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.
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.
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.
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
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
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
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
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.
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
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
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
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
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
The Chair: Thank you very much.
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
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
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
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.
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.
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
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.
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,
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
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?
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
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.
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
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
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
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.
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
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
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
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
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
(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
(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
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
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
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
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
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
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
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
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
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.
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
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
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.
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.
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
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.
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.
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
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
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
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
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
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
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 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
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.
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?
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
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
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
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.
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
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.
Thank you for the opportunity to provide this opening statement. We hope that
you found it helpful. We are ready for your questions.
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
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
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
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
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
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
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
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
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
Mr. Dolhai: That is right.
Senator Angus: Both of you would have been acting as a Crown
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
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
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
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
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
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
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.
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
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
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
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
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
Senator Boisvenu: Do you think that with this $33 million, our
prosecution service will be able to perform its mandate properly?
Mr. Dolhai: Yes.
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.