Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 20 - Evidence, November 25, 2009

OTTAWA, Wednesday, November 25, 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 4:13 p.m. to give consideration to the bill.

Senator Joan Fraser (Chair) in the chair.


The Chair: Colleagues, we are proceeding to housekeeping motions. I believe you all have the relevant pieces of paper in front of you. I wonder if I could ask first for someone to move.


It is moved that the following documents be appended to the proceedings of the committee: the written response and the additional tables provided by Statistics Canada regarding the questions asked at the meeting on October 22, 2009.


Senator Baker: I so move.

The Chair: It is moved by Senator Baker. All in favour?

Hon. Senators: Agreed.

The Chair: Opposed? Abstentions? Carried.

A second motion would be greatly appreciated that the following material be filed as exhibits with the clerk of the committee: Supplementary submissions from Marc Mauer and Mary Price. Shall I dispense?

Some Hon. Senators: Dispense.

The Chair: Is any senator interested in making the motion?

Senator Milne: So moved.

The Chair: Moved by Senator Milne. All in favour?

Hon. Senators: Agreed.

The Chair: Opposed? Abstentions? Carried.

That concludes the housekeeping.

Now I gavel again, and the real meeting begins.

Honourable senators, I see a quorum. Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs, which is continuing its study of Bill C-15.

Our first witnesses this afternoon are Mr. Howard Sapers, Correctional Investigator of Canada; and Mr. Ivan Zinger, Executive Director and General Counsel at the Office of the Correctional Investigator.

Welcome back, gentlemen. It is not long since you were here the last time on a different bill. We are delighted to see you among us again. Mr. Sapers, you may begin.

Howard Sapers, Correctional Investigator of Canada, Office of the Correctional Investigator: Thank you for inviting us back. Good afternoon. It is a pleasure to have a chance to address the committee as you study Bill C-15, amendments to the Controlled Drugs and Substances Act.

I would like to take a few moments at the beginning of today's testimony to outline my concerns about the impacts of increases in the inmate population and issues pertaining to access to substance abuse programming in federal corrections. I will then ask Dr. Zinger to speak about the anticipated impact of Bill C-15 on Aboriginal peoples.

The mandate of my office expresses important elements of the criminal justice system: accountability, transparency and fairness. The office reflects Canadian values of respect for the law, for human rights and for the public's expectation that correctional staff and senior managers are accountable for the administration of law and policy on the public's behalf. Good corrections, after all, equal public safety.

I will now turn directly to issues connected to Bill C-15 that concern my office. I strongly believe that evidence should guide any legislative proposal, and this is particularly important when dealing with the potential loss of liberty and its impact on public safety. Bill C-15 proposes mandatory terms of imprisonment for serious drug-related offences. The implications are that current sentences are too short, that longer sentences increase deterrence and treatment and programs are available in prison to address offender drug-related issues.

However, a large body of research points to both the lack of a deterrent effect for mandatory minimum sentences and the fact that they can lead to significant increases in the prison population with little or no positive impact on public safety. Mandatory minimums are contrary to the notion that the punishment should fit the crime, and current conditions inside Canada's penitentiaries do not support easy access to proven correctional interventions.

If Bill C-15 was a stand-alone legislative proposal, the anticipated impact would be mainly limited to an increase in the provincial inmate population. This view was offered by Mr. Don Head, Commissioner of Corrections, last week when he testified before this committee on the impact of Bill C-15. He indicated that the Correctional Service of Canada has been approved funding of $23 million over five years to support an increase in the case preparation workload for parole reviews and for the supervision of provincial offenders on conditional release. He also stated that the Correctional Service does not anticipate any impact on its federal institutional count. I have a slightly different view.

I am concerned that the actual impact of Bill C-15 on the growth of the prison population can only be assessed when considering the many other pieces of criminal justice proposals that have recently passed or are currently before Parliament. The cumulative and combined effect of these various legislative proposals will likely result in a significant increase in federal admissions and the length of time served.

As I have previously indicated, my office remains concerned with the impact that a rapid influx of new admissions to federal custody will have on an already burdened correctional system. Prison overcrowding has negative impacts on the system's ability to provide humane, safe and secure custody. It is well documented that overcrowding in prison can lead to increased levels of tension and violence and can jeopardize the safety of staff, inmates and visitors.

By way of example, I note that the service has recently reported that the number of non-natural-cause deaths grew by 70 per cent last year.

When correctional populations significantly increase, timely and comprehensive access to offender programs, treatment and meaningful employment opportunities measurably diminish, resulting in delays of safe reintegration into the community, further exacerbating both overcrowding and cost pressures. Capacity is currently most limited at the medium-security level, where the bulk of correctional programming is supposed to take place.

It bears noting that the pervasive effects of prison crowding reach far beyond the provision of a comfortable living environment for federal inmates. Stretching the system beyond its capacity to move offenders through their correctional plans in a timely fashion has negative impacts on the protection of society itself as offenders are incarcerated for a greater proportion of their sentence only to be released into the community ill-prepared and then supervised for a shorter period of time.

With respect to the ability of the Correctional Service of Canada to address substance-abuse issues in penitentiaries, we are encouraged by the Commissioner of Corrections' public undertaking last week to significantly increase its budget allocation for core programming, inclusive of substance-abuse treatment programs. My office has commented in the past that, in recent years, the Correctional Service has received significant funding for interdiction initiatives in an attempt to decrease the availability of drugs in federal penitentiaries. Reducing the flow of contraband drugs into prisons is an important part of creating a safe and stable environment for both staff and inmates. My office does not oppose these initiatives.

It is worth noting that the Correctional Service of Canada has made no recent investments to enhance its drug treatment programs or to expand its harm-reduction initiatives. The commissioner reported last week that, in 2008, the Correctional Service received $120 million in additional funding over five years to help eliminate drugs in federal institutions. That funding was for an increase in drug detector dog teams; an increase in the security intelligence capacity; additional security equipment, such as ion scanners and X-ray machines; enhanced perimeter security; and reinforcement of search policies to better prevent drugs from entering prisons.

None of the $120 million was directed to treatment or harm-reduction initiatives. My office believes that funding interdiction initiatives is important, but equally important is the need to adequately bolster substance-abuse programs, demand-reduction strategies and harm-reduction initiatives. An effective drug strategy must include both interdiction and assistance. In my opinion, the lack of success by the Correctional Service in reducing drug use in penitentiaries can be partly attributed to this uneven strategy focused primarily on interdiction.


Ivan Zinger, Executive Director and General Counsel, Office of the Correctional Investigator: Honourable senators, at the Office of the Correctional Investigator we are also concerned about the various repercussions the proposals regarding mandatory minimum sentences will have on the growing Aboriginal population.

The overrepresentation of Aboriginal people in Canada's prisons and penitentiaries is no secret to anyone: while they represent less than 4 per cent of the Canadian population nationally, they comprise nearly 20 per cent of the federal penitentiary population. The overrepresentation is even more pronounced among women, who account for 33 per cent of the female population of federal penitentiaries.

It is disturbing to note that this overrepresentation is rising year by year. Incarceration rates among Aboriginal people are now nearly nine times higher than the national average. Demographic forecasts seem to indicate that the disproportional rates of Aboriginal incarceration will continue for even longer, through the next decade.

While the correctional service does not control admissions to penitentiaries, it nonetheless has a statutory obligation to manage sentences in a non-discriminatory and culturally appropriate manner. The areas of correctional services for Aboriginal people that are of concern go well beyond the question of overrepresentation. They demand that we pay attention to what happens to Aboriginal offenders when they are confined to institutions administered by the correctional service.

Last week, we published an independent report commissioned by the Office of the Correctional Investigator. The report confirms that the situation of Aboriginal people serving a sentence under federal jurisdiction is still unacceptable. The report is entitled Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections, and illustrates the fact that correctional outcomes for Aboriginal offenders continue to lag significantly behind outcomes for other offenders in almost all respects. By comparison, Aboriginal offenders are released after serving more of their sentence, are overrepresented in the prison population in segregation, are often kept in prison until their warrant expiry date, have a higher rate of risk and greater needs, and are likely to reoffend and have their parole revoked.

We are concerned that Bill C-15, combined with other legislative proposals, will simply accentuate what is already a tragic overrepresentation of Aboriginal people in Canada's correctional institutions.


Mr. Sapers: Bill C-15 needs to be carefully understood and evaluated as proposed changes, in conjunction with other legislative proposals, may have significant effects on the rate, cost and distribution of incarceration in our country.

Thoughtful debate is necessary whenever the state decides to increase its ability to mandatorily deprive citizens of their liberty. I encourage this committee to carefully review the evidence on mandatory minimum sentences and the context in which this legislation has been proposed.

Thank you again for the opportunity to meet with you this afternoon. We welcome your questions.

Senator Wallace: Mr. Sapers, as you are probably aware, we have had a number of witnesses appear before us representing different interests and constituencies in relation to these drug problems. We have had witnesses who have spoken from the perspective of law enforcement and as political leaders in their communities. They are dealing with demands placed upon them by their citizens. We have also heard from witnesses such as you who represent the interests of those who have run afoul of the law and find themselves either accused or convicted of an offence.

I would like to confirm my understanding that the function of your organization is to act as an ombudsman for federal offenders. The primary function of your organization is to investigate and bring resolution to individual offender complaints. Is that accurate?

Mr. Sapers: The mandate of the office is in Part III of the Corrections and Conditional Release Act. It is clear that the office is both a mechanism to resolve individual complaints and to reflect on systematic issues that give rise to those complaints. We do so not as advocates but as independent oversight, which is the hallmark of any good ombudsman organization.

Senator Wallace: Surely; however, that role is in regard to those who are incarcerated or run the risk of being incarcerated. You are not a victims' organization. That is the perspective you have on this bill, and your comments would be in that regard.

Mr. Sapers: Investigations initiated by my office come as a result of either a direct complaint from a serving federal offender, the family of a federal offender, the Minister of Public Safety or upon my own initiative. The complaints are investigated, first, to see whether they are founded. If the complaint is considered founded, then my staff will issue recommendations to try to resolve those issues at the local level. If they are not resolved, then, ultimately, those issues will be reflected in my in annual report, which is received by Parliament.

Senator Wallace: I notice on the notes on page 3 of your presentation a statement that ``mandatory minimums are contrary to the notion that the punishment should fit the crime.'' It then continues on from there, but that statement is included in your presentation. To put it mildly, that is a fairly broad-sweeping statement and, I would say, a condemnation of mandatory minimums.

I would ask you if that is a fair assessment of Bill C-15. I say that from the perspective that many of the comments that we have heard from witnesses have dealt with drug use and the need for drug treatment for those who are afflicted with drug addictions. However, the reality is that Bill C-15, as I understand it, is focusing on the production, trafficking, importation and exportation of drugs such as cocaine, heroin, methamphetamine, and, in particular, when weapons, violence or organized crime are involved.

Would it not be appropriate for mandatory minimums — serious sentencing and serious periods of incarceration — to apply in those circumstances with drugs of that nature and involving importation, exportation and production? Would it seem in that setting that mandatory minimums are contrary to the notion that the punishment should fit the crime? I find that hard to understand.

The Chair: Is this a question, Senator Wallace?

Senator Wallace: Yes, it is.

Mr. Sapers: I will try my best to explain it, senator. Many principles are enunciated for sentencing. I will not go through them all, but the Criminal Code makes reference to different objects of sentencing.

However, proportionality and judicial discretion are features of courts in Canada. Research has shown, and the literature reflects the research, that mandatory minimums have interfered with both the notion of proportionality and judicial discretion. In some jurisdictions, it has led to plea bargaining and reduced charges. Some research has even shown that mandatory minimums are linked to increases in certain types of criminal activity.

The comment I shared with you in my testimony previously is simply to say that, if one of the goals is to ensure that serious crimes are addressed with the seriousness that they deserve by our courts, it is certainly far from clear that mandatory minimums will accomplish that. In fact, more research appears to support the notion that judicial discretion and the ability of the system to calibrate itself to the offences is more productive in that regard.

Senator Wallace: I am suggesting that you would agree that mandatory minimum sentencing does not remove judicial discretion; it would restrict it to some extent, compared to what exists today, but it certainly does not remove it. Between the mandatory minimums and maximum levels, judicial discretion continues.

Mr. Sapers: I am sorry; I have only an almost flippant response, and I do not want to diminish the proceedings by sharing it.

However, I think it is clear that Parliament would impose a mandatory minimum, as it has in probably four dozen cases — I think many places in the Criminal Code have mandatory minimums — as an expression of Parliament's will and direction to the court. By definition, I think that limits judicial discretion.

Senator Wallace: Yes, it does limit it; it does not eliminate it. That is the point.

Senator Campbell: I really do not know where to start.

The idea that this bill addresses serious crime is simply a myth. This is all about political motivation.

The Chair: Now, now.

Senator Campbell: I will give you an example. I greatly respect Senator Wallace. I sit beside him every day, and try to support him.

Senator Baker: He is a great lawyer.

Senator Campbell: Yes, he is a great lawyer. He included every single drug when he did the litany of minimum sentencing, except marijuana. If he dropped marijuana, we could probably cut a deal on this thing and go home.

I do not know if you are qualified to answer my question. I am an ex-Royal Canadian Mounted Police. For some reason, the idea is that ex-Mounties always know what is happening. I can attest that we do not.

You look at the prison system and see who is coming in and going out. How do you rate cocaine, methamphetamine and heroin versus marijuana?

You see the people coming in and going out. Are there many serial marijuana killers out there?

Mr. Sapers: Senator, I have to say that I am really not in a position to reflect more broadly on this. The individuals who I am primarily interested in are those who have received a federal sentence, so they are already doing serious time for serious crimes. Up to 80 per cent of them have a substance-abuse history.

However, I am not qualified to speak about the gateway nature of one drug versus another.

Senator Campbell: That is fine.

This is more of a question from me as a former coroner. Could you send me the figures on the deaths in prison? You said that non-natural-cause deaths increased by 70 per cent last year. Could you break it down into the five types: unknown, natural, accident, suicide and homicide? I would like to take a look at that. That is pretty unbelievable.

Mr. Sapers: I will undertake to get you as much detail as I can. That number is taken from the Correctional Service of Canada's departmental progress report, or DPR, which was just posted by the Treasury Board on their website in the last couple of weeks. They show that the number of non-natural-cause deaths this year, as reported in last year's DPR, went from 10 to 17. That is only a fraction of the deaths that happened in custody, however. Those were just the non-natural-cause deaths.

I will further note that, in the Correctional Service of Canada's DPR, the reduction year over year of non-natural- cause deaths in custody was considered to be a key performance indicator. It certainly caught our attention, as well.

Senator Campbell: You said that none of the $120 million was directed to treatment or harm-reduction initiatives.

Are you aware that harm reduction is not part of the government policy anymore?

Mr. Sapers: I understand that some changes were made to the National Anti-Drug Strategy that removed harm reduction as a component, yes.

Senator Campbell: As with the health ministry, it is just gone, disappeared.

Mr. Sapers: Our experience is that the policy is most balanced and most productive when it embraces various elements. We have previously discussed and made specific recommendations around harm reduction in our annual reports.

Senator Campbell: Certainly, it is not at the 85-plus per cent that goes into interdiction.

Mr. Sapers: We believe that currently no balance is evident in how the Correctional Service of Canada is utilizing it resources for dealing with drug issues within penitentiaries. However, they do have a methadone maintenance program that is well entrenched in federal corrections and has proven to be successful. The Correctional Service of Canada has not abandoned harm reduction; we would just like them to recreate some balance in their strategy.


Senator Carignan: I am going to ask my questions in French. I would like you to use the interpretation services to understand my questions clearly.

I am a senator and I am not an expert in criminology. The committee hears a large number of witnesses and experts who quote other experts. At some point, we have to choose the experts we are going to believe and decide which expert opinions will be disregarded.

Mr. Sapers, in your presentation you say that you anticipate a significant increase in the prison population. You quote a substantial body of research showing that mandatory minimum sentences have no deterrent effect and could lead to a significant increase in the prison population.

Following your testimony we will hear another expert from the John Howard Society of Canada, which has submitted its brief. The mission of the John Howard Society of Canada is to provide effective, just and humane responses to the causes and consequences of crime.

At page 40 of its brief, the Society refers to findings that it says agree regarding mandatory sentences. One of those findings is the following conclusion:

Because declines in conviction rates for those arrested tend to offset increases in imprisonment rates for those convicted, the overall probability that defendants will be incarcerated can be expected to remain about the same after the enactment of harsher sentencing regimes.

You will understand that this expert's theory is that harsher sentencing is ineffective and the consequences are that people will change their approach, that more people will stand trial and be acquitted, and Crown prosecutors will change the charges. The effect in terms of incarceration will therefore be nil.

My question is very simple. What am I to believe today? You, who tell us there will be an increase in incarceration, or the next expert who says the effect will be nil?

The Chair: What document are you referring to? We haven't received the 40-page brief from the John Howard Society of Canada. If you are quoting a passage from a public document, perhaps you could identify it.

Senator Carignan: I do not yet have the services of a researcher. What I receive, I get from the service here, and I have a document in French entitled Les peines d'incarcération obligatoires pour les infractions en matière de drogue, dated December 25, 2009, which is the brief submitted to the Senate committee. I quoted from page 40 of the French version, which is Appendix D.

The Chair: The English version is shorter. The opposite is often what happens, but this time the English version is shorter.

Senator Carignan: So it's on page 40 of the French version.

The Chair: I have to point out that it's difficult for a witness to comment on the testimony of a witness who has not yet testified.

Senator Carignan: We can assume that other people say that. That's why I would like to know who is telling the truth.


Mr. Sapers: I am at a bit of a disadvantage as I have just been handed the John Howard Society document, so I am not familiar with it. The general conclusion in the section you were referring to reads, ``all of the intended purposes of mandatory minimums can be equally or better served by guidelines without compromising crime control goals.''

Clearly there is give and take in the research as presented.

I should remind the committee that we are referring to the interaction effect between all the legislative proposals with which Parliament is dealing. For example, the last time we appeared before this committee, we were discussing credit for time served in pre-trial custody. It is the cumulative impact of a number of proposals that we think will exacerbate the crowding at federal prisons.

Individuals who may have only served time in remand or would have received shorter sentences and served them in provincial institutions will be moved into federal institutions, breaking that two-year threshold.

I am familiar with the general research around the impacts and what some jurisdictions have found, but I cannot comment further on the John Howard Society material because I am not familiar with it.

The Chair: Could you look at their material at your leisure, Mr. Sapers? If you have the time to attend this meeting further to hear their testimony, that would be interesting. If you then have anything to add to the answer you have just given to Senator Carignan, you could write us a letter.

Senator Campbell: Am I correct that the English translation is on page 32 and starts with ``General Conclusion: mandatory minimums are unnecessary because''?

Senator Joyal: Senator Carignan was referring to point 5 above the general conclusion. It is on page 32 of the English version.

The Chair: I will close off discussion on the John Howard Society brief until they appear before us.

Senator Joyal: On that issue, Mr. Sapers, I am of the opinion, as a result of the testimony of Ms. Barr-Telford of the Canadian Centre for Justice Statistics here on October 22, that the number of inmates will increase.

If I may, I will quote the answers we got from the Canadian Centre for Justice; Mr. Grimes, who was a witness with Ms. Barr-Telford, answered the following:

The aggravating factors we do have available within the case are whether there is a violent offence also in the case.

As you know, there are four aggravating factors in the bill, and carrying a weapon is an aggravating factor.

Mr. Grimes said:

There are 1,200 such cases. Yes, we can go back and try to produce something.

That is, to project in the inmate population what impact it will have.

Ms. Barr-Telford added:

Regarding the 1,200 cases that Mr. Grimes referred to, we could provide to the committee a table that shows how we arrived at that particular figure and whatever criteria we can place around it.

Then Ms. Barr-Telford goes on:

What we can do for the committee is provide information in table format that shows the number of guilty cases, for example with a violent charge. We can also show the number of guilty cases not only with a violent or a weapons charge but with a guilty finding on a weapons or violent charge, if the committee would find that helpful.

Mr. Grimes adds:

For those 1,200 cases, I could identify and provide a table showing the sentence as it exists now.

That is what we received. On that basis, I cannot believe personally — and I asked that question of Mr. Don Head last week — with the chart we have received that I am exhibiting to you, that there would not be an increase on the right corner of the chart. Of course, if you have mandatory minimum sentences, you increase the level of the sentencing because you have no other choice. The judge must apply the sentence.

The Chair: Senator Joyal, do you mind passing down your copy of the chart so that the witnesses can see it?

Senator Joyal: Of course. I do not want to prolong the discussion on this. However it makes sense that if we include the four aggravating factors of carrying a weapon, being part of a criminal organization, threatening to use violence or having been convicted of a designated offence, that those four aggravating factors should not result in a longer term in prison or with new inmates in prison because otherwise, the bill is a zero-sum game if we think that the Crown attorneys and the judges will try to find a way to bypass the implementation of this bill. Otherwise, we are legislating for nothing if this reasoning finds its application.

I have a tendency to believe that the increase of the inmate population in relation especially to this bill, Bill C-15 — I know we heard you on Bill C-25 and perhaps on some other bills — that on the whole of it, there will be an increase in the inmate population. There is no question about it.

Most troubling is that when we heard from Mr. Head last week, we asked him that question and were told that there was no more money for treatment in the prisons. In other words, we will keep people longer, but we will not increase the availability of treatment.

To me, it is symptomatic of a philosophy: Let us put people in prison, and what happens to them once they are there is their problem. That seems to me to be a very serious element contained in a bill that is supposed to release into the streets people who would have a better chance to be reintegrated and become normal citizens.

How do you see your role in the future, with a higher number of inmates who will make more complaints and where you will come on an annual basis with more dire reports than the one you tabled last week, your annual report that I will put before you in a minute?

Mr. Sapers: The risk that any legislative proposal presents to the work of my office is that that proposal will compound pre-existing problems. One of the major problems that Correctional Service Canada faces right now, in my opinion, is a misalignment between the resources that are in place to deal with correctional interventions and the demand for those correctional interventions, including drug-related programming. Any increase will make that problem more acute, and that makes the risk higher for Canadians to get full value for the money they have spent on corrections in this country.

There is either an assumption that the legislation will have a significant deterrent impact and, therefore, people will not engage in activities that bring them into conflict with the law; or there is an assumption that the mandatory minimum penalties are needed in terms of reinforcing a social necessity to capture and imprison more people for certain types of law violation.

It is beyond my ability to test which one of those assumptions is more valid. However, our analysis is that the cumulative impact will result in more people spending more time in federal corrections. If that happens without an increase in capacity of the service to respond to that demand, the problems we have reported on in our annual report this year will just get worse.

Senator Joyal: I will quote from your annual report; the one you tabled last week. I have it here. It has two sections with which I am concerned: the health service reviews and the mental health section. Do you have a copy with you, Mr. Sapers?

Mr. Sapers: Yes.

Senator Joyal: I will read to you what we heard last week from Professor Thomas Kerr, who is a research scientist, B.C. Centre for Excellence in HIV/AIDS. He said:

Research shows that the incarceration of injection drug users is a factor driving Canada's worsening HIV epidemic. A recent study found that the number of HIV cases in Canadian prisons has risen by 35 per cent over a five-year period. . . .

. . . While mandatory minimum sentences are believed to reduce risks to the public, risk for HIV infection may be increased by rising HIV prevalence among prisoners who will be eventually released back into the community.

What we are doing, in fact, by sending people who are drug addicted to prison, is giving them a 25 per cent chance of contracting HIV. An independent evaluation of this study also suggested that 21 per cent of all HIV infections among Vancouver's injection drug users may have been acquired in prison. Not only will they enter prison without HIV but also there is a 1 in 5 chance that they will leave prisons with HIV and be back on the streets.

It seems to me that, especially if I read your annual report on the health service and the need for an increased capacity of prisons to treat those inmates, we must be very concerned that when we increase the levels of the inmate population or keep them for a longer period of time, what we are doing is increasing the risk of contamination of the people on the streets when the inmates are released back on the streets. It seems to me that there is logic in the system. The system must remain coherent with its general objectives. In pursuing the right objective of fighting drugs, I do not think we should, at the same time, increase the risk of the population being contaminated.

Mr. Sapers: It is important to note that a number of infectious blood-borne diseases are present inside Canadian penitentiaries. The HIV infection rate typically inside a penitentiary is about 10 times higher than in the community surrounding that penitentiary. The hepatitis C rate inside federal institutions is somewhere around a third of the male population who would test positive for hepatitis C. Clearly, not only is there a prison health imperative involved but also a public health imperative in the sense that these men and women, for the most part, will be released and will be carrying their diseases with them.

Senator Milne: Mr. Sapers, in your opinion, will this bill be effective in targeting large-scale producers, traffickers and importers at whom it is theoretically aimed, or will it result in more of the low-hanging fruit — the people out in the street — being scooped up?

Mr. Sapers: Thank you for the question, but I am particularly unqualified to answer that.

Senator Milne: What would be your recommendations for improving this bill?

Mr. Sapers: Implicit in my prepared remarks is a question about the efficacy of a regime of mandatory minimums and whether it will address the problem. However, that is right to the limit of the mandate of my office and responsibilities. My primary purpose in appearing before you today is to talk about what I believe would be the impacts of the legislation, if it should be proclaimed as proposed.

Senator Milne: Dr. Zinger, what is your impression of the impact that this legislation would have on the 20 per cent of the prison population who are Aboriginal males and the 33 per cent of Aboriginal females in federal prisons currently?

Mr. Zinger: Our contention is that mandatory minimum sentences have a disproportionate impact on certain groups. That is supported by research and experience internationally. We could see an increase in Aboriginal offenders being captured under this particular bill. That could be conceivable.

Senator Milne: Does the international research let you estimate a ballpark figure of how much the rate would be increased?

Mr. Zinger: If we look at the current impact of the criminal justice system on Aboriginal people, we know they tend to be denied bail more frequently. They tend to serve longer times prior to conviction, and admission into custody is far higher for Aboriginal people.

Mandatory sentences can be referred to as a more ``blunt'' instrument. We could see that it may have a consequence on Aboriginal people.

Senator Milne: When you were enumerating some of the issues that you discussed, you said they are ``more often held to warrant expiry.'' In plain English rather than ``legalese,'' expiry means ``death'' or ``stamped invalid.'' What do you mean by warrant expiry?

Mr. Zinger: When a person receives a sentence, it has a warrant expiry. That is the last possible day of the sentence. If a person receives a three-year sentence and serves the entire three years, that is the warrant expiry date.

Aboriginal offenders tend to serve longer times incarcerated before they are released. More are then captured after having completed two thirds of the sentence when a statutory release kicks in. Prior to that two-thirds cut-off, Correctional Service Canada can make a referral to the National Parole Board if they believe that that particular individual is more likely to recidivate violently. The National Parole Board looks at the referral and can decide to detain the prisoner beyond the two-thirds release to the warrant expiry date.

Aboriginal people are, by far, grossly overrepresented in serving that last third of a sentence. Many more are serving their entire sentences before being released.

Senator Milne: Do you have any figures, rather than simply saying ``many more''? Have you any research to back this up?

Mr. Zinger: I can provide the committee with those figures.

The Chair: I believe they are in the report that was commissioned by your office. If they are, we have the report and can direct Senator Milne to the specific reference. We will establish whether they are in the report or whether we have to ask you to send supplementary information.

Senator Watt: I will try my best to cover an area that has been bothering me. When we talk about numbers of Aboriginal prisoners, we are talking about Inuit, Metis and First Nations. I will focus on something that I know a little more about, that is, the Inuit. I will skip over the Metis and the First Nations.

I will thank the witnesses for the report that was put together. I am beginning to go through that and have already found something that I want to discuss, but I need more understanding of it. Hopefully, I will have a chance to deal with it, whether in committee or after we finish. This is very important to me.

When this bill goes through, you anticipate that the numbers will increase. From my personal knowledge, the people who are put away from the North are not necessarily criminals per se. A number of them probably have not even lifted a finger to be picked up by police authorities. In other words, this bill does not really focus on the North; it focuses more on the South. Let me start by saying that.

You also indicated, when we dealt with Bill C-25, that Aboriginal peoples will be hit hard. You were anticipating that the numbers would increase. Why is it that Aboriginal people seem to be more disadvantaged than non-Aboriginal people in penitentiaries? Have you a clear understanding of why Aboriginals stay in prison longer, or why there seems to be no equality provided in the penitentiaries or with bail?

Could you explain to me why they seem to be so far behind in being able to access programs, why they are being denied bail and why they are staying longer? If you have an answer, I would like hear it to get a clear indication of the rationale.

In your report, you spoke about holistic understanding of Aboriginal people. Is that part of the reason for this, that they are not very well understood by the people who have to supervise them?

Mr. Sapers: I believe you are referring to the report entitled Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections, which was recently released by my office. It goes through a series of commitments made by Correctional Service Canada. It is important to note that the report analyzes the programs, plans and priorities of the Correctional Service and how they have expressed them themselves. It then compares what the outcome has been against those plans.

We found that, as opposed to the gap in correctional outcomes between Aboriginal and non-Aboriginal offenders becoming smaller, it has increased. At the same time, the distribution of offenders has demonstrated a growth in the Aboriginal population in federal penitentiaries.

The report also suggests a number of historical and contemporary reasons for that, having to do with the life histories of many Aboriginal Canadians, their histories in their communities, as well as some current issues in terms of age distribution, birth rates and a number of other demographic factors.

It would take a very long time to give you a satisfactory and comprehensive answer. However, we have seen the impact. Again, my office is really focused on what the legal responsibility of Correctional Service Canada is once these men and women are in federal custody and to determine whether that responsibility is being appropriately and fairly discharged.

We have recently reported huge questions around that, and many long-standing gaps in the discharge of those responsibilities.

I will ask Dr. Zinger to, perhaps, supplement that answer.

Mr. Zinger: Statistics Canada, the Canadian Centre for Justice Statistics, over the summer issued a Juristat article or report that dealt with the overall situation of Aboriginal people in relation to the criminal justice system. One particular piece of data that they did not report was the actual incarceration rate for Aboriginal versus non-Aboriginal peoples. It is an important figure that Canadians should know, especially when we are talking about and trying to evaluate public policy.

The incarceration rate is a great metric because you can compare it to different jurisdictions within Canada and around the world. The data we received show that, for the last seven years in a row, the incarceration rate per 100,000 is increasing for Aboriginals. It creeps up every year.

If you look at the incarceration rate as a performance indicator of the health and success of our public policy dealing with economic, political or cultural issues, you have to doubt that what we are doing is achieving the level of success we could anticipate.

Bills such as this particular bill may do very little to improve those statistics. These are the issues that concern us, as an office; when we visit and look at what is happening in penitentiaries, we become concerned. Access to programs is limited for everyone in penitentiaries, not only for Aboriginals. However, access to programs is more important to Aboriginal people because they have higher needs. Many of them are from residential schools, and there is much social history with communities that have been impacted by historical factors.

The idea that everyone is suffering the same by having a limited number of programs in our penitentiaries is not true because the needs of Aboriginals are greater. Therefore, they become more impacted by a lack of access to programs, and they cannot cascade to lower-security institutions, nor can they reintegrate into their communities sooner. There is a whole chain of events.

Policies such as mandatory minimums, access to programs, risk-assessment tools to establish where an individual should be placed in terms of security level seem to apply equally to everyone. All these factors look benign, but they impact differently.

These are the issues that we are raising concerns about. Will these factors aggravate and exacerbate an already bad situation, where Canada is not faring very well on these issues? Would an incarceration rate for Aboriginal people that has increased substantially, year after year be impacted.

The Chair: What is it now? Do you have those numbers with you?

Mr. Zinger: Yes. For the fiscal year 2001-02, it was 760 per 100,000. The latest data from Statistics Canada for 2007- 08 is 970. We have increased from 760 per 100,000 to 970 per 100,000. That is really significant. Every year, it is as linear as you can get in terms of a trend.

The Chair: What would the incarceration rate be for the general population?

Mr. Zinger: I should mention these figures are for adults. For non-Aboriginal adults, it would be 118 per 100,000 in 2001-02; and for 2007-08, it is 130 per 100,000.

The Chair: Therefore, it is 970 per 100,000 compared to 130 per 100,000.

Mr. Zinger: That is correct.

Senator Watt: I would still like to delve into why Aboriginals are treated differently; why is there no equality? It seems as though we are outside of Canada. Canada is supposed to represent equality in everyone's life. What is happening here? It is mind-boggling.

I understand all the things that you have highlighted and outlined as to why the situation is different for Aboriginals. However, much more can also be said beyond what you have said in terms of these differences.

There are reasons why a judge is empowered, from what I understand, under the Criminal Code to be able to realize the disadvantages of Aboriginal persons. Those sections of the Criminal Code were supposed to be used for that purpose because they are disadvantaged and lack a certain understanding, education, et cetera.

At the same time, I am not sure if section 718 of the Criminal Code will still apply after we have dealt with Bill C-25.

The first question I asked was why are Aboriginals being treated differently? They are human beings. They have a constitutional right. They are under the Charter of Rights. Why are they being denied bail? I want to delve into that issue.

The Chair: Do you have answers for that set of questions?

Mr. Sapers: Senator, we do not have the authority to study some of the fundamental questions you have asked. The decisions in bail courts, the decisions made by Crown prosecutors, the decisions made by law enforcement all end up with people coming before the courts and some of them receiving federal sentences. It is only when they have received federal sentences that we have turned our attention to the question of why.

We have found, when we have looked at that within that subset, that a number of systematic barriers have been identified in terms of security classification, penitentiary placement, program prescription, lack of cultural sensitivity to some of the screening tools, lack of cultural competence amongst some workgroups. All of that together has culminated in these differential outcomes that we are talking about. These outcomes simply cannot be explained away by a difference in the criminal history or the type of crime for which these people are incarcerated. A number of other factors seem to come into play. We have made extensive recommendations and reported on those factors.

I am afraid I am just not able to answer your broader question.

Senator Joyal: I would like to propose that your report, Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections, be appended to our proceedings of today, considering that the annual report of the officer is already in Parliament but this report is not in Parliament.

The Chair: We can file it as an exhibit. Do we need a motion to do that? Do you wish to so move?

Senator Joyal: I will move that motion.

The Chair: All in favour?

Hon. Senators: Agreed.

The Chair: Done.

Senator Joyal: I would just like to make a proviso that with mandatory minimum sentences, section 718 of the Criminal Code does not apply to the Aboriginal people. I want to be clear. We had witnesses here, and you have not mentioned it in your brief, but this is very important. It means that the safety valve that section 718 gives to a judge to consider the status of Aboriginal people under special circumstances is not available with mandatory minimum sentences. We had witnesses here who clearly said that that safely valve does not exist anymore. It is important to mention that.

I will quote from your report, Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections. On page 31, it says:

There is a shortage of program officers and facilitators to deliver Aboriginal specific programming.

Also on page 33, it says:

There are chronic shortages in the Aboriginal correctional program delivery officers and clinical psychologists positions required to deliver core programming. . . .

. . . There has been a noted shortage of program facilitators and program officers with the skill sets required to deliver Aboriginal-specific programming.

On page 34, it says:

Section 81 of the CCRA came into effect in 1992; some 17 years later, there are only four independent Aboriginal healing lodges in Canada. There are no section 81 healing lodge facilities for women offenders.

Then page 35 of your report reads:

However, while supporting this initiative, the OCI also feels compelled to ring the alarm.

This is you talking — it continues:

The anticipated growth in the federal Aboriginal offender population and potential shifts in their geographic distribution is in the pipeline, suggesting continuing over-representation in correctional populations for the five- year CSC planning period, from 2009/10 to 2014/15.

What you are telling us is that with no more money than what you have at present, the situation will be more atrocious than it is already in relation to the Aboriginal population. All the factors are there because you do not have the workforce, experts, facilities or programs. You do not have enough resources to address the backlog in which the Aboriginal population finds itself in the federal prisons.

Mr. Sapers: On the day that report was released, I did a quick census at one federal institution, Stony Mountain Institution, which is an institution in the Prairie region that houses a fairly large Aboriginal population. The count at 2 p.m. in the afternoon of Friday, November 13, was 526 inmates inside Stony Mountain Institution. The identified Aboriginal population of those 526 inmates was 333. A range of Aboriginal-specific programs are offered at Stony Mountain Institution, but on November 13, at 2 p.m., of the 333 self-identified Aboriginal inmates, only 33 of them were currently in an Aboriginal-specific program. The bulk of the others were on a wait list.

Another way of looking at it is that, a few months ago, we did a similar exercise at the Edmonton Institution for Women, which had a count on May 5 of 125 women, 68 of whom were considered Aboriginal. There was a wait list of core programming for 113 of the 125 inmates.

At the Edmonton Institution for Women, 30 inmates who were wait listed for moderate or high intensity core programs were also past their parole eligibility dates, which meant their cases were not moving ahead to move towards integration into the community under supervision because they had not been able to get into the core programs or the programs that were prescribed for them by the correctional authorities.

This is very much a concern, and it actually reflects a fair bit of the work of our office in terms of the issues that are brought to the attention of my investigators. Those are inmates who are prepared, willing and able to engage in correctional programming, who want to take advantage of the opportunities being provided to them but cannot get into those programs. It seems to be a particular issue, as I say, with Aboriginal offenders, if we look at Stony Mountain Institute as an example.

Senator Milne: Does that mean that at Stony Mountain Institute, on that particular day, 1 out of 10 of both male and female Aboriginal prisoners were actually in the programs where they are supposed to be?

Mr. Sapers: First, Stony Mountain Institute is a male-only institution, and so the identified Aboriginal population that day was 333, of which 33 were in Aboriginal programs.

Senator Milne: Where do you get the figures of 125 out of 113?

Mr. Sapers: I was referring to the Edmonton Institution for Women, a second institution.

The Chair: Is Stony Mountain Institute maximum security?

Mr. Sapers: It is a medium security, which is where the core programming should be available.

Senator Watt: Again, why are they not accessing the programs?

Mr. Sapers: Again, it is complex. We have found and tried to document in our last annual report that a number of things influence program access. It has to do with the availability and distribution of staff; the number of lockdowns in an institution; restrictions on inmate movement because of incompatibility within the institution such as rival gang members; other security intelligence concerns; and budgets. We have seen in the third and fourth quarters of fiscal years where contract staff are not called back to institutions as a budget management initiative. That means programs are not delivered or progress is interrupted until the next fiscal year. A whole variety of reasons exist.

Mr. Zinger: Correctional Service Canada will soon release a research report that they did on postponement and waivers of parole board hearings. One finding is that offenders postpone or waive their hearings because they do not have access to programs. That is a significant issue. For an offender to be ready to face the parole board, he or she will want to have done much work on their correctional plans by participating in programs. This increases the chances of being released earlier. This report shows that offenders are waiving their right to a parole hearing because they have not been able to access the programs they need to have a decent chance before the National Parole Board.

I would suggest that the situation for Aboriginal inmates is probably more desperate. Often their correctional plan, or their healing plan, requires them to have to have more programs. They may have a combination of issues, many of which are often related to the community from which they come.

The Chair: Thank you. With the committee's approval, I shall write to Correctional Service Canada to ask them to send us that report when it is made public. Do you expect it to be soon, Dr. Zinger?

Mr. Zinger: I believe it should be in the next month or so.

The Chair: Thank you. I fear it will be pertinent not only to the study of this bill but to our work as we go forward.

Thank you very much indeed to both of you. As usual, you have given us food for a great deal of thought, even if the news is not very cheerful.


We have the great pleasure of again welcoming Lucie Joncas, President of the Canadian Association of Elizabeth Fry Societies, and Craig Jones, Executive Director of the John Howard Society of Canada.


Thank you both for being here. We are very grateful. Colleagues, I want to warn you that Ms. Joncas has a plane to catch. After their presentations, we really must be crisp in our questions if we want to get the maximum benefit of her time with us.

Craig Jones, Executive Director, The John Howard Society of Canada: Thank you for the honour of bringing this testimony before you today. The John Howard Societies across Canada are on the front line of the criminal justice system. As you will recall, we are committed to effective, just and humane responses to the causes and consequences of crime.

Our concern today is with Bill C-15, which proposes mandatory minimum sentences for drug crimes. I have been poring over the deliberations of this committee since late September, so I have a pretty good idea of what the committee has heard. Therefore, I will not repeat what other witnesses have said. Rather, I will try to correct some of the misinformation in the transcripts given by previous witnesses.

The first point I want to make, however, is that mandatory minimum sentences cannot work as intended because they misunderstand the nature of drug use and trafficking in the context of drug prohibition. The reason for this is straightforward: Drug prohibition, as enacted in the National Anti-Drug Strategy, cannot suspend the laws of supply and demand. The National Anti-Drug Strategy, similar to all previous attempts to make prohibition work better, reproduces this fundamental error in policy and practice. Mandatory minimum sentences seek to make work what cannot succeed.

Quite apart from their other bad consequences for the criminal justice system, all of which you have heard discussed at length, they cannot achieve their intended effects because the structure into which they are embedded — that is, drug prohibition — does not and cannot work.

The Minister of Justice in his October 8 testimony said, ``We are not guided by statistics.'' Indeed, there is ample evidence that this is true. Unfortunately, he is not guided by reality either because in the absence of aggressive demand reduction for drugs, supply suppression, which is the modus operandi of prohibition, does not work as its defenders claim. Prohibition, even with the added features of mandatory minimum sentences, cannot suspend the laws of supply and demand. Prohibition creates an artificially high price for drugs at the street level and, therefore, the prospect of quick profit from drug trafficking. All of this assumes, of course, that one does not get caught.

However, even if one does get caught, the allure of quick money from trafficking draws more people into the market, a feature of drug trafficking called the ``replacement effect.'' When a serial rapist is taken off the streets, there is no ready replacement because there is no market demand for serial rapists. However, when a trafficker is taken off the streets, the demand for drugs remains. Therefore, the laws of supply and demand work to ensure that another trafficker will fill the recently created vacancy.

Furthermore, the pernicious effect of natural selection is at work here, too. As police pressure on drug traffickers increases, the market evolves according to principles of survival of the fittest. The easy targets are picked off quickly. They are the low-hanging fruit. However, the successors adapt their methods to respond to greater police pressure, and this takes the form of an increase in violence.

This natural selection effect is currently at work in Mexico, and we saw an outbreak of it on the streets of Vancouver this past summer. When police go to war with the traffickers, the traffickers go to war with each other over the diminished market share. It is right out of first-year economics.

The situation has become so bad in Northern Mexico, for example, that American policy-makers are talking about Mexico as a failed state. Even the World Drug Report 2009 has finally acknowledged the drugs-crime connection, though, of course, still endorsing prohibition.

I would like to respond to a couple of comments on the record, starting with Mr. Plecas. He invites you to draw conclusions that are not warranted, so it is important to correct him. In his testimony on Thursday, October 29, he tells you that the production of drugs in British Columbia is out of control and that it has harmful consequences for communities and individuals, all of which is true.

However, he never uses the word ``prohibition,'' which is to say that he assumes there is no context for drug production and the violence that is attached to it. The fact is that British Columbia also produces a large amount of wine and apples, not to mention fish and forestry products, yet there is no gang violence for market share of apples or wine. The difference, and Mr. Plecas knows this, is the legal context in which the two markets exist. Furthermore, he seems to fall into the trap of believing that harsher sentences will, using the minister's words, ``send the right message'' via mandatory minimum sentences. However, he offers no explanation for why sending the right message has not worked in the United States.

Mr. Plecas is inviting you to draw the conclusion that prohibition can be made to work only if judges become tougher and sentences become harsher, yet he adduces no evidence whatsoever from any other common-law jurisdiction, nor does he offer a logical reason why what has not worked elsewhere can be made to work in Canada.

Mr. Plecas does not want to talk about prohibition because then he would have to talk about how prohibition creates criminality and violence.

The Chair: Mr. Jones, I wonder if I could ask you to avoid saying what Mr. Plecas wants or does not want. We do not know. You may stick to what he said.

Mr. Jones: I do not want you to get the impression that I think we should encourage the use of drugs. It is quite the contrary. My point is that 101 years of trying to discourage the use of drugs through the mechanism of prohibition, which uses the criminal justice system as its first option, has failed utterly. Mandatory minimum sentences will only incarcerate more people without having an impact on supply or demand on the streets.

If we can learn anything from the American experience with mandatory minimum penalties, it is that we, too, will rapidly grow our rate of incarceration and that the majority of that growth will be people who have pre-existing mental illness and substance abuse issues. They will disproportionately come from minority communities, especially Aboriginal, and the effect of our growing rate of incarceration will have no consequence for changing the structure of demand and supply on the streets.

For that reason, in combination with all the other reasons you have heard for rejecting this bill, I urge this Senate committee to exercise its prerogative of sober second thought and tell the government that this strategy is bankrupt.


Lucie Joncas, President, Canadian Association of Elizabeth Fry Societies: Madam Chair, the Canadian Association of Elizabeth Fry Societies would first like to thank you for having us here again. We are very pleased to have the opportunity to express our concerns in relation to Bill C-15.

You are familiar with the Canadian Association of Elizabeth Fry Societies; we have 26 societies across Canada that assist women in trouble with the justice system. The Association's position has always been to support the principle of respect for judicial discretion, and so inevitably to oppose mandatory minimum sentences.

In recent years we have seen a significant erosion of that discretion. This situation is a source of considerable concern for us. These repeated attacks undermine the credibility of the justice system and jeopardize its ability to operate properly.

In relation to the situation of women in particular, for whom we are a voice, it is plain that women are overrepresented, and I think that there have been people who have testified before you who have talked about Aboriginal women in the prison population.

In Western Canada, Aboriginal women represent 3 per cent of the population, but 80 per cent of the prison population.

We have to be particularly concerned about this situation and the type of legislation set out in Bill C-15, which will simply increase that population by a significant number.

Prisons, as we know, are not suitable for Aboriginal populations. They are a way of ostracizing them even further. Aboriginal people serving sentences of imprisonment are a long way from their communities, they have no contact with their families, and their families do not have the resources to visit them.

If an Aboriginal woman is incarcerated for a mandatory minimum sentence in Winnipeg, when she lives in Northern Canada, obviously reintegration into the community will be more difficult, if not impossible, when she has had no contact with her family other than by mail for the entire period of incarceration. This situation means that their children also suffer. In other words, all these factors make the sentence much more punitive than in virtually any other population.

One point that does not seem to have been raised before the committee is that someone may have been convicted of a criminal offence in numerous ways other than by being the primary person or instigator. Section 21 of the Criminal Code provides that a person may be convicted of the primary offence on the same basis as other people simply by failing to do something or by doing something to aid or abet another person. I think that section 21(1)(b) is really what may apply here. I would offer the example of a person who waters plants for $20 a day, but receives no profits from the crop, who would get a minimum sentence, and the judge would have no discretion.

We really have to think about the end of the chain, which is precisely the same situation as a person who, in any event, we all know what this is, would have been sentenced to a firm prison term. I think we have to respect judges' authority to exercise their jurisdiction, and the prison terms that are available to judges are entirely up to the foreseeable needs.

The final thing I would like to say is that the aggravating factors you are being asked to consider in the bill are already set out in the Criminal Code as aggravating factors, and judges apply them every day. It talks about amending section 5(3)(a), an offence committed for the benefit of a criminal organization; 718(a), item 4 of the Criminal Code already provides that this is an aggravating factor, and all the other factors we see here, the use of violence, that is an aggravating factor that judges take into consideration. And the use of a firearm is already subject to minimum sentences.

So to conclude, I fail to see how this bill is useful, but I do really see the tragic consequences it could have, including for the population served by the Canadian Association of Elizabeth Fry Societies.

The Chair: Thank you.

Senator Nolin: Ms. Joncas, the witnesses before you told us about the deplorable situation of Aboriginal people in the prisons. The percentage of the prison population that is Aboriginal as compared to the general population is more than alarming, it is quite simply shameful, particularly when we consider the female prison population. However, even if we do not pass Bill C-15, we would still have this alarming result, the overrepresentation of Aboriginal people. I am prepared to give the judges back their discretion, I agree with you completely. In fact, the existing law on drugs already provides that a judge may disregard the aggravating circumstances if they think it is in the interests of justice to do so.

But we are dealing with Bill C-15, so what do we do with it now?

Ms. Joncas: I think it should not be approved. Pure and simple.

Senator Nolin: But help me find a more realistic solution.

The Chair: Would you have an intermediate solution to propose, or amendments, for example, that you would like to see?

Ms. Joncas: I think a desirable amendment would be that the judge still have the opportunity, in considering special circumstances, to use their residual discretion. Would the judge have access to guidelines to tell them that in specific circumstances, there is some applicable residual discretion?

Senator Nolin: That is my problem, because in section 10(3) of the existing controlled drugs act, it states clearly that even if the court is satisfied, and that itself is an important test, of the existence of one or more of the aggravating factors, it may decide not to sentence a person to imprisonment, as long as it gives reasons for its decision, and still we have Aboriginal people overrepresented in the prisons.

I have the impression that the solution lies no more in Bill C-15 than in the current law, and it is that solution that I am trying to determine.

Ms. Joncas: I sincerely think that the needs of the Aboriginal population are certainly not adequately considered either inside or outside the prisons at present. There is a crying problem of poverty. Yesterday, I was at McGill University, where I listened to Crown prosecutors from the circuit court in the North. The court travels to a location, for example, and sits there for six hours, knowing nothing about the community, dealing with 11 different dialects, with no defence counsel or Crown counsel from the Aboriginal community. Where are the judges who could participate in the sentencing circle? One Crown prosecutor introduced himself very candidly, ``I am the white man who comes here,'' and we have to wonder why there is a problem genuinely adapting our justice system to their circumstances. It is still somewhat us and them.

As well, a law school has finally been opened in the North. That's fantastic! It is hoped that members of the Aboriginal communities will take an active part in the justice system. I really think that will encourage a decline.

Senator Nolin: The solution does not lie in the laws, it lies in the administration of criminal justice?

Ms. Joncas: Among other things. But every time we come back here with minimum prison sentences, we are casting too wide a net and it is marginalized people, minorities, among others, who pay the price, because when the accused is associated with criminal organizations, when a firearm has been used, when there is violence, the judges impose prison terms.

We don't need these bills. The people it affects are the people who ordinarily would have had the benefit of the clemency of the court, and they will no longer have that benefit.

Senator Nolin: Thank you, Ms. Joncas.

The Chair: Thank you, Senator Nolin.


Honourable senators, I will remind you that we will try to address questions first to Ms. Joncas and then come back to Mr. Jones.

Senator Watt: I will once again ask the same question that I have asked previous witnesses. I understand the numbers are increasing, and I do not like what I am hearing. There have to be solutions. At this point, I do not think anyone has come forward with a possible solution.

Mr. Jones, why are Aboriginal people serving more than their counterparts? Why are they being refused bail?

The Chair: Is that a question for Mr. Jones?

Senator Watt: Yes.

The Chair: Could we hold that because Ms. Joncas has to leave? We had agreed among senators that we would put our questions to her first and then come back to Mr. Jones with questions.

Senator Watt: That is fine with me.

The Chair: You can ask a question to Ms. Joncas.

Senator Watt: Ms. Joncas, I am beginning to realize that you have a good understanding of how the North is being dealt with through what we call circuit courts that travel to isolated communities. You were correct in that they do not stay very long in the communities. The time to leave the community is when the aircraft is about to arrive.

Therefore, defence lawyers do not spend enough time with their clients. I have been told directly by offenders — from time to time, I do talk to them — that they do not even have a say in the matter. In other words, what normally happens is that when the prosecutor and defence arrive, the deal has already been made on the plane. That is even before they interview the accused. I do not think that is acceptable.

Have you any knowledge of that?

Ms. Joncas: I have no personal knowledge on that.

I would bring to the committee's attention that we must remember that 90 per cent of criminal cases settle. Only 10 per cent usually go to trial. That percentage will shift dramatically if we have mandatory minimum sentences on almost every offence. That might create more delays and potentially more Charter arguments over the right to a trial within a reasonable time.

I believe many more consequences exist to this patchwork modification of the Criminal Code without any full vision of how it will impact the population. It will have a domino effect on the justice system. Our jails are already very overcrowded. Provincial institutions have no programs whatsoever.

I do not see how this will help reintegrate people. My colleague from the Canadian Council of Criminal Defence Lawyers brought to this committee's attention that having access to rehabilitation centres to complete therapy successfully is very different from province to province. Health issues are dealt with by the provinces. They are responsible for that budget. There is no way that they have sufficient resources to make this modification work equally across the country. If you also look at Northern communities, there is one social worker per village.

Senator Watt: That is if there are any at all.

Ms. Joncas: How will we get offenders to rehabilitation? We see no progress.

Senator Baker: I want to ask one question to pick the brain of a brilliant lawyer, Ms. Joncas, who has an excellent reputation in case law for the cases that she deals with on a continual basis.

I want to ask you — perhaps you may not have any suggestion — about a possible amendment to the bill in an area about which I am concerned. Ecstasy is now listed as a Schedule I substance. That means the maximum penalty is life imprisonment. That then triggers other things such as reverse bail onus, for example, and not being able to get pardoned, et cetera.

We can look at the cases of those people convicted for having only one pill. As you know, the definition of trafficking is not only to sell, but to give, loan and so on. Looking at the case law from this year, I see that the RCMP has regular projects — project tiara, project temporal, project thirst, et cetera — where they send officers into rave dances and convince someone to give or sell them one pill. Once upon a time, we used to call it entrapment, but it is not entrapment anymore. The elements have changed; I do not know why. The attraction is in giving someone a pill of ecstasy. In some cases, the young man is impressed with the young lady — the RCMP undercover officer — who is well dressed for the occasion of a rave.

I have a case here, R. v. Chu 2009, Carswell, B.C. 644. I have other cases — 10 to 13 convictions every year at the stadiums where they have these raves. This happens across the country. I can find the same thing in Alberta or Quebec.

The person, in almost all of these cases, normally goes to someone else and borrows a pill to give it to the RCMP officer. Since giving or loaning someone a pill is now increased to life imprisonment, how do you suggest we amend the bill to take away that particular offence? Do we stop that by amending the definition of trafficking?

Ms. Joncas: I am glad you asked. There is actually no way other than amending the definition of trafficking. Trafficking can be passing a joint. As you say, trafficking can be giving someone a pill — they do not usually lend them. They usually give them because they cannot take them back once they are taken.

Senator Baker: No, you get arrested.

Ms. Joncas: I see no other way than a modification to the definition of ``trafficking.''


Senator Joyal: Ms. Joncas, I would like to ask you to go back to the clientele, or the kind of people you assist. Among the women who are in prison in Canada, are there some who have been convicted of belonging to a criminal organization? Because from what the Minister told us, the bill is ordinarily supposed to aim at catching the big fish, not the small fry who go to the raves, as my colleague Senator Baker said. It is actually supposed to target criminal organizations and the people at the head of them.

Ms. Joncas: I have to tell you that in my personal experience, I have represented at least one woman who was convicted of being part of a criminal organization. It was a lady whose spouse was a trafficker, who had a very rare form of cancer, and for whom the only way to deal with the pain was to use cocaine. Because her husband had an organization and she was with him, she was convicted guilty of an organized crime offence.

I would say the proportion is lower, but there are some. What often happens is that criminal organizations pick people who have no record, who are as white as the snow — no pun intended — and who could do an importing job that would probably be what is called a ``one shot deal.'' These are people who are not criminals, who do not move in those circles, but who have major financial problems, they may be single parents, and agree to get involved in this kind of trafficking. They could actually be found to have aided a criminal organization.

Senator Joyal: In the case of Aboriginal women — there was a reference earlier in the testimony we have heard recently, for example in Edmundston, which is a detention centre for women — in your opinion, based on your studies at the Elizabeth Fry Society, what is the typical profile of a woman in prison who uses drugs — apart from a woman who is thinking of doing a ``one shot deal'' that would supposedly help solve her social problem? What is the social profile of the average woman in prison because they used or sold drugs?

Ms. Joncas: Certainly in the women's population there is a crying problem of poverty, and often offences are committed, like fraud offences — which you are going to have to examine; offences connected with the need to cover basic needs that are not being met. There are a lot of single-parent women. What I see as a common trait is a major problem of poverty.

Senator Joyal: Is prostitution a factor, particularly?

Ms. Joncas: Prostitution is unfortunately another way to alleviate these difficulties, but I would say that prostitution is not the primary cause of incarceration, certainly not at the federal level. Those are offences that really stay more in the municipal or provincial courts. It is very rare, I do not remember seeing anyone who was convicted of that. That is not really the population you see at the federal level.

Senator Joyal: Do you have an idea of the number of women who are incarcerated in Canada as a result of drug offences? How does that break down, between the Aboriginal and non-Aboriginal population, and in what type of offence are they found?

Ms. Joncas: I would not want to give inaccurate figures; I do not have the figures here. However, I would say that economic crimes are a major factor among women, such as social assistance fraud, or fraud of all different types. What we are looking at is mainly crimes associated with poverty.

The Chair: Thank you, Senator Joyal. I am sorry, but the last part of our time goes to Senator Carignan.

Senator Carignan: I understood that you are a defence lawyer.

Ms. Joncas: That's correct.

Senator Carignan: It is somewhat rare in everyday life to meet people who are charged, constantly, every day. Myself, it has never happened to me. I wanted to know what percentage of the clients you meet know exactly what punishment they are liable to. Do they know exactly what it is, when they come to you? Do they tell you: I know that if I am convicted of this offence, I am going to be sentenced to three years in prison, or some other term? How many know the exact punishment?

Ms. Joncas: Maybe 2 per cent, 3 per cent. That is an excellent question. When people consult us, they ask ``What is going to happen to me?'' but they have no idea what may happen to them. They are not aware of it. One factor that will stop people from committing offences is the fear of being apprehended or arrested, but it is certainly not the minimum sentence.

Senator Carignan: It depends on knowledge, but there are several factors in the studies: severity of punishment, speed of punishment, certainty of punishment, knowledge of the punishment. So there is a set of factors. But my specific question was that at present there is no minimum sentence for trafficking, there are minimum sentences for murder, for some items, and I understand that only 2 per cent of the current population, of your clients, in any event, if we take that sample, know precisely what punishment they are liable to if they are convicted.

Ms. Joncas: That's correct. Anecdotally, we might say to the client, ``But what were you thinking?'' And the answer is, ``If I had been thinking, I wouldn't be here.''

Senator Carignan: That is the goal of minimum punishments.

Ms. Joncas: So we agree, people are not informed about sentences. What is truly effective, and criminologists will say this, is to expand police forces so there is a fear of being immediately apprehended; that is much more effective.

Senator Carignan: That too, in fact. Thank you.

The Chair: Thank you very much, Ms. Joncas — as always! Someone will take you to the door where your ride is.


Senator Milne: I have no questions for Mr. Jones. I agree with him.

Senator Nolin: We received your text in advance and many of the answers were already in your text. I do not know who is next, but I am ready to pass to my colleagues.

The Chair: That is what happens when someone takes the trouble to produce a 40-page brief; something we are grateful for, by the way.

Senator Watt: I will repeat the same question I put to previous witnesses. I believe you were here at the time the previous witnesses were giving testimony. My question is in relation to the longer sentences and the refusal of bail for Aboriginal people.

Could you explain that for me?

Mr. Jones: I am happy to. This is a very important question. I will give you a brief answer and offer to follow up with a considerably longer answer because books have been written on this topic.

It boils down to the historical and political reasons why Aboriginal offenders are treated differently. Those reasons amount to structural causes for discrimination. They begin at the very beginning, with a higher incidence of, for example, fetal alcohol effect, untreated trauma, undiagnosed learning disabilities, inadequate schooling, inadequate nutrition and inadequate parenting. This is a characteristic that is not unique to Aboriginal populations but is generalized across poor and marginalized populations everywhere in the world. In this country, the majority of poor and marginalized populations are Aboriginal, and in the inner cities they are Black, Jamaican and so forth.

These people come into contact with the criminal justice system, and very often, despite the best efforts of the officers who first engage with them, they collide repeatedly with the criminal justice system and then perhaps are detained. The behaviour tends to escalate, particularly with young boys. As they mature into their high-risk-taking years — between the ages of 16 and 22, 23 or 24 — they begin to consume alcohol and experiment with drugs. However, we know that their executive functions, for example, the structure of their brain, are not fully developed, so they may be more reckless. This is why young men are drafted into the military, and in the context of Aboriginal populations, it is no different. They collide with the justice system more often because — and this is very important — they are the low-hanging fruit.

Senator Watt: What does that mean?

Mr. Jones: That means that they are easier to arrest, easier to prosecute, and easier to incarcerate; and because of the combination of factors relating to their upbringing and social circumstances, they are less able to advocate for themselves.

For example, where someone from my social class would be able to get bail because my mother or father would be able to put up the money for me, I would not be detained; an Aboriginal youth from Northern Saskatchewan or even farther north is less able and does not have the resources to do that. The evidence shows that if they are detained, they are more likely to be convicted.

I do not want to point the finger at any one individual, but it is the nature of the structure of historical and political discrimination against minority communities in Canada.

Once they are incarcerated, again, they are less able to advocate for themselves. The system, not the individuals in the system but the system itself, tends to relegate them to the margins.

I spent a great deal of time with officials in the correctional service, and I really believe they are trying to produce the best correctional outcomes they can. However, they are under-resourced, overworked, have more people than they can manage and cannot staff up to the level necessary to treat the people. You heard about the long waiting lists. It concatenates one into another to produce this outcome that is really inequitable, unjust, and about to become much worse as this package of criminal justice legislation rolls through and becomes law.

That is why it is so important that I go on the historical record to say that this criminal justice legislation package is a disaster for everyone, but most particularly for people who are already systematically discriminated against. That is the short answer.

Senator Watt: You gave me a long list of reasons why the Aboriginals are being treated differently, but that still does not answer my question. Why are they staying in for a longer period?

Mr. Jones: Now we come back to the issue of self-advocacy. My organization, as you know, represents offenders across the system; we prepare offenders for their release dates and their parole dates. However, my organization is operating at the absolute limits of its capacity.

The John Howard Society workers, when particularly good workers get up to the level where they are really being effective, are poached by the parole board or by Correctional Service Canada. Some of them will continue to advocate for early release of prisoners, and others will be diverted into programming or various other tasks. The whole system is operating at the very limits of its capacity.

Aboriginal offenders are not at the gate, as it were, demanding to see their institutional parole officer, demanding to have access to their programs, because they have not developed a culture of self-advocacy. That is why so few wealthy White kids go to jail. It is because they have a culture of advocating for themselves. Aboriginal and poor populations do not.

Senator Watt: In other words, they do not belong there; and if they do not belong there, and if they cannot be treated equally, where do we go?

Mr. Jones: I think — probably most of you understand this now — that we have created criminality in our society through the mechanism of drug prohibition. Many of the young persons who will be caught up in this legislation will be guilty of nothing more than self-administering a currently illicit drug. That is a policy choice that everyone around this table has inherited from the 19th century, and it is a disaster.

I was trying to think, as Ms. Joncas was talking, that mandatory minimum sentences are the equivalent to putting new propellers on the Titanic.

Senator Nolin: We still have not received an answer to a question. I received an email from a previous witness, Ms. Roy. She had accepted to look into the application of Bill C-15 to adolescents. Coincidentally, she is sending me an answer right now. You mentioned and she is basically saying that because of the harshness of Bill C-15, she does not think, if you read the adolescent-specific section, that it would apply to them.

Mr. Jones: That entirely depends on the discretion at the front end, does it not?

Senator Nolin: I hate to argue with someone who is not around, and we do not have the text, but it is the question of non-violent crimes. If it is non-violent crime, Bill C-15 will not apply. Of course, someone can argue that Bill C-15 is dealing with violent crime. The minister said that. We heard many witnesses saying the contrary. That is why I am asking you the question.

Mr. Jones: Yes; thank you, senator. We have a natural experiment to ourselves. No one has perfected mandatory minimum sentences like the United States. However, the effect is not what they anticipated. The effect is a net widening. They too initially targeted kingpins and high-level drug dealers, but those people are particularly hard to get. They consume many police resources, they hire the best legal talent, and they get off. However, the net widens, and as these mandatory sentences take hold, increasing numbers of low-level offenders get scooped up. That has been the experience in the United States. I have seen no one come forward to suggest that we, in Canada, can do it better and not replicate the mistake in the United States.

Senator Nolin: To be fair to one of the witnesses who was defending mandatory minimums, Mr. Plecas said that in the U.S. it worked because the offenders stay in prison long enough that when they come out there is no intention from them; they are too old.

Mr. Jones: That has to be good news.

Senator Nolin: The witness said that.

Mr. Jones: They spend their best years in prison; therefore, mandatory minimum sentences work?

Senator Nolin: You referred to Mr. Plecas in your presentation, so that is why I mentioned his evidence.

Mr. Jones: This is the argument for incapacitation. If we keep people in prison long enough, they mature out of their criminal tendencies; but what are the social consequences of taking those people away from their families and communities? In the United States, and particularly in Florida, where this research was first done, they discovered that in certain neighbourhoods that had excessively high rates of incarceration, crime did not go down; it went up. This whole structure of mandatory minimum sentences as crime-reducing is false. It is false according to the evidence.

The Chair: Are you referring to a specific study? If so, could you provide us later with the reference to it?

Mr. Jones: I will happily do so.

Senator Campbell: I think we have it, Madam Chair.

The Chair: We do have it. Thank you very much.

Senator Wallace: Thank you, Mr. Jones. I want to ensure I am clear on this. You made a statement that drug prohibition cannot work. I want to ensure I understand what you mean by the term ``drug prohibition.''

Do you see drug prohibition as being the use of the Criminal Code — incarceration obviously being one of the consequences of that — as a tool or means of dealing with the production and trafficking of drugs in this case? Are you saying that drug prohibition and the use of the Criminal Code sanctions do not work and have no place in dealing with drug production and trafficking?

Mr. Jones: Let me put some history around this. In 1908, a decision was made by the Parliament of Canada to respond to the use of drugs by a certain minority community in British Columbia with the use of punishment and incarceration. That is the template for our current laws, right up to the present day. We respond to drug use, trafficking, et cetera, with punishment first. That is drug prohibition.

It is identical to the use of prohibition for alcohol. The criminal justice system is the first response to the consumption, possession and trafficking of alcohol. That is why I use the word prohibition, because drug prohibition is indistinguishable from alcohol prohibition, except that alcohol prohibition did not last. Drug prohibition is entering its second century.

Senator Wallace: We have had other witnesses who have said things similar to what you have just said. Again, is it your position that we should not have criminal sanctions for the production, trafficking, importation and exportation of drugs and that, rather, it should be dealt with in a regulatory manner similar to tobacco and alcohol?

Are you saying the Criminal Code should not be involved in the issues that Bill C-15 is aiming to deal with it?

Mr. Jones: That is exactly what I am saying. I want to make it clear here that we have inherited a system of regulation of illicit drugs. Regulation is just another word for management. That regulation consists of delegating the production, distribution and consumption of illicit drugs over to the contest between cops and organized crime; we tell those guys to fight it out.

That is the most absurd system of regulation that we could have devised. It has brought us to the point today where illicit drugs are cheaper, more widely available and of better purity than they were even 40 years ago.

Do you know that when Nixon declared his war on drugs in the United States, the average hit of heroin that he was concerned about was down around the level of 5 per cent purity? Today, in Washington, D.C., a dose of heroin is up to 50 per cent purity. That is prohibition.

Senator Wallace: I think the objective of prohibition and the criminalization of drug production and trafficking has probably been to attempt to provide protection to people in our society who would not otherwise be involved with drugs. I know much of the focus in this is on those involved in the drug trade and who are incarcerated, but the real objective here is to protect the public and to try to prevent as much of the public, youth in particular, from being drawn into the issues.

Do you not agree that if it were not for prohibition and if the Criminal Code were no longer used as a tool in attempting to deal with drug production and trafficking, that it would lead to an increase of drug use in society? If that is the case, how could that possibly be beneficial?

Mr. Jones: I do not agree with that. I think that assertion is routinely made without any evidence that there is any truth for it. I believe you will hear, either tomorrow or the next day, from Glenn Greenwald who will talk about the situation in Portugal. Ask him if that situation has applied there because they have decriminalized everything across the board. The most interesting outcome, from a public-health standpoint, is an upward spike in demand for treatment. Suddenly, they have all of these resources to put into treatment because they have taken them out of enforcement.

Senator Wallace: It is interesting you use Portugal as an example. We have also heard the example of Sweden, where tougher means of enforcement have been used, together with more funding being applied to treatment, and they found that to result in great improvements. There are many lessons to be learned.

Mr. Jones: Senator, that is referred to as the ``Swedish myth.'' You have to see how many other ways drug problems manifest themselves in Sweden that do not make it into popular mythology.

Senator Wallace: Is there anything called the ``Portuguese myth''?

Mr. Jones: I think that is a good question for Glenn Greenwald.

Senator Campbell: I will point out that, in the interests of editorial fairness, it has been referred to as the ``Swedish myth'' by another witness. It was also referred to as a failure by someone who is most certainly lacking in scientific quality but not lacking in investigative quality. I believe it is a myth until someone who can put some science behind it appears before us.

Mr. Jones: To be fair, Sweden is also a very different society than Canada. It is much more homogenous than Canada and has much less poverty than Canada. Our serious drug problems are concentrated among our poor and marginalized. Sweden has nowhere near the composition of poverty versus wealth that Canada has.

Senator Wallace: Would Portugal would be a better example?

Mr. Jones: I do not know that I would go that far. The interesting part about what happened in Portugal is the upward spike in the demand for treatment. I think that is what you want to investigate. The lesson from Portugal is that, when all drugs were decriminalized, people had less anxiety about seeking treatment, and because more treatment was available, they saw a greater demand for it.

When demand for treatment spikes up, incidents of opportunistic or economic compulsive crime trends downward. Unless things have changed drastically, Glenn Greenwald will tell you that all the important indicators, particularly prevalence and lifetime use, are trending downward in Portugal, and that is what we want.

Senator Wallace: Mr. Jones, I have read your brief. On page 6 is the following statement:

So discredited is the concept of mandatory minimum sentences, for drug-related crimes in particular, that even New York State's Rockefeller Drug Laws — the template for the American experiment in mass incarceration — have been repealed.

Your brief then goes on to say:

Key to the amendments in the repeal of the Rockefeller Drug Laws is eliminating mandatory minimum sentences, precisely the opposite of what Bill C-15 proposes to enact . . .

You are obviously drawing a comparison between the Rockefeller drug laws and Bill C-15. It seems you are, anyway. However, my understanding is that the Rockefeller drug laws instituted mandatory minimum penalties of 15 years to life for simple possession of over four ounces of narcotics.

Is that correct? If it is, how can that be taken as an appropriate basis on which to discredit Bill C-15?

Mr. Jones: I am trying to draw attention to the mechanism of mandatory minimums themselves. I am not drawing attention to the precise, fine-tuning details, but rather the idea that drug users and drug traffickers respond to deterrence-based sentencing.

There is no evidence for it, and the evidence that does exist argues in the opposite direction. I asked Ms. Richardson to reprint an article from Michael Tonry, in the current issue of Crime and Justice. If evidence exists that mandatory minimum sentences work for drug laws, why does someone not bring it forward? Why does the minister, of all people, not place it before you?

The Chair: I think we have a clash of titans between Senator Wallace and Mr. Jones.

Senator Wallace: I am just being educated by Mr. Jones; not favourably, but I am being educated.

Mr. Jones: Senator Carignan asked a question of Mr. Sapers to which Mr. Sapers was unable to respond.

The Chair: Indeed.

Mr. Jones: May I please correct the record on that?

The Chair: Yes.

Mr. Jones: In the great natural experiment to the South, they have enacted mandatory minimum sentences for every conceivable type of crime from which they are trying to back out. Rates of incarceration are very high and mandatory minimums do not work. The U.S. also has the world's highest rate of incarceration.

However, why are there not even more people incarcerated in the United States than are currently? The answer is found in the one-page document that I forwarded to you called ``Homeostatic Equilibrium.''

Senator Wallace, this is something I think you should be very concerned about. The tendency is for criminal justice actors to subvert the intention of this legislation by negotiating closed-door deals to make the impact of minimum sentences less harsh. We have heard much in this justice legislation about ``truth in sentencing.'' The idea, as I understand it, is that mandatory minimum sentences will bring transparency and accountability to sentencing. The evidence from the United States is that the opposite happens. Criminal justice actors — prosecutors, police and judges — preserve proportionality and fairness in sentencing, that is, they subvert the impact of mandatory minimums by negotiating closed-door bargains to reduce the impact of sentencing or by charging down so that individuals do not have to face mandatory minimum sentences. It is the very opposite of ``truth in sentencing.'' I think you really need to take seriously this notion that discretion is not removed, but simply displaced.

That is all I have to say. Thank you very much for your kind attention.

The Chair: Thank you. The article Mr. Jones asked the clerk to print out is one that we appended to our proceedings at the beginning of this evening's meeting. It is entitled ``The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings'' by Michael Tonry.

Senator Nolin: If I understand you correctly, it would be fine if we created an amendment to bring back the discretion the judge already has under the Controlled Drugs and Substances Act.

Mr. Jones: To the extent that you can put new propellers on the Titanic.

Senator Nolin: All we can do is amend it.

Mr. Jones: I understand that, senator. I happen to think that our judges do a rather good job.

Senator Nolin: Even the minister said, in Bill C-25, that he had total confidence in the judges.

Mr. Jones: Then bringing forward legislation to limit the discretion of judges is a contradiction. It does not introduce fairness or truth in sentencing. It is a step backward to me.

The Chair: I will thank Mr. Jones very much again. We are extremely grateful to you.

Honourable senators, we now have the privilege of welcoming as individuals John Conroy, Lawyer and Line Beauchesne, a professor at the University of Ottawa. Representing Law Enforcement Against Prohibition, we have David Bratzer. Welcome to you all. Thank you for being here. Thank you for your patience while we ran overtime with our witnesses. We appreciate your forbearance.

David Bratzer, Canadian Representative, Law Enforcement Against Prohibition: Honourable senators, thank you for having me here today. I am a constable with the Victoria Police Department, but I am here representing Law Enforcement Against Prohibition, LEAP.

LEAP is an international non-profit organization of police, judges, prosecutors and prison wardens who want to gradually legalize and regulate drugs. I do not encourage or support drug abuse or breaking the law.

However, after decades of heavy enforcement, we see that, in the United States, Canada and around the world, our drug laws have failed to keep illegal drugs out of the hands of our children. I am here off duty, and what I say does not represent the official views of my police department. However, my experiences as a police officer certainly inform my testimony today. I have been on the job for four years now. Before that, I was a jail guard in city cells for two years.

Senator Angus: In what city?

Mr. Bratzer: I work with the Victoria Police Department in British Columbia.

I am not an expert in drug policy or psychiatry, nor am I a social worker, counsellor, medical doctor or scientist. As my colleague, Walter McKay has said, if police officers are qualified to comment on anything, it lies merely in the area of arresting criminals and helping people in immediate distress.

I have been speaking publicly about drug policy for one year now. At the end of this year, I have come to the conclusion that Canadian law enforcement agencies are obsessed with chasing drugs, yet our professional understanding of basic drug policy issues within law enforcement is very low. Therefore, I urge the committee to place more weight on the testimony of real experts — some of whom have already appeared before the committee — rather than law enforcement officers such as myself.

Before adding new legislation, we must also consider what our current drug laws have done to the vital profession of policing. In my experience, it has divided officers from the communities we serve; alienated us from young people; sent our call loads through the roof; placed huge financial strains on our budgets; resulted in drug-related police corruption even though the overwhelming majority of police officers are good, honourable men and women; and sometimes officers have been injured or killed while executing our drug laws.

I have reviewed Bill C-15 in its current form. I consider it a small step in the wrong direction. Here are a few of my anticipated outcomes for this bill: First and foremost, law enforcement will direct more energy into drug enforcement because it is natural for officers to focus on investigations where they perceive that they will gain the greatest rewards for their efforts. There is finite investigative capacity within Canadian law enforcement, so it matters what police officers choose to investigate.

The creation of mandatory minimum sentences in Bill C-15 will provide incentives for police officers to investigate drug offences rather than sexual offences, bank robberies, Internet child luring, identity theft and other crimes that do not have minimum sentences.

I believe this bill will cast a wide net against marijuana growers, whether the grows are large or small, whether they are indoor or outdoor, whether there are children present, whether they are for personal use, whether there are legitimate, genuine hazards present or not.

I believe that individuals who do not require treatment will seek treatment through a drug treatment court program simply to avoid the mandatory minimum sentence. This will reduce opportunities for those who do genuinely want and need treatment.

I believe that prosecution will be difficult under the provisions intended to deal with criminal organizations, and they will be rarely used owing to the inherent difficulty of proving the existence of an organized crime group in a court of law. I believe this bill will drive more drugs into the hands of youth by encouraging adults to recruit young people as drug dealers.

In my job, I routinely see young people caught selling cocaine and other drugs in the worst parts of my city. The penalties for young people caught selling drugs are rightfully less severe than for adults. Therefore, this bill will likely encourage dealers to approach vulnerable teenagers and manipulate them into the drug trade.

I know this bill has provisions for people who use the services of minors in the commission of an offence; but let us be honest, how will we prosecute those people? Are we to take a 16-year-old Aboriginal kid who grew up in some housing project and ask him to get on the witness stand to testify against a mid-level drug dealer? Even if you can get this young person to agree, once he does testify, it seems to me that you are essentially putting that person in danger. You are basically signing his death warrant.

I believe traffickers who are victims of ``drug rips'' and home invasions will be less likely to call the police knowing that they may face mandatory minimum sentences. This is important because they will be more likely to take retaliation into their own hands, resulting in spiraling violence and bloodshed across Canada.

I believe that the brightest and most cunning drug dealers will enter into relationships with law enforcement agencies as confidential informants. They will use this legislation to imprison their competition and strengthen their own positions within the black market.

Last, and perhaps most important, I believe that the flow of illegal drugs to Canadian consumers will not stop, and the black market will continue to lack regulations controlling price, purity, safety and access.

My views on this bill are simple. Bill C-15 is incompatible with Law Enforcement Against Prohibition's position on drug policy, and, frankly, there is no way to reconcile the two views.

However, if some form of this bill will pass, I would encourage you to strengthen the reporting provision. As you know, clause 4 of Bill C-15 introduces a provision that requires a review of the Controlled Drugs and Substances Act after two years, as well as a report to Parliament.

Two years is a long time in politics, but it is a short time in the criminal justice system. By the end of the first two years, the effects of Bill C-15 will not be clear. Some criminal trials will not even be completed. Many mandatory minimum sentences will have begun but not ended. New prisons will not be built yet. We will not have a good idea of the true costs involved nor of the impact, if any, on cross-border smuggling, crime rates, drug-use rates, overdose rates or any of the other issues this legislation may affect.

The numbers at the end of the first two years may be deceptively low. Therefore, it may be valuable for law makers to consider additional reviews and reports at the four-year mark, the seven-year mark and the ten-year mark, for a total monitoring period of ten years.

Honourable senators, thank you for your time.

The Chair: Thank you very much, Mr. Bratzer. Next is Professor Beauchesne.


Line Beauchesne, Professor, University of Ottawa, as an individual: Bill C-15 reflects the preference for repression as a ``war on drugs'' strategy. It is a winning strategy politically, but absolutely useless in terms of reducing the market for drugs and the drug abuse problems that a person might develop.

In this presentation, I will focus on drug use and drug dealing in prisons, and on the violence associated with drug dealing there, both for inmates and for personnel working in the prisons, and for visitors. Bill C-15 would simply make this situation worse.

In a 1994 report, JV Cain, who at the time was British Columbia's Chief Coroner had been mandated to investigate the rise in fatal heroin overdoses in the province, noted that most people see the drug problem as a law-enforcement issue. This popular perception is, he said, based on two beliefs. First, that prison is a good way to eliminate these problems; and second, that the threat of punishment is an effective deterrent.

He explained in his report why these two beliefs are erroneous. On the one hand, drugs are readily available in jails, and some inmates even starting using hard drugs for the first time while inside. On the other, the prison environment lends itself more to the criminal mentality than to integration into society. That is why prison is neither a place where drug problems are eliminated nor an effective deterrent. Not only that, but our prisons encourage personal connections between inmates and members of trafficking rings, connections that for some continue after they get out, if only to be able to pay their drug debts.

Dr. Cain's conclusions are still valid today.

Why is drug use so prevalent inside prisons? Living conditions in prison promote it. Moreover, we imprison users who continue to use and dealers who continue to deal, and want to expand their market, dealers who have kept plenty of contacts on the outside. The result, and I am going to quote an important study done by Professor Serge Brochu who has been studying the question for many years:

Over half of inmates use drugs while incarcerated.

The commonest drug is cannabis, but opiates are also used, which means — where penitentiary authorities do not permit access to sterilized equipment — that dirty needles are shared. Drug debts contracted by addicts intensify the violence that is already endemic in prisons. All this does nothing but exacerbate the problems of penitentiary management. Prisons do not seem equipped to halt or even slow the addiction trajectory.

One sign of how widespread drug use has become inside federal penitentiaries is that in February 2000 the Correctional Service of Canada embarked on setting up five drug-free units in its institutions, one in each of its administrative regions..

And although CSC uses many detection techniques to ensure that the units remain drug-free, 10 per cent of the offenders admitted to the units were removed for using substances or having other drug contraband in their possession. What then is the point of shutting drug users up in prison, when prison is a place where drugs are available and used, and when this situation may increase crime because users, when released, may have to take up or continue a life of crime to pay their drug debts?

The point is to support the prohibition-focused reasoning that calls for the arrest of people who use illicit drugs. As a result, the Correctional Service of Canada decided that drug testing was imperative to preserve the image of drug-free prisons: it has been doing even more of it since the Corrections and Conditional Release Act was passed in 1992.

In 1992, the number of urine samples taken was 250 per month. By 1997, it had risen to 3,700 per month. Unfortunately, I don't have recent figures, but what I want to stress here is that apart from marijuana, which can be detected up to 80 days after the last dose, depending on frequency of use, other drugs have a window of detection that varies from a few hours to a few days after the last dose. Inmates know this, but apparently the CSC does not: it uses testing to draw a portrait of its user clientele, and asserts that test results show that the vast majority of persons under federal sentence are not actively using alcohol or drugs.

Despite random testing, a number of inmates continue to smoke marijuana because it is a relaxant. Some do modify their habit, because of the consequences that positive tests can entail and the fact that testing has risen significantly in recent years.

I can tell you the consequences. If offenders test positive, they can be charged with the disciplinary offence of taking an intoxicant. Sanctions for this offence include one or more of the following: a warning or reprimand; a loss of privileges; a fine; performance of extra duties; or segregation.

In addition, offenders can be ordered to provide a sample each month until three consecutive negative samples have been provided. Administrative sanctions include transfer to higher security, loss of temporary absences, or referral to a substance abuse program.

A change in drug-use habits does not always mean that drug use has stopped, but rather than the drugs used have changed, often replaced by others that are more expensive and more risky to use but less detectable by testing, particularly heroin, which is detectable for about 24 hours.

An increase in IV drug use means increased extortion and violence among inmates to get drugs and pay debts. It also increases the risk that staff members and visitors will suffer violence. The IV drug market has long since ceased being a small business and dealers have powerful resources, both financial and other, to persuade more reluctant inmates to get involved.

It must not be assumed that all inmates who test positive are in prison for drug offences. A number started using drugs regularly only when they got inside, or began injecting them at that point. Injection techniques in prison entail a high risk of infection. The consequences of drug use are always present, in spite of access to ways of cleaning syringes. This means that inmates are urged to clean the syringes they are not supposed to use. These injection conditions spread AIDS and hepatitis C, not only among inmates but also among the population when they are released. This situation is disastrous from a public health standpoint.

In short, increasing prison terms for drug dealers in the prisons, with Bill C-15, will merely intensify the use of force and violence in trafficking on the inside. This hurts not only inmates, but also of staff and visitors, since dealers' connections with powerful trafficking networks will increase the risk of extortion threats aimed at maintaining and expanding that market. In actual fact, the most powerful players in that market are still on the outside, Bill C-15 or no Bill C-15.


John Conroy, Lawyer, as an individual: I have been practising criminal law for 37 years since 1972 — and, since 1982, constitutional law — in the Fraser Valley, in Abbotsford, which I hear is the murder capital, and maybe the gang capital, of Canada. That is what the media says, anyway. I, personally, have not had any problems walking around Abbotsford over the last 30-odd years.

However, the gangs and events that have been happening could be attributed to drug prohibition. I would adopt everything that Mr. Jones told you earlier, as well as what Mr. Bratzer, a police offer, told you.

In Fraser Valley, as you probably all know, I am surrounded by federal and provincial prisons, though not as many provincial prisons as there used to be. I think they gutted them, and more people now end up in the federal system than ever before. I appear in the criminal courts throughout the Fraser Valley and in Vancouver, and I also appear before the National Parole Board. I used to appear before the B.C. Board of Parole before they abolished it, which caused all manner of additional problems in relation to conditional release, certainly in relation to provincial prisoners.

I did try to send something to you, but apparently it was too big, and it bounced back. I am fortunate that you do not have anything in front of you so as to pick on a particular part that I might have said.

The first document that I had sent to you was a curriculum vitae so that you would be familiar with my experience. I chaired the Committee on Corrections and Institutions for the B.C. branch of the Canadian Bar Association way back in 1983, I think it was. For many years, I was chair of the National Task Force on Imprisonment and Release, which became the Canadian Bar Association Committee on Imprisonment and Release. In that capacity, I appeared before many parliamentary committees and Senate committees in the 1980s and early 1990s. Many of these same issues were brought up then.

Consistent with my Irish family motto, ``History cannot be denied,'' I thought I should send you much of the work that was done before by earlier parliamentary committees and Senate committees that dealt with this issue. I am surprised at some of the questions that I have heard while sitting here and thought that many of you might not have seen some of these materials before.

I have included the Canadian Sentencing Commission report by Archambault, for example. I do not know if you knew that Archambault not only wrote about sentencing, generally, but also about mandatory minimum sentences. There is a whole chapter on mandatory minimum sentences, and it points out that every royal commission in the previous 35 years opposed mandatory minimum sentences.

We are now another 22 years since that report of the Canadian Sentencing Commission. I have not seen anything that supports mandatory minimum sentences being an effective penal tool.

This whole time that I have been practising, I have to agree with what other witnesses have said. I have become busier and busier with this prohibitionist-type approach. No matter what you do, from an economic point of view, this will benefit me and other lawyers; you will make us busier.

A member of the Reform Party said to me years ago when I appeared: If he had his druthers, he would make alcohol illegal, again, too. I told him if he did that, he would make me very rich, and I would look forward to the day he did that.

I say that because, in my view, what is happening here is all perception; none of it is reality. All sorts of pieces have been written about this. One of the better ones is an article, funded by Health Canada, by the Canadian Centre on Substance Abuse, called Comparing the Perceived Seriousness and Actual Costs of Substance Abuse in Canada.

I have sent that — or I will re-send that — so that you have the benefit of it. I urge you to read this particular article, as well as the chapter from the Canadian Sentencing Commission on public knowledge of sentencing. I say that because I hear that it is believed that by legislating mandatory minimum sentencing, people will get a message, be deterred, stop dealing and so on.

The Canadian Sentencing Commission material from back in 1987 points out that most people do not have a clue what you are doing. Most of them get their information from the media. The media inevitably, because of what it is, reports unusual and exceptional cases. They do not report routine, mundane cases, which we deal with on a daily basis in the criminal courts.

The public builds its view of criminal justice on unusual and exceptional cases. The whole foundation for the public's view is distorted and does not deal with ordinary, everyday cases. They lobby their politicians, and the politicians, concerned about votes, scurry to pass these types of bills. It seems that occurs without much consultation before they put the bill forward at the outset. Much consultation happens afterwards so that it can be said that everyone has been consulted before passing the bill.

I want to take you quickly to the document by the Canadian Centre on Substance Abuse, CCSA, that compares perceived seriousness. This document has some nice graphs, and it talks about how we amplify our perspectives on illicit drugs because many of us are neither familiar with them nor in control of them. They are distant from us. We attenuate our knowledge in terms of the drugs that we are familiar with, such as alcohol.

The first graph shows the perceived seriousness of substance abuse in Canada. As you might expect, it shows alcohol way down at the bottom, illicit drugs about the middle and injection drug use way up at the top. It shows that it is consistent Canada-wide, province-wide, and city-wide. The further away it is, it seems, the more concerned people are about the drug use.

The second graph shows the direct social costs of alcohol, illicit drugs and cannabis in Canada — and this was all government-funded and done by experts. For alcohol, the graph is almost through the roof; for illicit drugs, it is substantially lower; and for marijuana, you can hardly see it on the scale in terms of health care and enforcement costs, and so on.

The findings of the CCSA document entitled Comparing the Perceived Seriousness and Actual Costs of Substance Abuse in Canada are as follows:

. . . (1) total direct social costs associated with alcohol ($7,427.5 million) are more than double those for all illicit drugs combined ($3,565.5 million); (2) direct alcohol-related health care costs ($3,306.2 million) are nearly three times as high as for all illicit drugs, excluding cannabis ($1,061.6 million), and over 45 times higher than the direct health care costs of cannabis ($73 million); and (3) annual direct costs for health care ($4,440.7 million) are 31 times higher, and annual direct costs for enforcement ($5,407.7 million) are 36 times higher than annual costs for prevention and research ($147.6 million).

Most of the money that you are putting there is into enforcement. I have not seen much change in my practice as a result of this particular approach.

I should stop there, though. You have probably heard about the bylaws that are the new trend, at least in British Columbia. Many of these towns and cities have come up with Controlled Drugs and Substances Act bylaws. They now call them public safety bylaws. They passed legislation there that if you have high hydro usage, they report it to the municipalities and knock on your door and put a 24-hour notice on it stating that they will come and inspect. They then come with a huge team that is similar to a SWAT team. The courts have stopped the police now; the police have to at least stay at the end of the driveway. They basically go through your house looking for a grow op. They look in drawers and cupboards; they look all over the place for these grow ops. If they find a little thing here and there, you receive a fine of $5,000 for the privilege of having this inspection. You then have to redo your drapes and curtains, fumigate your house and all these sorts of things. They do not charge them. That is the only thing that has been limiting the amount of grow-op cases that I have been receiving. It is only when the police charge that I receive a case and can argue search and seizure, and so on. That is the civil, non-criminal approach being taken in British Columbia, which, apparently, has been quite successful compared to the criminal approach.

As I see this bill, as a lawyer, the bells go off because I see all types of overlap that will fuel my case when I take it to challenge the constitutionality of the bylaws as invading the criminal law of power because you have occupied the field so well, and, by this bill, will occupy the field almost specifically to overlap with some of those bylaws, which will provide me with evidence to take that case in order to challenge the bylaws.

Please also look at the chapter from the Canadian Sentencing Commission on public knowledge of sentencing because that is very important. If you really think that you are sending a message, this chapter points out that it is just not the case. Most people do not know what is happening in this area and do not react in relation to it.

The chapter on mandatory minimums makes it clear that, sure, you do not affect the judicial discretion in relation to serious cases because serious cases get more time than what you are providing for in your mandatory cases, from the current judges today. Again, as others have said, I do not know where this notion comes that the judges are soft or that they are not doing what they are supposed to be doing. That is certainly not my experience. The chapter points out that you catch the lowest person — that is, the person who is just on that borderline of being a serious offender. The judge's discretion is taken away there; where he or she most needs the discretion, that is where you remove it.

Last week, I was in Nelson, British Columbia. Nelson, as you may know, is considered the marijuana capital of British Columbia, at least by the news media; I am sure it is not considered that by others. Many people in Nelson are reported to have been in the marijuana industry and are in the marijuana industry. I had a man who was busted for 300 plants, 150 small ones, clones — I am sure you have heard of that — and 150 two-footers. He was charged, as usual, with production and possession for the purpose of trafficking. The main police officer became ill, so there was a one- year delay as a result of the officer's illness. In the meantime, this man managed to get his business together, which was building custom motorcycles. He managed to get his son over from Scotland and get him in an apprenticeship position, and to start going to school. He was working everything out and doing very positive things.

His lawyer had recommended that he go to trial. He asked for a second opinion; he came to me. I looked at it and said: ``No, I do not think a judge will toss this out. I think you will be convicted.'' He accepted my opinion, so we pled guilty to the production count.

If this law were in place, the judge would have had to sentence him to time inside. The two years of his reformation and rehabilitation that had gone on — that is, him getting a job, a business, customers, and so on — all of that would have been disrupted and he would have ended up in prison. The whole thing would have fallen apart. His son would have had to go back to Scotland. All of the good work that was done between the date of the offence and the date of the sentencing would have been undone.

That is the type of injustice that you will create by having these types of mandatory minimum sentences.

Senator Campbell: What did he receive?

Mr. Conroy: He received a 12-month conditional sentence order, the first six months of which is complete house arrest. He is only allowed out for work, medical purposes and so on. The next three months after the first six months is still house arrest but with a curfew from, if my memory serves, 6 p.m. to 6 a.m. when he has to be in his house and then more relaxed for the last part. We try to structure the conditional sentences similar to a sentence of imprisonment: one third, one third and one third. That is, some of us do; I do not think that is common across the country.

A conditional sentence is a sentence of imprisonment. I should add that the conditional sentence came about as a result of all of this stuff we did back in the 1980s and 1990s. First there was the Canadian Sentencing Commission, and then the Daubney committee. For the Daubney committee, was that not a Conservative government at the time? That was August of 1988. As I look through it, I see a picture there of Robert Nicholson, PC, Niagara Falls, deputy chairman of that committee. That is the current Minister of Justice; am I right?

This report, which followed on the Canadian Sentencing Commission report that said no mandatory minimums, also said no mandatory minimums. There is an exception, of course, for murder and high treason. We have had mandatory minimum life sentences for those sentences forever. Someone suggested that we have many other mandatory minimum sentences; we do not. We have created a few firearms ones recently, and we have them for second and third impaired driving offences. We do not have any mandatory minimum sentences for sex assault or serious offences.

For some reason, you want to have mandatory minimums for non-violent offences. I have heard the argument about the potential for violence that comes up all the time before the parole boards. Parole boards are always trying to turn Schedule II offences, non-violent offences, into Schedule I offences because they say that there is the potential for violence. Of course, the potential for violence is there because you are using prohibition.

What do you expect them to do? They cannot come to lawyers or go to the courts to resolve their contractual business disputes peacefully. They have to shoot each other and beat each other up because they are operating in a black market. When people operate in a black market, that is what people do. If I ripped you off for a few hundred thousand dollars and you could not go to judges and lawyers, what would you do?

You send them to prison.

What happens when they get to prison? They form gangs in prison. They become better gang members in prison. They are released and have a number of people in prison and out of prison to operate the continuing business. That is what I have seen in my years of experience.

The Chair: You are obviously steeped in this, Mr. Conroy. I know you could testify for the next four hours and not scrape the surface of all that you know. We do not have much time.

Mr. Conroy: I have gone through all of this. I have made submissions for years. I have seen what the Corrections and Conditional Release Act currently says, which is a product of all these things. I have seen what the Controlled Drugs and Substances Act says, which is a product of all this past work. I have seen what Part XXIV of the Criminal Code says, which I have included. Sections 718.1 and 718.2 all came about as a result of the Canadian Sentencing Commission, Daubney, the Green Paper and so on.

As a result, when I keep seeing these things come up, I think of a line from Doris Lessing's African Laughter: Four Visits to Zimbabwe where she says that there is no one more furiously cynical than an idealist betrayed.

The Chair: Thank you. I gather that a reason your initial submission bounced back was because it was so large. Perhaps you could break it into more digestible chunks.

Mr. Conroy: I will.

The Chair: We would be happy to append it or classify it as an exhibit.

Mr. Conroy: I did not address Bill C-15 specifically. Could I do that before you take questions?

The Chair: Yes.

Mr. Conroy: I did not figure this out until I was on the plane: One of the clauses in the bill will result in a person who has one plant in a rental accommodation receiving a nine-month minimum sentence. I hope everyone realizes that. I hope you have read the decision of the Supreme Court of Canada in Smith v. R. 1987 where one joint brought into the country resulted in the seven-year mandatory minimum sentence being struck down.

The import issue that came up earlier: go ahead; pass the bill; we will deal with it in the courts where independent judgment will measure these bills against the Constitution. I read the citizenship piece that the government put out the other day, and it referred to us as a parliamentary democracy. In 1982, we became a constitutional democracy.

Everything that you do will be measured against the Constitution. I have included in my materials the case of R. v. Malmo-Lavigne; R. v. Caine, which was the Supreme Court of Canada's test case on marijuana prohibition. I acted for Caine. It is a good example of the courts not intruding into the policy realm, whereas, in this instance, legislators are attempting to intrude into the judicial realm. I have also included the VANDU and Portland Hotel Society case — PHS Community Services Society v. Attorney General of Canada — involving Insite, the safe injection site. I acted for VANDU, the Vancouver Area Network of Drug Users.

I can see through this legislation that all the dealers will be addict dealers — many of them already are — so they can go into drug treatment to avoid the mandatory minimum sentence. There is no treatment for dealers that I know of. There is not a single program in the Correctional Service of Canada for dealers. They sit there waiting for their conditional release dates hoping they will get a board that will see that they are ready to go.

My experience with the safe injection site was quite eye-opening. I did not have much experience with addicts and dealers in relation to those types of drugs. We have argued the case in front of the Court of Appeal for British Columbia; we are awaiting a decision. The court below found that sections 4 and 5 of the Controlled Drugs and Substances Act are unconstitutional. It has suspended that declaration for a period of time. It is ongoing as long as the appeal is outstanding.

We learnt that the law causes the grossly disproportionate effects. For someone who has become an addict, deterrence has failed. He or she has become addicted to heroin, crack cocaine, cocaine or whatever it might be. When the addict goes into the alleyway to shoot up, he or she does it out of a fear of law enforcement coming and taking his or her drugs or rigs away. When addicts shoot up quickly, miss their veins, get abscesses and so on, it is because of the fear of looking over their shoulder for law enforcement. Then they go off and have sex with other people in society and spread hepatitis C.

The fear of the law is causing the very harms that many of you think these types of laws will prevent. It is having exactly the opposite effect. You need to take that into account when you come up with these ideas. I am glad that you are able to speak to some people who work in the field on a daily basis.

The Chair: Thank you. In the material that you are sending to us, if references to court decisions are available on the web, all you have to give us is the web reference.

Senator Nolin: Mr. Conroy referred to a document that will be used for the committee tomorrow. We will hear Mr. Perron from the Canadian Centre on Substance Abuse. Probably Mr. Perron will bring that document with him, but in case he does not, it would be appropriate to have your document tonight.

The Chair: Do you have a copy with you?

Senator Nolin: I think you have it there.

Mr. Conroy: I have a marked up copy. I can easily get one emailed to you tomorrow.

Senator Nolin: We are not in court, so the witness will not be influenced by the marks of the lawyer.

We had Mr. Fassbender appear recently. He spoke about parasites and the problem in the cities. He is the mayor of Langley, British Columbia. That is in your area of expertise, Mr. Conroy.

Mr. Conroy: They have a bylaw.

Senator Nolin: Exactly. When you referred to that bylaw, I had Mr. Fassbender in mind. The bylaw is not the intent of my question. I know you will have your day in court with that bylaw.

I am concerned about the affirmation made by police officers, the mayor and the fire chief about the ramping problem. I am looking at Mr. Bratzer because you are from Victoria.

Mr. Bratzer: Yes, sir.

Senator Nolin: Some of us know about the importance of the medical marijuana organizations in both Victoria and Vancouver. How dangerous is that culture of the grow operations for medical marijuana in Victoria? Mr. Conroy may want to interject.

Mr. Bratzer: As I mentioned, I have been a police officer for four years. Oddly enough, the Vancouver Island Compassion Society, VICS —

Senator Nolin: That is the compassion club of Victoria.

Mr. Bratzer: That is right. They provide medical marijuana. They are only a few blocks away from my police station. Oddly enough, I did not even know where they were located until I became involved in drug policy reform. I have never heard of any public complaints against this organization or anything similar to that. They do not seem to cause any problems at all. I know that some police officers do resent their presence, but that is law enforcement; it is not the community.

Senator Nolin: My question is more specifically addressed to you because we were told the grow ops are dangerous. They are causing a problem to the surrounding society. When you look at Bill C-15, the way it is written, you can understand that the bill is referring to that environment that the bylaw is trying to prevent. It is dangerous.

I know that in Victoria, VICS did not start last week; it started many years ago. They have many members. The cannabis used in that compassion club is being grown somewhere around Victoria. I want to know if it is dangerous.

Mr. Bratzer: No, I would suggest it is not dangerous. If it has grown over a period of time, it was because a need for medical marijuana was not being met. In terms of the actual patients of VICS causing problems or committing crimes to get medical marijuana, I have not witnessed that. In my opinion, it is almost a non-issue. When I think about problematic drug use in our society, VICS and medical marijuana is at the very bottom of the list.

Senator Nolin: Mr. Conroy, I know you are anxious to answer because I know you represented one of the growers of VICS. Do you want to add to that and inform the committee about that?

Mr. Conroy: When they are talking about the dangers of grow ops, they are talking about them not having been properly electrically certified, problems of potential mould, and so on; if they are in a residential community, about drug rip-offs. However, it is prohibition that has driven people into residential communities and into basements to do this. If you get rid of prohibition and regulate the market, as you regulate many other things, you then can have all bylaws apply and have them grow in industrial areas or areas where agriculture is permitted, or whatever, to get them out of the residential communities. As long as it is prohibited and it is black market, people try to do things in hiding. They do not go to building inspectors and so on.

I have had a number of medical cases where the person, one in Langley just a few weeks ago, had this warehouse and said he would be using it for storage. He did not say he was licenced. He is a man in a wheelchair who has a medical marijuana exemption federally. He did not want them to know that that is what he was doing for fear others would get to know and then he might be ripped off.

He did get the electrical people in and the fire and safety people. It was the fire and safety people he had to inform of his medical marijuana exemption and explain what he was doing there and why. He had it all properly approved, but as soon as he told the fire safety people, then that of course got to the building inspector who went through the roof and was insisting that he was doing all sorts of unlawful stuff, when he was doing all of the things that they say that the medical growers do not do.

He was in an industrial area; he had it electrically certified; he then contacted the fire people and then there was the big fuss from the building inspector. Now we are worried that many other people know about it, so he is at risk because they figured it out.

I have had other cases where I have phoned the public safety inspection team and told them that certain people have a medical grow in their basement; their kids do not even know about it; they do not want anyone to know about it, so put it on your encrypted list so your team does not show up in the middle of the day and let everyone in the whole neighbourhood know that there was a medical grow here. Do you think they could do it? No, they screwed up, and the team showed up at the door anyway.

Senator Nolin: Just so I follow you properly, when you are talking about medical grow, are you talking about a regulated medical grow, meaning with the authorization of Health Canada?

Mr. Conroy: That is right. They either have a personal production licence or a designated producer's licence under the medical marijuana access regulations.

Huge numbers of people in the compassion clubs do not have those exemptions and have been growing for over 10 years. The Vancouver club has in excess of 5,000 members, I believe. Those people are growing illegally, but they operate in a grey area where the Vancouver police are fully aware of them. I think a number of senators have actually been through the Vancouver club some years ago; members of Parliament have. The police turn a blind eye because they know every person there has a letter from their doctor. There is a diagnosis. However, they have had problems trying to get through the medical marijuana access regulations. The doctors have said that they are willing to give a letter for that, but they are not willing to support them going through the government regulation.

The people who grow for those clubs grow for more than one; the medical marijuana access regulations originally let you grow one-for-one and then — pardon my cynicism — the government said that they could grow for two, when the whole objective in knocking down the one-for-one was to allow these compassion clubs to exist.

In any event, as soon as this bill passes, the people who grow and the people who supply to these medical patients will be subject to mandatory minimum sentences. It will depend upon how much product they have on the site at any given time or the size of the particular grow op or whatever. You will have people in wheelchairs on the nightly news complaining about this if you pass this bill.

Senator Baker: I wanted to congratulate the witnesses and to tell Ms. Beauchesne, never change. I have followed you over the years on television and so on.

I have a couple of technical questions relating to the bill. The report to Parliament in this bill appears to be a useless clause, after thinking about what Mr. Bratzer had said a moment ago and after thinking about you, Mr. Conroy. You are an expert in sentencing under the Controlled Drugs and Substances Act, CDSA. Proposed new section 8.1, the report to Parliament, says that within two years after the section comes into force a comprehensive review of the provisions and the operation of the provisions shall be made. Then a year thereafter, some further action taken.

I notice, Mr. Conroy, that in one of your cases here — I am just using this as an example — you tell us that this is the norm. In R. v. Adam, the events took place in 2001. In 2006, you were arguing voice identification. It was sort of a pre-trial argument. That is five years, and you are still into pre-trial. If this is the norm for serious drug offences that are being addressed by the government in this bill, Mr. Bratzer must be absolutely correct, then, that this provision of reporting to Parliament is a useless clause.

Mr. Conroy: I agree. Trying to assess what Parliament has done and particularly doing a cost-benefit analysis may have some value, but doing that after two years is questionable.

Senator Nolin: It is too soon.

Senator Baker: Let us be certain about this now. It is too soon for the type of offences that are being addressed in this legislation.

Mr. Conroy: Except that, as I said earlier, the more serious offences are not being addressed by this legislation. People are receiving more time than what is in this legislation for serious offences. Adam received five years. His co- accused received seven.

Senator Baker: He received four and a half years.

Mr. Conroy: Thanks. That is the problem, though; the offences with which you are dealing, such as a six-month sentence, a person does four months and earns two months off for good behaviour. On a one-year sentence a person does four months and theoretically is supposed to be paroled at that stage, but because of the abolition of the B.C. board, they will be past their eligibility date before they are paroled.

On an 18-month sentence you will do six months. On two years, you will do six months because of the accelerated parole review, APR. On three years, you will do six months.

Senator Baker: Mr. Conroy, with the charges that you will be addressing in court, the sentencing provisions here that we are talking about come at the end of the process.

Mr. Conroy: That is right.

Senator Baker: In other words, this clause is of no use whatsoever to your review.

Mr. Conroy: To do it within two years, I agree. However, at the same time, if you are looking at what has happened to not-so-serious cases that have been caught by this bill, there may be value in doing that.

Senator Baker: Are you referencing the passing of one ecstasy pill?

Mr. Conroy: Yes, or the one joint.

Senator Baker: The one joint or the one ecstasy pill is okay for this clause here.

Mr. Conroy: The sooner you review it, the better.

Senator Baker: That will be fairly quick. However, this would be useless to have as a report to Parliament for the serious drug offence to which Senator Wallace is referring, which the government is trying to tackle here; namely, all the big Schedule 1 drugs?

Mr. Conroy: I am acting for a man who was arrested in April. The Crown will not have its tackle together to start the trial within the trial until next September.

Senator Baker: We should then amend the clause. Mr. Bratzer recommended having reports in four years, seven years and ten years. The more sensible thing would be perhaps seven years and ten years, would it not?

Mr. Conroy: Yes, if you will be passing the bill.

The Chair: I have a supplementary, to which I hope will be a very brief answer. This is based on my own profound ignorance. Did B.C. abolish its own board?

Mr. Conroy: Yes.

The Chair: What happens to the cases?

Mr. Conroy: The federal board has to deal with them. The federal board cannot deal with them quickly enough. They want four or five months' lead time because they are used to longer sentences. They have to do them.

The Chair: I am relating back to what the head of the Correctional Service of Canada told us about how they are increasing their budget for parole. However, some of it will obviously get eaten up by all of this.

Senator Baker: We have had witnesses before this committee, Mr. Conroy, who have repeatedly said that the judges in British Columbia are soft on crime compared to the judges in the rest of Canada. It has been said that they do not follow the sentences given out in the rest of Canada and that they are lenient in the area of giving sentences for those people convicted around the Controlled Drugs and Substances Act.

What is your response to that?

Mr. Conroy: That has not been my experience. I remember that being said in the media a year or so ago, and it is my recollection that a study was then brought out that showed the exact opposite; it showed the judges in British Columbia were not the softest judges.

Senator Nolin: Do you have the name of that study, please?

The Chair: Do you have that study, Mr. Conroy?

Mr. Conroy: I do not have it. I remember reading about it. We should be able to obtain a copy from the Chief Justice.

Senator Baker: You are the expert here. We have looked at your case law. We know that you have this well-rounded experience in sentencing. In a hearing, you sometimes you refer to cases in Newfoundland, do you not? Sometimes you refer to cases in Nova Scotia, in Quebec and right across the nation. You do it to establish some grounds for your argument on sentencing.

Mr. Conroy: Exactly.

Senator Baker: Therefore, this idea that somehow a province is ignoring the national standard, or the standard as dictated by the Criminal Code for similar offences, is nonsense, is it not?

Mr. Conroy: It is nonsense. The courts of appeal of our province tell us what the ranges will be for particular sentences. It is the courts of appeal that look at what other courts of appeal do.

The Supreme Court of Canada does not get involved very often. However, once in a while it gets involved in a sentencing or sentencing-type issue. Smith v. R. 1987 is an example of that. Therefore, we have to look at the court of appeal and what they are saying and often try to argue that this is an exceptional case that should be treated differently and not according to the range set out by the court.

Senator Baker: I have one final question. We could be here all night questioning you. In Eastern Canada, we think voice identification is a search. In B.C., you do not, I noticed.

Mr. Conroy: I think we argued that it was, but we did not succeed.

Senator Baker: That is right.

We had a woman here from the Department of Justice Canada who kept referring to the trafficking provisions as commercial trafficking. Do you recall that?

Senator Joyal: Yes.

Senator Baker: She repeated it over and over. She said that this bill will address commercial trafficking. We talked about it after, and we were trying to figure out what commercial trafficking is.

We went back to the case law and discovered that in Alberta and, to some extent, in some of the western provinces — but predominantly Alberta — a distinction was made between trafficking, commercial trafficking and wholesale trafficking. At the top of the list was wholesale trafficking.

In trying to address the problem that some of us have with this bill about the passing of one ecstasy pill, am I correct in saying this brings in the reverse onus provisions?

Mr. Conroy: Yes.

Senator Baker: It leads to not being able to get rid of your indictable offence record for six years, does it not?

How do we overcome all of these consequences? How do we amend the bill to not allow these transactions of one pill or one joint — not given for commercial purposes but just given from one person to another — so that that person does not come under a life-in-prison section of the code? How do we amend the bill?

Do we introduce in the bill something that talks about commercial trafficking versus wholesale trafficking versus trafficking, or do we just look at the definition of ``trafficking,'' in your opinion, and remove ``give'' or ``pass to'' or ``hold''?

Mr. Conroy: I think one of the previous witnesses addressed it, and I agreed. Amending the definition of ``trafficking'' is one of the ways to try to grapple with that because ``giving'' is trafficking under the legal definition of it. If you create all these other categories, which is one of my criticisms of this existing bill, people will grow more in different places. If you think the demand will go away, it will not happen.

Senator Baker: Mr. Conroy, in conclusion, do you not think, though, that it is grossly unfair that a person receives a minimum of one year in jail for the passing of one ecstasy pill at a rave if that person has been convicted of a declared offence in the previous 10 years of passing a joint because it is a designated offence? Something must be done by this sober second thought committee of the Senate to try to correct it.

Mr. Conroy: Read Smith v. R. 1987 and the Supreme Court of Canada.

Senator Baker: I have read Smith v. R. 1987. What is the amendment?

Mr. Conroy: It says that if you bring one joint across the border, you receive a mandatory minimum sentence of seven years. Smith received 10 years because he brought up much more, but the court pointed out that the sentence for seven years for one joint is grossly disproportionate.

That is what you are faced with. What you are doing here will be looked at in the courts, and the courts will assess, in each case, whether the mandatory minimum is grossly disproportionate to the circumstances.

Senator Baker: Therefore, you think it will be struck down, anyway?

Mr. Conroy: Yes.

Senator Nolin: Can we ask all the witnesses if they want to write us more?

The Chair: Absolutely.

Senator Nolin: Mr. Conroy, I have a supplementary question about the bill. If you have it in front of you, it deals with importation. I want to go back to that case of Smith v. R. 1987. It is clause 2 of the bill, which proposes to amend section 6 of the CDSA.

I just want to ensure the committee understands you perfectly. One joint at the border, because it is less than one kilo, will automatically trigger, without argument, one year in prison, is that right? Is that your reading of the bill?

Mr. Conroy: Yes.

Senator Nolin: Good. Thank you.

Senator Angus: It will if it is prosecuted.

Mr. Conroy: Again, that is one of the problems with mandatory minimums. We will make all types of deals with the Crown to avoid that. Again, if you read the chapter from the Canadian Sentencing Commission, it deals with that, namely, how judges will try to avoid these mandatory minimums in unjust cases. Crown prosecutors will realize that they are unjust and will make deals with the defence and will charge some other offence to get around them. We do not just stop when you pass these types of bills. Life goes on. We have clients to represent. In our view, sending them to a federal prison or to even a provincial prison does not make any sense.

If you really want to deal with the drug issue, it is a health issue primarily. Marijuana, sure, put it in the LCBs, or whatever. If you are talking about heroin, cocaine, crystal meth, all these types of substances, they are health issues. You want to stop this business of the addict not going to see a doctor because he or she is looking over his or her shoulder and worrying about the police. You want people to get health care. When they go to the safe injection site, a nurse watches them and knows whether they are under the influence of something else and whether or not they will overdose and can prevent them from overdosing. They talk to them. They see that they have these abscesses and they give them the primary health care that they have not sought because they are worried that they will get busted if they see their doctor or ask for health care. That is what you have to stop. You have to assist these people, many of whom are mentally ill and are self-medicating; many of whom are suffering in one way or another — and, they are often homeless, et cetera — so that they start getting help for their problem instead of being treated as criminals and being sent off to institutions that cannot deal with them in any event.

Under the current regime of what occurs in the prisons, it is ridiculous. Most of my clients are not getting their programs prior to their eligibility dates. I think Mr. Jones said that the situation is not funded and that things are not happening in accordance with what the Corrections and Conditional Release Act says. It is just not happening.

Senator Joyal: My question follows up on that situation. You have been raising the issue of the constitutionality of the bill in relation to one joint or one ecstasy pill. I want to bring you back to your presentation where you mention that we live in a constitutional democracy. I want to bring you back to section 12 of the Charter. I will read it to you.

Mr. Conroy: Section 12 of the Charter?

Senator Joyal: Yes. My question is also addressed to Ms. Beauchesne. Section 12 states, ``Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.''

We heard from Mr. Sapers of the Office of the Correctional Investigator, and we have heard about the dire situation under which the Aboriginal population of Canada find themselves in prisons. We heard from Professor Kerr, from the B.C. Centre for Excellence in HIV/AIDS, who told us how HIV has reached peak levels in the last five years. There has been a 35-per-cent increase over the past five years, and 21 per cent of HIV infections among drug users in Vancouver may have been acquired in prison.

If we increase the level of the inmate population of Aboriginal origin, the way that Mr. Sapers, the correctional officer, told us today, are we not consciously sending those people to their death?

Mr. Conroy: It seems like it to me.

Senator Joyal: Could we not challenge the constitutionality of those provisions on the basis that when you take someone to prison who is addicted and suffers from a health problem, the government has a responsibility to bring to that person a minimum of treatment to ensure that the integrity of the health and the life of that person are protected?

I was listening to the witnesses that we had earlier, and I had the thought that if we are a constitutional democracy, there is protection in the system somewhere for a situation that we know consciously would bring those people to dire health situations. That is, a situation that Ms. Beauchesne described and that you will understand could find itself challenged under section 12 of the Charter.

Mr. Conroy: Yes, or section 7. Grossly disproportionate in its effects, arbitrariness, overbreath and gross disproportionality in effects are grounds under section 7 for challenging the constitutionality of a law. That is what the judge found in relation to sections 4 and 5 in conjunction with the safe injection site.

Section 12 is a similar test of gross disproportionality. Section 7 is a broader test. It is not that hard to establish that what is happening is cruel. It is harder to establish that it is unusual. Many of these things go on all the time, and you need both.

Did you know that they banned tobacco in the federal prisons?

Senator Joyal: Yes, I did.

Mr. Conroy: Did you know that it used to be $1 for a cigarette, and it is now $10? Did you know that the bale of tobacco that has been one of the main things in prisons has gone up to $300 and that they are shipping people to maximum security because they are involved in the tobacco trade? The guards, of course, many of whom are addicted to tobacco, go out to the parking lot back and forth, all day long. It is amazing. You should put a camera on to see how often they are going back and forth. Who will be subjected to corruption? A guard who smokes tobacco comes in and sees someone suffering from the lack of a nicotine fix. He or she will be sympathetic to that person if they are a tobacco smoker. They realize that they can make a huge amount of money bringing in tobacco, which is not even prohibited under the criminal law.

Senator Joyal: Let us come back to the issue here.

Mr. Conroy: This shows the dangers of prohibition within a prison.


Senator Joyal: Professor Beauchesne, your presentation focused largely on the conditions of prisoners who are subject to the problems this bill will cause. Yourself, in your thinking about the conditions for drug users in the prisons, so you not believe we are creating a situation of systemic discrimination against Aboriginal populations, based on the decisions of the Supreme Court regarding the principle of systemic discrimination, that these bills, given the impacts they may have on Aboriginal populations, could face constitutional challenges in the courts?

Ms. Beauchesne: In terms of health, because that was mainly the aspect considered, when we spoke with the Canadian HIV/AIDS Network, there was even talk of wanting to lay criminal negligence charges. In the 1980s, when they were told there were drug use conditions in prison that called for treatment to be provided to some people, the CSC tended to deny and say there was no drug problem in prison. When AIDS came along, in the mid-1980s, public health stepped in and said: we need to know. When they found that there were people who needed treatment, the CSC's first reaction was to say, ``We have no money, but there will be no drugs in prison.'' They have not found money for treatment, but they found millions for drug testing, for sniffer dogs, for ion detectors, and so on. They find money for control, but not for treatment. I think there are choices here, that, in that sense, reveal criminal negligence against inmates.

Senator Joyal: There is one population that is more affected than any other, and that's the Aboriginal population.

Ms. Beauchesne: I would tend to say socioeconomically disadvantaged populations. Aboriginal people are part of it, but it is the poorest people. In drug trafficking, in prison, the people doing the trafficking are not the ones with the connections on the outside; it is the one who needs money for their family — because we often forget, when we punish an individual, we punish their family. They are the ones who are going to get sent to get the materials, to make the deliveries; and when someone gets caught in prison, again, it is the one who is at the bottom of the ladder. There are people who need care.

The addicts are commonly the ones most often used, and not just for drugs; they are used to traffic in all sorts of things on the inside, in exchange, because they don't have the resources to get their drugs.

But treatment would be much more useful than investing more in control. So it is Aboriginal people, yes, but at the same time, let's call a spade a spade, it is poor people. And Aboriginal people make up a large segment of poor people.


Senator Joyal: The last two recommendations of Mr. Jones' brief need to be brought into the minutes of this committee because they deal with clause 4 of the bill to which Mr. Bratzer referred.

Mr. Jones recommended that the committee ask the following of the Parliamentary Budget Officer:

. . . to expedite a cost-benefit analysis of the projected fiscal implications for provincial justice — including legal aid — and correctional systems of the effects of mandatory minimum sentences in Bill C-15, and to publish this analysis in full.

Mr. Jones' last recommendation is for the committee to mandate the following:

. . . a cost-benefit analysis by the Parliamentary Budget Officer of the projected crime reduction outcomes of mandatory sentences as envisioned by Bill C-15 no later than 2012 and to publish this evaluation in full.

I think this is an element that we should keep in mind when we address clause 4 of this bill. In relation to what Mr. Bratzer said, we should extend that analysis for a longer period to capture all the implications of the implementation of this bill in relation to its cost-benefit analysis.

The Chair: When I read the second-last recommendation about the effect on provincial systems and finances, I made a mental note that we should check the mandate of the Parliamentary Budget Officer. I do not know whether he can actually do that. I will ask our esteemed researchers to let us know, maybe next week, if the mandate seems to be broad enough to encompass that type of inquiry.

I had one question, which I will ask you to respond to in writing. If you could do so as rapidly as possible, that would be greatly appreciated because we are coming down to the wire in our study of this bill.

My question has to do with the section requiring a minimum punishment of imprisonment if the offence was committed in or near a public place usually frequented by persons under the age of 18 years.

What I have been puzzling around in my mind ever since we started looking at this bill was how realistically one would interpret that in a useful manner, in that most any public place, other than perhaps a bar, but a bus stop, a shopping centre or a public street would be a public place normally frequented.

I will ask for a response in writing — and indeed from all of you, from your different perspectives — on what your opinion is of that provision. That is clause 1 of the bill. It is at the top of page 2, and it is proposed new section 5(3)(a)(ii)(A).

Mr. Conroy: The case law on section 161 of the Criminal Code might assist you to some extent in that regard.

Senator Nolin: I have a question for which you can provide the answer in writing. My question concerns amending the bill to give judges some discretion, which already exists, by the way. Section 10(3) of the CDSA gives the judge authority. That is the section I read to Ms. Joncas earlier.

Mr. Conroy: That is under the purpose of sentencing.

Senator Nolin: Exactly. If we want to give the judge the authority to not impose a sentence, for a variety of good reasons, what about section 730 of the Criminal Code, which deals with conditional sentencing?

Mr. Conroy: They will be removed. When you put the maximum higher than 10 years, I think it is, when you increase these maximum penalties to life and 14 years, discharges are no longer available.

Senator Nolin: Should we do the same as in section 255 and put ``notwithstanding section 730''? You do not need to give the answer now, but please give us an answer in writing before December 3.

The Chair: Preferably before December 2, so we have time to think about it.

Senator Nolin: If we are to amend this bill, we want to ensure the judge has all the options open to do what he or she thinks is in order to do, including conditional sentences, even though minimum sentences are in the bill. That is the problem with section 730.

Mr. Conroy: You have to create an exception to the minimums.

Senator Nolin: Section 255 of the Criminal Code is a good example. That is why I am raising the question.

Senator Baker: Section 255 is the entry of the previous report. Section 255, you said? Section 255 is the impaired driving section.

The Chair: Colleagues, this gets to be such fun, it really does, but at some point we have to call a halt.

We will look forward to your responses. They do not have to be encyclopedic. Rapid, rather than encyclopedic, would be greatly appreciated. We are extremely grateful to all of you, as usual.


We will be interested in seeing your written responses to the questions you were asked at the end.

Honourable senators, we will be back tomorrow morning at 10:52.

(The committee adjourned.)