill assists in changing that attitude, as well.

Senator Angus: You are talking about what you all do, which is to try to make this great country an even better and safer place to live in. We have a free society with freedom of expression, and we are taught to respect some of the opinions we do not agree with. That is another part that is really great.

I am sitting here tonight and I have heard on the same subject matter, allegedly, two absolutely different worlds of opinions. I believe it is fair to say you all were in the room for the previous witnesses. I was rendered speechless, something for which I am not known, when I heard them. They did not want to hear about the bill, as you know. They do not see one redeeming comma or semicolon in the bill. I restrained myself. I respect their opinions, and I am sure they are very intellectual people.

I would like to have your comments on those opinions expressed. I would like the record to show I do not agree with them.

The Chair: Walk carefully here because they are not here to defend themselves.

Senator Angus: They have had a good say.

The Chair: Tell us what you feel about their opinions but not about them.

Mr. Fassbender: Madam Chair and senator, I sit around a table with people of different political persuasions. We all have different points of view and that is what I love about this country and it is worth fighting for.

What I heard from the previous witnesses in terms of their perspective on the bill, is a further desensitizing of the real issues. The issue is so big that it is easy to deflect it into another arena. Compassion comes out. I have compassion for people on the streets, as I said earlier, who are marginalized because of mental health or drug issues. Which one comes first, I am not sure.

However, the bottom line is that we need to start drawing lines in the sand. That is what my citizens are saying to me. It is time we stop. If you ever saw the movie Network, there was a point where someone started a movement and stuck their head out the window and yelled, and pardon the direct quote ``I am mad as hell and I'm not going to take it anymore!''

Our communities are getting mad as hell and we will not take it anymore. We will continue to lobby for changes, not to deal with people who have those challenges. We will help them; we are doing things to help them at the community level. We want to deal with the people who are the parasites — and I will use that term again and make no apology for that — the people who want to suck the life blood out those people and the community. That is what this is all about. That is why I support it.

I agree with you: I think it is great to do some of the academic peer reviews and all of those things, but there are lots of them sitting on lots of shelves in this country. However, at the street level, people are saying we need to change the way we do business.

Mr. Massicotte: I appreciate their opinions. However, I think our country needs to understand how we are viewed by other countries, also. We are a source country for high-grade marijuana, no question about it. Our dope goes down to the States and they call it B.C. Bud and all different slang names. The reality is they want to smoke our dope in America. Therefore, we are a source country for illegal drugs in other countries.

We have growers here growing drugs and simply making lots of money on the backs of the people whom we are talking about here. They are making money off the street people who use marijuana to self-medicate and do all of those things. I have worked the street. I have compassion for them and I have held them in my arms and waited for the ambulance to come to help. We have done all that. We are talking here about organized crime. I think some people miss that message. That is simply what it is: organized crime. It is people getting rich off a commodity that hurts our community.

You do not have to rely on my experience. All of you have had this experience. If you look back to your careers in school, the kid in grade 8 who was a good student starts going to high school. Perhaps he gets in with the wrong crowd and starts using marijuana. Most of the time those children who are losing brain cells are those who do not have many to lose. They end up not finishing high school because they cannot concentrate due to their drug use and they go down the road of addiction, using alcohol, drugs, or whatever. This is what we are talking about. We are talking about organized crime getting rich off the people who can least afford to spend.

Senator Angus: Mr. Momy, one of the first things I heard when I came in the room, from the professor from the University of Ottawa, was that if this bill were passed — and, hopefully, it will be passed soon — 80 per cent of the people in his class would become criminals. I was screaming inside to say, ``Only if they were charged, and then maybe they would have to be proven guilty and convicted.'' I found that statement to be far out. Perhaps you could comment.

Mr. Momy: I certainly agree on that comment. I came in late and got the tail end of the testimony.

The Canadian Police Association, following up with the information that they provided, and its members, right across Canada, are not ready to give up on this war on drugs. As police officers, we will continue to enforce the laws that are there. All we can do is provide you with the experiences that we are going through. Mr. Massicotte and I have referred to the individuals whom we have dealt with on a personal level. We cannot send the message to the Canadian public that we are giving up.

Mr. Garis: In March of 2004, when the fire services and public got involved in grow operations in our city as a public safety issue, it was in conjunction with a fire that happened at 3 a.m. from a grow operation. The fire was entering two homes that were occupied on either side of it. Fortunately, a person working the late shift was driving home and stopped to alert the neighbours so that they could bail out of the house. While they were sleeping, their houses were being impinged. An unattended grow operation was located in the middle of those homes; in other words, the grower was not there at the time.

I have gone to a town hall meeting and heard residents say: ``That guy has been busted by police and arrested and charged five times. What are you doing about it? Now look what has happened in our neighbourhood. What are you doing?'' All we have left is to do what we have always done: arrest him and charge him. In this case, we did not do so because he was not around and we could not link him to the fire. That is the type of situation we face. These citizens are sitting in our community halls and asking us what we are doing and why someone is not doing something about this situation. The police are doing their job, arresting and charging people, but these perpetrators are out the next week. They might get a fine, but we have seen penalties lessen as time goes on. I am not talking about passing a joint. I am talking about heavy drug production going on in our communities. When is the drive-by shooting going to occur? All these things are coming into our communities and our citizens are asking us these questions of public safety officials — our mayor, our council and our fire chief are listening to this and we cannot help them.

I have made 50 or 60 presentations across Canada and the United States on alternative initiatives to marijuana grow operations. I open by saying that the reason we are doing this is that changing the criminal justice system is like trying to stop the earth from turning. That is what I have told people, because we have been complaining about it for 10 years and nothing has happened.

I have faith now. I had the privilege of being invited to speak to the Justice Committee on their study on organized crime. I received positive comments from the elected officials regarding the solutions that I was suggesting there. I was pleased to hear that.

We sit before you today to testify about what is going on in our communities. I have a lot of hope that you will do the right thing.

The Chair: I have a rather mundane question related to the actual wording of the bill. This is aimed at the serving police here who are on the front line. However, if either of you gentlemen has a comment, that would be good, too.

This bill kicks in at six marijuana plants. In one of our meetings last week, there was some discussion to the effect that that might be a bit low. Dr. Plecas, to whom you referred, allowed us how, in his view, 30 plants would be a more realistic minimum at which to have the full weight of the law kick in.

From your point of view, where do you think the appropriate minimum would be? Does six plants seem low to you, or just right, or high, as a minimum?

Mr. Momy: From my perspective — and I am sure Mr. Massicotte will add to this from his experience — you could produce up to a pound of marijuana with one plant, depending if it is coming from a grow operation or if it has been grown naturally outdoors. A pound of marijuana is a lot of marijuana. We are not talking about Joe, who is going to university, walking around with a pound of marijuana in his school bag. From our perspective, that is a large amount of drugs. We are not talking about buying or circulating a joint or two or five. It is a significant amount.

The Chair: Mr. Massicotte, would you agree?

Mr. Massicotte: Six plants is a good saw-off number, for a number of reasons. I would like to draw a parallel between marijuana plants and apple trees. In the old days, you would have a big apple tree and you would get lot of fruit off that big tree. Nowadays, there are apple trees that grow lower to the ground and do not require ladders to pick the apples, and there are smaller trees that produce a little less fruit but, nonetheless, they are apple trees. A big apple tree might produce 10 bushels and a smaller apple tree, four bushels.

When you say ``plant,'' it is difficult to say. It depends what size the plant is. If we are talking about personal use, six plants would be more than enough for personal use. As far as enforcement goes, we are not going after the people with six plants. That is not who we target. We do not have the resources to do that. It is the same investigation. We target the big growers who are involved in organized crime.

Senator Nolin: Mr. Garis, in your experience, what is the size of an average grow-op in your community?

Mr. Garis: Our average grow-op is 200 plants.

Senator Nolin: That is probably the answer we are trying to get.

Mr. Fassbender: I think six plants is a reasonable number because of the size of the plants and some of the things that I have seen in our communities where grow-ops have been busted. I have a comment to make about what would happen if this young person were charged. If we wait to create legislation that is totally bulletproof, the what-ifs will never happen and we will never pass any legislation. We have to set some limits. It is like saying: How much sale of marijuana is too much? How much money is too much or too little? I do not think we should go there.

The Chair: Your testimony has been extremely interesting and helpful to the committee. As Senator Nolin said, most of you came a long way to be here and we thank you.

(The committee suspended.)


(The committee resumed.)

The Chair: We are continuing our study of Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related consequential amendments to other acts.

We have the rare pleasure today of having with us Micheline Corbeil-Laramée, a retired judge. It is quite unusual to have someone who was on the bench appear as a witness. We are very grateful. Madam Justice, do you have some opening remarks?

Justice Micheline Corbeil-Laramée (retired): Madam Chair, unfortunately, I did not have time to put together a brief because I only recently learned of my appearance here today, but I have a document that I can read.

The Chair: That is fine.

Ms. Corbeil-Laramée: Madam Chair, honourable senators, ladies and gentlemen, I want to begin by saying that it is precisely because I am retired that I agreed to be here today, as it is very much frowned upon when a sitting judge appears to discuss a bill that he or she may have to apply later. Now that I am retired, I do not see a problem.

First of all, I want to thank you for inviting a retired judge to comment on Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other acts, which provides for minimum sentences for serious drug offences, increases the maximum penalty for marijuana production and reschedules certain substances from Schedule III to Schedule I.

I served on the bench of the Court of Quebec, Criminal and Penal Division, for 16 years, from 1992 to 2008. Prior to that time, I was a Municipal Court judge in Montreal.

As a judge for the Court of Quebec, I heard cases and ruled on all Criminal Code offences, with the exception of those under the exclusive jurisdiction of the Superior Court, such as murder and other offences set out in Section 469 of the Criminal Code.

I heard numerous cases involving offences under the Controlled Drugs and Substances Act, ranging from possession of a gram of marijuana to the trafficking or importation of large amounts of marijuana, cocaine, heroin and other substances listed in the Act.

My initial reaction on reading Bill C-15 was that by bringing in minimum sentences, legislators were undermining the discretion of the judge who is the person designated to hand down a sentence. I am not saying that minimum sentences are illegal, but I am saying that when minimum sentencing provisions are in place, the judge is bound by them and judicial discretion is impacted accordingly.

In Sentencing and Penal Policy in Canada, Manson, Trotter, Healy, Roberts and Ives state the following on page 50:


The breadth of the discretion recognized in the law of sentencing should be immediately apparent. Judges not only are empowered to determine what is a fit sentence in the individual case but also have a discretion to determine the proper aims of sentencing decisions in the general run of cases. Wherever there is such discretion, there is also the possibility of disparity in approach and in result. Whether by design or default, Canadian courts historically adopted an approach that allowed judges to recognize and waive various aims of sentencing, including rehabilitation, incapacitation, retribution, denunciation and deterrence.

In the case of R. v. Lyons, a case of the Supreme Court of Canada dealing with dangerous offenders, Justice LaForest said that in a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offence. This approach has made individualization the key perspective for judicial decision making.


So then, if minimum sentences are to undermine judicial discretion, the reason for this must be to eradicate a problem that cannot otherwise be eradicated. However, on reading Bill C-15, we see that the longest minimum sentence in the case of a Schedule I drug offence is three years, under very specific circumstances, that is when health and safety aggravating factors are present, pursuant to the new section 7(3).

Based on my experience, the sentence handed down in a case like this would be a minimum of three years, the minimum term that is provided for in the act.

In other cases where provision is made for minimum sentences, the sentences handed down are generally as long if not longer than the so-called minimum terms because serious offences are involved. The only time the sentence could be shorter than the minimum term provided for is in the case of the production of between five and 201 plants for trafficking purposes. The sentence that applies in this instance is six months. A shorter sentence could be handed down in this case, especially if the offence was the production of about five plants. However, this one case does not justify an entire bill. If the courts already exercise their discretion with respect to minimum sentencing provisions, why then bring in minimum sentences through legislation, all the more so in that by so doing, the legislators are undermining judicial discretion, a fundamental characteristic of the sentencing process.

In terms of specific cases where the offender could benefit from a sentence without a term of imprisonment, from a suspended conditional sentence, I recall one case involving two young adults who had been charged with importing drugs. One had been the mastermind behind the scheme while the other offender had merely been an accomplice. I accepted a request from the attorneys for the second offender to be given a suspended sentence with very specific conditions, to help this young person turn his life around. The outcome was successful. The offender was able to continue his studies and become a respectable citizen. Had I had no choice but to impose a minimum sentence, who knows what might have become of this young man if he had been thrown into prison with other offenders. His life might have gone in an entirely different direction.

By serious sentences, I especially mean sentences imposed for the production of marijuana. My husband is a provincial parole commissioner and he has reviewed many such cases. He told me that with a few rare exceptions, the minimum sentence handed down is always two years less a day. You will tell me that pursuant to section 10 of the act, clause 5(2) foresees that the court may delay sentencing to enable the offender to participate in a drug treatment program, but we know that programs like this do not exist everywhere and that therefore there would be some discrimination.

In any event, I believe that this bill does not resolve anything that has not already been resolved, that it undermines a judge's discretion to award the most appropriate sentence and that there is no justification for it. It does not meet the objective set by legislators. That is my opinion.

Senator Nolin: Good evening, Madam Justice Laramée. Thank you very much for accepting our invitation. As the Chair said, it is rather unusual for the committee to welcome a judge to assist us in our deliberations. I know this will be a very rewarding experience for us.

You related to us an experience of yours that had a positive outcome. You began serving on the bench in 1992. At that time, did the offence of importing drugs carry a minimum sentence of seven years? Were you called upon to hand down decisions in cases like that? Did you ever find yourself in a situation where you had to impose a minimum sentence when, had you been able to exercise your judicial discretion, the outcome would have been very different?

Ms. Corbeil-Laramée: If truth be told, there are not many offences for which minimum sentences are provided.

Senator Nolin: This is a relatively recent phenomenon.

Ms. Corbeil-Laramée: I once handed down a minimum one-year sentence in the case of a firearms-related offence, but I had no problem with the sentence in that instance, because the offender deserved it, in my opinion, given the circumstances surrounding the crime. He had used a firearm. However, I do not recall any other instances.

Senator Nolin: Perhaps the question should be put to judges who served on the bench back when the crime of importing drugs carried a minimum seven-year sentence under the Narcotic Control Act.

Ms. Corbeil-Laramée: Absolutely.

Senator Nolin: We should put the question to judges who served on the bench before you.

Ms. Corbeil-Laramée: They would be quite old. There cannot be many of them still alive!

Senator Nolin: Other jurisdictions and other Commonwealth countries that have a legal system similar to ours have also experimented with minimum sentences. A study released in November 2006 by the federal Department of Justice revealed that while they maintained mandatory sentences, countries were increasingly giving judges, or the courts, sentencing discretion, since they deal with the accused and know the details of the offence, in spite of minimum sentencing provisions, provided they can justify in writing the reasons for the decision and for not abiding by minimum sentencing provisions.

In your opinion, would this be an appropriate way of resolving the problems that you have identified with this bill?

Ms. Corbeil-Laramée: It would certainly be better than adopting the bill as it now stands. However, I have to wonder, if a judge decides not to impose a minimum sentence for one reason or another, whether he would normally hand down a suspended or conditional sentence. However, when a suspended sentence or conditional sentence is awarded under the Criminal Code, it must not be for an offence for which a minimum sentence is provided.

Senator Nolin: That is what is written in the Criminal Code. What other options are there?

Ms. Corbeil-Laramée: The legislator would have to include this exception and the judge would not be bound by the condition to impose a conditional sentence. Otherwise, he would be no further ahead. In my opinion, the court would not know what sentence to impose.

Senator Nolin: So then, what is needed is a consequential amendment to the Criminal Code to ensure that all doors are open, that all options are available.

The Chair: I have a supplemental question. Could the judge decide not to impose a suspended sentence, but rather a term of imprisonment that is shorter than the one prescribed by law? That would still be in keeping with the general legislation.

Ms. Corbeil-Laramée: If the legislation did in fact provide for an exception, forget about a suspended sentence and so forth. The judge could exercise his discretion and impose a term of imprisonment that is less than the minimum prescribed.

The Chair: For example, instead of imposing a one-year sentence, the court could decide to impose a sentence of six or nine months.

Ms. Corbeil-Laramée: It could easily do that.

The Chair: Thank you very much.


Senator Baker: I would like especially to welcome our guest here today. Only on one occasion have I spoken to a Crown attorney and a defence attorney who both agreed that a judge was great. That was you, and they both said that you were a great judge.

Ms. Corbeil-Laramée: Thank you.

Senator Baker: They gave various reasons for it.

Senator Angus: Citation, please.

Senator Baker: You wish to have a citation.

The Quebec Court of Appeal brought down a judgment about four months ago that agreed with a judgment you had given several years ago. I do not know if you are aware of that.

Ms. Corbeil-Laramée: Was it in the case of drugs?

Senator Baker: R. v. Tran, that is one of the citations.

I am interested in the thesis that you put forward that in most of those minimum sentences, the minimum sentence is not extraordinary, as you say. It would represent the minimum in the span that is normally given for the offence.

Ms. Corbeil-Laramée: In serious cases, I mean, not in small cases.

Senator Baker: No, but the minimum sentence that is prescribed with firearms, for example. However, I suppose when you look at that minimum sentence for, say, an assault with a firearm, a firearm could include anything from a BB gun or a pellet gun to a machine gun. Therefore, to take away from the judge the discretion to go below the minimum is to be frowned upon in certain cases.

Ms. Corbeil-Laramée: Yes.

Senator Baker: I would like to deal with this bill and the minimum sentence that would apply. I presume you heard some of the evidence in the prior testimony before the committee to the effect that the minimum sentence could be applied in the case of someone who exchanged one particular pill and who, in the previous 10 years, had been convicted of exchanging a joint of marijuana. That would be an extraordinary sentence. As Senator Nolin pointed out, perhaps we should supply some discretion there to allow the judge to take into account justice in such cases. Do you agree with that?

Ms. Corbeil-Laramée: What would be the minimum in the case?

Senator Baker: One year.

Ms. Corbeil-Laramée: Yes, this is a case where the judge could exercise his or her discretion. It depends on the accused also. In your example, the accused has no prior record except the one you cited. I think it is a case where the judge should exercise discretion.

Senator Baker: The previous witnesses gave as an example of what was working in the system minimum sentences for impaired driving. As you are aware, the prosecutor has certain discretion to enter someone's previous record, as they would have under this legislation. Under this bill the Crown prosecutor decides whether the minimum sentence will apply. Do you think that is something to be frowned upon? Do you think it is something that should be discouraged under the criminal law?

Ms. Corbeil-Laramée: It seems to me that it should be the judge who should decide.

Senator Baker: Do you believe that bringing in these minimum sentences will result in more people pleading not guilty before the courts? In other words, fewer people will agree to a plea bargain or plead guilty.

Ms. Corbeil-Laramée: I imagine that people will plead not guilty at the beginning because of the minimum sentence. The accused must think about that. After that, the defence lawyer may try to negotiate something with the prosecutor. I do not know what kind of deal he could make; I do not know what the prosecutor can do. He could say that he will not apply the minimum if the accused goes for treatment. This is about the only thing he can do.

Senator Baker: I provided you with the name of the case on which the Court of Appeal agreed with you four months ago. That leads to my next question.

If we do have more people pleading not guilty then you would need a court where all offences under the Controlled Drugs and Substances Act would begin. People would come before you for plea. The police officers would come to you for search warrants because only a justice can issue a search warrant under the Controlled Drugs and Substances Act. The superior court judge would be without jurisdiction to issue a search warrant under the Controlled Drugs and Substances Act. Everything begins with you and you then carry matters right from the beginning.

If you have more people in Quebec pleading not guilty to these offences, what do you think the result could be? If you have more people pleading not guilty, what would that do to the system?

Ms. Corbeil-Laramée: If people plead not guilty, it usually means that they want to go to trial. However, I am not sure that all those who plead not guilty will want to go to trial because they will be afraid of what will happen with the minimum sentence. Maybe they will plead not guilty and eventually try to come to some arrangement with the prosecutor; unless the accused believes he has a possible defence. Then he will surely try for acquittal.

Senator Baker: How would it affect preliminary inquiries? You would have more, I imagine.

Ms. Corbeil-Laramée: More preliminary inquiries, yes, but courts are no longer obliged to hold full inquiries. The lawyer can ask for one or two witnesses. It is shorter than it once was.

Senator Baker: Yes, with the recent changes.

Senator Wallace: I heard you say that the issue of judicial discretion is significant and obviously, as a former justice, very important to you. I can see where you are very protective of judicial discretion and its importance, and I would not debate that with you. That is obviously very important.

You suggest that Bill C-15 would undermine judicial discretion. We have heard those types of comments from other witnesses. I think what tends to get lost is that legislators have the responsibility to create definition around the laws they create. They laws cannot be so general that legislators, in effect, are abdicating their responsibility to the courts and basically saying you figure it out, we could not, and that is the end of it on the legislative side.

I think you would probably agree that legislators are fully entitled, when dealing with matters of policy, to create definition and to create specific boundaries that the courts are bound to honour and deal with in any related matters that come before them. I would suggest to you that Bill C-15 it is very much focused on criminal activity; organized crime as it relates to production and trafficking of drugs.

As a matter of policy, the government feels they are serious matters that must be addressed and as a matter of policy feels one of the tools for addressing that is to prescribe mandatory minimum sentences. I do not see that as an infringement on the judiciary's right. That is completely within the responsibility of the legislators. Yet we have many who would suggest that the legislators in acting in this way are really stepping on the toes of the judiciary.

I would suggest to you that Bill C-15 reflects the responsibility of legislators in dealing with a matter of policy that they feel must be recognized in the Criminal Code. I am wondering what your comment might be to that view.


Ms. Corbeil-Laramée: What I initially maintained about this bill is that the criminals targeted, namely those who import and traffic in drugs, are not affected by minimum sentencing provisions, either because they are not caught or, if they are caught, they will be subject to longer sentences that the minimum ones prescribed.

The danger with this legislation is that petty criminals could be the ones who suffer the most. That is my opinion. I am not saying that the government should not be concerned about the drug problem or that it does not have the right to bring in regulations and laws to counter the problem. What I am saying is that this particular bill does not target the right people and that it is a shame petty criminals will be forced to spend time in prison when normally the judge could exercise his discretion and order that they not serve any jail time. Personally, that is how I feel about the bill.

I agree that legislators have every right to take the steps that are warranted. As far as minimum sentences are concerned, there is no question that they are legal. However, legislators should not get into the habit of imposing minimum sentences for every offence, otherwise judges would find themselves in a rather awkward position. What role would they then play?


Senator Wallace: I would agree that we must have faith in the judiciary. Certainly even when mandatory minimums are present, discretion still exists between the mandatory minimum and the maximum sentence levels.

Ms. Corbeil-Laramée: Yes.

Senator Wallace: All of the same thoughts and process would be applied by the judiciary in those circumstances. Again, some have left the impression, and I am not suggesting you did in your evidence, that judicial discretion is eliminated as a result of mandatory minimums. You are certainly not saying that and I would agree with you.


The Chair: Before we go to Senator Watt, Senator Nolin has a supplemental question.

Senator Nolin: Madam Justice, I would like you to give me the reference to Justice Laforest one more time. I think he summarized quite well the principle of judicial discretion and its raison d'être.

The Chair: I think you can find it later.

Senator Nolin: It is mentioned in another citation.

Ms. Corbeil-Laramée: I have it. Justice Laforest is cited in R. v. Lyons [1987] 61CR3D, page 1.

Senator Nolin: Thank you.


Senator Watt: I want to refer you to section 718.2 of the Criminal Code. Do you have a copy of the Criminal Code?

Ms. Corbeil-Laramée: What article?

Senator Watt: Section 718.2, which reads:

(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.

I believe there was a superior court decision on this matter and I would like to have your view on it. How do you feel about this in connection with this proposed law?

Ms. Corbeil-Laramée: There is another article as well as this in the Criminal Code that refers to Aboriginal people. With Bill C-15, they will lose the advantage they have with those sections.

Senator Watt: Those would no longer apply?

Ms. Corbeil-Laramée: No, because of the mandatory minimum. Someone mentioned this point concerning Aboriginal people.


The Chair: I have another question, and I am sure you can enlighten me. The bill contains a reference to offences committed on school grounds — I understand that— near school grounds or in or near any other public place usually frequented by persons under the age of 18 years.

I am not sure how to interpret the words ``near'' and ``public place usually frequented by persons under the age of 18 years. Are you aware of any existing case law on the subject? Have you ever had to consider this type of scenario?

Ms. Corbeil-Laramée: I am not aware of any. I agree with you that the definition is quite broad. What exactly do these words mean? A children's playground could be a place frequented by persons under the age of 18 years.

The Chair: I would understand if the reference was to a public place ``frequented mainly by youths.'' However, bus stops are places frequented by youths and by members of the general public, as is the metro. That is why I asked you whether you knew of any case law that had established that in this particular instance, the reference was to places frequented much more by young persons than by members of the general public. However, you said that you were not aware of any existing case law.

Ms. Corbeil-Laramée: I would imagine that some does exist, but I cannot recall any specific examples at this time.

The Chair: You have not had to rule on such matters.

Ms. Corbeil-Laramée: Would you like me to research this for you?

The Chair: We will contact you if necessary. The committee has some very experienced researchers who will do everything they can to enlighten me. I thought I would put the question to you, since it is rare for the committee to hear from someone with your experience.

It was a rare privilege indeed to have had you here, Madam Justice, and an experience that we will not soon forget.

Ms. Corbeil-Laramée: Thank you. It was also a great pleasure for me to be here.


The Chair: Colleagues, we reconvene in this room tomorrow at 10:45.

(The committee adjourned.)