Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 10 - Evidence - October 27, 2010


OTTAWA, Wednesday, October 27, 2010

The Standing Committee on Legal and Constitutional Affairs met this day at 4:20 p.m. to consider Bill S-10, an Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts.

Senator Joan Fraser (Chair) in the chair.

[Translation]

The Chair: Good afternoon, everyone. The Standing Senate Committee on Legal and Constitutional Affairs is continuing its study of Bill S-10, an Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts.

[English]

Today we have the pleasure of welcoming, on our first panel, from the Canadian Bar Association, Gaylene Schellenberg and Joshua Weinstein, who is past chair of the national criminal justice section.

[Translation]

From the Barreau du Québec, we also welcome Nicole Dufour, a lawyer in the Research and Legislation Services and secretary to the Committee on Criminal Law, Jean-Claude Dubé, representative, and François Joli-Coeur, also representative.

[English]

Colleagues, as you know, we have a very full agenda today. We have three panels of important witnesses to hear from, and we want to make the very best use of our times. Everybody, please keep your questions tight, concise and focused.

We will begin with the Canadian Bar Association, Ms. Schellenberg.

Gaylene Schellenberg, Lawyer, Canadian Bar Association: I am a staff lawyer with the legislation and law reform directorate of the Canadian Bar Association, CBA. Thank you for the opportunity to present the CBA's views to you today on Bill S-10. The CBA is a national association of over 37,000 lawyers, law students, academics and notaries. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It is from that perspective that we appear before you today.

With me is Joshua Weinstein, past chair of the national criminal justice section. The section represents a balance of prosecutors and defence lawyers from all parts of the country. Mr. Weinstein is a defence lawyer from Winnipeg.

He will now address the substance of our submission and respond to any questions you may have. Thank you.

Joshua Weinstein, Past Chair, National Criminal Justice Section, Canadian Bar Association: Thank you, Madam Chair and honourable senators, for the opportunity to present to you today the Canadian Bar Association's national criminal justice section's submission on Bill S-10.

As my colleague, Ms. Schellenberg, has indicated, we believe that the perspective that we bring to this committee is a balanced one, taking into account concerns from both prosecutors and defence.

We have provided you with our previous detailed submission on the previous version of Bill C-15, and acknowledge that there have been a few changes since providing you with that submission. However, I still wish to outline some of the concerns with respect to this bill.

Since that submission, I note that the bill has been given a short title. We have expressed concern about short titles like this one as they do not accurately reflect the content of the legislation. The CBA has suggested that the government continue to use neutral descriptive titles in naming new legislative proposals.

The primary concern with this bill is the use of mandatory minimum sentences. Our opposition to mandatory minimum sentences is rooted in the belief that they do not advance the goals of deterrence. Such sentences also unfairly and unjustly catch less culpable offenders, subjecting them to long terms of imprisonment, while at the same time not effectively targeting more serious offenders who already receive significant sentences within the current regime.

The U.S. experience with mandatory minimums has taught us the injustices which can occur, such as the impact of such legislation on already disadvantaged populations. Their experience has also taught us that such measures have failed to effectively target organized crime and provide any deterrent effect on organized crime or the black market. Such effects, if they do appear to be present, are illusory.

The Canadian experience with mandatory minimum sentences is that these types of sentences have a disproportionate impact on minority groups, particularly Aboriginal offenders. All in all, mandatory minimum sentences undermine well-established sentencing principles such as proportionality, and undercut all efforts by the judiciary to ensure that sentencing is an individualized process for each offender. To this extent, the ongoing inclusion of mandatory minimum sentences, not only in this bill but in other legislation, has served to make the sentencing process one less about justice and more about math.

Other concerns include the fact that several provisions within the bill that trigger mandatory minimum sentences already exist as aggravating factors in both the Controlled Drugs and Substances Act and the Criminal Code, and some factors even exist already as separate criminal offences. Although these factors already exist and the judge must consider them at the sentencing phase, the current bill provides no guidance as to how these overlapping provisions would function.

Another concern that our section has with Bill S-10 is the impact the legislation will have on the administration of justice. The concerns of our section are not fanciful or arbitrary, but are based upon our experience as both prosecutors and defence counsel.

These concerns include, but are not limited to, fewer accused pleading guilty, since an accused may prefer to contest charges that would otherwise be resolved but for the existence of a mandatory minimum sentence. For an accused facing the prospect of minimum jail time, the net result is an increase in the Crown's caseload, an increase in the length of time for cases to be heard, an increase in the number of trials and an increase in the strain on court resources.

If you can for a moment, just imagine a simple example within a trial — contesting the number of plants found in a grow operation — where a new era of direct and cross-examination would develop around proving the number of plants within a grow operation being 201 versus 200 plants.

While our section is happy to see that the provisions with respect to the Drug Treatment Court do not contain the obstacles that were present in the previous version of Bill C-15, nonetheless, the ability to have an offender participate in Drug Treatment Court is misleading if adequate resources are not in place to ensure that such courts are available in all jurisdictions.

Last a major concern that our section has with the current bill is the erosion of judicial discretion in the sentencing process. It is our section's belief that judges are in the best position to assess the circumstances of the offence and the offender, and always take into account the community's concerns, such as public protection. Where a judge overemphasizes certain factors or underemphasizes others, either party is permitted to have that decision reviewed by superior courts, who are vested with the power to either modify or overturn sentences that are demonstrably unfit or where an error of law has been shown.

No doubt there are situations which call for an emphasis on denunciation and deterrence, and those offenders whose culpability is high have and will receive stiff penalties. However, there still remains a large group of offenders where the prospects of rehabilitation outside the parameters of Drug Treatment Court are very good.

In a local example in Winnipeg, for instance, take the situation of a new Somalian immigrant pressured into the street gang life. He is used as a dupe courier for drugs, the lowest rung on the ladder, is charged with possession for the purpose of trafficking — one of the factors present which triggered the mandatory minimum sentences in place — and is a youthful first offender but not a drug addict. A presentence report is favourable; it determines his likelihood of recommitting an offence as low and his prospects of rehabilitation as high. The proposed bill would allow no flexibility in the circumstances. It would require the offender to serve his sentence in jail.

In such instances, both the needs of the offender and the needs of the community are best addressed through rehabilitation, which will ultimately serve to reduce the likelihood of a particular offender offending, while at the same time address the needs of the community for public safety. With the imposition of mandatory minimum sentences and inclusion of particularized aggravating features, which trigger such mandatory minimum sentences, tenets of the justice system — such as principles of proportionality, incarceration being a sanction of last resort, and the particular situation of Aboriginal offenders — go by the wayside in favour of an inflexible approach which leads to injustice.

In conclusion, our section believes that the Controlled Drugs and Substances Act already contains the necessary provisions to meet the needs of the public and also of offenders who are sentenced to drug offences. It is for these reasons that we do not support the passage of Bill S-10.

[Translation]

Nicole Dufour, Lawyer, Research and Legislation Services, Secretary, Committee on Criminal Law, Barreau du Québec: Madam Chair, I am the secretary to the Advisory Committee on Criminal Law of the Barreau du Québec. The committee is composed of defence counsel, prosecutors and university professors. The committee operates by consensus and makes recommendations to the directors of the Barreau, who produce the comments you have in front of you.

With me is the chair of the Advisory Committee on Criminal Law of the Barreau, Jean-Claude Dubé, who has been practising criminal and professional law since 1981.

Also with me is the articling student working in the Research Services of the Barreau du Québec, Mr. Joli-Coeur.

Jean-Claude Dubé, Representative, Barreau du Québec: Madam Chair, the Barreau du Québec thanks you for the invitation to present its position on Bill S-10. We would remind you the Barreau du Québec has voiced its views on several occasions in the past on Bill C-26 and Bill C-15, in 2008 and 2006, which proposed some of the provisions we see here in Bill S-10 today.

I would say, and I believe these are the letters being distributed to you, that the bill essentially reiterates the provisions of Bills C-15 and C-26, and that we informed you of the position of the Barreau du Québec on those bills in April 2009 and February 2008.

Without repeating all of our comments, the Barreau believes we should stress our opposition to minimum sentences because they fetter judicial discretion in sentencing.

You may say that traditionally, the Barreau du Québec always positions itself somewhat in the camp opposed to fettering judges' exercise of the powers assigned to them by the Criminal Code. That is traditionally our position and it is our position again in respect of Bill S-10.

The Barreau du Québec reiterates its questions regarding the need to increase sentences when many studies show that imprisonment does not lower the crime rate. Here I am specifically referring — in fact, in our correspondence we cited the papers about mandatory prison terms in common law countries, by Julian Roberts — to the study that investigated whether the nature of mandatory minimum sentences might have a deterrent effect, which the findings did not show they did. To refer to our earlier correspondence, we even found that in some countries, and I will tell you the relevant passages showing that countries with the most severe mandatory sentencing laws are beginning to repeal, or consider repealing, the most punitive sentences of imprisonment.

I am referring more specifically — and this was cited in our correspondence — to the research report by Julian Roberts entitled Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models, which can be found on the Department of Justice of Canada site. The purpose of that study was to determine whether mandatory minimum sentences might have a deterrent effect, and Prof. Roberts did not conclude that they do. A number of countries with the most severe mandatory sentencing laws are beginning to repeal, or consider repealing, the most punitive sentences of imprisonment.

As far as we are concerned, this fettering of the judicial discretion of the courts shows a lack of confidence in the judicial system and the people in it.

There is no uniformity in sentencing. There is harmonization of the principles applied to each individual to be sentenced by the courts. There is judicial discretion for the judge. Counsel have some latitude, on both the defence and Crown sides, for assessing and tailoring sentences based on those provided and the principles of criminal law, for tailoring the sentence based on the seriousness and other factors that must be taken into account.

We believe that the aggravating circumstances set out in section 718 of the Criminal Code are sufficient to enable courts to exercise their discretion and to judge the situations that may arise on a case by case basis.

My colleague has listed various examples in which minimum sentences might create injustices or situations of quite extreme injustice for individuals facing these sentences. I could add a host of others, but I will refrain from doing that so as not to waste too much precious time.

In our correspondence, we particularly noted certain sections that could be open to challenge under section 7 of the Canadian Charter of Rights and Freedoms. Others could be challenged under section 12 of the Canadian Charter of Rights and Freedoms relating to cruel or unusual punishment. In other words, we are opening the door to a flood of challenges that we do not have to deal with at present. Discussions between Crown and defence counsel, although the court is not bound by their recommendations, result in just and appropriate sentences for individuals.

In our view, a number of aspects of section 718 of the Criminal Code provide good tools for expressing the importance placed on those offences, without applying minimum sentences, if only to try to avoid sentences that are open to legal challenges under the Charter or that pointlessly clog up the judicial system.

As my colleague said earlier, challenges to minimum sentences are going to lead to a needless increase in cases in the justice system. We are very familiar with plea bargaining, which avoids enormous costs to the justice system. Minimum sentences will result in a large number of challenges.

There is a lot to say because section 718 of the Criminal Code, for example, has taken into account a large number of circumstances for which you can, I think, necessarily, include the objectives stated in Bill S-10 in those seriousness factors, without having to specify the term precisely.

In Quebec, the Attorney General of Quebec does not have addiction programs. Other provinces have them, including British Columbia and Ontario, I believe. That measure would make it possible for judges to avoid imposing minimum sentences, where the individual undertook to attend that type of program. In Quebec, we do not have that type of program, nor do I think we are going to have in the near future. Under the Young Offenders Act, we take a rehabilitation approach. That approach is not punitive. The approach taken in Bill S-10 is much more punitive. For both young persons and adults, we believe in rehabilitation.

This means programs that could actually make it possible for some people — drug users, not drug traffickers — to rehabilitate themselves. Mere users who have committed the kind of offence set out in sections 5, 6 and 7 of the Controlled Drugs and Other Substances Act might have to serve minimum sentences, when more often than not these are socially disadvantaged people living in difficult and precarious economic situations; these people are often manipulated by criminal organizations. The bill makes no distinction between the real criminals, in the hardcore sense of a criminal organization, and dabblers, as we say in our jargon, people who are used by the criminal organizations. I am trying to tell you as much as possible in as little time as possible.

Recently in La Presse there was a complete and quite detailed article about the profile of drug users at present. We often have the impression that this is a youthful thing, but the article told us that the biggest personal-use drug users are actually the baby-boomers. As surprising as it may seem, we are talking about people in their fifties and sixties, and even their late sixties. It's a question of culture.

I think the entire question of drugs will not be fixed by minimum sentences. This is not necessarily the right way to tackle this scourge. Punishing adults, who have lived exemplary lives for 50 or 60 years, by sending them to prison, that isn't the right solution.

The Chair: I do not want to cut you off, but time is short. Were there other important points you wanted to address before we move on to the questions?

Mr. Dubé: One last point. Some of the terms or expressions in Bill S-10 are vague and could result in constitutional and judicial challenges in the courts, given the way those sections are interpreted.

I will give you the example of these expressions: "near a school" or "near a public place," that's the kind of terminology that opens the door to all sorts of interpretations.

I will stop there. We are now prepared to answer your questions, with pleasure.

The Chair: Thank you very much.

[English]

Senator Wallace: Thank you for your presentations. It is interesting to sit at this table and hear different perspectives on this topical and difficult subject. You certainly bring a perspective to it that is different from what we have heard to this point. As you may know, we did have presentations made by the Department of Justice, led by Minister Nicholson.

As parents and citizens, we are all concerned that there has been a spread in the production, trafficking, importation and exportation of drugs in this country. That in itself is not a good thing, and something should be done and something must be done. We can debate exactly what action should take place, and we have heard many of your comments today. When we heard from Minister Nicholson and others, they clearly were of the view that Bill S-10, in particular the introduction of mandatory minimum sentences, would act as a deterrence. Will it deter everyone? Probably not. Would it deter some? I think that might be likely.

Mr. Weinstein, you stated that mandatory minimum sentences do not advance the goals of deterrence. We can debate that. As I say, Minister Nicholson and others have a different view of that. I certainly heard what you had to say. It is important and I would suggest this to you — that people understand that deterrence is but one of the principles of sentencing. The principles of sentencing, in addition to deterrence, also include to denunciate of unlawful conduct, to separate offenders from society, to assist in rehabilitating offenders — some would argue that, by being convicted and incarcerated, it will increase their chance at rehabilitation — and to promote a sense of responsibility in offenders and an acknowledgement of their harm done to victims and to the community. I say that to you in the context that we continually hear the reference to deterrence, but would you not agree that that is only one of a number of objectives that must be looked at when considering sentencing?

Mr. Weinstein: Thank you very much. I am happy to address that question.

The passage of a bill that includes mandatory minimum sentences presupposes, with every offender in that particular circumstance where it is triggered, that denunciation will be the primary factor for that offender. A minimum of a year for everyone across the board means that denunciation will be the primary factor for every individual.

Where there is judicial discretion, and where the Crown, speaking from our experience as prosecutors and defence counsel, bring in front of the judge at the time of sentencing all of the aggravating features — which could be also the record of the particular individual — there is, from our collective experience, nothing to suggest that a judge is not taking into account those factors where denunciation is to be of primary importance for that specific offender, and it may be again because of the record or the particular aggravating features of that case. Leaving things in terms of a judge making a decision and having the Crown and defence bring all the material in front of the judge, nothing precluded the judge from having denunciation of a particular circumstance as the primary or the only factor. Nothing in the code says that it has to be all things taken into account. It might be that only denunciation is important in that particular circumstance but, again, even with the flexible approach with judicial discretion, that is still a viable option.

Senator Wallace: In saying that, Mr. Weinstein, you touch upon another comment that you made in your address. You feel that Bill S-10, and in particular the introduction of mandatory minimums, would undercut the principle of proportionality. That principle, of course, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I think of that in the context of Bill S-10. Bill S-10, for example, would impose a mandatory minimum of one year if someone were found guilty of trafficking a Schedule I drug, heroin or cocaine, but only if the aggravating factors were present — for the benefit of organized crime, using threat of violence, weapons, previously convicted of a designated offence. If those circumstances existed, I have a hard time understanding that a one-year sentence would be inappropriate. Those are very serious conditions. The suggestion is that for us as legislators to impose that one year on a conviction in these circumstances is unreasonable, and rather we should just leave it to a judge. I cannot understand that.

The Chair: I am asking the respondents as well as the questioners to be as concise as they can.

Mr. Weinstein: Thank you. One of the factors is having been previously convicted of a designated offence and served a term of imprisonment. We have had experiences where it might be that a probationary sentence on that first time around was noted as a day in jail, or the court appearance in jail, and then probation in the circumstances. That will then trigger the mandatory minimum. That will make that person no different than if the person had previously served a term of imprisonment of 18 months. It treats the two essentially as equals. It is, in my respectful submission, disproportionate treatment of those two individuals. Looking at other things in the bill, such as the number of plants and the triggering of one extra plant doubling a sentence, those are the things that we talk about where issues of disproportionality can occur.

Even with these aggravating features that may call out for denunciation, and things that say there is a proportional sentence because these offenders are committing these types of aggravating features, even within those aggravating features there can be differences between the entrenched organized crime individual and the example I gave of the Somali immigrant. Again, the regime as proposed does not allow for the flexibility in those circumstances.

The Chair: Colleagues, we have about 27 minutes, maybe half an hour, with these witnesses.

Senator Baker: Carrying on with what you were just saying, Mr. Weinstein, the bill actually says, for the designated substance offence, that the person was convicted of a designated substance offence or had served a term of imprisonment. Your point is that a designated substance offence is anything except what is in proposed subclause 4(1), which is simple possession. In other words, conspiracy is a designated offence, trafficking is a designated offence and so on. If you had a minor designated offence of, as Mr. Dubé says, giving a small amount of marijuana to your friend, that is a designated offence in the previous 10 years. That is your point, is it not?

Mr. Weinstein: You are right that the treatment of individuals to elevate them to this level of an offender is essentially only triggered by the fact of this previous involvement. It does not treat any differently that individual who received the one day in jail, the fine for the particular designated offence. It elevates them into that mandatory minimum category.

Senator Baker: It could be a first offender.

I want to congratulate both groups for their excellent presentations. I am pleased to see Jean-Claude Dubé here today, as he has a great history in litigation. Continuing on now to Mr. Dubé, with the same logic, the designated offence in the previous 10 years could be just passing a joint of marijuana to someone. This bill elevates a pill of ecstasy up to Schedule I, life imprisonment. If you get convicted, after this bill is passed, of passing a pill of ecstasy to someone, together with the passing of a joint in the previous 10 years, your point is that this could lead then to a Canadian Charter of Rights and Freedoms' challenge because the judge would have no choice but to put that person in jail.

Now you mention sections 7 and 12 of the Charter. Section 7 is fundamental justice, and section 12 is cruel and unusual punishment. Are you saying that what may happen is that the judge will be confronted with a Charter challenge on this section that this is cruel and unusual punishment? Is that what you are saying?

Mr. Dubé: That is right; it could open the doors to that kind of argument in front of a judge. Article 7 of the Charter includes fundamental rights.

Senator Baker: It covers everything.

Mr. Dubé: It covers more than that. You have the Nova Scotia cases on which article 7 considers the imprecision from the text of the law.

Under section 12 it could be discrimination, it could be unusual sentence, compared to, as an example, a program of `désintoxication,' which we do not have in Quebec, and could be a different measure for another province, and could be discriminatory under section 12.

[Translation]

The sentence might be cruel or unusual in relation to the commission or seriousness of what was done. To continue along the line of what was said about creating a mandatory sentence, we come back to the studies that have been done and that say that these measures are not effective.

The Canadian Sentencing Commission has spoken about this and said that these are not effective measures, creating a minimum sentence.

[English]

Senator Baker: Mr. Weinstein, are you saying that it is not just taking away the discretion of the judge in the imposition of a minimum sentence, but the lifting of all of those drugs from Schedule III to Schedule I will mean that, what was previously a hybrid offence, now becomes a mandatory indictable offence under Section 1? Therefore, you have not only taken away discretion from the judge, but from the Crown and from you in arriving at some sort of a plea bargain. Is that correct?

Mr. Weinstein: That is correct. We have said in the past that we are in favour of hybrid offences to allow the prosecution to elect, in those particular circumstances that warrant it, indictable proceedings versus summary proceedings.

Senator Baker: In other words, the summary offence being a minor one, if you are passing a joint of marijuana, it allows the Crown to say, look, a fine or something. However, as this is structured, as you say, it takes away everyone's discretion and throws someone in jail.

The witnesses are giving the testimony, and Mr. Dubé is saying that this could perhaps arise as cruel and unusual punishment in a challenge.

Mr. Dubé: We will have a debate about that.

Senator Baker: Yes.

[Translation]

Senator Carignan: Thank you, Madam Chair. My first question is for my colleague from the Barreau du Québec, Mr. Dubé. You are talking about the deterrent effect of sentences and you seem to be saying that minimum sentences would have no deterrent effect. Minimum sentences exist in several ways and I'm going to give you the example of suspending driver's licences for young persons who drink. When I was younger, not quite as long ago than for you, I did drink and drive. There was no minimum sentence or automatic driver's licence suspension. My son has just got his temporary driver's licence, and if he drinks one drop of alcohol, he knows his licence will be automatically suspended. He is much more reasonable than me and I hope he will not be listening to what I am saying, but I think he is very wise. It seems that the minimum sentence of automatically suspending his driver's licence for drinking a drop of alcohol has significantly altered his behaviour.

I imagine that if a grower consults you and asks you, "If I grow cannabis in a residence, what kind of sentence will I get if I'm caught?" you will answer, "It depends."

With the bill, you are going to be able to tell them it is a minimum, depending on the circumstances, two years or one year. You do not think that may have a more significant deterrent effect, knowing exactly what sentence the person is liable to?

Mr. Dubé: I do not want to be ironic, but we are rarely consulted before the crime is committed, even defence counsel.

I am going to make a major distinction between an administrative measure like suspending a driver's licence because a person is not entitled to drink, a measure imposed by the Société d'assurance automobile du Québec, zero tolerance, as compared to committing a crime for which a person will get a criminal record that will follow them. What will be said is that a minimum of one year makes no distinction between the smallest role and the biggest role in a particular situation.

Senator Carignan: I am talking about the deterrent effect.

Mr. Dubé: The deterrent effect, I still say: if we are talking about repeat offenders, we are talking about something that perhaps has much more deterrent effect. For someone committing a first offence — like many young people, passing their joint or an ecstasy tablet to a friend — that is not going to stop happening because they know they will get a year in prison. The deterrent is knowing that drugs get you nowhere in life for no matter what individual we are looking at.

Fear of a year in prison is not what makes me not commit a crime. You are going to have young people getting caught for doing things that are minor to them and that would be minor in any event.

When I say the Canadian Sentencing Commission has spoken about the ineffectiveness of this kind of legislation, it did that study to find out whether it is necessary because it is that minimum prison term they want to have. It is apart from all the other consequences we haven't talked about, in economic terms, in terms of managing sentences, and so on. I think the system will not be able to absorb it at present.

Senator Carignan: I understood from your testimony about the baby boomers that you are not suggesting that we amend the bill to consider trafficking near a seniors' centre to be an aggravating factor.

Mr. Dubé: Note that it is a place that could be considered public and that would give rise to a challenge.

Senator Carignan: My next question is for Mr. Weinstein. You talked about judicial discretion. There are two ways to fetter judicial discretion: by having a minimum sentence and by having a maximum sentence. I did not hear you speak against maximum sentences. I rarely hear representatives of the bar or the public speak against maximum sentences. That limit on judicial discretion seems to be well accepted. If we consider that a maximum sentence is an instruction to the judge not to go beyond a certain sentence, is it not also reasonable to give the judge an instruction not to go below a certain threshold, as an instruction to give them in the exercise of their judicial discretion?

[English]

Mr. Weinstein: On the issue of maximum sentences, from our experience as prosecutors and defence within the criminal justice section of the Canadian Bar Association, we have not come across the situations where, in talking with each other and in our experience in court, we have found that there is a need or the crying out to go beyond the maximum allowable sentence for any particular offence. It is not a situation that has arisen.

When you look at the Criminal Code, it has maximum sentences, so you have various degrees of sentences for assault, assault causing bodily harm and then aggravated assault. You see the increase in the sentence. In my view, that may be a reflection of the fact that they are establishing a hierarchy of the seriousness of the offence, but at the same time allowing the fact that there is flexibility, recognizing that on the bottom end there are varying degrees of culpability, and that things may need to be adjusted for the particular needs of the offender and the community. Again, it still leaves the top end to show that hierarchy to society to say that, here is assault, and here is assault causing bodily harm in the varying degrees.

However, going back, we have not had that experience where there has been a crying out, or particular situations where a judge has said that but for this maximum, I would have given you more. It is not something we have experienced.

Senator Banks: I am not a member of this committee ordinarily, although I am today. However, before I ask a question — I will only ask one — I must address the chair.

I am disappointed but not surprised to learn that, in the legislative summary that sets out the background behind this bill, the report of the special Senate committee on illegal drugs is not there, which was a special committee chaired by our distinguished colleague, the Honourable Senator Nolin, which spent 18 months addressing many of the subjects that are addressed in this bill. I would commend it. I hope that you could arrange to get copies of it made available, whether it is available on the Internet.

I hope colleagues will read it because 18 months were spent by senators, with cross-country consultations, examining previous commissions like the Le Dain commission and submissions by bar associations across the country, all of which arrived at conclusions that make it astonishing to me that we are even looking at this bill. However, I will ask my question.

The Chair: Let me say for the record that, when we began work on this committee, we took on board all the testimony that this committee heard on Bill C-15. When we were hearing testimony on Bill C-15, at that time the deputy chair of the committee was Senator Nolin. We spent at least two months examining the bill in great detail and the subject of that report came up, I think, every day.

Senator Banks: I am delighted to hear that.

The Chair: It is not that we are unaware of the issues.

Senator Banks: I apologize for my ignorance. For my question, Mr. Dubé, you talked about the fact that Quebec has a different approach to this question than most other provinces. It is demonstrably different; it was even when we were looking at it many years ago and I guess it still is. It has less to do with retribution and more to do with rehabilitation.

Do you have an impression as to the success of the policies in this regard in Quebec by comparison with other provinces in Canada?

Mr. Dubé: I am not sure I understand the question.

Senator Banks: If we are looking at trying to deal with people who use illegal drugs, whatever they are, there is a different regime in Quebec than in other parts of Canada. It is dealt with differently by prosecutors and judges in Quebec; the sentences are of a different nature.

If you have an impression of the relative success in dealing with the illegal use of drugs in Quebec as opposed to the rest of Canada, would you tell us what that impression is?

Mr. Dubé: It is not different between Quebec — the treatment by the judges for the criminal offence of drugs — and the other parts of the country. The only thing is that, when a judge is imposing a sentence on drugs or even other sentences, I was talking about rehabilitation as one of the big factors the judge will consider. If you have a criminal in front of you who has a criminal past, and you know he is a criminally minded guy, there is no chance for that guy in front of the judge. He will be severely treated.

If you have someone with a first offence who has a good past — who has never been found guilty of any criminal case, is from a good family and has a good future in front of him — that also will be a consideration for the judge.

However, there is not much difference between the western part of the country and the eastern part of the country if you are talking about the culture or even the production of marijuana. You are going to see the sentence being almost the same.

Senator Runciman: Do you disagree with mandatory minimums in principle or just in terms of drug trafficking? We do have mandatory minimums in place for firearms offences, sex abuse of children and organized crime. Are you saying in principle you disagree with that?

Mr. Dubé: I disagree on the fact that the judge has to be under specific consideration in which he cannot use his judicial discretion to impose a sentence. That is the point on which we are disagreeing.

There is a different factor in which there could be aggravating circumstances and the legislation could say that specifically — as an example, in subsection 718 of the Criminal Code, under which the judge must consider that specific aggravating factor. There is no problem with that. However, to have to tighten it up with a minimum sentence, that is a quite different thing.

Senator Runciman: Just to put it on the record and respond to it, this is from testimony in 2009 with the predecessor legislation. A gentleman by the name of Chuck Doucette, who is the vice president of the Drug Prevention Network of Canada, testified before this committee that sentences for drug offences have progressively weakened over the past 30 years as the problems associated with drug abuse have progressively increased.

According to Statistics Canada, drug crimes have been on the upswing since 1993, with the overall rate of police- reported drug offences hitting a 30-year high in 2007. The rate of cocaine offences was up 80 per cent in the last decade. The other drugs category — things like LSD, crystal meth, date rape drugs, ecstasy — were up 168 per cent from 1997 to 2007. In 1992, there were 732 deaths attributable to illegal drug use. In 2002, it was 1,695, which is an increase of 75 per cent. That is from the Canadian Centre on Substance Abuse.

Clearly, what we have been doing in the past — I think the government is trying to address it — has not been working. I think this is one step toward trying to improve what has been in the clear track record failure over the past decade or more — 30 years really.

The Chair: That was a contribution —

Senator Runciman: If they want to respond, that is fine. I am just putting some facts on the record, Madam Chair.

[Translation]

Senator Rivest: I apologize for being late. I would just like to say that I agree entirely with your position. If there were a truly unreasonable sentence for a drug trafficker, I imagine there are still appeal courts?

Mr. Dubé: And I would add, because it hasn't been discussed at all, that we have to pay attention to mandatory minimum sentences because when I talk about the constitutional issue, about court challenges, remember the Supreme Court decision in Vaillancourt or Smith when the Court stated, at that time, for importing, that a minimum seven-year prison term was unconstitutional.

I am not saying that the Supreme Court will make the same decision. I'm just saying that we are opening up to constitutional challenges when we already have very specific factors in the Criminal Code. If Parliament wants to add to the factors in section 718 of the Criminal Code that it wants judges to take into account regarding minimum sentences, that is unacceptable to us.

The Chair: I have a very brief question to ask you and then, the very last question, which will also be brief, will go to Senator Wallace.

Mr. Dubé, in your presentation you talked about vagueness in the wording of the legislation, particularly when it talks about things happening near a school.. Could you explain for us where you see problems in the interpretation?

Mr. Dubé: First, when legislation is prohibitive, it must be as precise as possible and not be open to a broad expression to try to encompass any situation that, to all intents and purposes, would not be situations that should be covered by the wording.

I will give you the school place as an example. Does a university have to be considered to be a school? Do parks in the area have to be considered to be schools or "places near" them? Does a McDonalds that you can see a block or two from a school where there are a bunch of young people in the parking lot, who may be passing marijuana around, have to be considered to be near a school? It becomes arbitrary. To one prosecutor, it would be near a school, and to another, not, and that will lead to situations caused by the vagueness of the wording.

The wording has to be precise, it has to be capable of actually defining the place itself, particularly when we are talking about areas.

This is the kind of vagueness that means that it is open to debate, when the wording could be much more precise.

The Chair: Are these debates about interpretation of the ordinary kind or constitutional?

Mr. Dubé: Ultimately, it can take on a constitutional aspect. In fact, in the cases decided under section 7 of the Charter, there is a whole series on the question of vagueness, ambiguities in the wording, as being a violation of individuals' fundamental rights. It is ultimately that. Certainly on an everyday basis, it would be more an argument to be made in the courts.

If you look at the correspondence from February 2008, we made this comment about the vagueness of the wording, when we said: ". . . near school grounds or in or near any other public place usually frequented by persons under the age of 18 years." It opens the door to debate in the courts.

The Chair: That was sent to us, we will read it.

Mr. Dubé: I wanted to bring it to your attention.

The Chair: Time is short and Mr. Weinstein wanted to speak also.

[English]

Mr. Weinstein: Just to add to the confusion within the bill, when I make these comments it is not to provide my consent to mandatory minimum sentence and then to have things cleaned up. There are other issues in terms of the confusion. They centre around such things as the mental element required to prove that an accused knew about a particular thing, like the use of someone who is under the age of 18. Did he knowingly use someone? Did he know that the person was under the age of 18? Did he know that it was happening near a school? Those elements are absent in the bill; it is silent in reference to that. The other confusion centres around these overlapping provisions. When someone is to be charged with other threats, as a separate offence, the threat triggers the mandatory minimum, which makes it an aggravating feature and a separate offence. Section 10 of the Controlled Drugs and Substances Act will talk about that being an aggravating feature to be considered by the judge in sentencing. There will be three things at play. The bill is silent as to what a judge shall do when taking into account the separate offence constituting an aggravating feature and the principles of sentencing in the Controlled Drugs and Substances Act, which is to be considered as well.

The Chair: Thank you. We will have to brood about all of this.

Senator Wallace: Mr. Dubé, Senator Banks made a rather broad sweeping statement, or perhaps it was a question for your response: Would we not be better off as a society focusing on rehabilitation than on sentencing? In that regard, I would ask you to confirm your understanding that Bill S-10 provides that someone can be found guilty of any one of the offences covered by Bill S-10 and avoid the mandatory minimum, if they agree to participate in a drug court program or a drug treatment program at the provincial level. Is that not true?

Mr. Dubé: That is exactly the point; we do not have any rehabilitation programs in Quebec. I believe it is the same in New Brunswick and Nova Scotia. Only six provinces have that kind of program.

Senator Angus: That is quite a few.

Senator Wallace: It probably highlights the need at the provincial level that Senator Banks addressed: The provinces should invest more in drug rehabilitation and drug treatment. That is a fair comment. The fact is that this bill addresses the issue, which is my point.

Mr. Dubé: That is right.

The Chair: We could continue this for a long time. We thank you for appearing today. As is always the case with the Canadian Bar Association and the Barreau du Québec, you have given us a great deal to think about; we are extremely grateful.

As our second panel of witnesses this evening in our continuing study of Bill S-10, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts, we are delighted to have with us, from the Canadian Council of Criminal Defence Lawyers, André Rady, and Adam Boni from the Criminal Lawyers' Association. Please proceed with your statements.

André Rady, Representative, Canadian Council of Criminal Defence Lawyers: Thank you for allowing our Canadian Council of Criminal Defence Lawyers to attend before this body to talk about this important piece of legislation. I think you know our background. We are a council of lawyers from across the country. In coming here today, we have consulted with all our members from north to south to east to west concerning this bill.

The bill seems to have two components. One of them is the mandatory minimums, and I will speak briefly about that later. We have made many comments over the years with respect to mandatory minimum punishment legislation. Invariably, we have always been against it for a number of reasons that I will reiterate at some time.

In terms of the bill itself, there are concerns from different parts of the country, and one is from the North, in Nunavut. Our member there indicated that the biggest problem with the bill is the way it will apply, if passed, in the North. I believe we heard in the last session from witnesses that there are just not the resources there for the drug treatment centres. It does not exist. There is no money for it. There is no drug treatment in Nunavut, and it has to go to another province or another place.

That will apply in other places as well. We have heard that, in New Brunswick, there are no drug treatment centres, let alone drug treatment courts. In New Brunswick, if someone wants to have drug treatment, they will have to go to Quebec or Ontario and/or some other place. Until recently in New Brunswick, there was only one methadone centre, and that centre had a waiting list of two years. It is now somewhat less than that because there are now three physicians in New Brunswick who will do that.

We have disparities across the country. Remote communities will have a greater problem with the bill in allowing people to apply for the drug treatment. They can apply, but they will not get it because it may be so far for them to go in order to get it.

One consideration we believe has to happen is the costing of this bill. If we are serious about drug treatment centres or drug treatment courts, we need to have the funds there, whether from the federal government or the provincial governments. That does not appear to have really been reviewed in the bill.

The other point I would make about the bill, and I think I heard this in the last session, is about the wording of the bill in a number of cases. It is very imprecise, and it is also complicated. If this is a bill that is supposed to be one that those who may be potentially charged with a crime will heed and understand and know what they are facing, I respectfully submit to you it falls very short.

I will give you an example of the wording from the bill and I am reading from proposed subclause 2(2): Subsections 5(4) to (6) of the Act are replaced by the following:

(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.

That is very confusing wording. It reads like the Income Tax Act, which we all know is confusing. If this is legislation geared toward people who get involved with crime, who may not be educated, not that they read the Criminal Code in any event, it is difficult to comprehend when we start doing things like that, and it may be the only way to do it.

Another imprecision of language exists in the bill in the description of some places. For example, in proposed paragraph 4(2)(3)(b), it reads:

The following factors must be taken into account in applying paragraphs (2)(a) to (b):

(b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;

If someone is charged and that is section comes into play, what is the precision of "immediate area?" What is the precision of "in the location where the offence is committed?" What is the precision of "a potential security, health or safety hazard?" That could apply to virtually anything.

Another section that concerns us is proposed clause 2(1)(a)(ii)(A) dealing with paragraph 5(3)(a), concerning minimum punishment, where it says:

(ii) to a minimum punishment of imprisonment for a term of two years if

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

I mean, are we talking universities? Are we talking public schools? Are we talking malls? They are frequented by persons under the age of 18. One of our members from the North indicated that, because the communities are so small and schools are so close, the only drug transaction this would not apply to would be something that took place out on the tundra. He was not being overly facetious in that.

If the bill passes with this wording and the wording does not get more precise, it will be subject to a great deal of challenges in court. It will be subject to a great deal of challenges to what offence we will have to meet. We will have a lot of litigation about this.

We get even further imprecise in this. We talk about three kilograms of marijuana. That seems to be the cut-off point for trafficking. What does three kilograms mean? We know what three kilograms means, but three kilograms of marijuana are two different things if one is wet marijuana and one is dry marijuana. When the marijuana dries, it will not weigh three kilograms. What marijuana are we really talking about here? We do not get into THC content or how serious the drug may be, whether you are talking marijuana or cocaine.

We get into that issue as well when talking about the mandatory minimums for plants. What is a plant? Is it a living plant or dead plant? Is it a three-inch plant or a three-foot plant? When we are talking about plants at a small level, as we know when we try to grow tomatoes in our backyard, they do not always turn out. There is a lot of imprecision here.

The intent, from what we see, is to try to get at serious drug trafficking and serious producers of drugs. If the language in the act is not made more precise or if more thought is not given to what you are trying to accomplish, then there will be a lot of court challenges. There will be a lot more time and cost put into drug cases than we have seen in a long time. Thank you.

Adam Boni, Barrister and Solicitor, Criminal Lawyers' Association: Thank you for this opportunity. The Criminal Lawyers' Association is pleased that the government is concerned about protecting our society from serious drug crimes committed by serious drug offenders. The problem is that Bill S-10 does not achieve these objectives, and it does not achieve these objectives because it casts a net that is so wide that it completely fails to deliver the surgical strike against those individuals who are driving the drug trade in this country. It does so, in my respectful view, by completely ignoring the role of the offender in the sentencing calculus.

The offences targeted — trafficking, importing and production — properly understood, are offences that implicate a variety of offenders who commit offences that carry different levels of moral culpability. In trafficking cases, you have runners, people who are not the actual dealers but who do the dealer's bidding, running small pieces of cocaine across the park or across the school yard to the buyer so as to insulate the dealer from detection by the police. That individual often is the drug addict, the desperate street person, the misguided youth, et cetera.

In the production context, you have elderly individuals, you have single moms, you have desperate individuals, who act as caretakers to the grow operations. They do not set up the grow operations. They are paid a small stipend to go in and water them, again to insulate the back end, as they are come to be known, and from police detection. It is these individuals who will be caught up by this legislation.

In the importing context, we have couriers who have been recognized by the Ontario Court of Appeal, which is a court with a great deal of experience in sentencing these individuals, as vulnerable individuals who effectively are preyed upon by hardened drug dealers, and offered the promise of quick cash to go down to source countries and bring narcotics back.

This is the way the drug business works in this country. This is the reality. The problem with this legislation is it treats all of those low-level, non-violent individuals, who are recognized by the courts as being vulnerable, as being people who are exploited by the hardened criminals higher up in the chain, as being in the same league, for sentencing purposes, as the higher-end, hardened drug dealers.

Our concern is that this legislation will result in a large number of individuals in the penitentiary and reformatory systems who do not belong there, should not be there, and would be better off being in the community under proper supervision.

Let me backtrack. Social science research in Canada, specifically the report of Gabor and Crutcher in 2002, and social science research in the United States, demonstrates that mandatory minimum sentences are least effective in deterring the majority of drug offenders, with one important distinction: the highest-level dealers.

Again, I go back to my main point. This legislation, as it is drafted, does not target high-level drug dealers. It targets, unfortunately, the 19-year-old who gives — and I use that word deliberately because "giving" comes within the definition of trafficking as it currently stands — three pills of ecstasy to another youth near a school or in a mall. To send that individual to jail mandatorily for one year or two years, as is required, will effectively take an individual who should not be in jail, who should not receive the education that will be given to him in jail, and then be foisted on society.

There is another real concern that I have with the legislation. There is no mechanism whatsoever for dealing with those individuals who assist law enforcement, that is, accused persons who make the deliberate choice, post-arrest, of assisting law enforcement in further drug investigations. In the importing context, the role of the assisting accused is extremely important. Those assisting accused persons who either decide to become state witnesses against the organizers of the operation, or confidential informants to provide important intelligence and informant information that police authorities can use to pursue the higher-ups in the organization, under this legislation, have no means of obtaining a credit below the minimum — none whatsoever.

What this legislation will do in respect of those individuals is deter them completely from assisting the police. In a black market crime like drug crimes, it is those individuals that law enforcement must cultivate, that we should encourage to assist the police, because it is those people who eventually lead law enforcement and the courts to those higher up in the chain. If you go after and successfully prosecute and sentence the people who occupy the highest echelons of the drug business in this country, that will leave a lasting impact in the war on drugs in this country.

As it stands, this legislation does not address the individuals that the government says it would like to address. We think it will be extremely expensive, both from an imprisonment perspective and from a social cost perspective. I agree with Mr. Rady that litigation will arise as a result of the imprecision in the language. Many of these clauses will lengthen the trial process and the sentencing process.

The Criminal Lawyers' Association is very concerned that we do not have a detailed study of the costs of this legislation, the anticipated costs, and the benefits.

I would commend to senators a study that was published in September 2009 in Colorado which does a wonderful review of American cost-benefit analyses of minimum mandatory sentencing regimes in the United States, targeted specifically to drug offenders, authored by a gentleman named Richard Przybylski. That report found that study after study in the United States showed minimum mandatory sentences were the least cost-effective sentencing option for the vast majority of drug offenders. We see the breadth of this legislation, and the imprecision of this legislation being a real financial disaster for the courts and for the correctional system in this country.

There is one last point that I also want to make. The transfer of discretion from the open court to the prosecutor in the backroom is something that should concern us all. As it currently stands, where judges sentence accused persons and provide a discount, for whatever reason, they have to justify that reason. Those reasons must be defended in a judgment and are subject to review. When you have discretion transferred to the prosecutor, as this legislation does, quite frankly the transparency that is required in this process evaporates and you are going to end up with a lot of individuals claiming that the system is inconsistent in its results, is unfair, and that erodes respect for the law. That would be a most unfortunate end result, particularly for a piece of legislation like this.

Senator Wallace: Thank you for the presentation, gentlemen. In saying this, I believe I am stating the obvious: For any of the viewers who are watching this, I would assume they would understand that you are defence counsel. The perspective that you are bringing here today is in representing the accused and the convicted; is that correct?

Mr. Rady: That is correct. However, when we come to a committee — at least when do I — I also come to the committee knowing that I am a citizen in the community of Canada, and I have children and property, and I want to live in a safe and free society. I am not just bringing that perspective of defence counsel.

Mr. Boni: I am currently defence counsel, but I started my career with the Department of Justice as a federal prosecutor. I co-authored a national drug sentencing text, the only one in Canada. Therefore, I come to this discussion not only with my current employment, but I come to it as a student of this area of law and as a former prosecutor.

Senator Wallace: Thank you for that.

Mr. Rady, as you pointed out — and I guess it was not a surprise to me after your rather detailed analysis of some of the language issues — you said that there will be a lot of court challenges. This whole issue of trying to deal with drugs, and everyone is trying to do the right thing, and do it as best we can — and the government obviously is taking that approach — I cannot help but be left with the impression it would not matter what was before the table, there will be a lot of court challenges. Of course, that is your job to do just that, and I think you would agree that in itself should not deter government from going in the direction it thinks is appropriate.

Mr. Rady: I agree with you, but the language could be made more precise. For example, if I had a client who was charged with being in a public place, we might have an argument — not so much on what he was selling, but if there is a minimum coming into it — about whether that was a public place, and the prosecutor having to prove that issue.

Public places may be a bit much, but when we talk about schoolyards, what is a schoolyard? Maybe we want to say a public schoolyard, a school where children under the age of such-and-such attend. That would make that one a lot more precise.

The other issue is about where the public or their children may go. The language is so broad it catches everything.

I think that you can still go back, or someone can go back and reword this to get the effect that you want — assuming that is the effect you want out of all of this — and make it such that every little niggling thing is not going to be argued by a defence lawyer defending someone, especially now when the person may be facing a mandatory minimum that they were not facing before. All I am really trying to say is clean it up.

Senator Wallace: Your associations have appeared before this committee before. Obviously, this is not the first time we have heard your comments about mandatory minimum sentencing.

Mandatory minimum sentencing has existed in this country, I understand, back to 1976. There are at least 43 Criminal Code provisions now that provide for mandatory minimums, of which 25 existed prior to 2006. With both of your organizations, has that been your position — to resist and object to mandatory minimums from 1976 forward?

Mr. Rady: I do not know if we can go back to 1976. I am old but I am not that old.

I think the issue —

Senator Wallace: Your associations, I mean.

Mr. Rady: What we have been hearing as the reason behind the increase in mandatory minimums is, first, we have seen it as a means with some offences to get rid of conditional sentences, because you cannot get a conditional sentence with a mandatory minimum. The other is the taking away of the discretion of the judge.

We look at it as the judge has the discretion to determine whether someone is guilty or not guilty. However, when we do not like what is perceived as light sentences in some cases, there is this perception that we have to do something about that and impose upon the judge this minimum sentence regime.

In some cases — for example, of murder, which is the most heinous crime we have — that is understandable. The carnage on the roads, that can be understandable as well to a degree. However, it seems that, in the last 10 years, we are getting more and more into minimum sentences and guidelines, which they have had in the United States and which we believe have not worked.

There is a place for them. However, it seems to be now it is considered that we have to impose the mandatory minimum to get our point across to be tough on crime. That is not the answer. That is all we are saying. We are not saying there is not a spot for them in some cases, but in few cases perhaps.

Senator Wallace: How could it be inappropriate, if Bill S-10 becomes the law of the land, in applying Bill S-10 in a circumstance where someone is trafficking in heroin and one of the aggravating factors exists, which would be required for the mandatory minimum to apply — the use of violence, working with a criminal organization, threat of violence? In those circumstances, a one-year mandatory minimum is somehow inappropriate — would you agree with that?

Mr. Rady: It depends where we set one year at. What was this guided at? Was there some consideration that the heroin trafficker was not getting a year in jail anyway? He has been, and probably a lot more than a year, but once you apply it to that particular person, you apply it across the board. Then you will apply it to the low-level person who probably should not be caught by that, but the judge no longer has the discretion to treat that person differently.

There seems to be a misconception that, with serious crime, the people are not getting serious time. I have been practising for 28 years and I can tell you — and I have said this to this committee before — the escalation in severity of sentence over that period of time has gone up considerably.

It is like saying we do not have faith in our judges to do the right thing for the tough crime. They do it, so what do we need the minimum for? When we put in the minimum, we will grab the people we do not really want to grab with that. That is our concern.

Senator Banks: My question is almost frivolous. Looking at proposed subclause 6(2), which amends section 10 as it talks about delay of sentencing to allow someone to go into drug rehabilitation, we heard that there are at least four provinces, and I think two territories, that have no such programs approved by the Attorney General, who will also have approved the prosecution. What would happen, do you think, if I am in one of those places and there is, as you suggested, a two-year wait to get into a program? Is my sentence delayed for two years?

Mr. Rady: I do not know. It would appear that is what it says.

Mr. Boni: Yes, I think your sentence will be delayed for two years, but let us not forget the Charter of Rights and Freedoms' delay provision applies to sentencing, not just the trial process. You will see applications to stay the proceedings because the delay in sentencing has become inordinate because of a lack of government funding.

Senator Banks: The guy could walk.

Mr. Boni: Yes.

The Chair: Will you walk or will you get a different sentence?

Mr. Boni: No, the case may be stayed by the sentencing judge, under 11(b) of the Charter.

Senator Angus: Thank you both for coming here. I must admit I really enjoy hearing you when you come. If I may say so, Mr. Rady, it was not that long ago that you were here and I found myself making notes that if I ever get arrested for some mistake, I would be on the blower to you.

Having said that, I have just a couple of questions. I know you guys are against the bill. I happen to be a member of the same profession as you and I know the basic rules in terms of cross-examining. Therefore, I am not going to make it easier for you to say what a lousy piece of legislation you think it is.

In terms of your opening comment — I represent the Canadian Council of Criminal Defence Lawyers and we have consulted our members east and west, we crossed the nation — it almost seemed that it was overstating. How did you consult? I want to understand that process.

Mr. Rady: Very simply, we have a member in every province. Phone calls were made, emails were sent out. I received back emails from the members from British Columbia, New Brunswick, Nunavut, Yukon, Ontario and the other provinces who had something to contribute. That is how we did it. This is considering as well that we were given notice of this meeting just one week ago.

Senator Angus: I understand that; so were we. The consultation process was to the provincial agencies of your mother organization, and I imagine they did not include a copy of the bill and a transcript of Minister Nicholson's testimony.

Mr. Rady: Yes, I actually sent a copy of the bill, the legislative summary, and a copy of the opening statement from Mr. Nicholson by way of attachment to my email.

Senator Angus: That is good. In respect to that, I think I could take it that you did carefully listen to or read the comments that Minister Nicholson made here last Thursday, is that right?

Mr. Rady: Yes.

Senator Angus: So you understand what the intention is and his understanding of the legislation. You talk about cost. That is not really germane; you do not legislate what it will cost to implement. They have a problem, obviously, to make sure the monies are available. Would you not agree?

Mr. Rady: I would agree, but there is a hard part to this bill, which is the mandatory minimum sentences, and then there is the other part, which is the drug treatment program. To put that in there, and to effectively say that this may be a saving part of the bill, when there are not any programs or there is no money for them in tight economies federally and in the provincial governments, it is of no effect in there. It may be of effect in Toronto where they may have funds, but it will not have effect in the North.

We are really having a bill — which is a national bill, a national law — that will be followed differently in different parts of the country, and affect different Canadians differently in different parts of the country.

Senator Angus: But you agree, maybe? You may not agree with the thrust of this tough-on-crime legislation and this current government's anti-drug program, which has four main thrusts to it. I appreciate that. I respect that there is a different point of view but, clearly, they are not so stupid that they will not have appropriate funding to implement it. I do not think that is a good reason for attacking the bill.

Mr. Rady: We have fairness in this country. We have a fairness and equality in our Charter. If I am living in Nunavut, get into trouble and cannot access the drug treatment that someone living in Ontario has access to, then there is unfairness. When a government introduces a criminal law bill, which applies, then it has to look at the fairness component. Part of that fairness component is the financial aspect. That is all we can say. We can say that it is government policy to pass the bill, and that is what governments can do. That is the right of Parliament and the right of this chamber. However, we are here to say that, if you do it in this way, this is the area where you might have a problem. You might have an avenue of attack, so you might want to give the sober second thought and see what we can do to not have that. One of our suggestions, and has been asked, is: How is this funded?

Senator Angus: In that regard, what you say is responsible. If I may say, this side appreciates having these comments on the record, again. Clearly, they will be taken into account in terms of administration of the bill if it passes.

Over and over again I hear that the bill takes away the court's discretion by having mandatory minimum sentences. I understand all the arguments on that. I want to move away from the sentencing provisions to your criticisms about the wording being too broad and left open to interpretation about schools, et cetera. Judicial discretion is inherent in the wording that you are criticizing as being too "wide and not clear," I believe you said. This is where judges will have some discretion to make an intelligent application of this law. Does that make any sense?

Mr. Rady: It makes sense but I would make the point that, if it were more precise, the person might plead guilty rather than have a trial on something that is broad, which means you still face the issue of a challenge to the section on the basis of vagueness. A person in this country who is charged with a criminal offence should know what they are facing and know what the offence is. If it is so vague that you cannot tell them, then it may be struck down on that basis. I am sure we do not want to pass laws and have them struck down afterwards. Let us do this on the front end, not the back end.

Senator Angus: I am restricted to no more questions.

The Chair: You are; I am sorry.

Senator Angus: That is fine; the point has been made.

[Translation]

Senator Carignan: My first question is for Mr. Boni. You said that people likely to be caught up by this bill were small dealers, people who are often exploited, drug addicts, and so on. I can understand that there are some categories of people who are likely to commit crimes who are addicts. But they do have an attractive exit door, getting treatment.

There was some discussion of Quebec earlier in terms of the type of centre approved by the ministère de la Justice. We know there are others in the province. I was looking at the cases reported in the annotated Criminal Code. Most of the case law comes from Quebec, in relation to section 720.2. That assumes that there in fact are addiction treatment centres in Quebec, which have existed in Quebec since 1980, at least according to the cases. So these people can get treatment. There are the others, who are not addicts, who make choices.

I was the mayor, I was responsible for safety at the Union of Quebec Municipalities. I was very close to the police. I was told that a lot of people were growing it in residential neighbourhoods because organized crime will pay for their house at the end of a period of time; others make choices to work growing it in residential neighbourhoods because it pays better than making furniture in the industrial sector. So people make choices. They are still going to benefit from the exception. Between you and me, the treatment program, it isn't just for addicts. It's quite broad. There is additional vagueness that means that even non-addicts will be able to say they want treatment. They will get a suspended sentence, someone a little clever is going to be able to use this exit door.

Do you have any fairly specific statistics about the social make-up of the growers, if we call them that, people who do low-level trafficking? They are the ones who may exploit. I have no pity for the ones who get a minimum sentence because they used a firearm for trafficking. Would you have more specific statistics about the number of people that might affect and the type of individuals?

[English]

Mr. Boni: I do not have specific statistics. In the 15 years that I have prosecuted and defended these types of cases, my experience and that of my membership is that, overwhelmingly, the people who at the front end of the grow- operation phenomenon tend to be visible minorities, who speak English as a second language — or no English at all — and who, if they were to obtain legitimate employment or have obtained it in the past, lose that employment because it is seasonal, et cetera, and is low paying. These individuals tend to be isolated within a particular subculture because of the language barrier, and so they easily fall prey to more organized elements.

Our concern is that this bill as drafted will result in, for example, the 65-year-old Vietnamese grandmother of three who gets paid $500 a month to water some thugs' plants. If 501 plants are involved in a residential neighbourhood, she will get the same sentence as the young gun-toting thug who is doing the same in a residential neighbourhood.

In our respectful view, that violates the principle of proportionality and the community sense of fairness. The fact that a judge in that circumstance cannot adjust the sentence to reflect the moral culpability of the offender, the circumstances of the offender and the circumstances of the offence, quite frankly will raise a lot of Charter litigation. My concern and my association's concern is that you will see these sections vulnerable to being struck down because they are too broad.

This almost takes us back to the days of R. v. Smith, when the seven-year minimum for importing was struck down because it treated the courier who came in with seven kilos of marijuana equally, from a sentencing perspective, as it treated the youth who came across the border with two marijuana cigarettes.

The scope of this proposed legislation is just too broad. Going back to a comment made earlier, while we look at this through the eyes of defence counsel and bring to bear our experience as defence counsel, the goal of interdicting serious drug criminals and stopping serious drug crime is laudable and every Canadian should support it. We should spend money in support of that objective. Bill S-10 does not achieve those goals because it is not the properly focused bill that could achieve those goals.

[Translation]

The Chair: I think that if we have time for a second round, we will include you, but I cannot guarantee it. The question was not brief.

Senator Carignan: I did not get a long answer. I asked a long question to get a short answer.

[English]

Senator Baker: Congratulations to both of you on your excellent presentations. If I understand you correctly, Mr. Boni, in what you say about 11(b), you could have someone facing very serious drug crimes allowed to get off scot-free.

Mr. Boni: That is correct.

Senator Baker: This type of bill will complicate matters in our courts, and you believe it will lead to more declarations under 11(b) where people just get off?

Mr. Boni: Yes, particularly where the government has not committed to funding of drug treatment upfront, as was outlined by Mr. Rady.

Senator Baker: You also suggested that the bill was directed toward people who you said assist the police in major convictions. Are you talking about the confidential informants in those cases of persons who are usually drug users, who have criminal records and who assist the police by being confidential informants in order to ground search warrants and so on?

Mr. Boni: I am talking about people charged with drug crimes — whether addicts or not — who decide either to become confidential informants to provide information confidentially to the police, or to become agents and go into the field at the direction of the police and introduce them to the higher-ups in the organization, and/or to become a material witness for the Crown to testify about who it was who sent them down to Aruba to pick up the cocaine, for example.

Senator Baker: Mr. Boni, one statement you made is confusing to me, and I would like you to straighten it out for me. You said that this will take away the discretion from the judge, but will put discretion into the hands of the Crown prosecutor. There are only two points in the bill that we could discover where the Crown prosecutor would be given any discretion. One is whether or not someone went on a drug course, and the other is a typical clause that is in practically every bill that deals with mandatory minimums, giving the Crown prosecutor a mandate that he must give a person notice of their previous offence. In the case of, say, impaired driving, that is why you would find someone who has 10 convictions and still is driving a car. Are you referring to those two discretions given to the prosecutor?

Mr. Boni: I am referring to, in proposed clause 5 of Bill S-10, the newly proposed section 8. That is the notice provision. What I am getting at there is that, if Crown counsel chooses not to provide notice, then there is no minimum mandatory sentence.

Senator Baker: That is the same thing we have in the impaired driving sections where you have to give notice. The Crown prosecutor has to produce someone's previous record and give them notice that they will ask for greater punishment. That is nothing new, but it certainly is, as you point out, a loophole, if you want to call it a loophole.

Mr. Boni: It is a huge loophole because you will have backroom deal negotiations between defence and Crown counsel over whether the Crown will seek to prove that it provided notice or refrain, and that will result in the possibility — and I would say the probability — of serious inconsistencies and inconsistent results.

Mr. Rady: There is another area where this happens, and that is the number of plants. "Okay, let us call it five, not six, so you do not get the mandatory minimum." We are taking it away from what the judge would do, where if it is five or six, then it is five or six, but as soon as it becomes six, you have a hard line drawn in the sand. The judge has to do it that way. "We want to give the judge some discretion, so we will call it five." The prosecutor gets to make that choice. The same applies on whether it is three kilograms or things of that nature. There are other discretions in there. The prosecutor can fudge what is there if they want to make the deal to let the judge make the decision without being fettered by the mandatory minimum.

Mr. Boni: It would be a different scenario if notice were only required for the aggravated minimum mandatory sentence as opposed to one year to two years, but the way it is drafted now, there is a huge loophole. That is what I was addressing when I said it takes the transparent, accountable discretion of the judge and brings it into a backroom. In Canadian law, you should all be aware that Crown counsel's discretion is very difficult to review. In fact, the Supreme Court of Canada has made it clear you cannot.

Senator Baker: Unless there is intent to do something wrong.

Mr. Boni: That is right.

Senator Baker: In effect, people, like some senators on this committee, brag about minimum sentences and a bill that has mandatory minimums, but it is not really mandatory at all, is it.

Mr. Boni: It depends on who you are, who your Crown is, what you have been charged with, who your defence lawyer is, and who knows what other variable you can think of.

[Translation]

Senator Chaput: You are in the second group of witnesses the committee is hearing this afternoon. And like the witnesses before you, you have concerns and reservations about this bill.

The witnesses before you said that this bill does not use the right methods to tackle this problem.

[English]

I heard from him, and he said we have to get at serious drug trafficking, but this bill does not achieve the objective.

My question to both of you is this: How would you achieve this objective? We will not talk about additional funding because it is always an issue. How would you achieve this objective? Could you give me examples of how you would do it?

Mr. Rady: One of the things most defence lawyers will say about clients and being deterred is that it is not so much the sentence but being caught. One of the ways to get serious is catch them more. How do you catch them more? We need more police, more vigilant police, more patrols, and more cameras in areas where drug traffickers may do this sort of thing. We have to increase the level of enforcement. I am not being critical of the police because they have only certain resources. It is catching. If people out there know there is a high probability of being caught, then that will be the deterrence. Whether it is a mandatory minimum or not, if they are dealing with serious drugs, they know they will go to jail or get some serious punishment from the court. In my view, it is really enforcement.

The other area is to get to the root of the problem and why these people are taking drugs and why there is a market out there for them in the first place. That is a much broader social issue.

Mr. Boni: To add to that, as I said, the Canadian social science research that was commissioned by the Department of Justice in 2002 suggests that, if minimum mandatory sentences are effective at all in deterrence terms, they are effective in respect of only the highest-level dealers. When I looked at this bill and saw that it was a bill that was designed to go after serious drug crimes committed by serious drug offenders, I was hoping to look for significant minimum mandatory sentences for independent operators in the grow-op business, or for overseers in the importing business, or for commercial wholesalers in the trafficking business.

These words that I am putting out there are not words I am making up. They are terms that find definition in the sentencing jurisprudence. They are terms that lawyers, Crown and defence, become familiar with in the drug context. If the legislation was geared to those individuals and creating definitions for those roles in that way, that might be one way to attack the problem.

Senator Runciman: I appreciate your appearance here and I recall your earlier appearance. That was on the two-for- one sentencing provisions, was it not?

Mr. Rady: No, it was on the sex offender registry.

Senator Runciman: We had another passionate individual who was opposed to removal of the judicial discretion with respect to two-for-one sentencing, but I appreciate your comments.

You mentioned the issue is catching these folks, and I guess we can all agree with that. However, if you talk to policing organizations — and I think it is policing organizations' victims who have been calling for the government to address this issue — I know from dealing with police on this that their frustration is they catch the bad guys and then they see the courts turn right around and put them out on the streets, and for very significant violations of the law.

If you spend a few minutes on the websites of the Ontario and B.C. courts of appeal, you will find some pretty outrageous sentences that have been handed down with respect to drug offences. That is driving this.

I know you talked about the Crown having discretion; you said it "erodes respect for the law." Who feels that way, other than perhaps the defence bar? I think what is eroding respect for the law over the past decade or more has been these lenient sentences. It may not be the norm, but the ones that really jump out and upset the public at large have had an impact with respect to the government trying to address it.

Another thing that you talked about in your submission, along with your predecessor witnesses, was plea bargaining. It strikes me that plea bargaining might be aided by this initiative. It may not be as favourable to your clients as is the current case, but would there not be more impetus to try to strike a deal before you go to court with this legislation on the books?

Mr. Rady: The difficulty is if the bargain is going to be that you are not going after a mandatory minimum, perhaps. However, as soon as there is the mandatory minimum and there is a directive there for Crown prosecutors to go after it, you will not see it. At that point, you will say I am going to go to jail anyway so I might as well fight it.

Senator, I think you sort of said it. What happens is we read one case in which we are offended by why someone got a light sentence, or we read some case where we may be offended by someone being found not guilty. The fact remains that is really not the case.

There are those cases where that will happen. There also will be cases where someone gets a very stiff sentence. However, I think it is clear from the colleagues I have talked to, and even with our Court of Appeal in Ontario, it has gotten much tougher. The sentencing regime has gone way up, not just on drugs but across the board.

There does not seem to be a public sense of that because it seems the papers will either write about the person who gets the extraordinarily large sentence or the one that offends people, which is the low-end sentence. However, across the board, that is not the case and that is why we are here.

We see this every day. We know what our clients get. We know what we are trying to do for them. Years ago, you would say to a client, you might get a suspended sentence and probation or you might get a conditional sentence. We are now saying to them, you are going to jail; that is the starting point. It does not matter what I do for you; you are going to go to jail.

The tariff has gone up — either that or I am just not doing as good a job for my clients. However, I think the tariff has gone up for all defence lawyers. We are all talking about it and we all see it.

Senator Runciman: I am not sure if we are having any policing witnesses —

The Chair: We do.

Senator Runciman: I know they still continue to support this legislation, so it will be interesting to hear their perspective.

You talked about the U.S. experience. I had a quick glance at the federal trafficking penalties in the United States and they are significantly different than what is proposed in this legislation. I know we have had this — it may have been the sex offender legislation; we had witnesses talking about U.S. research, which had no relevance or comparability with respect to the situation in this country.

When you look at the significant differences in penalties in the U.S. experience, could you speak briefly to the relevance of the U.S. studies versus the situation in Canada and this legislation we are dealing with?

Mr. Boni: I think that every state's system may be slightly different but, from a principled perspective, if you have study after study — not only in the United States but also in Australia and England — which tell us that minimum mandatory sentencing — particularly in the case of drug offenders and particularly legislation that is so broad it scoops up all the low- level offenders — does not deter more than a conventional sentencing system.

Ultimately, that is the question: Should we change the system we have because the minimum mandatory system will give us that extra edge or extra bit of deterrence? Yes, I understand your point that there may be variations in statutory schemes but, when you look at these schemes overall in the last 30 years, in one jurisdiction to the next, what you see consistently is they do not deter the low-level people or offer more than the conventional sentencing system. We have to ask ourselves: Is it worth changing what we have and spending all of this money only to make things worse, quite frankly?

Just to answer your last question, because it was a very good question: Sentencing for importing a kilo of cocaine in the Province of Ontario carries a guideline of three to five years. That is what the Ontario Court of Appeal upheld. According to this legislation, there is a minimum mandatory sentence of one year. What that minimum mandatory sentence will do is prevent assisting accused from staying out of jail if they assist in the prosecution of higher-ups.

If you are asking a person to testify against Pablo Escobar, sending that person to jail even for a year will endanger that person's life and put them and their family at risk, particularly then. I am talking about imminent bodily harm if they are in custody, or worse.

You will erode the cooperation that law enforcement needs. When law enforcement people come here to testify — particularly when we are talking about drug offences, which is a black market crime — there should be questions about whether this legislation actually will promote assistance for the police or will it derogate from it. It is my view that it will take away.

The Chair: I should tell you that we have had some difficulty laying hands on actual Canadian research on this front. If you have any that you can supply to us — that is, Canadian research not only by Canadian researchers, but about Canada — that would be appreciated.

I want to ask something: Among the factors that must be taken into account in sentencing, one is whether the person used real property that belongs to a third party in committing the offence.

If I have stolen a car or something like that, obviously that would be pretty big, but what if I am just growing my marijuana plants on my balcony in my rented apartment?

Mr. Rady: That is a good question, or in a rented house. You are using a third party's property. One of the things that one of our members — again, from the North — brought up in Nunavut is that, effectively, there everyone lives on someone else's property because you do not own the property with respect to the Aboriginal land. Therefore, in almost any case up there, that would fall afoul of selling from a third party's property, if they chose to do that.

That is probably geared toward the idea of someone renting someone else's home to set up a grow op. The house is then destroyed because of the blue mould and fungus that result. That is an aggravating factor. In some parts, there is no discretion for a small-time operation.

The Chair: This says "must be taken into account." Do you think that offers enough protection for the judge, the prosecutor or others in plea bargains to avoid abuses?

Mr. Rady: "Taken into account" is good because it is already being taken into account. Obviously, if you have a grower who is caught with marijuana and the judge finds that the house is now ruined and someone else is out the price of the house, then that person's penalty will go up because they had no consideration for the owner of the property. They acted as though it was their own property and they suffered their own economic loss. The chance for restitution in such a case is very low.

Senator Lang: I have been listening with a great deal of interest, and I want to make a number of observations. I have not heard anyone talk about the victims — the people who suffer from the results of trafficking in drugs. I am from the North. Next week we will hear from a witness who lost her daughter because things were so tight and our law system was so good. There was heroin and morphine on the streets and the daughter had a drug overdose. This is how real this is. I want to say this: If I need a lawyer, I will give you a call, like my good colleague here, but that is not why we are here. We are here to try to amend the situation in society. I would agree with my good Senator Runciman that disrespect for the judicial system is prevalent throughout society. You talk about the severe sentences being put forward by the judicial system, but you do not talk about the probation and the parole when the individual gets out. When they sentence someone to 18 years, they mean 4 or 5 or 6 years in reality; then we have these people back on the street.

We want to talk about the low-hanging fruit — the people who just water the 500 plants and act as the mules for packing the two kilos of heroin. They are the low-hanging fruit. I submit that they are committing a crime. To date, it is not a failing in society that they are bearing the consequences of those decisions. These are premeditated crimes. These are well-thought-out crimes against society, and they affect a good part of our young population in society in rural Canada and in downtown Toronto.

I want to say this: The provinces and the territories have worked with the federal government to try to arrest a very real situation on the street. The situation is not being addressed by the courts; if it were, we would not be here today. I want to ask you: Why are the provinces and the territories across this country giving support to the framework of this bill if it is not appropriate for the situation we face?

Mr. Rady: I can answer in a couple of ways. On the example you gave, the person who died of the overdose of heroin was technically in possession of heroin and, therefore, was committing an offence. I am not trying to be facetious. Rather, I am trying to ask: Why was the person taking heroin? Why is there a market for these drugs? How do we get rid of that market? We need to get rid of the market at the upper end.

Senator Lang: How did she get the heroin?

Mr. Rady: We all remember that we had prohibition, which made a lot of criminals happy because they made a lot of money until prohibition ended in the late 1930s. That had to do with the public's demand for alcohol. Today, there is a public demand for drugs. Why is that? How do we get rid of that? That is how we get rid of the victims. A lot of the users in these cases, the people who are charged are victims of themselves and their inability to stay away from the stuff. We are trying to get to the root of that. In terms of the people supplying it at the high end, they have to go to jail — and they are going to jail.

There is the perception that it is just a revolving door. Many ask why this is happening and why the provinces are making all this effort. If I want to be really cynical and blunt about this, it is because saying that we are being tough on crime, and this is seen as such, is politically expedient for all parties. It is not politically expedient to do otherwise.

The Chair: We are hearing a demonstration of how strong emotions are on this issue. I want to be careful as we go forward. Everyone around this table has strong convictions and principles, but we need to be a little careful, and that includes the witnesses, about trying to restrain the tone of our interventions. Senator Lang, Senator Boisvenu has a supplementary.

[Translation]

Senator Boisvenu: Thank you for your presentation, I think we expected no less from your position and that you would be opposed to the bill.

Senator Lang has awoken the passion for defending victims of crime in me. Do you know the average age for using marijuana is not 14 years, it is nine years. They are starting to smoke marijuana in elementary school now.

The last three murders in Quebec committed by minors, 14 or 15 years old, were committed by young persons who started using marijuana at eight or nine years of age. Recent medical reports tell us that marijuana is 20 to 30 times higher in contaminants than 20 years ago. And all the plea bargaining in the courts still benefits the criminals, rarely the victims.

When we have laws that have no bottom limits, it always benefits the criminals, rarely the victims. And the ones who come out of trials frustrated are the victims, because since the Criminal Code does not provide any bottom limits, the criminals always come out ahead.

In that case, when we see the statistics, as a lawyer and a father, do we not need to be harsher on drug trafficking, even minor drugs like marijuana, when they say today that the primary factor in the school dropout rate in Quebec is marijuana use? Do we not need to have a stricter law to make sure our young people are not starting to sell drugs at the age of 14, and are then in the network? That is the scourge of marijuana. Do we not need to have a tougher law?

[English]

Mr. Boni: The problem is that the drug trade and drug crimes are black market crimes. I understand the frustration that you express because I have the same concerns for young people. However, a fundamental reality is not being addressed head on. In violent crime, firearms crime and fraud, et cetera, the principle of incapacitation means something. You take the violent offender out of the community and remove the threat to everybody's safety — lock him up and put him away. Minimum mandatories in respect of those offences must be regarded differently than black market crimes. The social science in the United States demonstrates that, when you deal with drug offences, the market demand cannot be discounted. There is something that has come to be known in U.S. literature as the replacement effect: Either other drug dealers will increase supply and cash in on their competitor's incarceration, or new or younger individuals will enter the drug trade.

Fascinatingly, studies in the U.S. showed, in particular in New Jersey, which had one of the highest rates of incarceration of drug offenders under minimum mandatory sentencing, increases in violent crime during the same periods of time that they were incarcerating drug offenders for longer periods. There is a recognition in social science that, when you over-incarcerate in one sector when dealing with a black market offence, other people come up to fill the vacancies. They adopt violent means to get street credibility in order to be able to flex the muscle they need to sell this stuff.

What do we do as a society? I go back to what Mr. Rady mentioned. We have to get to the root causes of drug addiction. We have to get to supply. Ultimately, it comes down to enforcement and putting resources into the interdiction of these drugs at the border before they come in and nipping these types of offences at the very top. Take the sting out of the financial benefit for those at the very top.

The Chair: I hate to say this, but we are out of time. Everyone around the table has strong feelings and could go on for a lot longer, but we are very grateful to you both for the time that you have been able to provide to us.

Continuing our study of Bill S-10, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts, our witnesses now are from the Public Prosecution Service of Canada, George Dolhai, Acting Deputy Director of Public Prosecutions and Senior General Counsel, and Laura Pitcairn, Counsel, Drug, National Security and Northern Prosecutions Branch.

I think this is the first time that we have heard from the Public Prosecution Service. This is an interesting way for us to round out this day's proceedings, and we are very grateful to you for being here. Mr. Dolhai, please proceed with your presentation.

George Dolhai, Acting Deputy Director of Public Prosecutions and Senior General Counsel, Public Prosecution Service of Canada: We are pleased to be here today on behalf of the Public Prosecution Service of Canada, PPSC, to address the committee on Bill S-10. I am joined by my colleague, Laura Pitcairn, a counsel with the headquarters counsel group of the PPSC. Specifically, Ms. Pitcairn is responsible for the national anti-drug strategy at headquarters. My area of responsibility, as one of two acting deputy directors, is with respect to the drugs, national security and northern prosecution branch of the department. We have two branches.

First, I would like to briefly explain the mandate of the PPSC, particularly as this is our first opportunity to appear, Madam Chair, as well as the PPSC's roles and responsibilities. Fundamentally, we have one line of business. We prosecute cases that come under the federal responsibility of the Attorney General and, as part of that, we advise police services and investigative agencies in relation to their investigations at the pre-charge stage to ensure that those investigations are in accordance with the law and ultimately end up with a prosecutable case.

In doing that, the PPSC is independent. We were created on December 12, 2006, with the coming into force of the Director of Public Prosecutions Act, which was Part Three of the Federal Accountability Act. The act sets out very clearly our mandate, the limits of what we can do and our roles.

Although there are over 250 federal statutes that have offences in them, typically we prosecute approximately under 60 of those statutes. The big bulk of what we do is in relation to drug offences, pursuant to the Controlled Drugs and Substances Act.

[Translation]

In all provinces and territories, except Quebec and New Brunswick, the PPSC prosecutes all drug offences. It will also prosecute any related organized crime charges under the Code. In Quebec and New Brunswick, the PPPC prosecutes only the drug offences investigated by the RCMP. I would also add that this is in all of the RCMP's capacities in New Brunswick.

The PPSC does not investigate crime. It assesses the cases that police have presented to it. In a time when millions of dollars and significant police resources are directed at major investigations, the PPSC provides legal advice and assistance to law enforcement officials before charges are laid, when the police seek guidance on how to investigate within the law and while respecting the Canadian Charter of Rights and Freedoms.

[English]

The PPSC is a national organization. We have 11 regional offices across the country. As of March 31, 2010, we have 920 employees and most of those are prosecutors. The federal Crown acts in courts across Canada. Where we do not have a regional office, we employ private sector counsel to act on our behalf as agents for the director of public prosecutions.

What do we do? Fundamentally, in 2009-10, we handled roughly 56,000 prosecutions related to drug offences. Those represented 73.4 per cent of our total caseload. That does not mean that was 73.4 per cent of the total time we spent on cases, but that is our total cases.

One of the dynamics we face, for example, is that a small number of cases that are extremely complex, particularly in the drug area, can take a very disproportionate amount of time for us to prosecute. A couple per cent of the most complex cases can take over 20 per cent of the time of our counsel.

While most drug prosecutions are relatively straightforward, there are those that are complex. You will face questions as to how the drugs were found, what questions did the police ask, was the lawyer made available — and those are all legitimate questions. Those are part of the system.

In recent years, cases have involved motions focusing on such things as the legality of the investigation, on the completeness of disclosure, on allegations of abuse of process. As with any crime concerning money — and drugs certainly concern money — we have organized crime. Police forces have also moved increasingly to target the upper echelons of organized crime, which creates that dynamic where a small change in the percentage of those cases can have a very big change on what we face in terms of the demands on our prosecutors.

Specifically with respect to Bill S-10, we anticipate that, if it is passed, it will increase the demands on the PPSC. It will do that primarily by increasing the number of cases that would have gone to guilty plea before that will now go to trial.

Guilty pleas are often made to obtain a more lenient sentence in recognition of the acknowledgement of guilt in a timely fashion; that is part of our system. Since some accused or many accused will be facing mandatory prison terms — in some instances, prison terms they would not have faced previously — they may put the Crown to the test and say, prove it, or make the choice thereby not to acknowledge their guilt, which is also something that they are perfectly free to do in our system.

We also anticipate the length of our trials will be increased because the mandatory minimum penalties get triggered, as senators know from the review of the bill, not only by the category of the offence, but by the aggravating factors that have to be present. For the Crown to rely on those aggravating factors, just as any aggravating factors in our system, we have to prove it beyond a reasonable doubt.

We do that now where we have those factors present, but we only do that where we have a trial. If we have an increase with respect to the number of cases that do not have a guilty plea but go to trial, logically, we will have more of those instances where we have to prove those aggravating factors.

Then, of course, we always have the possibility of constitutional challenges. Any new piece of legislation, regardless of its nature, is exposed to the possibility of constitutional challenges until there is an authoritative ruling by a court of appeal within a jurisdiction or, ultimately, by the Supreme Court of Canada.

The PPSC has approximately 10,000 new files that come in every year that could fall in the category of those to which MMPs, mandatory minimum penalties, could relate. Out of that, we think approximately 40 per cent to 50 per cent of those files will have the aggravating factors present.

In some instances, we can look to the recidivism, for example; that is something we are aware of. In other instances, there are things such as committing the offence at a schoolyard or places frequented by youth. We do not track that at the present time. I anticipate we will in the future if the legislation comes into force, because two years after that date there will be a review, and I would anticipate we will be part of providing information as to what our experiences have been.

As mentioned earlier, guilty pleas are primarily made to obtain the advantage of a lesser sentence. Our estimate is that we will have between 80 per cent to 90 per cent of the people who are facing a mandatory minimum — not those who are just facing the offence that could be, but rather those who have the aggravating factor and the Crown could actually prove it beyond a reasonable doubt — who will say, "I will roll the dice and go to trial, rather than plead guilty."

The expected increase in prosecution costs was addressed in the Treasury Board Main Estimates for 2010-11, and the amount is $33.5 million over five years. This comes under the National Anti-Drug Strategy. It is a frozen allotment. It does not appear under the Main Estimates per se; it appears under the particular program activity that I am responsible for, which is drugs, Criminal Code and terrorism prosecutions. That is where you will find the figure and the breakdown.

If the legislation is not passed, there are no resources given, obviously, because there is no impact.

[Translation]

Thank you for the opportunity to provide this opening statement. We hope that you found it helpful. We are ready for your questions.

[English]

Senator Wallace: Thank you, Mr. Dolhai. It is a staggering number of cases; at least, to me, it is a staggering number of prosecution files that you handle in the run of a year that relate to drug offences. As you say, it is some 55,000 a year. That is a huge number.

What can you tell us, from your experience and perspective, about any changes you have seen in recent years as to the number of drug offences that would be affected by this bill, and the drugs that are covered by this bill — drug trafficking, drug production, importation or exportation — if that falls within your authority?

I ask that because, certainly, from the Department of Justice and hearing from Minister Nicholson, our sense of it is there is an increase in the number of these offences. That is a major reason why this bill is being presented — that action is required by the government and Minister Nicholson has presented this bill.

From your perspective, have you seen an increase in the number of the types of offences covered by this bill?

Mr. Dolhai: The figures that I provided in my opening remarks related to our review when the legislation was first tabled. However, I asked that we review our internal statistics to see whether those numbers were still where we were. I was informed that our numbers are relatively stable. We have an increase of 2 per cent to 2.5 per cent in our overall drug offences per year, which matches roughly the population increase. I was informed that the numbers we were using previously were still valid as adjusted for some growth.

Senator Wallace: As you know, the mandatory minimum sentences would apply if the aggravating factors are present such as trafficking involving heroin or cocaine, involvement of organized crime in the activity, the use of weapons and the use of violence. Can you give us a sense of what changes, if any, you have seen in the involvement of organized crime and the use of violence and weapons in these drug-related crimes?

Mr. Dolhai: I cannot provide you with a statistical estimation.

Senator Wallace: Perhaps you have a sense of it.

Mr. Dolhai: I sense that we have a significant involvement with respect to organized crime, and we have seen the involvement of weapons. We have concurrent jurisdiction with the province in relation to organized crime offences, such as participating or contributing to a criminal organization or instructing someone to do an offence on behalf of a criminal organization. Generally, that concurrent jurisdiction arises when drugs and organized crime are involved.

In addition, we have major-minor arrangements with the provinces such that, if the same set of offences arises out of the same facts, and some are prosecuted by the province and some are prosecuted federally, then whoever has the more significant aspect of the case generally will handle the case. We have been seeing weapons charges arising in that context. However, I cannot quantify it, senator. As well, there is the issue of to what extent any changes are attributable to the priorities of investigative agencies. As I indicated in my opening statement, we do not investigate; we do not tell police who to investigate; and we do not tell them what their priorities are in that respect. Rather, we take the cases they provide to us, and we assess them. I would not be able to answer to what extent any changes might be attributable to a change in focus.

Senator Wallace: I was interested in your observation on mandatory minimum sentencing increasing your workload in a significant way should it become part of the regime. I understand the rationale behind that: Currently, those charged with an offence and potentially deciding whether to plead guilty are able to negotiate what would otherwise be a lower sentence as a result of the guilty plea. I think of how the public perceives all of this: Sentencing is too light for these serious offences of drug trafficking, production, importation and exportation. I have heard from your evidence that, given your volume of cases, the system encourages the downward pressure on what could otherwise be sentences given by the court. In my view, that is exactly what this bill seems to recognize, and is intended to ensure that there are mandatory minimums, and that there is a better relationship between the severity of a crime and the punishment faced by the offender for that crime. Does that seem reasonable?

Mr. Dolhai: Senator, I can assure you that our prosecutors are directed, as all prosecutors are in all circumstances, to apply the law. First and foremost, they look to what the legislation requires. They then look to what the courts have indicated. Generally, sentencing directions come from courts of appeal. The Supreme Court of Canada rarely gives direction on sentencing tariffs. That is what we apply. We have a policy in our desk book with respect to plea and sentence discussions and issue resolution. It makes clear that our prosecutors are supposed to be guided by fairness in those discussions, openness, accuracy, non-discrimination, and the public interest in the effective and consistent enforcement of the criminal law. They are specifically directed, among other things, that it is not acceptable to agree to a plea of guilty to a charge that inadequately reflects the gravity of the accused's provable conduct, unless in exceptional circumstances the plea is justifiable in terms of the benefit to the administration of justice, the protection of society, or the protection of the accused.

That is where we operate from. What direction Parliament gives, and that we then obviously must proceed to put in place as prosecutors is a policy matter, and I cannot comment upon that.

Senator Wallace: As you point out, you deal with the consequences of whatever the legislators determine. As you point out, Bill S-10, if it becomes law, will increase your workload. There is expense associated with that. If the new bill is passed, your budget would increase by $33.5 million over five years to address that increase.

Mr. Dolhai: That is correct.

Senator Wallace: Thank you for drawing that to our attention.

The Chair: What does the $33.5 million over five years mean in terms of increases in numbers of staff, notably lawyers, that you would require?

Mr. Dolhai: I believe that it translates into 31.2 FTEs, full-time equivalents, for prosecutors. In addition, there are 21.9 FTEs for paralegals and support staff.

The Chair: This would include benefits, support services and offices.

Mr. Dolhai: Yes. All of that would be triggered in the first year. There is no ramp-up per se because it is considered that the effect would be relatively immediate.

Senator Baker: This is the first time in both houses of the Canadian Parliament that your organization has been represented as a body. It is the first time that evidence has ever been given. We would like to encourage you to take part in the process. Perhaps you could clarify something. You cannot voice an opinion on the legitimacy of proposed legislation, or what you consider to be good or bad about the proposed legislation. You hold an impartial role in your position.

Mr. Dolhai: Absolutely, senator.

Senator Baker: You follow the Morin guidelines.

Mr. Dolhai: Yes.

Senator Baker: I do not know how you people do it. I really do not know how you handle all of this new law. I imagine that the McNeil decision has delayed further requirements on your shoulders. You said that this bill will lead not only to an increase in work but also to an increase in the length of trials. Some of these drug trials go on for years.

Do you anticipate a change in the standard that used to judge what is reasonable in terms of delay of trials that would be captured by 11(b), the Askov argument? I do not know if this is a fair question, but something obviously has to happen.

You cannot have people being charged with serious offences and then getting off because of the load being put on your shoulders, the disclosure load alone. Do you understand what I mean when I say the Morin guidelines?

Mr. Dolhai: Yes.

Senator Baker: They are six to eight months, eight to ten months. Do you anticipate that the standard will need to change to save the increase in the numbers of people who are getting discharged because of time?

Mr. Dolhai: I do not know that the standard will have to change. It is an interesting question. I say that partly because it will very much depend on how the system overall reacts. We have demands placed on the system as a result of changes in the law, and not just parliamentary but changes from the jurisprudence. Senator, you have hit the nail on the head. McNeil certainly has had an impact on us. One of the things we try to do is to come up with the most effective and efficient and consistent manner of dealing with those pressures, and not just us but with respect to the police, and with respect to the judiciary and defence. In virtually every jurisdiction I am aware of, certainly the major ones, there are committees of bench and bar, and part of what is addressed, or attempted to be addressed, is those pressures to see whether there is a better way to do it.

Across the country, I would certainly know of a few examples directly where you are having prosecutors and courts and defence counsel and court administration trying to find out, independent of changes, if there is a better way of running our trials and managing the caseload from the point that the person walks into the courtroom for their first appearance to the point they are charged. It is difficult to predict how that would translate, but certainly it is a live question.

Senator Baker: The police have given evidence to this committee, and one of the staggering numbers they gave was that, on one case, the cost of the disclosure on CD-ROM was $1.4 million, on one single conspiracy case.

Let me ask you a pointed question: At the beginning of the trial, could the Crown prosecutors not apply on their own for the unsealing of all warrants instead of leaving it to defence counsel, and would that not shorten the process? You do not have to comment on that if you do not wish to.

Mr. Dolhai: It is certainly something that does occur. We have a significant number of cases that involve wiretap, just by the very nature of what we do. As you know, provisions in the Criminal Code mandate how that is to be dealt with. It is not unusual for one of our Crowns to be proactive and seek to have that unsealed so they can get the disclosure out and get it into the hands of defence counsel. At the end of day, there at times is a misperception — and I know that is not what you are alluding to, senator — that the police and the Crown do not want to get defence fully apprised of what is available and get disclosure out the door. In fact, we do, because if the case has been well done, well investigated and well structured, the best thing we can do is ensure that defence is fully apprised of what is there, and that includes material sealed in either a search warrant or affidavit to obtain a wiretap.

Senator Baker: Mr. Dolhai, just as a final question on the other side of it, we talk here and wonder why there cannot be a meeting of minds between the prosecutors and defence counsel. Why do you need to disclose every single thing that has to do with a prosecution prior to the pre-trial argument starting? Can defence counsel not sit down and say, "This is all we require for plea?" Do you agree with me?

The Chair: The question is clear. I did not say it was unimportant. I said it was clear.

Senator Baker: Could you comment on that? Is there any light at the end of the tunnel?

Mr. Dolhai: I think there is light at the end of the tunnel in the sense that many proposals have been made recently. Former Chief Justice LeSage and current Justice Code — not Justice Code at the time — prepared the LeSage-Code report, and one thing they put emphasis on was the importance of doing that early, having that meeting of the minds, and having a situation where you can have a judge who has the authority to move them along and get things done prior to the trial judge being named. Senator, I thoroughly agree that is the situation I think everyone is aiming for, defence and Crown. We are bound by the constitutional jurisprudence as to what must be disclosed, but certainly pre-trial management and meeting of the minds, as you put it, senator, is one of the goals that has been pointed to by a number of reports, and making sure that the tools exist for that to happen.

Senator Angus: Good evening, Mr. Dolhai and Ms. Pitcairn. Welcome and thank you for being here. Are you both based in Ottawa?

Mr. Dolhai: Yes.

Senator Angus: I notice, Ms. Pitcairn, you are involved in northern prosecutions. Do you fly up to the North? What does that mean?

Laura Pitcairn, Counsel, Drug, National Security and Northern Prosecutions Branch, Public Prosecution Service of Canada: It is part of our portfolio. I am not directly involved with the North specifically. One of my colleagues deals more with the northern territories, but it is part of our portfolio.

Mr. Dolhai: One of the things we started shortly after our creation was a particular function at headquarters, which was a special adviser on northern issues to me and to the director of public prosecutions.

In referring to the flying squad or people going up, we encourage our counsel from the South, as well as some provincial colleagues, because they are interested, to go up and fill in on a circuit, for example. We have the circuits mostly in the N.W.T. and Nunavut. They involve going out into a small community to sit for two weeks. We always appreciate the assistance we have from our colleagues in the South, and they love the opportunity to practice in a different area. In the South, we do mainly drugs and regulatory, and in the North there is Criminal Code, but also they experience the North and the interaction with the communities, et cetera. We have a significant flying squad contingent of persons from within the organization and from some provincial colleagues, and it is a very good program.

Senator Angus: You have given us a little information in your opening remarks about the DPP, Director of Public Prosecutions, Act. How is it working generally? At the same time, just for our viewers and for the record, would you compare it to what it replaced, pre-2006, the status quo then?

Mr. Dolhai: Yes, senator. Obviously, I am biased. I think it is working well.

Senator Angus: Senator Baker already established your absolute independence and objectivity, so he cannot have it both ways.

Mr. Dolhai: I think it is going well. We are not the only DPP in the country. Nova Scotia and Quebec have DPPs, and B.C. has a form of DPP which is slightly different but a similar concept.

Contrasting it with before, the act establishes the independence of the prosecution function and the transparency of the relationship between the Attorney General and the DPP. I would use the analogy that was used by some of the witnesses during the time of the passage of the act, which is the act then becomes an insurance policy. I am not aware of any instance of interference in relation to the prosecution before the passage of the act. The act acts as the insurance policy. The Attorney General is still responsible, and we do things on the Attorney General's behalf. However, with the advent of the act, it requires that, if the Attorney General is going to give a direction on a particular case or a class of cases, an attorney general could say with respect to these types of cases this is the way I want you to handle it, or intervene in a case or take it over. It has to be done publicly. A direction, for example, must be published in the Canada Gazette and that allows parliamentarians to then see what has been done, and exercise whatever authority they wish to exercise with respect to reviewing and considering that direction or intervention.

That transparency is a significant change from before, but again I want to emphasize I am not aware there was ever any problem previously.

Senator Angus: As I understand it, and I may be totally wrong, it was the Crown prosecutor service of each attorney general in the provinces and of the federal Minister of Justice is how it worked — and now it is an independent service?

Mr. Dolhai: That is right.

Senator Angus: Both of you would have been acting as a Crown prosecutor.

Mr. Dolhai: Absolutely, and we both did. However, we would do that as part of the Department of Justice, and in our relationship we would have been, as I say, part of the department. We now no longer have a relationship with the Minister of Justice per se. We have a relationship with the Attorney General. The same person wears the same hat but different considerations arise as a result of quasi-constitutional principles as to how the prosecution functions should be done.

Senator Angus: In regard to this bill we are looking at for basically the third time, which had two iterations before Bill S-10, you have read it obviously.

Mr. Dolhai: Yes.

Senator Angus: I am assuming that. Can you work with it if it passes as drawn; will it cause you some problems?

Mr. Dolhai: Other than the workload that I indicated and the possible constitutional challenges, as any piece of legislation we will implement it. We will prosecute it.

Senator Angus: We have had a lot of talk about judicial discretion in terms of sentencing being abrogated by mandatory minimum sentences. On the other hand, I have tried to point out and I certainly see in reading and from hearing the minister talk about the intent of the legislation, it gives a lot of discretion to the director of public prosecutions, to the prosecutor. That is my sense. Would you agree with that?

In other words, there is discretion when to use this, say, if the bill is passed, you have an arsenal and the police have an arsenal, the charges are a certain and you have a set of facts, and there is a decision made as to what charges to lay and under what law, and it is not mandatory that you use this law for such-and-such an offence, I believe.

Mr. Dolhai: First and foremost, the police determine what charge they want to lay. That is whether or not it is in a pre- charge jurisdiction like British Columbia where they need the Crown's approval before it goes ahead, but the first step is that, even there, they are going to determine what they want to charge. Then the Crown has to assess whether there is a reasonable prospect of conviction based on the evidence, and that includes everything, including possible charter arguments and the whole gamut.

Senator Angus: The Crown meaning you, right?

Mr. Dolhai: That is right. As well, whether it is in the public interest to proceed with the prosecution and our desk book makes clear that the more serious the offence, the more presumptively the public interest requires that you go ahead. That does not mean there is not a discretion you apply to the public interest question, and we have a whole series of factors that say you can look at this but you cannot look at this.

I was quite interested in listening to some of the previous witnesses talking about Crown discretion. I can tell you that the exercise of Crown discretion is a very important issue for us. We have a whole desk book whose whole purpose is to make sure we set out the terms on which Crown discretion is to be exercised. Also, in chapter 16, we have a series of appendices that say who gets to make the call in which cases. It is not the Crown prosecutor in every case who gets to say this is what we are doing.

Some things require the chief federal prosecutor to make the call, some things require me or my counterpart to make the call, some things require the DPP, and there are some things that the legislation makes clear is the Attorney General personally.

There is a lot of guidance as to how the discretion is supposed to be exercised and laid on top of that, in addition to the desk book, are the professional responsibilities of the Crown as counsel, just as the defence counsel have those professional responsibilities as well.

One of the things that our resolution chapter discusses is whether it is okay for a Crown to go in and say that I have this body of evidence and it indicates that the offence was this serious, but I will take part of that and just say I am not putting that before the court. That will allow me to have a resolution, and so the only part I will tell the court about is this part, and this part will be put over here. Our resolution chapter very specifically says that is misleading the court. You cannot have an agreement to withhold from the court facts that are provable, relevant and that aggravate the offence.

Now I would think that is a professional responsibility as well, but we specifically address it in the desk book because, as a prosecutor, you do not have that option. You do not get to say I will only put this part forward. That is in our policy manual.

The Chair: Senator Angus, as you can see, we are now into overtime.

Colleagues may be interested to know that the desk book is on the Internet and it is fascinating stuff. We can circulate the reference.

Senator Angus: I will finish my line of questions.

The Chair: Are you going to be finishing in 10 seconds?

Senator Angus: It is just hanging out there. I asked a question; the guy has given an 11-minute answer. I will stop if you want but then it is incomplete on the record.

The Chair: No, he has not given an 11-minute answer.

Senator Angus: I think it was 11-and-a-half.

The Chair: No, no, that is your total time.

Senator Angus: I saw you listening intently, as we all were.

The Chair: What is it you want to know? I am just asking you to be concise; that is all.

Senator Angus: Thank you.

In terms of the discussions you have in applying these various guidelines, and the desk book and so on that leads to the exercise of whatever discretion, is there a discussion about, say, organized crime is involved here, or is it a student having a joint? Does the nature of the crime come into it in terms of when you are exercising your discretion as to how to proceed?

Mr. Dolhai: The nature of the crime does enter into it, but having said that, again, as I indicated, where you are talking about a serious offence then the desk book indicates that, as a general matter, it will proceed. The public interest will require it to proceed.

Senator Angus: I know you were in the next room and I believe you heard the previous witnesses. In the case where there are six marijuana plants, and they were talking about maybe they will just say it is five plants or four plants rather than six, does that happen?

Mr. Dolhai: That is not what is supposed to happen at all. That is considered to be misleading the court.

Senator Chaput: As a clarification, sir, you talked about a serious offence as an example. Do you have in your manual your own definition, or does that definition come from the bill that has been passed and that you are working with?

Mr. Dolhai: We do not have a separate definition for a serious offence. We look to, again, the nature of the offence. One matter that may be looked at, for example, in the context of major-minor agreements with provincial attorneys general is what the maximum term of imprisonment an offence can carry, but we do not have a separate definition within our manual.

Senator Banks: I want to follow Senator Angus's line of questioning. In a charge of murder, it is not uncommon to suggest to the person charged that, in order to obtain a certainty of conviction or because of some difficulty, a plea of manslaughter or murder in the first degree rather than some other degree might be entertained in return for not proceeding with a higher-level charge. That happens, does it not, in the federal court system? Have I described it accurately?

Mr. Dolhai: We do murders only in the three northern territories. In the southern provinces, murders are within the jurisdiction of the provinces.

Senator Banks: The provincial Crown prosecutors do that kind of plea bargaining, do they not?

Mr. Dolhai: It is difficult to give an answer in the abstract. The question you posited had built within it the issue of problems with the case. In assessing whether there is a reasonable prospect of conviction, one of the things the prosecutor will have to assess is whether there is a reasonable prospect given all the aspects of the case.

Senator Banks: I am not a lawyer, but a plea bargaining occurs in my example.

Mr. Dolhai: There can be, yes.

Senator Banks: Notwithstanding the fact that you said you cannot mislead the court by withholding provable information, would there not be under this bill the possibility of a bargain being made, whereby the charged person pleads guilty and the Crown says there were 5 plants instead of 10? Would that happen?

Mr. Dolhai: I do not believe that happens. I do not believe it should happen according to our policy, which is different from a situation where I can prove five plants but I have difficulty because of evidentiary issues including the additional five that were nonetheless seized.

Senator Banks: Do you have a rough idea of what proportion of the 56,000 cases you talked about have to do with marijuana specifically as opposed to any or all of the other substances listed under Schedule 1?

Mr. Dolhai: I would say at least half of the files. In terms of how much time those will take to prosecute is a very different matter. There are probably more than that, senator.

Senator Banks: Without getting into the distinctions that exist between the addictive narcotics, heroin and cocaine, on the one hand and marijuana, which is not physiologically addictive, on the other hand, do you ever wonder whether those drugs belong in the same box?

Mr. Dolhai: In the CDSA, Controlled Drugs and Substances Act, they are different boxes. Heroin and cocaine are in Schedule I and cannabis is in Schedule II. Where they belong is a policy matter, and my opinion does not matter on that, frankly.

The Chair: It was worth trying. I will ask a supplementary about the numbers. You said that nearly 56,000 of your prosecution files related to drug offences. You also said that, in Quebec and New Brunswick, you prosecute only those drug offences investigated by the RCMP. Have you any idea what the caseload would be for the provincial prosecutors in Quebec and New Brunswick on drug offences? We are trying to get the picture of the total drug crime universe, to which this bill would apply. Could you flesh out that last part?

Mr. Dolhai: I cannot do that, Madam Chair. We track our cases.

The Chair: You track what you do.

Mr. Dolhai: I will clarify that in New Brunswick, we do all cases that are from the RCMP.

The Chair: The RCMP is the provincial police force.

Mr. Dolhai: That is right. We do that whether they are wearing their federal hat or acting as the provincial police force in New Brunswick.

The Chair: Only Quebec would be the hefty exception to this rule.

Mr. Dolhai: Yes, I believe so, Madam Chair. They have the Sûreté du Québec, the MUC, et cetera. They certainly have big investigations.

The Chair: Thank you.

[Translation]

The Chair: Excuse me, Senator Boisvenu.

Senator Boisvenu: You are excused, Madam Chair. I have a few technical questions. It is late and I think people want to go and relax.

First, thank you for being here. The information provided this evening is very interesting.

Do you have any figures, any statistics about the percentage of criminals charged under our drug laws, in the case of drug trafficking or illegal possession of drugs, who pleaded guilty before trial to avoid a sentence, to avoid prison?

Mr. Dolhai: The figures I reviewed in preparing for this hearing indicated that in 2005-06, about 60 per cent related to offences that will be affected by the bill.

Senator Boisvenu: So 60 per cent pleaded guilty to avoid prison?

Mr. Dolhai: Yes.

Senator Boisvenu: And there we are in the area of plea bargaining.

Mr. Dolhai: Yes.

Senator Boisvenu: You say that the Crown, the defence, the accused and the victim are involved.

Mr. Dolhai: In drug cases, it is very rare to have an identified victim. Certainly there are victims of drug use in society, but in an investigation, the police ordinarily try to find the criminals and do not identify the victims.

Senator Boisvenu: At that point, because the victims seem to be relatively anonymous, the fact that so many people — 60 per cent, that's a lot who avoid prison —

Mr. Dolhai: Not avoid, senator. The people who plead guilty often to get —

Senator Boisvenu: A sentence in the community.

Mr. Dolhai: Yes, or a shorter sentence.

Senator Boisvenu: My question was more specific: What is the percentage of criminals who are caught in the illegal drug trade who plead guilty to avoid a prison term?

Mr. Dolhai: I am sorry, Senator. I do not know the percentage.

Senator Boisvenu: It would be interesting to know because that avoids a trial and a judgment.

My last question. It is said that $33 million would be needed to apply the law.

Mr. Dolhai: Yes.

Senator Boisvenu: Do those figures come from your branch?

Mr. Dolhai: Yes.

The Chair: It was you that requested them.

Mr. Dolhai: We gave the government our needs estimate and the government decided on the level. I cannot discuss that because it involves a cabinet confidence.

Senator Boisvenu: Do you think that with this $33 million, our prosecution service will be able to perform its mandate properly?

Mr. Dolhai: Yes.

[English]

The Chair: I have one last question on your sense of things, unless you have specific data. What proportion of the marijuana cases would involve large amounts — 200 or more plants or truckloads or shiploads of marijuana — as distinct from the proportion that would involve small amounts — five plants or maybe a few grams?

Mr. Dolhai: Unfortunately, we did not break it down that way. There are also large cases of cannabis production, et cetera. I do not have the percentage, but a significant number are the smaller amounts. The demand that will be placed on the courts and prosecutors is a different question entirely. Typically, the bigger the amount, the more sophistication is involved, the more resources are expended, and the more legal issues are raised.

The Chair: We could keep you here a lot longer, but we will not. We have kept you longer than we said we would. We appreciate your testimony and I hope you will come back on other occasions when we are looking at things that involve your service.

Mr. Dolhai: On behalf of my colleague and the service, I want to express our gratitude for having the opportunity to address you, and I want to thank you for your patience. It has been a long day for you.

The Chair: But so interesting. Thank you very much indeed.

(The committee adjourned.)