Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence for November 3, 2010
OTTAWA, Wednesday, November 3, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-10, An Act to amend the controlled Drugs and Substances Act and to make related and consequential amendments to other acts, met this day at 4:20 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, I draw your attention to our guests from Namibia. They are with us, sitting to my left along the wall. They have put good questions to us and we were trying to answer their good questions, so I apologize not only to colleagues but to all witnesses for the delay.
Now, colleagues, we shall begin our agenda for the day.
[Translation]
The Senate Standing 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.
We have four panels of witnesses today.
It is our great pleasure to begin with our first panel. We will be hearing from the Association des directeurs de police du Québec, Mr. Yves Morency, President, and from the Service de police de la Ville de Montréal, Mr. Jean-Guy Gagnon, Assistant Director. Welcome, gentlemen, and thank you very much for coming.
[English]
Also from Vancouver by videoconference, we have David Bratzer, Executive Board Member of Law Enforcement Against Prohibition. In this panel, we will hear from law enforcement officers, not all of whom will be in total agreement with each other, but we will be grateful for all perspectives.
[Translation]
Did you decide who is going to start? I am told it is Mr. Morency.
Yves Morency, President, Association des directeurs de police du Québec: Madam Chair, first I would like to thank you and all the committee members for allowing me to address on Bill S-10. Thank you for your time, for being available and for listening to us. I hope that, at the end of our presentation, if you have any questions, I will be pleased to answer them.
At the outset, I would like to tell you that the Association des directeurs de police du Québec is a non-profit organization that has been in existence for about 80 years.
Our primary mission is to bring police leaders and their partners together to contribute to the improved safety of Quebec's citizens.
Over the years, the ADPQ has taken on a preponderant role of consulting and cooperating with the various Quebec departments, particularly the public safety department, Quebec's department of justice, the department of health and social services and the department of education, recreation and sport. The ADPQ also sits on a number of major strategic committees at the provincial level.
First of all, and there will be no surprises on this point, we must tell you that we fully support Bill S-10, in both its form and its provisions. We also see it as a way to support police work.
I want to provide you with a summary and tell you our scale of priorities in the fight against drugs in Quebec in particular. For this purpose, we have a strategic experts group that advises the minister of public safety and is engaged in the fight against drugs, our second highest priority for the next five years. This means that all Quebec police departments have been mobilizing in the past few years and will be doing so in the coming years until we see a decline in this phenomenon.
Consequently, this means that the phenomenon is not declining, at least based on what I am going to present to you in this regard.
I also want to underscore the work of police officers who work in the schools. Drug use and trafficking have a major effect on our school clientele. Newspaper articles report on students dropping out of school. As you will readily understand, part of the phenomenon of drug use and trafficking can definitely be seen as related to the phenomenon of students dropping out.
I read in a crime analysis report that there has been an increase in the field. There is one finding: at least 30 per cent of high school students use cannabis, and at times other drugs, and increasingly chemical drugs as well.
We believe that the bill will help make certain individuals less interested and willing to be recruited by drug trafficking rings. For example, those who manage grow ops are called gardeners. They are often non-criminals and are recruited because they have money, gambling or vulnerability problems. They are approached so that they can make a little easy money.
And if the legal consequence is ultimately minor, these people will be more tempted to get into this kind of venture. Obviously, if the consequences seem a little more serious or if the likely consequences are greater, we are convinced that many of these individuals might give it up and change their minds. That complicates the traffickers' work a little more.
We also think that increasing sentences in a balanced way sends a clear message. We are currently putting a lot of effort into enforcement, but ultimately the result is that the individual ultimately comes out of it with minor consequences. That means that the temptation to do it again is very great and that becomes true in real life. We often re-arrest the same individuals who continue to be active in these rings.
So I believe the bill is at the very least a step in the right direction toward somewhat balancing what is being done in the field with regard to the consequences that will subsequently follow for accuseds.
I also want to talk to talk about a few series of figures, just to show you the scope of the phenomenon. I have taken some figures from the greater Montreal drug analysis service. I am going to be careful not to cite information that my colleague might give you, but this is the laboratory that ultimately analyzes all seizures made in greater Montreal, which covers a very large area. In 2009, there were 14,423 cannabis analysis files and 4,600 cocaine files. What is remarkable is that all methamphetamine-related drugs, representing 4,368 files, were in third position in terms of net progression. These chemical drugs are starting to cause an enormous amount of damage, particularly in the schools. I believe you have included provisions in the bill, which appear in Schedule 1, and that too will be a step in the right direction. Young people will increasingly be migrating toward this kind of drug, speed, ecstasy, because these drugs are available at very low prices. They cost $3.00 today. They can buy this drug, whereas it might have cost them $25.00 at the time. Increasing numbers of clandestine labs are setting up in the municipalities, in residential neighbourhoods. They have even managed to establish mobile labs. You get a little van, you fit it up as a mobile lab and you transport the merchandise to the clients. Matters have now reached this level, hence the importance of tightening up the legislation.
We are also increasingly seeing young people use cocktails, which are what we call mixtures of various drugs, including speed, cocaine, marijuana, all of which have their usefulness, speed when you want to stay a little more awake, cocaine when you are looking for more pleasure, and sometimes you have to calm down and you top that off with marijuana, and we are increasingly seeing that. What we are seeing is that the market is indeed very big; very large quantities are flooding the market. There are a lot of new consumers, at least a 30 per cent increase in the school clientele, and the mixes are now following.
We can also consider all the longer-term health consequences, of course, for these individuals, but also of all issues related to driving, in particular. Young people also drive cars. They are all subject to zero-alcohol rules. But now this is no longer so much the new problem; the new problem is that they are using. They are driving and becoming a danger.
I am going to close with an important point. Earlier I was telling you about the targets we have set, and the fight against drugs was the second most important target.
I would like to tell you about the federal fund that has been established to fight crime, of course, but especially to add police officers in the field to address various issues. In Quebec, we received a portion of that federal fund for five years; we are using it in front-line police operations in the field. In particular, when I told you about the second priority, that money is being used, among other things, to create what we call "joint squads." This is one very effective way of fighting crime because police departments do not work in isolation in a joint squad; they work together, they share information, and they conduct joint investigations. This method is much more effective in dealing with this type of problem.
Last, requests were made to the expert group to establish new regional joint squads that would focus on the drug problem. I do not want to name the location so as not to profile the region, but, in one given region, which I would say represents an area equivalent to one and a half times the area of the city of Montreal, more than 300 hydroponic greenhouses have been identified in residential neighbourhoods. So we are not talking about a decline in phenomenon here.
I will conclude by telling you that we cannot be opposed to Bill S-10, quite the contrary. I repeat that this is a step in the right direction, probably a first step. Another step will perhaps have to be considered one day, but at least this legislation will help reinforce the message, and also send a positive message to the police departments that are fighting this phenomenon.
Jean-Guy Gagnon, Assistant Director, Service de police de la Ville de Montréal: Madam Chair, I am honoured to be here this afternoon. This is my first experience as a witness before a Senate committee.
The Chair: And not the last, I hope.
Mr. Gagnon: I have come to speak to you today in two capacities, both as the vice-president of the Canadian Association of Chiefs of Police, first of all, but also as vice-president of a more than 100-year-old association representing most of the police organizations across Canada, including all the major police forces in the country, the RCMP, the OPP, Sûreté du Québec, the police departments of Toronto, Montreal, Vancouver, Regina and all the major cities.
Within the CACP, 18 standing committees focus on various situations, various issues concerning police departments. Three of those committees focus in particular on the component we are concerned with today.
The Drug Abuse Committee works specifically on all enforcement and prevention activities that may be carried out. That committee guides the activities and councils of the Canadian Association of Chiefs of Police.
The Organized Crime Committee works more specifically on the relationship between drugs and the criminal organizations that make those substances available in the field.
The Law Amendment Committee works on the legislative component and proposals for advising the association on legislative measures that could be approved by governments to assist police officers working in the field to combat drug-related activities.
As I told you, I am assistant director of the Service de police de la Ville de Montreal, a police force consisting of more than 4,600 police officers serving a population of 1,800,000 inhabitants, a highly diversified population in terms of ethnic groups, wealth and poverty on Montreal Island. Obviously, the drug component is a very important element for us.
When we look at drug intervention, and when I look at the methods of both organizations, the Canadian Association of Chiefs of Police and the police department, we work in relatively the same manner based on a number of areas of activity.
I am going to talk to you about four such areas.
The first area, at the Service de police de la Ville de Montréal, is the research area, the purpose of which is to conduct research that will enable us to gain a clearer understanding of the causes of drug use. A number of studies have been conducted both by internal researchers and by outside partners at the four universities we have on Montreal Island.
I would like to draw your attention to one study that was recently conducted at the department. It found that criminals are increasingly evolving: from being minor criminals — we are talking about robbery, break and enter and theft — they migrate to drug trafficking activities. Consequently, for us, that makes it all the more important to address the drug issue.
We also work on communications. At the CACP, we talk about education. The idea is to find partners to help us with prevention and support for stakeholders in various fields. It is important for us to work to that end. We have to increase public awareness. Communication is the second area of activity.
The third area is prevention. This is essential for us. To be effective in our fight against drugs, we must not only improve the power reinforcement component, but also the prevention component, particularly with regard to drug users, the people dealing with health problems and drug dependence. I believe prevention is more effective for these people than merely criminalizing them.
Last, the fourth area of activity is enforcement, and this is where your bill comes into play. The priority for the Service de police de Montréal and the Canadian Association of Chiefs of Police as a whole, is drug traffickers in particular. I believe Bill S-10 makes it possible to focus on this possibility since minimum prison sentences are going to be added for people affiliated with criminal organizations.
The position of the Canadian Association of Chiefs of Police is the same: work with the various stakeholders, with the community groups, with the detox centres to take action on drug users and, for police forces, to deal with traffickers.
Now I am going to address Bill S-10 more specifically. Clause 2 proposes a minimum prison term for offences committed at the direction of a criminal organization or if the person "used or threatened to use violence in committing the offence," or if the person "carried, used or threatened to use a weapon in committing the offence." In our opinion, this is entirely consistent with the aggravating factors that must be considered for this type of offence.
I have been working for the Service de police de la ville de Montréal for 27 and a half years, fighting drugs and organized crime. I can tell you that these factors are already used by prosecutors and judges for sentencing purposes. However, I believe that including a minimum sentence in an act will point in the right direction and give notice, as was done a few years ago, by imposing a minimum sentence for using a firearm to commit certain crimes. I believe that will lighten the load of the judicial system. At the Service de police de la ville de Montréal and the CACP, we take a favourable of this.
I would like to draw your attention to the second part of clause 2, which refers to offences committed in a school or in a prison. I suggest a brief legal check. A decision was recently rendered on the application of section 179(1) of the Criminal Code concerning vagrancy. The definitions of the terms "school grounds," "playground" and "public park" were considered too general and it was found that that was contrary to section 7 of the Charter of Rights and Freedoms. In view of that decision, there might perhaps be reason to evaluate the legal component of that clause.
With respect to the part of clause 3 concerning imposing minimum terms for offences involving amounts more than one kilogram, we entirely agree with those provisions. Once again, I believe this is already considered an aggravating factor in most drug cases, but it will set a clear orientation for individuals who commit those offences. They will know what to expect.
I believe that will help accelerate the resolution of cases when they arrive in court, as happened with the use of firearms in robberies and other indictable offences.
As regards clause 4, where it refers to real property, as Mr. Morency mentioned earlier, there has been an increase in the number of offences involving hydroponic greenhouses. I think it is important for us to be able to have aggravating factors that permit a minimum sentence for those offences because currently, given the figures that Mr. Morency gave earlier on the number of offences committed just in the north region, north of Montreal — it is the same thing in Montreal — obviously, an enormous number of houses have been transformed, completely demolished, on Montreal Island, and the Sûreté du Québec and police officers across Canada working in rural regions are dealing with farmers who have enormous problems with outdoor hydroponic greenhouses. So we are completely comfortable with the recommendations on that subject.
I would like to make a comment. With regard to clauses 4(1)(b)(iii), (iv), (v) and (vi), no mention was made of the fact that the offences were committed in the context of a trafficking operation, whereas that is mentioned in clauses 4(1)(b)(i) and (ii). For the last four subparagraphs, it should perhaps be added that the offence is committed for the purpose of trafficking.
With respect to clause 5, the only issue raised by our legal department is whether provision should be made for the notice. If so, should it be stated in the article whether that notice should be oral or written?
In addition, with regard to the drug treatment courts, our comment is that the research done to date — I do not know whether this is still the case — shows that this program is available only in six cities. None of those cities is located in Quebec. I believe the situation should be studied to ensure there is fair treatment across Canada.
As for the other clauses, we have no specific comments to add.
So generally speaking, as I mentioned, the Canadian Association of Chiefs of Police and the Service de police de la Ville de Montréal take a favourable view of Bill S-10, which will give us additional tools to enable us to be more effective in the field. I believe that some of the bill's clauses will help expedite the judicial process in view of the fact that criminals will know exactly the minimum punishment they are liable to receive when they commit those offences.
[English]
The Chair: We will now turn to our video conference and ask Mr. Bratzer for his statement.
David Bratzer, Executive Board Member, Law Enforcement Against Prohibition: Thank you so much for having me here today. I have listened carefully to the two presenters before me, and I appreciate their perspective. I work as a police officer in British Columbia. However, I am here today while off duty representing the international non-profit organization Law Enforcement Against Prohibition.
Since my first committee appearance last year, several high-profile individuals have publicly joined Law Enforcement Against Prohibition. They include Vince Cain, who was an RCMP chief superintendent until he retired. He was also the chief coroner for the province of British Columbia. They also include Justice Ross Lander, a retired B.C. Supreme Court justice, as well as Bill VanderGraaf, a retired staff sergeant with the Winnipeg Police Service.
As a representative of Law Enforcement Against Prohibition, I want to update the committee on several key developments that have occurred since its contemplation of Bill C-15.
First, in March, the Urban Health Research Initiative of the British Columbia Centre for Excellence in HIV/AIDS released a report. The report is entitled, Effect of Drug Law Enforcement on Drug-Related Violence: Evidence from a Scientific Review. The authors reviewed available English-language research about drug enforcement, and upon reviewing these studies, they identified 15 studies that specifically examined the connection between drug law enforcement and its effects on violence. Thirteen of these studies, or 87 per cent, showed
. . . a likely adverse impact of drug law enforcement on levels of violence. That is, most studies found that increasing drug law enforcement intensity resulted in increased rates of drug market violence.
The second important development that I want to share with you occurred in July with the announcement of the Vienna Declaration. This was the official declaration of the International AIDS Conference attended by some 20,000 scientists, public health physicians and other health care professionals. The declaration stated that the criminalization of illicit drug users is fuelling the HIV epidemic and has resulted in overwhelmingly negative health and social consequences. The declaration called for a full policy reorientation.
Taken together, these two events give us some idea of the terrible consequences that this bill will have in terms of community safety and public health.
In that context, I want to explore section 7 of Bill S-10, which amends Schedule I by adding numerous drugs that were previously listed in Schedule III. This section illustrates that Bill S-10 is also a drug possession bill aimed at drug users. There will be a massive shift in which all the amphetamines, as well as flunitrazepam and 4-hydroxybutanoic acid, GHB, will move to Schedule I. Methamphetamine, of course, already moved to Schedule I from Schedule III in 2005.
Given this trend, one can project that we may be moving toward a time in which more and more drugs are listed as Schedule I substances, the very worst of the worst drugs.
I ask the members of the committee: What will this trend mean for us as a country, as a society, in terms of our ability to differentiate more harmful drugs from less harmful drugs?
This brings me to my closing remarks. Law Enforcement Against Prohibition remains opposed to mandatory minimum sentences for drug offences in Canada. However, if this bill passes, we hope the committee will see fit to make sensible amendments. One amendment could include an exception for MDMA so it can remain a Schedule III substance. Presently, it is listed as number eight in the list of amphetamines as N-methyl-3,4-methylenedioxymethamphetamine on page 7 of the bill.
Another amendment could include an additional report to Parliament at the five-year mark to examine the potential benefits as well as the many drawbacks of this legislation as it is implemented.
Law Enforcement Against Prohibition will also support any other reasonable amendment that encourages a public health approach to drug policy in Canada.
Senator Wallace: I thank each of you for your presentations.
I think you are aware that Minister Nicholson, who has presented this bill, is concerned, as all of us are, with the drug situation that we find in our society. This bill is an attempt to improve the situation that exists today.
Mr. Morency, I was interested in your comments where you indicate your support for the bill, and in particular your sense that this bill will act in some way as a deterrent by those who would otherwise become involved in drug production and drug trafficking. As you pointed out, in many cases you find that those involved in the trade feel there are only minor consequences. I want you to comment a bit more on the deterrence factor.
Second, the objective, as we have heard it from the minister, is to disrupt, in some significant way, drug trafficking and production. Do you have any comments on how this bill can impact or disrupt the criminal enterprise that seems to be so integrally involved in this problem?
[Translation]
Mr. Morency: I will answer that question by saying this: As I said earlier, this act or the provisions of this act represent a step that will definitely send a message that will at least deter some of the individuals tempted by this venture. I do not know whether we will have to add another step, I do not know whether we will have to go on to other more substantial, more coercive steps, but we will reach a limit. We cannot always be increasingly coercive. We will not be able to work on only one component. Mr. Gagnon mentioned that we have to work on prevention.
I mentioned that in talking about what is being done in the school environment. Police officers are working in this capacity to encourage young people not to fall into the trap of drug use. They are working on prevention, the message, providing better tools to enable our young people to cope with the temptation to try these products. Ultimately, I would say to you what I hear from police officers in the field, that young people do it to be a little like we were when we smoked cigarettes, to be fashionable. And it is so true that the products offered to young people have a colour, logo, attractive shape that make them fashionable; they are okay. Prevention must be carried out in order to prevent young people from falling into this easy trap.
To answer your question, I think this is a step. Will there be others that have to be taken? Perhaps, probably, but it is definitely a step in the right direction. It is also a message that is being sent to the police forces and society in general, that these crimes are no longer trivial.
Coming back to one element again, we are talking about trafficking here. We are talking about traffickers. We are not necessarily talking about users. We will always have to work on user prevention. As long as there are users, there will be dealers. I believe the effort is being focused on traffickers, and it is being focused at the right level.
The Chair: I will remind the witness that our time is limited. It is not that this is not fascinating. It is fascinating.
Mr. Morency: Very well. We will shorten this.
[English]
Senator Lang: I want to explore another area here. This question is to Mr. Morency as well. With your past experience in law enforcement, where you have managed to disrupt a significant drug cartel or a drug gang in an area and, because they were repeat offenders and they had a record, they were put away for a period of time as opposed to going to court and being released on bail, did you find that, in that particular area of your city, there was a decrease in crime for a period of time while they were absent from their place of residence?
I ask that question because we were told by the inspector from Halifax, Nova Scotia, that was their experience when they put people away and they went away for a period of time.
[Translation]
Mr. Morency: I will give you part of the answer and I would like my colleague, Mr. Gagnon, to give part as well, given his experience. When we terminate a ring's activity, we destabilize it. Very soon someone else will take its place in short order because that is the fact of the matter. Should we then stop fighting or working against those rings because that is the consequence? I do not think so; we have to continue. And we are increasingly achieving levels of operational performance that increasingly destabilize the high levels of the criminal world. That takes more time to reorganize, which enables us to reposition ourselves for the next round. There is an advantage to continuing the fight as we are doing. There is a deterrent and destabilizing element that we are introducing.
Mr. Gagnon: My experience is in the fight against organized crime. I was commander of the Carcajou group that fought the criminal biker gangs in the late 1990s. If we do not take action to address these groups, drugs are ultimately the substance that enables them to generate enormous profits. Protecting those profits means protecting territory, which leads to violence to defend that territory. In Quebec, things got to the point where they were attacking the administration of justice through attacks on prison guards, police officers, prosecutors and judges. It is important to continue working in this area. This has a major impact. If we do not stop them, society in general could be compromised.
[English]
Senator Lang: I think my question has been misunderstood. The question is this: If you are successful in prosecuting a number of these drug gangs, you take them off the street and they are put away for a period of time, say three to four years, do you experience a decrease in crime in those areas that they had been living in while they are in jail?
[Translation]
Mr. Gagnon: After arresting these people, we generally see that they will change their habits. They will be less obvious. With regard to the feeling of safety in the community where we have intervened, there will be an improvement in that feeling of safety. The adjustment that most police forces have made following the interventions is that they previously conducted searches in various locations and neighbours were not informed of what happened. Now most police departments in Canada will conduct a search and inform neighbours of what has happened. Ultimately, that means that the criminals will change bosses and will be less obvious. At the same time, there will be an enhanced feeling of safety.
[English]
Senator Banks: Further underground. I have short questions, one for each witness.
Mr. Morency, is cannabis a narcotic?
Mr. Morency: I think it is a drug, yes.
Senator Banks: Is it a narcotic?
Senator Baker: It is under the narcotics act.
Mr. Morency: Yes, it is a narcotic, sure.
Senator Banks: Thank you.
Mr. Gagnon, I had a root canal operation a few weeks ago, and the dentist gave me Tylenol 3 to use. I had some left over. A colleague of mine in the Senate had a bad headache the other day, and I offered him a Tylenol 3 and he took it from me.
Under this bill, if it were to become an act of Parliament, I would be susceptible to being arrested and charged as a drug trafficker. Would you arrest me and charge me as a drug trafficker?
Mr. Gagnon: No.
Senator Banks: The fact of offering proves that I did have mens rea.
The question you answered is a question of policy — that is to say, you would look at that circumstance and you would say that this is not worth charging. What we, in this place, have to deal with is not policy. We have to look at what the bill says. The bill, if it were to become an act, says that I, by definition of having purveyed, offered, conveyed, a Tylenol 3 to my colleague, would have trafficked in a narcotic. Do I understand that correctly?
[Translation]
Mr. Gagnon: Indeed, some questions have to be asked about the bill and what is provided for in the descriptions of the various drugs, but it is always the criminal intent that prevails in Criminal Code offences as a whole, including those provided for under the drugs act. In that case, a police officer would conclude that there was no criminal intent in your example and police officers would not intervene.
In common law, we have to prove to the court that there was criminal intent on the part of the person who offered the Tylenol. In that case, I believe police departments have better things to do than to resolve that kind of situation.
Mr. Morency: If I may supplement the answer, we understand from the bill that putting these products on a list in the schedules that will concern narcotics is related to what I was telling you about earlier, the mixes that are being prepared today. A young person goes on the Internet, finds a recipe, takes available medications or even goes and buys medications available at a pharmacy. That will be the next step; certain products will have to be sheltered. A young person makes himself a drug from that.
That is the spirit of the act; it is to make a list of these products that, in isolation, may perhaps be of no consequence, and we take them for colds or allergies, but, when they are mixed with something else, we create a powerful addictive drug. For $3, a young person is hooked much more quickly and for much longer. The physical and mental health consequences are major.
Senator Carignan: I use less than Senator Banks. I only take number ones. I associated with Mr. Morency in particular during the nine years when I was mayor of Saint-Eustache. I met Mr. Gagnon as president of Quebec's police services council. I witnessed their professionalism and knowledge.
Earlier you mentioned aspects that concern me particularly since I live in a suburban city. You talked about a suburb where there are 300 hydroponic greenhouses in residential neighbourhoods. We saw a search last week in a really very peaceful neighbourhood in Brossard. You mentioned that these people are now mobile. They have mobile labs in vans and they sell drugs for $3. For those who say we are going to legalize drugs so they are less expensive and there is no trafficking, they cost $3.
As regards suburban neighbourhoods that are considered peaceful, where people go to settle with their families — in Montreal as well, because Gérald Tremblay would be angry with me if I only talked about the 450 — can you expand on the point you made and give examples for a town like Saint-Eustache or towns intended for families, which are currently production areas in residential neighbourhoods, and tell us about the revolving door phenomenon? You talked about that a little. You see people again in the field. It is the revolving door effect. Tell us exactly what you are seeing in the field, in the suburbs, in the residential neighbourhoods.
Mr. Morency: First, I am going to talk about an area I know well, Saint-Eustache, where I have been working for 12 years. In the last 12 months, approximately 14 hydroponic greenhouses have been dismantled. That represents one a month. Obviously that works on the basis of complaints, information that we receive from often anonymous callers, about comings and goings, problem movements that trouble people. There is a direct impact on the feeling of safety. People settle in certain neighbourhoods because they have the impression they will be more peaceful in certain areas. When they are faced with this kind of situation, it completely changes their perspective and the feeling they had about their neighbourhood and about their safety. They are relieved to see the intervention. If it was not done, let a little time go by and imagine what the feeling of safety will be like. These people may change neighbourhoods if we do not act, if we do not take action on those hydroponic greenhouses.
The bill provides for harsher penalties. I think that, in the minds of the public who monitor the results of these searches because, as Mr. Gagnon said, we inform them, we keep them up to date in order to restore this feeling of safety. But if the consequences are there and they do not see the same trafficker in the area in the next few days, that will have a good effect on their feeling of safety.
Mr. Gagnon: In Montreal, this is indeed the place in all kinds of neighbourhoods. I recently took part in a search in Mont-Royal, which is a well-to-do neighbourhood in Montreal, where a fashionable residence had been completely transformed into a hydroponic greenhouse. Regardless of where the activity takes place, in a rich or poor neighbourhood, that has a major impact on the feeling of safety. The concern is about fire hazards. A number of hydroponic greenhouses are identified as a result of calls from the fire department.
I am concerned about the poor people who own those buildings because this is often done under lease, or about the future owners of these buildings, who wind up with very large unexpected expenses as a result of the effects of a hydroponic greenhouse, which have a significant impact on the very structure of the house. It is at this level that the issue has to be examined.
Senator Boisvenu: You are aware of our government's concern to pass this bill. Its aim, in large part, is essentially to protect our youth. In your presentation, you talked about the cannabis use seen among increasingly young people. These youths embark on a cycle of dropping out of school and their families, followed by drug debts, crime and home break-ins. In Quebec, three crimes were committed by three minors of 15 or 16 years of age who had drug debts, one of whom killed his mother. And these youths are often dealing with adults who use them to go and sell cannabis to even younger children, eight or nine years old; the drug use has gone that far.
How will our bill help police officers get to the adults? Ultimately, a youth of 15 or 16 years of age who gets caught up in this circle has, somewhere, been recruited by a criminal gang; he is a victim of the system and a victim of his own drug use. What interests me, and what interested the association of which I was president, is how this bill will help police officers get to the leaders, the adults who use minors and who are causing enormous damage in our school boards and our families.
Mr. Morency: I would say at the outset that a police investigation always seeks to move up the ring. The nature of the investigation is to try to get to the head of the ring. Where the bill will be most effective is in the consequences that ensue. Ultimately, we sometimes get our hands on a trafficker, but depending on drug use or whether any prior aggravating factors — such as possession of a firearm or violence, which are classic aggravating factors — were already in the legal picture, if that is not present and if the traffic was average in scale, the trafficker enters and leaves the system without too many consequences. There is no clear deterrent message for the youth who were under his control, for the people who suffered the consequences of that ring. The bill will at least lend some coherence to the message we want to send as a society. Will that be the solution for all evils? I very much doubt it, because there will always be a drug user with a need and a trafficker to sell him drugs, but we will definitely complicate the lives of those traffickers, which today are not very complicated.
Mr. Gagnon: Certain provisions of the bill — whether on proving that a criminal organization is involved or that a large number of plans are involved, or the component concerning the proceeds of crime or real property involved — will more specifically concern the organized crime aspect as a whole.
As for youths 14, 15, 16 or 17 years of age who are employed, the police department will treat them in accordance with the Young Offender Act. There are provisions in that act that enable us to adjust police and court intervention with youths appropriately based on their age or the fact that they may have made a mistake and that there may be room for improvement without necessarily prosecuting them.
Your example emphasizes the importance of the prevention component. What projects can we put in place to improve youths' self-esteem and academic results? All the factors that lead young people to get involved in drugs stem from that. From the research, we will be able to specifically identify the causes and take preventive action to address self-esteem and their need to belong, and give them the opportunity to have activities, for example. Ultimately, the factors that lead young people to get involved in drugs are, most of the time, poverty — one of the major factors — the need to group together, the need to do as the others do, lack of self-esteem and lack of resources to realize their potential. Fortunately, a number of them will do that through sports or cultural activities. We will be able to achieve these results through prevention.
[English]
Senator Baker: I congratulate the presenters. I want to ask a question of Mr. Bratzer. Before I do, I have a short question for the officers at the table as well.
I do not want anybody to have the misimpression that someone needs a mens rea to prove a mens rea when someone has possession of a drug that has not been prescribed to them. I am sure, Mr. Gagnon, that when you find Valium, OxyContin, Tylenol 3 or Atasol 30 in someone's possession and they have not been prescribed those drugs, then they are guilty of an offence under the Controlled Drugs and Substances Act, CDSA. To pass someone a drug that has codeine in it, a Schedule I substance, is an offence. There is no sense in saying, "Well, I didn't intend to give it to somebody," or "Somebody gave it to me, I didn't intend to have it in my possession;" I think Mr. Gagnon would agree that explanation never comes into play.
As far as the high level or medium level traffickers are concerned, in Quebec, the average sentence is three to eight years for someone at a medium level — not the fellow talked about earlier — so the minimum sentences will not affect them.
My question is to Mr. Bratzer. Is it your understanding, sir, that after the passage of this bill, if someone passes a drug to someone that contains a Schedule I substance, and that person is in a university, a police school, a medical school, or a law school, that person will be subjected to the minimum, now the definite minimum sentence, of two years in jail; and up to life imprisonment if that drug is listed under Schedule I, as codeine is, for which Senator Banks made his point?
Mr. Bratzer: Senator Baker, you raise an excellent point because of the aggravating factor of "in or near a school." The question is, what is a school? The police always have discretion but one must be careful with discretion, and it is important for the committee not to assume that a police agency and individual officers will always apply discretion wisely. That is not the case. Sometimes if they have a choice between using a minimum amount of discretion and a maximum amount of discretion, there will always be police officers who use the minimum amount. I suggest it is appropriate for the committee to consider a more specific definition of the word "school" so we do not see young people in university, college or somewhere else caught up in a mandatory minimum jail sentence when that is not necessarily the intention of the legislation.
The Chair: Before I turn the floor over to Senator Joyal, I will tell Mr. Bratzer that we have distributed to committee members the report he mentioned in his presentation from the Urban Health Research Initiative.
Mr. Bratzer: Thank you, Madam Chair.
Senator Joyal: Mr. Bratzer, my question to you will probably trigger an answer from our other two witnesses. You recommend that the bill include a provision whereby, after five years, Parliament revisits the issue to measure the impact of the legislation. The review would determine if the legislation has met its objective, or, as Mr. Morency said earlier, since the legislation is one of the steps, if that step achieved its goals, or if we had good intentions but those intentions remain under the floor that we want to reach.
Can you explain to us, on the basis of your experience, why you suggest five years, and why you think two years is not enough, as stated in clause 5 of the bill that amends section 8?
Mr. Bratzer: When I reviewed the transcripts of earlier witnesses' testimony, I read from the evidence of Don Head of the Correctional Service of Canada. He testified that they are only now implementing some kind of new data capture system that will record, as inmates enter the correctional system, what sort of aggravating factors might apply to those inmates. That tells me that until this point, they have not been tracking that information. By definition, anybody entering a federal facility is serving two years or more. On the day that this legislation comes into effect, even if someone is arrested, tried and convicted — all on the same day, sir — they will not be released for two years, which is when the first report to Parliament will start.
There simply will not be enough data after the first two years for an evidence-based report to Parliament. After five years, we will have a better understanding of the levels of costs to the taxpayer regarding Bill S-10.
[Translation]
Senator Joyal: Could I ask Mr. Morency or Mr. Gagnon whether Mr. Bratzer's comments confirm your own perception of the length of sentences, appeals, and so on, and sentencing.
Mr. Gagnon: There is a minimum time period for obtaining the relevant data in order to conduct a good case analysis. As I mentioned, that is part of our vision of conducting research on the aspects we will be putting forward in order to gain a clearer understanding of the phenomenon. I believe it is entirely appropriate to plan an analysis and assessment of the procedure, which will be put in place under this legislation.
[English]
The Chair: We still have three senators on the list, and this is only our first panel, Senator Joyal.
Senator Joyal: Mr. Bratzer, this question is about your statement that fighting drugs is also an issue of public health. Why do you put that much emphasis on the prevention and not on fighting organized crime? Why do you make that distinction in your presentation?
Mr. Bratzer: It is an excellent question. All of us here, both presenters and senators, share a lot in common in that we all fundamentally want the same thing: We want laws and public policy that will result in the lowest possible levels of problematic substance use for Canadians.
I do not want to distract attention away from Bill S-10 too much, but, fundamentally, does the criminal justice approach work, or does a public health approach work? If you look at some of the evidence I have presented to the committee in the form of different reports, it becomes clear that the criminal justice approach has failed. Increasing, drug law enforcement intensity likely will result in increased drug market violence in communities across Canada.
[Translation]
Senator Joyal: Perhaps Mr. Morency and Mr. Gagnon could comment in a few seconds.
The Chair: If they can do it in a few seconds.
Mr. Morency: I believe I will go back again to the message aspects. There should be a balance between a message that conveys a perception of no consequences and a message that conveys a perception of specific consequences. One of the bill's strengths is that there is this balance. Is it perfect? Probably not.
I also simply want to say that considerable effort will still have to be put into prevention. My colleague has also talked about that at length. The act cannot do anything on its own. Other provisions will have to be added to it.
Mr. Gagnon: For users, I think priority should really be given to the health and prevention component. For traffickers, especially those involved in criminal organizations, the enforcement component produces the most results.
The Chair: It is not that we do not want to continue, but we have to follow a schedule.
[English]
Senator Runciman: Mr. Bratzer, we have talked about the criminal justice system failing, and I think a lot of people agree with you. I might disagree with your reasons in terms of how to address that failure. We have a witness from British Columbia later today who has conducted a study. One conclusion was that law-breakers have to rack up nine or more prior drug convictions before they have a better than 50/50 chance of being sent to jail. That is the British Columbia experience, according to that study.
Perhaps the criminal justice system, with the tools currently in place, has failed Canadians. That is why I think government is introducing new measures to try to improve the impact, in terms of reducing abuse.
I am curious about the comment you reiterated, which was that of violence increasing with increased enforcement. Can you elaborate on that comment? How will that increased violence occur and what will cause it to occur? Please spell it out in more detail, if you can.
Mr. Bratzer: I will be glad to. Perhaps the best example internationally right now is Mexico. Since 2006, when President Calderón sent in the army to tackle the drug cartels there, over 28,000 people have died in violence between state and drug cartels, and between the drug cartels themselves. Some might say, those deaths are only bad guys killing each other. However, in reality many of those people are soldiers, police officers, journalists, politicians and innocent citizens, like business people who refuse to take a bribe. Therefore, the violence truly has a significant impact on civil society.
At a lower level, in Canada, it is typical that, after a lengthy and complex police investigation, the top tier of an organized crime group might be arrested and sent to jail. The people at the lower tiers do not suddenly stop. Instead, they compete with each other to become leaders of that organization, or they start their own separate organized crime groups and begin fighting each other. When I say "compete," they do not sit down with their lawyers and sort it out in civil court, sir; they use machine guns and all kinds of violence.
That is what I mean when I say that increasing drug law enforcement intensity can precipitate violence in communities across Canada.
[Translation]
Mr. Morency: That makes me react a bit and I want to submit that respectfully. I do not want to commit an international blunder, but we are not talking about a comparable situation. We are not at the same point, this is not the same case at all. I believe Mr. Gagnon raised an important point. If we leave room for traffickers in a region, city or neighbourhood, the money and interest will increase. And if we wait to address the phenomenon, or rather if we delay the attack and then attack when it is at its most powerful and the money is at its highest level, that will take enormous resources and there will be violence. But we are not talking about that in Canada; we are not at that stage. We are talking about preventing things from coming to that by establishing certain barriers. Bill S-10 raises a barrier to that.
I want to take nothing away from Mr. Bratzer's observation, but the fact remains that I believe we are talking about another type of case in Canada.
Senator Angus: Mr. Gagnon and Mr. Morency, first thank you for your evidence, which is very interesting. I find it very professional. And your understanding of these situations is good, and it is helping us a great deal. The question I have is for Mr. Gagnon. I only have one question concerning the houses you spoke of, in Mont-Royal, for example, a house in a well-to-do neighbourhood.
Have you examined documents at the registry office to determine the owners of those buildings?
Mr. Gagnon: There is a registry that will enable us to verify these aspects. The brokers will verify those aspects. This is a new provision that has been put in place. I have seen cases in which it happened that people did not check and bought a house that had been a hydroponic greenhouse. There was an issue of mould inside the house, and in other cases it is already the owner. These are rented dwellings.
The owner will always be responsible for any damage caused. He believes he has leased the house to honest individuals, but unfortunately it was leased to people who wanted to convert it to a hydroponic greenhouse. Consequently, there are both situations at this time.
Senator Angus: So if I understand correctly, you have not yet managed to establish a link between organized crime and the owners of these houses?
Mr. Gagnon: No. When I conducted the search, we were obviously at the stage before all that. So there had not yet been an investigation into that. But what we are currently seeing is that some criminal groups will proceed by rentals. Others buy properties and promise the person who maintains the hydroponic greenhouse that, at the end of the operation, they will own the place. So these are the various models we have, but there may be variations from one criminal group to the next. Obviously, renting is still the least costly for them.
Senator Chaput: From what I have understood, imprisoning traffickers would give our communities a feeling of safety. I believe that Mr. Gagnon and Mr. Morency were also of that view — you will correct me if I am wrong.
And yet the report that we have in hand, which comes from the International Centre for Science in Drug Policy, shows the reverse and states that violence increases.
My question is for Mr. Bratzer: Are you of the same view as Mr. Morency and Mr. Gagnon on this question? Will imprisonment give us safer communities or will it instead increase violence?
[English]
Mr. Bratzer: We need to distinguish in this case that we are talking specifically about drug offences, and in my opinion and in the opinion of the current and former law enforcement officers who are part of Law Enforcement Against Prohibition, it does not make for safer communities. Perhaps it is counterintuitive. We need to differentiate between an individual drug trafficker who goes to jail, in which case the community is then safe from that individual drug trafficker. That person has faced consequences for their actions.
It is important to uphold the rule of law. However, we cannot underestimate the resiliency of the black market for drugs in Western societies. As soon as that individual drug trafficker is taken off a street corner, a vacancy is created for someone who is more experienced, ruthless and clever who will fill that vacancy.
Individually, yes, that trafficker goes to jail; however, in terms of the larger black market, no, it has not made those communities safer.
[Translation]
Senator Chaput: Would that simply be just an illusion of a safer community if we indeed imprisoned the traffickers? Is this an illusion or a reality?
[English]
Mr. Bratzer: I suggest that our experiences to date, since the modern war on drugs started back in 1970, will show that it is not the case. In the intervening 40 years, despite billions of dollars invested in drug law enforcement, drugs today are cheaper, more available and purer or stronger than ever before, as you heard other witnesses explain.
In the long term, this public policy of a criminal justice approach to the issue of drugs in our society has not worked, and we need to consider alternatives.
Specifically focusing on Bill S-10, if we examine Bill S-10 on its merits and on the evidence, it will not achieve any of its stated objectives.
[Translation]
The Chair: I impose the same discipline on myself as on everyone else. I had some supplementary questions, but I am controlling myself. Thank you very much, Mr. Morency and Mr. Gagnon.
[English]
Mr. Bratzer, thank you very much. It must be difficult to sit there gazing at the screen with all of us putting questions to you, but we are grateful to you.
Mr. Bratzer: Thank you, Madam Chair.
The Chair: Colleagues, we will allow these witnesses to take their leave and invite the next witnesses to come to the table.
For our second panel this evening, we are delighted to have with us, from the Canadian Students for Sensible Drug Policy, Tara Lyons, Executive Director; and, speaking as an individual, Tracey Anderson. We thank you both very much for being here. I know you will bring slightly different perspectives, both of which will be of great value to us. I think you are aware of how we handle things around here. We ask you to make a statement, and then we will ask you questions.
Is this the first time you have appeared before parliamentary committees?
Tara Lyons, Executive Director, Canadian Students for Sensible Drug Policy: I was before Parliament once for Bill C- 15.
The Chair: Well, we do not bite.
Senator Joyal: Not yet.
The Chair: Ms. Lyons, you will begin.
Ms. Lyons: We thank you very much for this opportunity to present to you today about Bill S-10. As the chair said, I am speaking on behalf of the Canadian Students for Sensible Drug Policy, and I have been told repeatedly to speak slowly. If I speak too fast, please let me know.
We have three areas of concern with Bill S-10 that we feel have the potential to harm young people and youth. First, we feel that incarceration of young people is not the answer. We absolutely agree that we do not want to see gang activity and we do not want to see violence on the street. I will not be talking at that level. My expertise is not in cartels. We are more interested in young people that are our membership.
We feel that the incarceration of young people is not the answer. Although we agree with some of the principles of this bill and some of the intentions, we respectfully disagree with Minister Nicholson that Bill S-10 is a balanced approach. We are concerned that, if passed, this bill will have devastating consequences for young people, will have the unintended consequence of not protecting them and will not make our communities safer.
We have an example in the news right now of the tragic death of Ashley Smith in the Grand Valley Institution in 2007. Her experience of incarceration is exactly why we need to keep incarceration as an absolute last resort for young people. Young people involved with drugs need a helping hand up and not a prison sentence, which can result in more harm.
Given the evidence that mandatory minimum sentences for drug offences do not deter drug use or crime and the devastating impacts these sentences can have potentially on Canadian society, particularly for young people, we recommend that Bill S-10 be abandoned. However, understanding that it probably will not be abandoned, we are hopeful that you will consider some of our recommendations.
We are concerned with the proposal to move some of the amphetamines and Ecstasy, otherwise known as MDMA, into Schedule I. Because young people use these substances at much higher rates than adults, this proposal poses serious consequences for young people. Possession of one pill — and we have heard this at committee repeatedly and again today — will result in seven years in jail and life sentences are possible if they share these pills with their friends.
Senator Baker and Sergeant Sadler gave you evidence on October 28 that individuals are charged and convicted of trafficking one pill of Ecstasy at raves. I am not talking about a hypothetical situation. I am not making up a scenario here. There is likelihood that we will see sharp increases in the number of young people incarcerated for lengthy periods of time with this rescheduling.
I draw your attention to a study that David Nutt and his colleagues recently published in The Lancet. They found that alcohol causes the greatest harm to society, and had an overall harm score of 72 out of 100, whereas Ecstasy had an overall harm score of 9 out of 100, and came in well behind tobacco and other drugs. The Canadian addiction survey found similar results in Canada. Committee members are familiar with those as well, I am sure.
At this time, we recommend that the amphetamines listed and Ecstasy not be moved to Schedule I. Instead, we suggest a review of Canada's drug classification system, including alcohol and prescription medications, because we feel these substances are too often left out of these discussions.
We suggest a review of the drug classification system to guide future rescheduling, to gain a better understanding of the harms related to substance misuse and to prevent these unintended consequences.
Third, Bill S-10 contains several aggravating factors which automatically increase the minimum sentence for the individual charged. We are especially concerned with the subparagraph 5(3)(a)(ii)(C) on page 2 of the bill that reads that "the person used the services of a person under the age of 18," as well subparagraph 5(3)(a)(ii)(A), where an individual receives a mandatory minimum sentence of two years if the offence is committed on or near a school.
This section has been talked about a lot at committee so far. Clearly, these clauses were added with the intent to protect youth. However, the dangerously vague language means that youth will be unintentionally harmed. In the case of subparagraph (ii)(C), an 18-year-old who gives her 17-year-old friend a pill can end up in jail for two years. In subparagraph (ii)(A), if the place is one frequented by young people, like the rave where we have heard that people receive convictions, then it is more likely that the young people will be the ones who serve time under mandatory minimum sentences in our already overcrowded jails and prisons.
It is important for the committee to understand that it is often young people sharing drugs with other young people. A recent study by the Queensland Alcohol and Drug Research and Education Centre of over 6000 young people between the ages of 18 and 23 found that access to Ecstasy was linked strongly to groups of friends. They had a situation where one person would buy five pills to distribute to their friends at the party. This situation is often what we see. Most often, young people are not getting their drugs from this scary stranger on the street. Yes, that does happen, but in most cases that is not the case. Instead, it is peer networks that are the most common distribution pattern. Young people are sharing or selling drugs to other young people. Therefore, this section of the bill can have devastating effects on young people.
We recommend that subparagraphs 5(3)(a)(ii)(A) and 5(3)(a)(ii)(C) of the bill in clause 2.(1) be removed. However, if these sections are deemed necessary, as other witnesses have recommended, we recommend that the language be more precise to offset some of the potential unintended harmful consequences to young people.
To conclude, I urge you to look at non-anecdotal evidence of the harms of mandatory minimum senses and the negative impacts on young people. We urge you to consider alternatives to Bill S-10 and to keep our young people and communities safe. We do not want our young people growing up in jails and prisons; we do not want them receiving their education there.
The Chair: Thank you, Ms. Lyons. Colleagues, the study from The Lancet to which Ms. Lyons referred is in the great pile of documentation you received today. It is called "Drug harms in the UK: a multicriteria decision analysis."
Tracey Anderson, as an individual: Thank you for allowing me to address the committee about this bill.
I am here for a different reason, obviously. Family is everything to me. I have raised my children to be good community members through volunteering and staying active in our community, to not be afraid to ask questions if there is something that they do not know, and to help out wherever they can.
When my daughter Chelsea died last year on July 8 of a drug overdose, it was very — sorry.
The Chair: Take your time.
Ms. Anderson: It was a shock to our family.
The Chair: Take your time, Ms. Anderson.
Ms. Anderson: I practiced this and it was great.
Chelsea was a slight girl. She was small, but she had a huge heart, and she was not afraid to show it. She generally loved everybody she met. She was extremely outgoing. I will not tell you she was perfect. She was your typical teenager, and was rebellious. We definitely had our fights and battles. When she thought she was right, she would definitely stand her ground, and that is something that I admired because, until she was proven wrong, she was right.
Her volunteer work in the community included activities like the Yukon Sourdough Rendezvous and the Yukon Quest. She joined the army cadets, where she was a biathlete, moving up in the ranks before she aged out. During her last year in summer camp, she came home and announced, "I learned first aid so if you have a heart attack I can save you." She was a caring child.
Chelsea had only a few boyfriends, but none of them could keep up to her ambitious life. In the winter, she was off skiing and playing basketball and, in the summer, she was at the cabin swimming in the lakes and rivers, fishing, hiking in the mountains and camping.
In school, Chelsea volunteered in room 1, which is the special needs class. This was an after-school curriculum where she helped these students with their homework. One thing about Chelsea is that if she saw these students on the street or in the school ground, she would never back away or shy away like most teenagers. She considered them peers and not different in any sense.
Chelsea's friends still come to visit me today, and we talk about what is going on in their lives. One of her best friends is getting married this year, something that — sorry. As a mother, I will not be able to see her get married.
How did this all come about with my daughter? In Grade 10, she started working at a hardware store. She enjoyed that work very much. She decided that she was going to move out. Of course, that was against my wishes, because I do not want any of my children to leave the house. She moved out. She kept up with her studies in school and was fabulous. She was able to pay her rent, and she did very well. She changed her job shortly after and started working in a grocery store, where she met a young man, and started seeing him.
A few months before she passed away, I started noticing changes in her; lower self-esteem and things like that. I was not exactly sure what was going on. One of the things that I found out probably six months before she passed away was that the boy she was seeing was actually 30. She was 17. I did not know his age. He did not look that old. He looked like a young fellow. When I found this out, the family and I started taking steps to remove her from that situation. We knew there would be a problem. I made arrangements with her older brother to send her to B.C. for a three-week camping trip, and she died two weeks before that happened.
I guess the hardest part was when the police came to the door and said she was gone. The thing that surprised our family the most was that it was a drug overdose. She was totally against drugs. From what I understand from the police and coroner, Chelsea might have tried drugs once or twice prior, so this was a new thing. Her official cause of death was morphine overdose, and this was caused by a mix of cocaine and heroin. Chelsea was allergic to morphine. After taking this particular drug, she was tired and went to bed. From what I understand from the reports, her boyfriend went to bed shortly after that and she was breathing funny. He put her on the floor because he wanted to sleep. That is where she died. He was high, and did not see that she needed help.
People like this show young, impressionable kids — and they are kids; she was 17; yes, she was an adult, but she was still a child — that having drugs in their possession, and these are harsh drugs, is acceptable in society. That is what she learned by staying with this fellow. It is happening here. It is like having a glass of wine at dinner is socially acceptable in some people's houses and not in others. My question is: Is this really socially acceptable?
Personally, I believe that the laws should be stiffer. People like this will get away with this kind of behaviour. In my opinion, some dealers are just getting a slap on the hand. I do not believe that they are taking responsibility for the actions they have taken.
The death of Chelsea has left not only a hole in our family but also in our community, and it is important to recognize that as well. I am here as a mother talking about the loss of my daughter and what drugs have done to our family, but also what these drugs have done to our community. We have lost a member of our community who was inspiring, fun and caring, and she was an amazing child.
I have brought with me statistics to give you an idea — this sheet here — about the community of Whitehorse. In 2009, when my daughter died, these are some of the stats. Drug possession charges in the Supreme Court of the Yukon alone were 15,984, and 8,106 were found guilty and 59 were acquitted. For the same year, for drug trafficking, the number of cases that came before the court was 12,587, of which 7,230 were found guilty. I stress the fact that Whitehorse has a population of approximately 25,000 people.
I have lost my daughter and I cannot imagine any other families having to go through what I have. Thank you. Sorry.
The Chair: You do not need to be sorry, Ms. Anderson. We are the ones who are sorry. We know this is horribly difficult for you and there are not words to express our sympathy, but we are grateful. It is important for us to hear from people with stories like yours.
Ms. Anderson: I know you are hearing a lot from organizations and people who deal directly with these folks, and I want to stress that there are families out there who have lost family members because of drugs. It is another side to consider when looking at bills like this one.
The Chair: Thank you very much.
We will go now to questions, beginning with Senator Lang.
Senator Lang: I want to thank Tracey Anderson for coming before the committee, and I know how difficult this must be for you. However, it is important that we, as a committee, and Parliament, hear the real human side of what these drugs do to families and to Canadians. Another important aspect is being presented here, and the fact is that these drugs are not only in Vancouver and not only in Halifax but in rural Canada too. Probably in some cases they are more prevalent in rural Canada than in other areas of the urban communities of southern Canada. The question that must be asked is how we curb that prevalence and that is the reason for the bill before us.
In your presentation, you talk about the court system and appearance before the courts of these people who are known. They are repeat offenders and they receive a slap on the wrist. They come back out on the street and there seems to be no consequence to their action. Ms. Anderson, can you expand further, from your point of view as a mother and a mother who has lost a daughter in a situation that can only be called tragic?
Ms. Anderson: The situation happened a few months after my daughter had passed away. My husband is a courier, and he was called to a residence to pick up an envelope. The fellow opened the door and said that the envelope contained a large cheque for his lawyer, that it was nothing, and he was up on drug trafficking charges and that he would get off scot-free. Not knowing who my husband was, he was blatantly saying this and making statements like that. Personally, they have no respect for the law. They do not care what is going on in their community. They are there to make money. Besides the fact that my husband drove around the corner and broke down after hearing this; it is part of his job. He must carry on doing what he does.
In our community, being a smaller community, we face these individuals every day. For my daughter, no charges were ever formally laid because there were not enough drugs at the scene to prosecute. Both her boyfriend and his father are walking the streets, living a normal life.
I do not know what else to tell you. It is frustrating. It is heart-wrenching. It is a hard community to live in when we see things like that, knowing that they are there to do this again.
Senator Lang: In reference to the legislation that is before Parliament, with the strengthening of the justice system, with the addition now of what is seen as mandatory sentencing, do you think this bill is a step in the right direction? Do you feel, from your perspective, coming from a smaller community in Canada, that if one of these individuals is prosecuted and found guilty and is put away for a period of time, it will help make the community more secure?
Ms. Anderson: I do, definitely. Having minimum penalties, along with education programs, would be a really good combination, personally. These people need to be taken off the street and removed from the situation that they are dealing in, to break those ties. I have been listening to how others will move into their position and whatnot, but if the penalties are strong enough, it will make people stop and think about whether it is worth it.
[Translation]
Senator Boisvenu: Ms. Anderson, my most sincere condolences. You know, my daughter was also assassinated by a reoffender who had substance abuse problems, who had previously committed crimes for which the system had merely given him a slap on the wrist by telling him not to do it again. I understand your frustration and I understand that you have a lot of expectations of the Conservative government for it to tighten up the laws and especially send a clear message.
Ms. Lyons, I was somewhat surprised by your statement that we should put users in prisons and that, if one young person gives a pill to another, he should receive a seven-year sentence. Have you read the bill? Do you have a good understanding of it?
[English]
Ms. Lyons: If I understand the question correctly, I understand we are talking about trafficking, absolutely. I read the bill numerous times and have presented on its other form, Bill C-15. I do not know when I said that we were putting consumers in prison. I believe you may be referring to subparagraph 5(3)(a)(ii)(C) and clause 5(3)(a)(ii)(A), where I talked about a 19-year-old at a rave with their friends who are 17, for example. I was not talking about the 17-year-old being given the mandatory minimum sentence. I was referring to the 19-year-old, who is still a young person. That example went along with my point that especially if we are talking about places in or near a schoolyard, or presumably a rave, that is a place where young people frequent. That place would be subject to the aggravating factor of the two-year mandatory minimum sentence. Does that clarify?
[Translation]
Senator Boisvenu: You did say that if one young person gives another young person a pill, he should be sentenced to seven years. I do not see a crime in that. Furthermore, you say the bill will affect young people because they are the ones who use the most. I am trying to understand the connection you make between drug use and the bill, whereas it concerns traffickers more particularly.
[English]
Ms. Lyons: I apologize; I misunderstood the first time. The clause I believe you are referring to is about the rescheduling. I read this from other transcripts as well and from other legal people in here, and that is why I gave the example of Senator Baker and Sergeant Sadler. My understanding is that if we have MDMA, for example, that is rescheduled into a Schedule I, and then it becomes a possession charge. I believe Senator Banks was giving a similar analogy beforehand, and that is what I referred to.
I apologize that I misunderstood you the first time.
Senator Baker: I have a supplementary question. I think your point is that if we take all these drugs from Schedule III and put them in Schedule I, the possession charge goes from a possible three years to seven years.
Ms. Lyons: Exactly.
Senator Baker: That is what you were implying.
Ms. Lyons: Yes, sorry; I apologize.
Senator Baker: And you are correct.
The Chair: I have a question to put to Ms. Lyons, particularly, and to Ms. Anderson, if she is interested in answering it. Ms. Lyons, as I expect you are aware, there has been discussion around the table, including with the last panel of witnesses, about the whole question of proximity to a school. I wonder if you have any thoughts about that issue.
Clearly, there is a public interest in trying to protect children in places they will be on a habitual basis, particularly schools, from purveyors of dangerous substances. However, there has been testimony and some indication in case law that it is difficult to achieve that purpose without casting too broad a net. Do you have any thoughts about that issue; have your members discussed it?
Ms. Lyons: We spent a lot of time thinking about this section of the bill. With all of this stuff, I wish I could come to you and say, I have the magic answer.
The Chair: That is what I was hoping you would provide.
Ms. Lyons: It is complicated. I understand that you are dealing with complicated situations and there is not an easy answer. We are not in the business of trying to protect people so they can give dangerous drugs to young people; that is not our intention at all.
It would be difficult, even if the language was something specific. I think this point has been talked about by other people, even in the last panel: Are we talking about an elementary school, a high school or a university? Even things like that would make the bill more precise. I have also heard talk about specific distances, which might be more useful. The language of "on" or "near," especially "on or near school grounds" is problematic.
In that same clause, you also have the phrase, "any other public place usually frequented by persons under the age of 18 years." That wording is extremely broad. That could be anywhere. It could be Parliament Hill because we have young people come to Parliament Hill and meet with members of Parliament and walk about.
Our concern is sweeping up people unintentionally. I do not think anyone around this table is trying to sweep up intentionally a bunch of people under 25 and put them in jail. However, young people across the country have these experiences where we can see how this would happen. We often see young people with someone who is close in age, like a 19-year-old with a 17-year-old or something. That might occur in a mall, for example, in which case we would ask for more precise language.
I am not a legal expert, per se, so I cannot give you the best legal answer. Does that make sense at all?
The Chair: Sure; you and your members have been grappling with the same questions as everyone else.
Ms. Lyons: Exactly.
The Chair: Ms. Anderson, did you want to think about that?
Ms. Anderson: I have a couple of comments. I understand the differences between an elementary school, a high school and a university. One thing we have done in the Yukon is to introduce a drug dog into one of the schools. It was a school my niece went to. My niece felt so much more secure at school because this dog was there.
The Chair: Was it there on a regular basis?
Ms. Anderson: It was, yes. It is a pilot program to see how the students and parents react and all that. I do not have statistics on the program; I cannot tell you if it is extremely successful. All I can tell you is that my niece felt more comfortable at school, knowing that these dogs were there.
The Chair: Thank you both very much.
Senator Wallace: Ms. Anderson, it is difficult to ask you a question on the issue of schools and the impact of drugs in schools because I know all of this is so obviously personal to you.
A major focus of the bill, a concern the minister has and a concern all of us have around this table, is to protect our children from the problems of drugs at a school, in particular. A school is where children go to the next level to move through life and to acquire what they need in a positive way. It is not a place to run into the issues of drug trafficking that seem to be prevalent.
The intention is there. I guess we will have debate on how we deal with that intention. Is there one magic answer that will solve the problem; probably not. The feeling of the government is that this bill is a step in the right direction. It sets out real consequences. It is an overworked expression, but it sends out strong messages that schools must be out of bounds for drug trafficking, as much as we can cause that to happen.
Is there anything more you would care to add from your experience or knowledge about drugs in schools and the negative impact you or your friends have experienced in that way.
Ms. Anderson: There was no such problem in the school my children attended.
The Chair: There was not?
Ms. Anderson: None that came to light. I imagine if I go home and ask, my son will say "Oh, yeah," but as a parent I was never told there was any kind of problem on that particular school ground.
That said, it is public knowledge in some of the other schools that there were some problems. As a parent, when I send my children to school, I have an expectation that the people at the school will keep my children safe, be it from drugs, violence or whatever. It is a learning institution. Sometimes school is a refuge for children because their lives at home may not be stable, and it is one thing that is stable in their lives.
Especially when it comes to the younger levels — elementary and high school — I think we need to do whatever we can to protect our children there. Schools should be a safe haven for them.
The Chair: I will ask Ms. Lyons if she wants to comment.
Ms. Lyons: We absolutely want the schools to be kept safe. I think it is different when we are looking at university and college campuses. That is why I think there are different situations.
I would go more to the specific policy language of tightening up what exactly that language means and how to make that language more precise to protect young people on one hand, but also not harm other young people unintentionally on the other.
Senator Lang: I want to pursue the point Ms. Anderson made about the police dog in the school. For the record, that particular school had undergone a lot of problems, and that dog did not arrive overnight; it was the consequence of known drug trafficking, and drugs being taken by students in a young setting. That is why the dog was acquired.
The Chair: That was not a supplementary question, but we will take it as a point of information.
Senator Wallace: Ms. Lyons, I understand why you make your point, but you distinguish between junior high, high school and university. You put universities into another category, and I will not debate that distinction with you. I think I understand why you say that.
The only comment I will make to you, which I make as a parent, is that I do not distinguish the difference.
The Chair: Is that a question?
Senator Wallace: No; I think it is an important statement to make. It is all one of perception, but I make that comment to you.
If you want to comment, then that is fine. As a parent, I would not distinguish between them.
Ms. Lyons: I feel like I am saying the same things over and over. I am not sitting here advocating that we should put drug dealers on campuses, universities, elementary schools or what have you. I am looking at a policy document and trying to curtail, perhaps, unintended consequences to young people, our membership, who are under 25.
Senator Wallace: You are trying to bring balance to the bill. We appreciate your comments. Thank you.
The Chair: There are times when we turn more to dialogue than to standard question and answer format, and sometimes it is useful.
Senator Joyal: Welcome. My first question is to Ms. Anderson. In the school that your daughter attended, according to your information, was there any program or any information shared with students? Being 17, she would have been in high school. Do students receive a leaflet each year to remind them regularly that these substances are not innocuous products and that they can be damaging, especially in situations like what happened with your daughter, the allergy, and so on? To your knowledge, was there any such program in the schools that she attended in the past?
Ms. Anderson: Yes, there was. The two schools that she attended, the elementary and the high school, had family values as a basis of their education. Yes, they talked about drugs; yes, they talked about parenting. They talked about what it was like to be a good citizen. They role modelled that role by taking the children out and involving them in activities in our communities. The schools that she went to definitely did offer those kinds of programs.
Senator Joyal: In other words, prevention initiatives were implemented by the educators in that community especially. In your opinion, are these initiatives sufficient, or can more be done at that level of prevention? Once something happens, we mainly focus on the consequences. I can understand that. However, I am also looking at the prevention side.
We heard earlier that there is a large increase in drug consumption among youth, so either we are not doing something that is effective or we are missing something. Although there are programs, it does not seem as though we have the desired results of those programs that are in place now.
Ms. Anderson: When she was in school, she definitely did not like the idea of drugs. It is when she left school that she did not have that extra support. Again, she left school, she moved out of the house and she changed her job, all within a short period of time after meeting this fellow. The support that she had from the teachers in school, plus the family support that she had, was fractured. A wedge was placed between her and her support systems.
I think there is most definitely a role for schools to play. Are they giving too much or not enough information? I do not know that I can answer that, because I honestly do not think I have enough information. From the little bit of looking around that I have done in the last while, it seems that as soon as one drug is caught, something new is already being made and distributed before that one is through and they have been told that it is no good for them.
How do we keep up with that in the schools? I do not know. Awareness is definitely a huge thing; for example, if they take a mixture of drugs it could kill them. In Chelsea's case, it was within the first couple of times of trying. We all do really dumb things. We have all made really dumb mistakes. However, I feel that mistakes in situations like this, it obviously ended a life. It was a mistake. It was a momentary thought that, "I might be invincible" or "Someone else did it so I will be fine because they are fine." That is the kind of thought process we need to look at. It is not fine.
Ms. Lyons: We absolutely agree that prevention is vital. You see me engaged in the policy aspect right now, but the second main thing we engage in is prevention. We provide by-youth-and-for-youth prevention. It is all young people who provide our drug education. They prepare tremendous amounts of research. As Ms. Anderson said, new drugs come out all the time. That means we are on top of that situation as well, because we are getting information from the young people who are exposed to these things, whereas generally, the adults do not necessarily know about them right away.
We have a drug education resource, we have a website, and we are happy to give you more information. I can send around some of our prevention information if you are interested. Our education programs are different from traditional drug education because they are delivered 100 per cent by youth and for youth. The program is not one where they have a couple of youth on board. Each section has the chemical components and what to be careful of. Other parts of the website talk to youth who are experimenting. Of course we advocate that, for youth who are experimenting, we will not say do not talk to us; go away. We do not want to shut that door, so we have potential solutions. We have quizzes that they can take about how they can gauge if they need to seek help, or what other resources are available.
There are many other creative prevention and education programs that you may not hear about. I do not know if those people are being called before the committee, but I am happy to provide some of the resources to you if you are interested. It is important to have youth drug education. That is different, for example, from having a police officer come in. Not all young people will feel comfortable enough to approach them afterwards, especially if they already have had problems with the police. We know this issue is complicated and there is not one simple solution, so we try to come up with creative solutions that are not single-faceted. We can have education programs that are abstinence-based, harm-reduction based and 100 per cent youth-based.
Senator Joyal: Ms. Lyons, I do not know if you were listening when Mr. Bratzer testified. He was one of our first witnesses. He referred to a court decision in relation to the interpretation of "school ground."
Ms. Lyons: I missed that part.
Senator Joyal: It seems that a court case was heard that struck down the expression in the Criminal Code, found at section 179 of the code, which referred specifically to the same geographic situation, namely "schoolyard" and "school ground." The term "school ground" is exactly the same.
Are you aware of that court decision, where it stands and what impact it could have in the interpretation that you are providing to us?
Ms. Lyons: I am not aware of it and I missed that part of Mr. Bratzer's testimony; I apologize.
Senator Joyal: That is fine.
According to the witnesses we have heard today, there is an increase in consumption that is high; 30 per cent is a high figure. That means that in a short period of time, it will increase to 100 per cent. I read in a Montreal paper last week that even seniors are involved. What will happen with all those baby boomers who are retiring? Some of them have tried it before. It is not a phenomenon that will decrease; it is one that is still there.
We can fight organized crime, and so on; we are totally in agreement with that. However, it seems to be a societal phenomenon that is addressing itself not only to the youth population but also to the generation that experimented with drugs, for example, marijuana in the 1960s and 1970s. They know the effects. In other words, the demand for marijuana will stay.
As much as I agree that organized crime profits the most from this business, another important element in that equation that we underestimate is the initiative of various levels of government and various levels of school authorities. When I say school authorities, I also mean universities and so on. Even though you are freer on a campus, nevertheless, the phenomenon is still there. I think many of us can testify to that.
Do you feel that we are still underestimating the impact of the level of consumption in Canada at all levels of society?
Ms. Lyons: We come from a perspective where we do not believe that a drug-free world is possible in our lifetime. The United Nations adopted the drug-free world in 2000, and they were going to have a drug-free world by 2010. We know that has not happened.
From our perspective, in our near future, we do not foresee a world of no drugs at all, particularly when we have substances like alcohol. Depending how we classify it, alcohol can be a drug, and it is extremely harmful. It is also used in socially accepted and non-harmful ways. We come from this realistic perspective. Since we come from that perception, we advocate for certain harm reduction measures. Since we come from a different perspective, things like Bill S-10 concern us. We do not think it will stop drug use. Not everyone will understand. This bill may have the effect of going after the cartels and stopping them. That may well be part of it. However, our membership does not see that young people will stop taking drugs. That is the perspective that we come from.
Senator Baker: This bill will impact upon people who are at the low end, because that is where the minimum sentences will now take effect. Senator Joyal ask about these drugs. Ritalin, for example, is a controlled substance. There are children attending elementary school who take Ritalin, and that is a controlled substance. That is a dangerous drug as defined by the Controlled Drugs and Substances Act.
Prevention is the main object of this bill. This bill, when it passes, and it will pass, will have stiff penalties, as you pointed out. If you pass a Tylenol C in a university, you are into that Schedule I, and the sentence is life imprisonment, with a minimum sentence of two years in jail.
To me, that penalty would be a great advertisement in a school. It is a shocker. We all agree that prevention is the whole objective, and we do not want to pass a bill here that will be a secret. Ignorance of the law is no excuse. This bill is a preventive measure, according to the government. The government wants this bill to be a preventive measure.
As a committee, we not only examine legislation but we can also make comments and recommendations as to what should be done with the passage of what some people would call a draconian piece of legislation. What do you think we should recommend to the government as far as explaining this legislation and making it a preventative tool? Should we suggest an advertising campaign? What can be done to spread the message of this new law in effect in Canada?
Ms. Lyons: Can I clarify? If the bill passes, we will have these potentially long sentences, and the question is how to spread the word about that legislation so people know about the effects?
Senator Baker: The intent is not to put someone in jail who did not know that they were committing an offence.
Ms. Lyons: Exactly.
Senator Baker: Ignorance of the law is not a defence, according to section 19 of the Criminal Code.
Ms. Lyons: How do you implement it so people are very aware of it?
Senator Baker: Yes; how can we use this legislation now? This is a serious bill. Would you suggest an advertising campaign or a massive media campaign to go with this legislation?
Ms. Lyons: That is the only ethical thing the government could do. I do not know if this legislation falls under Health Canada or which jurisdiction, but people would have to know. Since the penalties are so severe, and since there are mandatory minimum sentences, if the bill passes, there is not a lot of room to move. They do not have the excuse that it was my first time, first offence or whatever. Judges lose their discretion.
I guess it would be major advertising campaigns or something. It would be important to involve youth in this campaign. If, and we hope not, the bill passes in this form, they would need to involve youth in those messages so it reaches the right people; they would need to have young people involved. Do you know what I mean? They also need to involve elderly people when they are coming up with messages for elderly people; they speak to speak the same language. We want to ensure people are not swept up under this bill without knowing that it is even on the books.
Senator Baker: What do you think, Ms. Anderson? Do you not think that a young person would have to be crazy to exchange a pill for which they could go to jail for a minimum of two years? Do you think it would be a great advertisement? Would it have an effect?
Ms. Anderson: That is the million-dollar question, is it not? Education definitely is a huge thing, and it has to take place through advertising or programming. The message needs to get out there.
Until Chelsea died, I did not really think drugs were something I had to discuss with my children. Now that this has happened, yes, of course I have talked to my kids. I have questioned them and drilled them and been the parent and pointed my finger and stomped my foot, the whole works.
However, if we do not educate the young, there will be that gap as they become older. With that legislation, though, we have to educate everyone across the board. Like I said, be it through programming, advertising or whatever, education is definitely something that should be done. These people need to know. The message needs to be out there that if they do the crime, they have to do the time. It is the law. It is protecting society.
The Chair: Thank you both. We have kept you longer than we assured you we would, and that is because people thought it was important to hear what you had to tell us. We truly appreciate the presence of both of you.
Ms. Lyons: Thank you very much.
Ms. Anderson: Thank you.
The Chair: Colleagues, we will go to the next panel and continue our examination of Bill S-10.
[Translation]
We are studying Bill S-10, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts.
[English]
We are now delighted to be able to welcome as learned witnesses, appearing as an individual, Michelle Mann, Lawyer, Consultant; and also Darryl Plecas, Director, Centre for Criminal Justice Research at the University of the Fraser Valley, who appeared before us only about a year ago, I believe.
We thank you both very much for being here, and Ms. Mann will lead off.
Michelle Mann, Lawyer, as an individual: This is my first appearance before the committee and I appreciate the opportunity.
I have been a lawyer since 1996 and I am a consultant working in the area of Aboriginal issues. As indicated on my curriculum vitae, over the last decade I have developed specific expertise pertaining to Aboriginal peoples in the criminal justice and corrections systems.
In addition to numerous other publications, I am the author of the Office of the Correctional Investigator's 2009 report on Aboriginal corrections, Good Intentions, Disappointing Results.
I am currently completing my Master of Laws, LLM, at Queen's University. My thesis asks how the honour of the Crown might be interpreted to apply to Aboriginal peoples throughout the justice and corrections system, and what might the reconciliation agenda require in this context.
The committee has likely heard about Aboriginal over-representation in federal corrections; that Aboriginal peoples constitute 20 per cent of the federal offender population versus 4 per cent of the Canadian adult population. This gap continues to grow.
Aboriginal offending circumstances are often related to substance abuse, intergenerational abuse, residential schools, the "Sixties Scoop," low levels of education, employment and income and family issues.
The Aboriginal offender population is younger; higher risk and need rated, particularly related to substance abuse; more gang affiliated; and more frequently suffering fetal alcohol spectrum disorder, FASD.
As you are no doubt aware, subsection 718.2(e) of the Criminal Code provides for restraint in imprisonment of Aboriginal offenders. The seminal Supreme Court of Canada Gladue case interpreted the meaning of this subsection, leading to the enumeration of Gladue factors, which courts consider in sentencing Aboriginal offenders.
Today, I wish to focus on a slightly different angle on subsection 718.2(e), as well as possible discrimination under section 15 of the Charter. I will speak specifically to the interconnectedness of fetal alcohol spectrum disorder, substance abuse, Aboriginal offenders and mandatory minimum sentences for drug crimes.
FASD is a clinically recognized disability. Persons with FASD are at a profound disadvantage within the criminal justice system and as such, FASD needs to be understood. FASD is an umbrella term that refers to a range of alcohol- related birth defects. It results from maternal consumption of alcohol during pregnancy, which damages the developing brain of the fetus.
Offenders with FASD often have impaired intellectual functioning and may have difficulties understanding cause- and-effect relationships, anticipating consequences, reasoning and judging, and learning from past experiences. They may not understand that one action can lead to another.
Secondary disabilities are the disabilities that are not present at birth but that occur as a result of the primary disability. Alcohol and drug problems are considered common secondary disabilities of FASD. In fact, the substance abuse rate among FASD-affected individuals is said to be approximately five times that of the general population.
FASD is estimated to be present at a higher rate among offenders, but there are no national statistics. Research shows, however, that Aboriginal individuals, including those in Canadian penal institutions, are disproportionately affected by this disorder.
Studies indicate that Aboriginal Canadians, as a group, experience disproportionately high rates of non-medical drug abuse. For example, the documented rate of illicit drug abuse was 7.3 per cent among First Nations, more than double the 3 per cent rate of the general Canadian population; and this information is from the AFN 2007.
Aboriginal communities are more vulnerable to the devastating effects of alcohol and drugs because of geographic and social isolation; lack of economic opportunity; and the loss of culture, identity and language that resulted from historic policies of assimilation, among other factors.
Problematic substance abuse is linked to high rates of poverty, family breakdown, unemployment and poor social and economic structures among Aboriginal people. As I mentioned earlier, problems with FASD are also disproportionately represented in the Aboriginal community.
The interrelatedness of these factors was recognized by the Supreme Court of Canada in R. v. Gladue, with substance abuse indicated as another reason for the unbalanced ratio of imprisonment for Aboriginal offenders. As noted by Justice Patrick Sheppard, who pre-sides over the Toronto Gladue court for Aboriginal offenders: "I would think that at least one in four of the accused who come before this court, a full 25 per cent, suffer from fetal alcohol syndrome."
The committee may have heard about the potentially discriminatory nature of mandatory minimums for Aboriginal offenders and how they derogate from subsection 718.2(e) of the Criminal Code of Canada. There is a specific context to mandatory minimums for offences involving substance abuse where the offender has FASD, which is recognized as a disability under Canadian law.
Canada's legal framework protects the rights of all Canadians, including offenders, to live without being disadvantaged by discrimination because of their race or disability. Mandatory minimums for drug offences in a context where Aboriginal peoples disproportionately experience substance abuse issues and disproportionately suffer from FASD raise the spectre of discrimination based on both disability and race against Aboriginal offenders within the justice system.
Where the offence is committed as a result of substance abuse, compounded by the disability of FASD and by Gladue factors, what are the government's obligations from a legal and policy perspective? Does a mandatory minimum meet these responsibilities, particularly in areas where drug courts are not available?
The presence of substance abuse issues and FASD are factors the court considers in sentencing Aboriginal offenders pursuant to subsection 718.2(e). Mandatory minimums remove the discretion of judges to sentence Aboriginal offenders taking into account Gladue factors, including substance abuse and any FASD disability.
I will quote from a 2007 sentencing decision from the Gladue Court in Toronto. It was a sentencing on a charge of robbery. The judge said:
The application of section 718.2(e) supports the result of a conditional sentence as well, inasmuch as "the consideration of all available sanctions other than imprisonment . . . with particular attention to the circumstances of aboriginal offenders" directs the Court to the shocking prevalence of suspected FASD/ARND among the aboriginal population.
Both substance abuse and FASD have been recognized as components of the over-representation of Aboriginal offenders in corrections. In light of the prevalence of FASD and substance abuse among Aboriginal offenders, mandatory minimums for Aboriginal drug offenders will likely serve only to further systemic discrimination against Aboriginal people in the justice system, contrary to subsection 718.2(e), Gladue and the Charter.
I look forward to any questions you may have.
Darryl Plecas, Director, Centre for Criminal Justice Research, University of the Fraser Valley: Thank you for the opportunity to be here again. As you know, the problem this bill speaks to — namely drug crimes — is alive in British Columbia. That is true in terms of drug production and drug trafficking, particularly grow operations. This problem is so significant it is the reason why we have gangs and organized crime to the extent that we do in British Columbia.
The problem is significant. The last survey I conducted in a community in British Columbia, Abbotsford, the so- called murder capital of the country, shows that citizens are more concerned about this problem than anything else.
It seems to me the question is whether minimum sentencing is articulated, and whether it will be helpful as proposed through Bill S-10. My answer is a reluctant "yes." I say that because I look at what we are doing now in terms of sentencing, and I do not find there is reason for us to believe that we are accomplishing much of anything. We all know that the purpose of sentencing, other than its most important role in providing rehabilitation, is to provide for public safety; education; denunciation; and deterrence, both specific and general, although I understand there is debate about deterrence.
The whole effort to fulfill that role, of course, has been complicated for decades because we have plea bargaining and judges giving respect to the going tariff precedent, as we expect they should. At the end of the day, we know that the kinds of sentences that people receive, generally speaking, do not come close to what we need to provide for rehabilitation and those other kinds of things. We know this through our own research.
When I say I am "reluctant," I believe, first, that it probably would be more helpful and useful to revisit completely what we are trying to do through sentencing. We also need to rethink what kinds of practices and programs can be put in place in sentences that would be genuine efforts to make a difference for people involved in these crimes and the people around them.
Again, I will finish my opening remarks by saying that when it comes time to look at what we are trying to do, there is no chance whatsoever that we are coming close to meeting those goals through the kinds of sentencing we have. It is tragic that where we are successful in sentencing in Canada, it is through sentences of two years or more through the federal corrections system, and we all know that situation is not the best.
When we think of revolving door, or not accomplishing anything, it comes as a consequence of what we are doing with sentences of less than two years.
The Chair: Thank you both very much, and we go now to questions.
Senator Wallace: Thank you, Madam Chair, and I thank both of you for your presentations.
Mr. Plecas, I have a question for you. Again, thank you for appearing before us. I remember you were before us on Bill C-15 and it was most helpful.
Everyone is trying to accomplish the same thing, and that is to address the issue in some meaningful way of drug trafficking, production, exportation and importation. One of the aims or objectives of Bill S-10 is to attempt to address issue that with stiffer sentencing through the introduction of mandatory minimums and with the aggravating factors that must be present for that sentencing to occur.
I have heard your comments and you seem to have a reluctant support for mandatory minimums. Maybe this bill does not take sentencing as far as you hoped things could go. However, you make the comment that the way sentencing is being addressed today, and the way the courts are dealing with sentencing today is not achieving what is in the best interest of society. Can you expand on that point? What do you mean? What are the problems that you see with sentencing today that we are attempting to address with Bill S-10?
Mr. Plecas: If we take one goal, rehabilitation, and ask ourselves how to facilitate that goal, it requires a number of things, including adequate diagnosis. Most people say that process is a three-month exercise. It requires an intensity of programs that recognizes that most people who find themselves in conflict with the law — and this is true for repeat and violent offenders — come to that conflict with a multiplicity of long-standing problems that people have attempted to address in a number of ways. There is a history of failure to deal with those problems.
People need a period of time to go through the exercise. My experience in 30 years, having talked to literally thousands of offenders, is that they recognize that need too. We need some form of programming that has the wherewithal to speak to all the problems they have. In addition, we need the support mechanisms, the cocooning, the surroundings they need to have connectedness even after a sentence is completed.
It is no surprise to me that our federal corrections system is as successful as it is in reducing recidivism. I am reminded again that few crimes are committed by someone who ever set foot in a federal institution. The reason is that we not only have the opportunity, through a longer sentence, to provide people with an opportunity for rehabilitation, but we also have an opportunity to provide assessments to enable to people to be released early if they accomplish that rehabilitation. We have an insurance policy along the way for public safety. There are diagnostics going in and programming while they are there. There are diagnostics to see where we can have assurance of public safety and that the issues that relate to why a person is there in the first place have been addressed.
I am always reminded, too, that when someone is given a federal sentence, it does not mean that they serve the entire sentence. They are eligible for release after one sixth of their time; there is the provision on conditional release. We have some form of surveillance and we have further help for those individuals. All these measures are absolutely necessary if we are trying to ensure that person never shows their face before the criminal justice system again.
I am not a fan whatsoever of punishment. I do not think we need punishment. I am a big fan of restorative justice, but I am also reminded that we do not do much in sentencing that speaks to restorative justice. What do we need to have in place for rehabilitation? To think for a minute that we can do that on a one-month sentence on average, as is the case in Canada, is foolish. We cannot do that with many sentences, 28 per cent of which are a week. We cannot do that with what we have currently through other sentencing options, like a fine. Of course, a fine will not speak to these issues. While we can argue that probation could if it incorporated various conditions, the reality is that incorporation does not happen.
This current situation that we are looking at is not speaking to the matter of who is using. People are not arrested because they are using drugs. People are arrested because they are involved in production or trafficking. Even at that level — and I know this to be a fact, and increasingly so — they are arrested only if they are involved in trafficking at a significant level. That is, they are a main player. The courts are looking at someone who is a user plus trafficking, which is a different situation from what we have in British Columbia. Our situation in B.C. has evolved to the point where, yes, we have fewer grow operations than we did, but we still have over 10,000 of them. Those grow operations are at least twice the size they were five years ago. At the end of the day, the amount of production we have is no less. For the individual involved in that operation, it is an economic crime.
Senator Lang: Risk management.
Mr. Plecas: Precisely.
Mr. Plecas: I have spoken to the matter of rehabilitation, but public safety is a main issue, too. What better way to accomplish public safety than through rehabilitation. The notion that, somehow, we should all feel safer because the average person who goes to prison in Canada stays there for a month — and, once again, I do not know any other way to describe it — is foolishness. We need to have something more than that sentence. I wish prison was not something that we had to consider. It would be nice if we considered such things as electronic monitoring. How can we keep someone close to the community, and involved in the community, and still accomplish these goals?
The reality is, that is not possible under the present circumstances. As long as we have a situation where most of the time when someone is found guilty of an offence in Canada, it is handled through a plea bargain arrangement, that situation can do nothing more than interfere with these goals. How can it speak to these goals? It does not.
The Chair: Mr. Plecas, that was a full and detailed answer to Senator Wallace's question, which invited a full and detailed answer. However, I will ask you to tighten up your future responses because we are under time constraints here.
Senator Wallace: As you point out, Mr. Plecas, and I am sure we all agree, there is not one solution to the drug problem that we are all trying to address here. It reminds me — and I am sure you are aware of it — that the government has its National Anti-Drug Strategy, which has a three-pronged approach to deal with that problem by addressing prevention, treatment and enforcement. We are dealing with the enforcement aspect of the problem here. Are you familiar with the strategy?
Mr. Plecas: I am on the board of directors for the Canadian Centre on Substance Abuse.
Senator Wallace: I thought perhaps you were. Are there any comments that you want to make about the strategy and its objectives?
Mr. Plecas: I think the strategy is wonderful. Of course, you will all know that that strategy is heavily weighted to interventions treatment, which is obviously a good thing. There are all kinds of indicators that approach has been successful.
Independent of that strategy, great strides have been made in Canadian society in terms of our commitment and efforts to help people suffering from substance abuse. I think that the National Anti-Drug Strategy is completely on track.
Senator Baker: I wish to congratulate the presenters on their excellent presentations.
My questions will be for Ms. Mann. Ms. Mann, to sum up your presentation, I presume that you are hoping that we introduce and pass an amendment to restore section 718.2(e) to override this bill concerning the Controlled Drugs and Substances Act.
Ms. Mann: Yes, I would like to see that done.
Senator Baker: First, we normally refer to it as fetal alcohol syndrome; you have referred to it as a spectrum disorder. Is there a difference between the two?
Ms. Mann: The language that I used is what I understand to be more current. It has been evolving over the years as more knowledge about it has developed. Fetal alcohol spectrum disorder is an umbrella under which fetal alcohol syndrome falls and also fetal alcohol effects, which is now also being called alcohol-related neurodevelopment disorder, ARND. Basically, FASD is a spectrum of the types of effects that individuals have from the consumption of alcohol by their mothers during pregnancy.
Senator Baker: We are talking about a syndrome.
Ms. Mann: Exactly, yes.
Senator Baker: You put forward the proposition that the bill, in instituting a minimum sentence, will violate section 15 of the Charter. Can you explain that proposition? Do not go into too much detail. The committee members know that it is difficult to prove a violation of section 15 of the Charter. The elements have been outlined clearly over the years by the Supreme Court of Canada, and it would indeed be a difficult task. I have noticed that you make a point of saying that FASD is a disability, and there is a significance in a mental or physical disability, but can you tell us why, in this particular case, this bill will violate section 15 of the Charter and what special elements it brings with it to justify a violation of section 15?
Ms. Mann: I will start off by saying my suggestion is that it may violate the Charter. I do not presume to take on the job of nine Supreme Court justices and make that call myself. I am preparing a research paper as part of my LLM on this subject matter. Prior to being called to appear before this committee, I was already researching the subject, so I am interested.
As you probably all know, section 15 of the Charter protects individuals from discrimination under or before the law on the basis of race and disability, as well as numerous other factors. In this case, I see the argument as one that is related both to race and disability. Fetal alcohol spectrum disorder is a disability. It is a brain defect that one is born with and that one has no control over. In some cases, at the extreme end, it is likened to retardation, but one that is preventable, obviously. It is a disability, but then adding in the race component as well is the fact of substance abuse, which is both cause and also effect of FASD. FASD is caused by substance abuse, and it is also an effect that individuals are more likely to be substance abusers if they have FASD. Both those characteristics are more common among Aboriginal peoples.
If we accept the types of arguments that have been put forward in the Gladue cases, that these sorts of factors arise from a history of colonialism, residential schools, the Sixties Scoop, government policies and assimilationist policies, if we accept that even to some agree those factors arise related to race, then the argument I make is a race and disability argument in one.
Senator Baker: Do you also include what was specifically outlined in Gladue, as I recall, of the percentage of persons, as you pointed out in the beginning, who are incarcerated? I believe we had testimony relating to the province of Saskatchewan. I think the figure was around 80 per cent of those persons in jail are of Aboriginal origin.
Ms. Mann: The figure is high in the Prairies. I wrote a report for the Office of the Correctional Investigator, which I believe you have entered into evidence, at least under Bill C-15. The most recent statistics I had in 2009 was 20 per cent of the federal population, which obviously, though, is skewed by the fact that the percentage is much higher than 20 per cent in the Prairies and lower in other parts of Canada, so 20 per cent of the federal offender population. With respect to women, 1 in 3 federally incarcerated woman is Aboriginal, so 33 per cent, despite the fact that Aboriginal women are 2 per cent of the adult Canadian population.
Senator Baker: You have convinced me, and I will introduce an amendment to do what you proposed at the beginning when we reach that stage in our proceedings.
Senator Wallace: You raise an interesting point. It is not the first time we have heard that point. I am not sure how closely you followed the proceedings on Bill S-10 and Bill C-15 before this committee. I believe it may have been Senator Baker who asked the Department of Justice lawyers whether they believed there was any risk that this bill could not or would not survive a Charter challenge. They were strong in their response that no, they did not have that concern. I wonder if you are aware of that view and if there are comments you want to make concerning that view.
Ms. Mann: I have read the transcripts of many of the hearings. I brought up the discussion around FASD and disability because, in addition to it being an interest that I am pursuing in research, I did not see that discussion had occurred. I saw there was discussion on section 15, race-based discrimination, relating to Aboriginal peoples, and then also other people who are over-represented within the system. I did not see that the discussion had occurred relating to FASD. I thought it was important that the connection be drawn, and not only from a legal perspective. This disability is basically inflicted on someone when they are in utero and there are then a certain set of conditions that they may be born with that then affects their offending status. From a policy perspective and in terms of how we deal with those individuals, there is a lot of literature out there that stresses that one of their main shortcomings in terms of comprehension is that the individuals with FASD honestly often cannot make the connection between something they do and the result that comes from it. They may not fully grasp why they are incarcerated for committing a certain offence. Of course, it applies to offences that are not only drug related, but in my mind there is an even more direct causal connection between FASD and a substance-abuse-related offence.
Senator Wallace: Perhaps the point you raise goes more directly to the issue of the mens rea required to commit the offence in the first place. It may be a defence to the entire charge, as opposed to the Charter issue you raise. I believe the issue was raised before in relation to Bill C-15. I would be surprised if the Department of Justice was not considering it, but you make your point strongly.
The Chair: The senator referred to your study, Ms. Mann, and it was part of the record for Bill C-15, and therefore has been taken on board as part of the proceedings and testimony for this bill's study.
Senator Angus: Thank you both, witnesses. Largely, what I wanted to cover has been covered, but I am intrigued, Ms. Mann. It seems to me that the fundamental problem exists whether or not this bill is introduced or passed. Am I right?
Ms. Mann: The problems of FASD and substance abuse exist, yes, absolutely.
Senator Angus: In any prosecution of Aboriginal folks, this issue and that quotation from the case about sentencing is applicable.
I want to ask Mr. Plecas, because of his role as a researcher in this area of criminology and so forth, if he has any comments to make on that particular subject matter.
Mr. Plecas: I am more than aware of the problem of over-representation of Aboriginal people within the criminal justice system.
Senator Angus: You have been here before. Every single bill that comes to this committee these days seems to be fraught with this issue. We hear plenty of convincing evidence about that issue. It is important that I understand what you are saying.
Mr. Plecas: I am not sure that I would put as much weight on the issue as my friend Ms. Mann, because when we talk about the matters of drug production and drug trafficking, it is not often that they involve an Aboriginal person. The problems with Aboriginal people in the criminal justice system, I think it is fair to say, are more related to substance abuse and crimes surrounding that abuse. When we are talking about the people involved in these crimes in a serious way, it has not been, in my experience, Aboriginal people. In my experience, if Aboriginal people are involved in these crimes, it is people abusing Aboriginal people as part of their interest in facilitating the crime.
Senator Angus: I find that view helpful because I was listening carefully. There is a fundamental problem that is well articulated, which needs to be addressed in our society and soon.
In terms of Bill S-10, however, where it is useful to have your testimony on the record, I believe you are agreeing with my sense, sir, that this issue is not that relevant to this particular bill because the problem will still exist, and it will not be exacerbated.
Mr. Plecas: I agree with you completely.
Senator Lang: First, I want to direct a question to Mr. Plecas. It has to do with the drug production and the question of production in British Columbia, the prevalence of it and your knowledge of what goes on in B.C. and what society is facing. I want to have your take because I know you are somewhat knowledgeable on that area.
Mr. Plecas: My sources of information are from my directly reviewing police grow-op files as part of the research we do. It is also my working directly with hydro engineers. I know from hydro engineers there are at least 10,000 properties in British Columbia right now that have grow ops. I know this number is hard to believe but it is absolutely the case. There are communities where 40 per cent of the power that goes into some neighbourhoods is stolen hydro.
We know that the production is such in B.C. that enough power is stolen — this is only stolen power — that we need to build two dams to compensate for that stolen power. It is a $110-million theft problem, which is another thing to be mindful of in thinking about this issue. It is not only that these people are involved in drug trafficking or production, along the way they are stealing from us.
In addition, that production is such that it involves $61 million a year worth of excessive power consumption. In an era when we are concerned about energy savings, we should not tolerate this theft.
The other thing I know is that grow operations, more than ever and in most every case — there are some exemptions — are associated directly to a gang. When police find these grow operations, they have the markings of one gang or another. We do not think of the whole production side of grow operations as an individual operation being organized crime, per se, but when one understands what is involved to set up a grow op, to set up the garden, to equip the building — the electricity, the electrical set-up, et cetera — the brokerage that is needed, all those things, it involves several people.
Right now in B.C., by our estimates, which most people would say are conservative, looking at what other academics have said, 70 per cent of the amount produced in B.C. is exported outside the country. At a minimum, the amount is $4 billion a year. It is significant enough, and it is the fuel that drives organized crime. There is no question about that.
Senator Lang: To follow up on that point, one other shocking statistic we have heard in the course of our testimony here is there are approximately 900 known gangs across Canada. Evidence was given a number of days ago. I would say we have no reason to doubt that evidence. It was given by police representatives.
I want to go on in regard to your research. I am not clear on all the facets that you conduct research on, but I believe it was an inspector from Halifax, Nova Scotia, Halifax, who informed us that they had been involved in the prosecution of a drug gang. Gang members must have been put away for a period of time because of the seriousness and the consequences of their crime. I think the inspector said that over an 18-month period, the crime rate went down 19 per cent in that particular area of the city.
In any of your research, have you looked at a town or a suburb in a big city where a gang has been put away for a period of time, and what the crime situation was during that time?
Mr. Plecas: I can say first that in British Columbia, in terms of the number of gangs, there was a time a decade ago, depending on who was counting, we had 8 to 12 different gangs; the usual suspects of high-level organized criminals. That number increased to over 100. Some people pegged that number at 130.
In British Columbia, there is a shrinking of gangs. The police have cut off the heads of some gangs. They are in jail and locked up for a long time. Others are waiting to be locked up for a long time. What has happened is that new players have come in. There has been an amalgamation of gangs, with people attempting to take over the turf. It is a different world from what it was way back when organized criminals were very sophisticated. If there are 900, and I believe that number, I would say that estimate is conservative. Part of the reason for that number is, if anyone wants to be in the drug business today, in Canada, they had better be connected to a gang. That is inevitable. We are dragging more people into the business.
Senator Lang: When a gang is prosecuted and taken off the street for a period of time, have you found in those areas that there is more security and less crime?
Mr. Plecas: Yes; and the indicator is the reduction in crime in British Columbia. There have been significant declines in crime across the province.
Senator Joyal: Ms. Mann, do I understand correctly from your research that the issue of mandatory minimum for Aboriginal people has never been tested in the Supreme Court or in any Canadian court so far?
Ms. Mann: It has not been tested in the Supreme Court, and as far as I know it has not been tested. I have not seen it.
Senator Joyal: Do you have the bill in front of you?
Ms. Mann: I do, yes.
Senator Joyal: My reasoning is in relation to clause 2(1) that amends subparagraph 5(3)(a)(i)(D). It is at the top of page 2.
Ms. Mann: Yes.
Senator Joyal: It states:
(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, . . . .
It seems to me that provision would cover a lot of Aboriginal people.
Ms. Mann: I tend to agree. I have a book chapter where I included an analysis of the Tackling Violent Crime Act when it was still a bill, and also the recommendations of the corrections review panel. I tend to look at bills and legislation and conduct an Aboriginal analysis, and I have been unable to find statistics on crime broken down by race. I was looking at mandatory minimums for firearms. I could not find those statistics broken down by race. I could not find impaired driving statistics broken down by race.
I am not sure where Mr. Plecas's position is coming from in terms of saying that Aboriginal people are not represented as drug offenders because, as far as I know, we do not have those statistics broken down by race.
I can give you estimates of the percentages, but in the work I have undertaken, I have never seen those kinds of numbers broken down by race for any of those offences. The issue is also one of identity; not all Aboriginal offenders are identified as Aboriginal.
Senator Joyal: My reading of this section and the challenge on the basis of the Charter is the following: If an Aboriginal person was to be charged under proposed section 5(3)(a)(i)(D) on page 2, and there was a clear link with organized crime, a judge might have to consider the importance of the criminal environment of the act committed.
However, by the mere fact they have been convicted of "a designated substance offence" in the "previous 10 years," they are in a totally different kind of criminal environment.
Ms. Mann: I agree.
Senator Joyal: I think they are more likely to win the case if they challenge the act on the basis that it goes against section 12 or other sections of the Charter, previous acts or a statutory offence that R. v. Gladue has struck down. I would say, chances of winning the case and having that section struck down in relation to Aboriginal people in favour of other penalties that subsection 718.2(e) contemplates, as you stated, would have a much greater chance of being accepted by the court.
In other words, as much as this bill is aimed at organized crime, and everyone understands the seriousness of organized crime, that provision could be more difficult.
However, this bill tackles not only organized crime. The net that is thrown out in society is much greater in relation to other sections. When you review the point you presented to us today, I think you should take that net into account. The Department of Justice Canada has stated that the bill is Charter-proof, but I can quote you 100 cases in the last 20 years that were supposed to be Charter-proof and for which the Supreme Court of Canada and the courts of appeal in the provinces said no.
We take it at face value that they have applied some kind of reasoning. However, there are bills whereby the Department of Justice Canada takes a risk. The situation is not always 100 per cent clear-cut. They have the pros and cons, and they balance the pros and cons and decide on which side they will go, knowing there might be a risk.
I feel the systemic discrimination in relation to Aboriginal people is enshrined in subparagraph (D).
The Chair: Do you care to comment?
Ms. Mann: Yes; I agree that the net is cast widely. While I said that there are no numbers I am aware of, there are numbers on the rates of substance abuse issues in the Aboriginal population. We know even from the AFN's own health survey of 2007 that among First Nations, substance abuse was more than double. That was for illicit substance abuse. It was more than double the rate of non-First Nations Canadians.
We know there are higher increases in rates of substance abuse, and we also know that there are higher increases in rates of FASD prevalence within the Aboriginal community. Therefore, on a logical basis, it does not seem to be difficult to extrapolate from that information and see that this bill may well have a disproportionate effect on Aboriginal offenders.
Although I did not speak to this issue, I will also add that I think there could be a Charter section 7 — life, liberty and security of the person — challenge with respect to the FASD situation. If we put someone with a neurological disorder in prison under a mandatory minimum, that mandatory minimum could be subject to a "security of the person" challenge under section 7.
Senator Joyal: I will add to that point. I know time is flying. Clause 6(2) of the bill amending section 10 of the act provides that "A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender to participate in" and "to attend a treatment program." A judge in front of whom an Aboriginal person would be brought —
Senator Lang: Madam Chair, I have a point of order. You cut me off. I do not mean to be offensive here. You said our time is limited here and our time is limited. I would submit to the members here that what applies to one should apply to everyone.
The Chair: Senator Joyal has not yet had as much time as you used, Senator Lang.
Senator Lang: I do not think so.
The Chair: I do keep track. It may feel like it to you because it is his question and not yours, but we are keeping track.
That said, you are coming up there, Senator Joyal.
Senator Joyal: There is also proposed section 10(5), which says that if the offender successfully completes such a program, that offender will have different treatment. That different treatment is not available to an Aboriginal person because we know that such a thing does not exist in most communities.
Therefore, there are many elements that lead to the conclusion that this bill has a greater impact on Aboriginal people than on any other community in Canada.
Ms. Mann: I think the exemption for the drug courts is interesting because the Gladue courts exist. I believe we have six in Ontario.
Senator Joyal: Yes.
The Chair: Six from Ottawa, west.
Senator Joyal: None in the Maritimes.
The Chair: None east of the Ottawa River.
Ms. Mann: Right; If Gladue courts were widely available, it would make sense that the exemption could read Gladue courts and drug courts because the Gladue courts have a lot of the same fundamental premises the drug courts have, such as accepting responsibility and being willing to do what the judge orders as part of their conditional sentences.
I completed a research project in 2006-07 looking at Aboriginal offenders and whether there was a preference for drug court or Gladue court. It clearly emerged that while drug court has been helpful to some Aboriginal offenders with substance abuse issues, there was an overall preference for Gladue courts because they were perceived as being more culturally appropriate. Whereas sometimes in the drug court there is an add-on of an Aboriginal element, the Gladue court is Aboriginal-focused.
It is interesting that the drug court exemption looks somewhat similar to a Gladue court exemption. Therefore, why not have the exemption only for Gladue-type cases?
Senator Joyal: That is what I say.
Senator Chaput: Thank you, chair.
Mr. Plecas, I believe you said that public safety can be reached through rehabilitation. It was one of the examples where we can have public safety.
Then the question is: What do we need to have in place for rehabilitation to reach the objective of public safety? When the minister appeared before this committee, he noted that penalties can be avoided by successfully completing a drug treatment program. In your experience, are there many drug treatment programs that help to rehabilitate and are they in the North as well?
Mr. Plecas: Yes; it is my understanding that there are, but I am also reminded that the reason people find themselves, again, in conflict with the law is not simply a function of substance abuse; treatment requires something much more sophisticated.
Senator Chaput: They would need much more than drug treatment programs, would they not?
Mr. Plecas: Yes.
Senator Chaput: What kinds of treatments would you add to the drug treatment?
Mr. Plecas: There is the need for wrap-around services. There is a need to assist people with upgrading their education. Many offenders, as we know, have mental health issues. There is a need to develop work skills, cognitive skills and life skills. As has been indicated here, people have neurological and physiological problems. A whole battery of issues needs to be addressed collectively.
Senator Chaput: At the present time, does this treatment exist?
Mr. Plecas: The place where that treatment exists more than anywhere else in the country is within our federal corrections system.
The Chair: With the indulgence of honourable senators, I have a question for you, Ms. Mann. You mentioned the book chapter that you have completed. I think it is called "Incarceration and the Aboriginal Offender: Potential impacts of the Tackling Violent Crime Act." We will include the reference for the record, colleagues.
I am looking at that article now. Toward the end of it, you say:
Notions of accountability are culturally laden since they are derived from a particular world view. True accountability for many Aboriginal offenders is unlikely in absence of restorative and community justice processes that culturally resonate with the offender.
You go on to say:
Locking Aboriginal offenders up for increasing periods of time does not further their sense of accountability or their rehabilitation.
That is a pretty sweeping statement. Would you care to explain a little bit?
Ms. Mann: It probably needs to be taken in the context of what I looked at in the chapter. In general, we have a long history. I think restorative justice became something that was looked at more and more in Canada probably from the early 1990s on; at least that is as long as I have been aware of it.
We have reports that go back to the 1980s; we have the sentencing amendments to the Criminal Code in 1996; and we have Gladue in 1999. There has been a growing awareness that the approach taken to dealing with Aboriginal offenders within the justice system was not working. In the academic literature that I have been reading, there are three types of analysis that people undertake as to why the system is not working for Aboriginal people. One is an argument based on cultural difference, so that traditionally the way Aboriginal people would have dealt with a misdemeanour or an offence committed within their community is different than the way our criminal justice system deals with it. It is an imposed system that does not resonate with their values. For example, there might be more of a healing value in that community than the punishment value we have by incarcerating.
The second theory relates to colonialism. Because of the history of colonialism, our justice system is not working for Aboriginal people. The theory can go even to a rule of law argument, which is that because of the effects of colonialism and all the things that have been imposed by the government over the years, there is almost a breakdown in the rule of law for Aboriginal people within our system.
The third angle is socioeconomic factors. The third angle in some ways I see as almost an outcome of the other two, perhaps, or at least of the colonialism argument. We know that overall, incarcerating Aboriginal offenders has not been working. There are good initiatives, as I documented in my report for the Office of the Correctional Investigator. There are good initiatives that show promise. I think there is inadequate data tracking. There is inadequate tracking of what works and what does not. We do not have a firm sense within institutions or outside of institutions of what is working in terms of rehabilitation. There are promising programs that seem to show results within institutions, but, overall, we know that incarceration has not been working.
With respect to the rehabilitation measures in corrections, as well documented in my OCI report, we know those programs do not exist across the country. They are not available to many Aboriginal offenders. There are extensive waiting lists to enter those programs. The argument that people should be incarcerated because we can rehabilitate them there requires resources. If that is the argument we will make, then those programs should be available and there should not be waiting lists of years. There should not be people who do not have access to a spiritual adviser, to an elder, for months on end because they are in an institution in Ontario. All those things come into play if we are talking about prison or penitentiaries as facilitating rehabilitation. That will take a lot of resources.
The Chair: When you say that locking them up does not further their sense of accountability or their rehabilitation, I take from what you have said, that situation is true on multiple levels — not only the cultural level but also the practical level of this is the way it works, folks. Locking them up is not increasing their rehabilitation for whatever reason, cultural or anything, because it is not there. Is that fair?
Ms. Mann: Yes.
The Chair: Thank you both very much. The work on this bill is a continuing voyage of discovery. We thank you enormously.
We have had a long and distinguished list of fascinating witnesses, and that list continues with our final panel this evening. We have with us now, from the University of Ottawa, Larry Chartrand, Associate Professor; from the Assembly of First Nations, George Stanley, Alberta Regional Chief; and Roger Jones, Policy Advisor to the AFN. Mr. Chartrand, the floor is yours.
Larry Chartrand, Associate Professor, University of Ottawa: Let me begin by thanking the panel and the committee for inviting me to say some remarks regarding this bill. I find it both a matter of personal and academic interest.
I will start off by acknowledging that drug addiction and drug abuse have had a devastating impact on our communities. The social harm caused by it can be extremely devastating. My brother, for example, who was a year younger than me, died of a drug overdose about six years ago. He had a difficult life. He became addicted to drugs and alcohol in his teens. When he ran into trouble with the law, which he often did, the law was largely indifferent to the diseases of addiction and the social problems he encountered as a result. He died in a ditch about a block and a half from where he lived in a small town in northern Alberta. He was trying to get help. He was not a bad man. In fact, he was a good man. He was a good father, he was a good brother, and I was proud to be his brother.
A month later, my cousin, a year older than me also died, due, in part, to drug and alcohol-related addictions and abuse. We were close. We were more like brother and sister. She took her own life in a cold basement one evening, leaving her children behind.
I am no stranger to the devastating impact that drugs in this country can cause, but how do we deal with that devastating social harm? Will we simply exacerbate social problems with Bill S-10? Will we blindly apply mandatory minimum sentences without truly understanding the social justice harm that such penalties will cause? I say "blindly apply mandatory minimum sentences" because, as you have heard from previous testimony by representatives of law enforcement, there are no studies that support a deterrent effect to imposing harsher penalties on drug crimes. The police could not point to any studies because there are none. On the contrary, the studies that do exist prove there is no demonstrable impact on deterrence by such penalties, and of course two major studies are referenced in the legislative summary you have in your package.
Yet, the police are resolute that there likely will be a deterrent impact, and ask that we follow their faith in this regard. This view is wishful thinking, and it cannot be justified, nor can we go on blind faith that the desired deterrent effect will result from the imposition of harsher penalties and mandatory minimums. We cannot afford to go on this blind faith because, from a social justice perspective, the brunt of the impact of such harsher schemes or harsher penalties will be borne disproportionately by the Aboriginal, Black and Asian communities. In other words, the impact will lead to racial disparities in the administration of Bill S-10, and this impact is not mere speculation or conjecture. This is a guarantee. I guarantee that this impact will happen. Unlike the police, and I do not mean any disrespect to the police, I have studies and research to prove it. I have them right here. It is an entire book. Indeed, the studies form a significant part of the materials I teach on critical race theory and the law at the University of Ottawa Faculty of Law.
In this regard, I was somewhat surprised by the fact that, in the U.S. Legislative Assembly, there is only one reference to a study that documents the racial impact of mandatory minimums in drug crimes in the United States. However, there is considerable literature on the issue. The cultural and racial minority communities will feel the brunt of this legislation, not in a fair way but in an unfair way. As a result of the systemic racial discrimination that exists in the law enforcement process and the judicial administration process, these communities will be targeted disproportionately in police enforcement and deterrence. As a result of the racialized nature of poverty and social disadvantage in our society, the justice system will impose harsher outcomes on the defendants from these communities.
Why do I say that? This impact will happen for several reasons. First, the racialization of drug crime already exists in Canada. Indeed, evidence from law enforcement officials presented to this committee on October 28 noted that they perceived certain cultural groups as being associated with certain drug offences. However, that perception is only one piece of the puzzle. Evidence from the United States shows that the war on drugs and drug crime has been focused almost exclusively on low-level dealers and users in the African-American communities.
An article by Judith Scully said, "Police find drugs in these communities because that is where they look for them." Then, there is a more elaborate analysis to that statement. The evidence by law enforcement officials before this committee last week stated that targeting low-level dealers on the street is the preferred approach that Canadian law enforcement will take. That is the second part of the puzzle.
Finally, racial profiling in law enforcement exists in Canada. In 2003, for example, the decision of R. v. Brown, the Ontario Court of Appeal, overturned a trial court's decision on the basis of judicial bias because he failed to recognize racial profiling in the context of "driving while black," when the evidence was facing him starkly in the trial, per Justice Morden, speaking for a unanimous court.
The question is: Do I anticipate that law enforcement officials will act differently in Canada than in the United States, where the law on drugs has been proven to have a staggeringly disproportionate effect on the Black community in particular? I wish that was the case but we know it will not happen. Canada will model what has happened in the United States. All the pieces of the puzzle are present. Canada is not ready for mandatory minimum sentences because law enforcement is not ready. That is only the impact of law enforcement.
The impact of the criminal justice administration is equally significant. Once charged, Aboriginal, Black and Asian communities no doubt will experience a harsher impact in the administration of justice. This is where, in the context of Canada, the evidence of the overwhelmingly disproportionate effect of the criminal justice system on the Aboriginal community cannot be ignored. Indeed, it is epidemic.
I will quote one paragraph from the 1991 Aboriginal Justice Inquiry of Manitoba to reinforce my point.
Historically the criminal justice system has discriminated against Aboriginal peoples by providing legal sanction for their oppression. The oppression of previous generations forced Aboriginal peoples into the current state of social and economic distress.
Now a seemingly neutral system discriminates against current generations of Aboriginal peoples by applying laws which have an adverse impact on people of low socio-economic status. This is no less racial discrimination; it is merely laundered racial discrimination.
It is untenable to say that discrimination which builds upon the effects of racial discrimination is not racial discrimination itself. Past injustices cannot be ignored or built upon.
The grossly disproportionate impact on Aboriginal peoples is not news and we know that Parliament has been trying to address this disproportionate impact in the provision of subsection 718.2(e) of the Criminal Code. Parliament realized the negative impact on the criminal justice system on Aboriginal peoples, and specifically required that the courts take into account the impact of colonization and discrimination on Aboriginal offenders in sentencing decisions. Judges are, in the case of Aboriginal offenders, mandated to address sentencing from a rehabilitation and healing model, and to consider incarceration as a final and last resort if all other options are proven not to be appropriate under the circumstances.
Mandatory sentencing neuters the intent of Parliament to address disparate impact of the criminal justice system on Aboriginal peoples. As stated by Justice Knazan in 2007, in the R. v. King case, to apply mandatory sentencing to Aboriginal peoples defeats the ameliorative purpose of subsection 718.2(e) and the extent that the mandatory sentencing prevents a judge from using discretion in this context render such sentencing provisions unconstitutional and a violation of the offender's rights and is not saved by section 1 of the Canadian Charter of Rights and Freedoms.
The decision of R. v. Luc followed R. v. King, where Justice Fournier cited with approval R. v. King, and imposed a constitutional exemption on the defendant, thereby excluding him from the imposition of a mandatory sentence, as would have been required otherwise.
Drug abuse and addiction are serious problems and they cause great social harm in our community. The problem is that imposing mandatory sentencing will also cause equally serious harm.
I want to say a couple of words about playing to the political. It is tempting for a political party to take advantage of public opinion, which often calls for harsher sentences, usually because of reactionary media coverage of certain crimes, but a word of caution; it was the political interests that prompted the war on drugs in the United States.
There is evidence. An author by the name of Kenneth Nunn, explored this evidence in considerable depth. Evidence has been presented that the Reagan Administration, which initiated the plan, went ahead with its war on drugs knowing there would be devastating impact on the African-American community, but they did not care and they went ahead.
Today, I put this government on notice that the negative racialized impact of harsher sentencing in Bill S-10 will be significant. That impact is a matter of fact. I do not have to remind this body that such decisions should not be made for political advantage, but for reasons of social justice.
I conclude my brief remarks here tonight with reference to the drug treatment courts in particular. In my view, I think these courts are probably an extremely positive addition to the criminal justice administration. These courts in particular are designed to tackle the source of the problem with many drug and related crimes, and that is the addiction of the offender. My only caveat is that the courts must be suitably resourced to have a meaningful impact. The greatest reduction in social harm from drugs will surely come from such efforts and, in the long run, will do much more to reduce social harm caused by drugs than locking people up for longer sentences.
Bill S-10 is almost schizophrenic. On the one hand, there is this desire to increase harsher sentences for people who commit drug crimes and, on the other hand, there is this desire to address the addictions and substance abuse that attach to drug crimes, and to address the problem that way. To me, they do not seem to mesh well. A choice needs to be made here. Do we put our effort into the prohibitive aspect, the law enforcement aspect, which generally takes over most of the financial resources when dealing with supply reduction and demand reduction? The supply reduction tends to swallow up most of the resources. The demand reduction is left out, or receives the extras often in that case. If we refocus and concentrate on the drug treatment courts, rather than on mandatory minimums, we will go a lot further to dealing with the problems that exist in this country with respect to drugs and drug trafficking.
I will end by considering the fact that if, in the 1970s or 1980s, when my brother Todd was going through the criminal justice system, would he be alive today if these drug treatment courts had existed then? I have a feeling that he would have had a greater chance of being with us today if that had been the case.
I am open for questions.
George Stanley, Alberta Regional Chief, Assembly of First Nations: First, thank you, Madam Chair and members of the committee, for the invitation to appear before you and share our views regarding Bill S-10. My name is George Stanley. I am a former RCMP officer and a former chief of my community, Frog Lake First Nation in northeastern Alberta.
Currently, I am the Assembly of First Nations Regional Chief for Alberta. Matters concerning justice, policing and corrections are my responsibility in terms of our organizational structure. As part of our custom, I wish to acknowledge the Algonquin nation upon whose territory we are gathered here tonight.
The purpose of my presentation is that Bill S-10 purports to amend the Controlled Drugs and Substances Act to require courts to impose mandatory minimum sentences for a variety of drug-related offences, either because of the nature of the substance or offences, or because of the presence of a set of aggravating factors, including previous convictions for similar offences or membership in a criminal organization.
There is no question that the imposition of these requirements will have a disproportionate and prejudicial effect on First Nations and Aboriginal offenders. I will set out specific reasons later on in my presentation. However, before I do that, I wish to spend a couple of minutes speaking more generally and broadly about the subject matter at hand.
With respect to our demographics, it is well established that our population is growing and that youth are the largest segment of our communities. There are tremendous challenges confronting our youth, including high dropout rates, unemployment, drug abuse and increasing exposure to street gangs. Our youth are at risk to become part of other statistical realities defining our people, including the growing drug abuse problem among First Nations people, the growing number of drug-related offences facing our First Nations population and the continued growth of the First Nations and Aboriginal population within correctional facilities in Canada.
Another specific demographic and reality facing First Nations people is that the women are vulnerable to becoming caught up in the circumstances that factor into the subject matter, and processes addressed by the proposed changes in the law advanced by Bill S-10. First Nations and Aboriginal women are disproportionately represented in the female inmate population across the country, even more so than the more general disproportionate reality of First Nations and Aboriginal inmate statistics across the country. Again, women are vulnerable to, and at great risk of, becoming exposed to drug abuse and gang activity, as well.
Putting more enforcement resources and tools in the hands of the justice and policing systems will lead to more First Nations and Aboriginal people coming into the justice system, and that will expose them to the realities of mandatory minimum jail sentences. If putting more First Nations and Aboriginal people in jail is part of the solution regarding the desired reduction of the supply and demand of illicit drugs, then Bill S-10 will serve its purpose.
I want to move to specific issues arising from proposed changes with this existing law. There is the negation of what my colleague referred to, subsection 718.2(e) of the Criminal Code. By requiring courts to impose mandatory minimum jail sentences of a year or more in custody, the bill seeks to eliminate the discretion of the courts to consider the circumstances of Aboriginal offenders in an effort to arrive at just, non-custodial sentences as required by subsection 718.2(e) of the Criminal Code and as interpreted by the Supreme Court of Canada's decision in R. v. Gladue. The result will be that many more First Nations and Aboriginal offenders will be sentenced to jail time.
My next item is the exacerbation of the problem of over-incarceration of First Nations and Aboriginal peoples. Despite the measures introduced through subsection 718.2(e) in 1996 and expanded by courts since, Aboriginal people continue to be grossly and disproportionately overrepresented in Canadian prisons. They receive harsher and longer sentences for the same offences, when compared to the sentences received by non-Aboriginal offenders. They are also more likely to be denied bail and detained until trial.
While there are other identified systemic and societal reasons for this situation, not the least of which are factors of systemic racism, for example, as identified in Gladue, requiring courts to impose lengthy sentences for drug offences will exacerbate an already pressing problem and will, in no way, ameliorate the situation.
Aggravating factors will have disproportionate effects on First Nations and Aboriginal offenders. In regard to prior convictions of substance offence, the bill seeks to amend section 5(3)(a) of the Controlled Drugs and Substances Act to require courts to impose a minimum punishment of imprisonment for a term of one year if the person has a conviction for any substance offence in the previous 10 years.
In regard to the tragic legacy of residential schools, the dislocation caused by the Sixties Scoop and the cultural and socio-economic marginalization, alienation and over-incarceration are pervasive symptoms for far higher rates of substance abuse amongst First Nations and Aboriginal peoples than are prevalent in non-Aboriginal society. The effect of this bill's entire sentencing regime, and particularly this cumulative provision, means that a larger number of First Nations and Aboriginal people will find themselves in mandatory custody for significant periods of time, notwithstanding their particular rehabilitative qualities.
I will now address membership in criminal organizations. Disproportionate numbers of First Nations and Aboriginal people are associated with, or are members of, criminal organizations, as may be described in the Criminal Code provisions. Right or wrong, Aboriginal gangs serve as community, cultural and identity-related connectedness for those individuals in search of a place of acceptance.
The bill permits courts to disregard the mandatory minimums where the offender has completed a drug treatment court program, most of which are not acceptable to First Nation offenders not residing in the urban areas where the programs exist. Moreover, such programs are not culturally specific or culturally sensitive, which may result in individuals abandoning the program or dropping out, which of course means being subjected to a jail sentence.
Another segment is the reverse onus. Provisions regarding bail will make it virtually impossible for First Nations and Aboriginal offenders to receive bail. Statistically, it is established that First Nations and Aboriginal offenders do not benefit from bail release under regular circumstances, never mind in a reverse onus situation.
I want to address the measures required to address the problem. Insofar as First Nations are concerned, I highlight that the one-size-fits-all approach of managing relations between First Nations people and non-Natives has not worked, as demonstrated by failures of colonial approaches, including the imposition of the Indian Act and other laws intended to control them, and the application of specific policies, such as residential schools.
Treating First Nations and Aboriginal people in the same manner as all other Canadians does not recognize the reality that First Nations and Aboriginal people must overcome systemic discrimination, poverty and societal dysfunction to reach an acceptable level of health.
In our view, the most interesting and useful part of the proposed bill is the proposition that Parliament undertake a cost-benefit analysis of mandatory minimum sentences. That examination should be undertaken now before changes are implemented, not later.
An examination by Parliament will enable a fuller discussion about certain realities such as the measures required to address the disproportionate incarceration rates of First Nations and Aboriginal people; it will enable a thorough examination of the full extent of drug crimes; it will enable a discussion on the effects of diversion programming for youth; it will enable a discussion on the benefits of drug treatment programming to address recidivism; it will enable a discussion on measures required to address the situation of women; it will enable a discussion on the benefit of a restorative justice program in these matters; and it will enable a discussion on the identification of circumstances requiring mandatory minimums.
That is my presentation. Thank you for inviting me here this evening.
The Chair: Thank you both very much. Now it is our turn. We will ask you questions, beginning with Senator Wallace.
Senator Angus: Is Mr. Jones making a presentation?
The Chair: I understood that Mr. Jones was here along with Mr. Stanley, but that Mr. Stanley would make the presentation. We would have been perfectly content to hear from Mr. Jones, but they are the ones that make that choice.
Senator Wallace: Thank you very much for those presentations. When you are the one to lead off with questions after two presentations like that, there is a lot to listen to and to think about. In any event, I will give it my best shot. It was interesting.
Chief Stanley, I will start with you. I was interested in a number of things in your presentation. At one point towards the end, you said that insofar as the First Nations peoples are concerned, the one-size-fits-all approach does not work. There are special circumstances involving the Aboriginal community and these circumstances must be recognized in the justice system. What it reminded me of — and I am sure you are aware of it, but I will ask you a question about it — is the federal government's Aboriginal Justice Strategy, which is there for the purpose of recognizing the unique circumstances that Aboriginal communities experience.
Briefly, that strategy is a federally coordinated initiative, coordinated with the provinces and territories, which supports community-based programs to assist Aboriginal communities. My understanding is that the strategy at present encompasses 142 different programs and 47 projects covering 400 communities, and that the budget is increasing at a rate of $12 million annually until 2012. At that point, it will have total funding of $85 million.
Are you familiar with that strategy? Can you make any comment on the success of that strategy? Again, it is one that seems geared specifically to the Aboriginal community and not, as you have suggested, simply a one-size-fits-all solution to these particular social issues.
Mr. Stanley: I will defer that question to my policy adviser.
Roger Jones, Policy Adviser, Assembly of First Nations: Thank you, Chief Stanley, and thank you for the question.
The Aboriginal Justice Strategy has been around for a few years now as part of the federal government's effort to address what is obvious, namely, that the treatment of Aboriginal people in the justice system is such that it has resulted in significant numbers of people being incarcerated. We also have situations where various inquiries virtually in every region across the country have had to examine situations where policing, corrections or the justice system itself has not served Aboriginal people well, hence the idea that the justice system needs to be in a better position to respond to the needs regarding Aboriginal people.
The program has been in existence for a few years, and it is renewed periodically. By the time 2012 comes around, perhaps $89 million will have been spent, versus the notion that the program is indefinite and ongoing and that it will continue to expend resources for these purposes.
The projects that are in existence all across the country are pilot projects. Many of them are what are defined as diversion projects that are directed either at youth or generally at Aboriginal offenders who come into contact with the justice system. It is restorative. I think Aboriginal people across the country would say that the program is beneficial, but they want to see the program extended completely across the country. Accessibility is dependent, first, on the sufficiency of financial resources. At this point, the annual allocation is not sufficient to address the needs right across the country.
The other component of the program is that we need the cooperation and participation of all parties, namely, the federal government, the provincial government and the Aboriginal community. That cooperation is not always present. Often when we have the right people involved in a project like that, it is likely to materialize. That means that we need the local judiciary, the local Crown attorney or prosecutor's office, and government bureaucrats at the federal justice department and provincial attorneys general offices wanting to make this program happen, which obviously they see as beneficial.
First Nations people and Aboriginal people want what has been occurring annually as a pilot project to become a regular feature of the justice system. One question that was presented to the previous witness regarding the issue of accountability is an important one.
When Aboriginal offenders are processed through the Canadian justice system, they are processed usually outside of their communities, although the offences are committed in their own communities. I am speaking specifically about First Nations communities. The court system is not present in First Nations communities. At best, when people are prosecuted for any manner of offence under the Criminal Code or whatever, they will be prosecuted in the local town where there is a provincial criminal court.
The fact that these offenders are prosecuted outside their communities means they are not accountable for what they do in their own communities, nor is the community seeing that the offences that these individuals commit are something for which they want the offender to be accountable to them. In essence, the system is invisible in their own communities because the prosecutions and the processing takes place outside of their communities.
The idea of the Aboriginal Justice Initiative is to try to bring the restorative justice project into the community setting so that it has an impact both for the community and for the individual. There is a benefit, and I think people want it expanded in scope, in terms of its future, to be a regular part of the overall justice system in this country.
Senator Wallace: My understanding is that it is a regular part of the justice system. When I mentioned that figure of $85 million in 2012, that is not the total of what is spent over those years. That is what the budget will be at that point. Anyway, I do not think at this point we want to become bogged down in numbers. Again, that information is interesting.
Chief Stanley, if I can come back to you again, something you said in your presentation reminded me of evidence or statements that were made when we dealt with Bill C-15, the predecessor of Bill S-10, which was basically the same bill. You made reference to the disproportionate numbers of First Nations and Aboriginal people that are members of criminal organizations.
That reference reminded me of our colleague, Senator Brazeau, who, of course, is Aboriginal, when he spoke in the chamber to Bill C-15. I remember him saying that a major issue for him and for those in the Aboriginal communities that he has been involved with was that families were pleading with law enforcement and the justice system to do something. The gangs were taking control of Aboriginal communities, so they were asking to please do something to respond to that situation.
In that context, he was supportive of the bill. He felt that it was not the be-all and end-all, but a step in the right direction. Is that your experience? Are the communities suffering through that type of gang and criminal enterprise involvement? Is that a reality at ground level? That is what this Bill S-10 seeks to address. We can debate what we think of that bill, but that is exactly one of the purposes of it.
Mr. Stanley: Let me defer that question back to Mr. Jones.
Mr. Jones: One of the interesting statistical realities about street gangs is that much of the recruitment takes place within the prison system. Members of street gangs are incarcerated, and then other people end up in the same institutions. The institutional setting becomes the hot-bed of recruitment for people who want to increase the size of the gang and, of course, the influence over the community.
At this point, I think the reality of street gangs is something that is a greater challenge for Aboriginal people living in the urban environment and not so much in the reserve or community context.
The presentation speaks to the concern about this reality. The proposed amendments do want to target the issue of organized crime, street gangs being part of the definition of organized crime, and obviously it will have an effect on the Aboriginal population, especially in the urban context. If, in fact, the desire is to put street gangs into the prisons, then obviously this bill will have that effect.
However, the bill does not necessarily address the issue of whether taking people off the street and putting them into the prison system will address their long-term rehabilitative requirements. As the previous witness said, rehabilitation does not take place in the prison system, and they are more likely to come out not having been rehabilitated and simply come into conflict with the law again upon release.
It is a vicious cycle, and this bill is not likely to rectify the situation to any large degree.
Senator Wallace: Rehabilitation obviously is a significant issue. The government recognizes that issue. However, Senator Lang earlier reminded me of evidence we heard from a superintendent of the police department in Halifax last week. One purpose of the sentencing is to remove those involved in the drug trade, to take them off the street and disrupt the criminal enterprise. It is true that that person may be replaced by someone else, but it provides an opportunity for the community, for the neighbourhood, to reclaim its streets. He gave a good example. They had that opportunity to recover their streets. They had a chance to see the reduction in overall crime in that neighbourhood of some 19 per cent.
Yes, rehabilitation is one thing. Again, there is a focus too on protecting neighbourhoods and trying to diminish the occurrence of those drug crimes in neighbourhoods in the future, and other crimes.
The Chair: Do you want to add a comment?
Mr. Jones: I do not doubt the testimony of a previous witness and the truthfulness of it. We are encouraging an examination of other strategies to achieve the same outcome, which is security among our people and security among people living in the urban setting. That is why we encourage this committee, Parliament and government as a whole to have a broader examination of how to deal with the situation confronting Aboriginal and First Nations peoples across the country.
Senator Baker: I thank the witnesses for their excellent presentations. My major questions are directed toward Professor Chartrand. Before that, though, something that Chief Stanley said was rather interesting, and that is that the bill, as it applies to the reverse onus on bail, will mean that Aboriginal persons will be faced with a judge. Whether someone is sentenced on an offence of life imprisonment, trafficking or a minimum sentence of one or two years, does not matter; they have the reverse onus. In other words, the judge says, "You tell me why I should let you out of jail." That is what the Criminal Code says. The person then has to recite, "Here are the reasons why you should let me out. I have a mother and a father or a wife and a kid right there in this community."
Various reasons can be given. You pointed out, and we had not heard this before, an unintended consequence of this legislation as it relates to other provisions in the Criminal Code. I thank you, Chief Stanley, for pointing out that consequence.
I want to ask a simple question of Professor Chartrand. The last time this bill went through, professor, there was the "Chartrand amendment," which passed. It was based upon your article, Aboriginal Peoples and Mandatory Sentencing, back in 2001. I congratulate you. Committee members read case law to a certain degree, and you have made law in Canada, and your writings have been quoted by judges of the superior court. I forget the most recent article you wrote together with another person, and it was an article about sentencing. I congratulate you for that, because not many people can make law and still be a professor.
The Chartrand amendment will be reintroduced, though perhaps not with as much success as it was the last time. Nonetheless, an attempt will be made. If it is, I understand that you argue there will be possible violations of section 12, section 15.1 and section 35 of the Constitution. As you pointed out, it is not saved by section 1 of the Charter.
Can you elaborate a bit on that argument? The wording of the amendment will be approximately the same, which is in the case of Aboriginal persons, the minimum sentence will not apply.
Please comment generally on your logic regarding sections 12, 15 and 35 of the Charter being violated by these mandatory sentencing provisions and not saved by section 1.
Mr. Chartrand: Thank you for the question. An answer to that could take —
Senator Angus: A week.
Mr. Chartrand: Yes, a week.
The Chair: We will not give you that long, but you have a couple minutes.
Senator Baker: Cut it short. The chair will cut you off. My question is gone.
Mr. Chartrand: As you know, the analysis for establishing, for example, a section 15 equality claim is an elaborate test that a plaintiff must undertake to demonstrate an inequality and declare legislation unconstitutional as a result.
In the context of mandatory minimums, particularly with respect to subsection 718.2(e), Parliament has turned its attention to the fact that the impact of the criminal justice system as a whole has a grossly disproportionate effect on Aboriginal peoples.
It has also recognized that one of the ways that Parliament can address that disparity impact is to mandate strenuously through an actual explicit provision in the Criminal Code where Aboriginal peoples are identified and targeted as a group that needs particular attention to ensure that the criminal justice system does not continue to manifest that inequality.
The means to address that inequality is built into subsection 718.2(e). When I wrote the article, I was looking at the firearms situation.
Senator Baker: Yes.
Mr. Chartrand: In the context of drugs, the same principles apply. If you try to mandate mandatory minimum sentencing, you defeat the purpose of subsection 718.2(e), which is designed to address equality. By doing that, you are breaching section 15. We could go through the test at every level to show that breach.
Section 35, which is the provision that deals with existing Aboriginal treaty rights, is more involved. One has to understand the colonial relationship between Aboriginal peoples and the Canadian state, how the Canadian state is now and how there is this attempt to reconcile Aboriginal and Canadian interests. That attempt has become manifest in various doctrines of Aboriginal law, such as the duty to consult, et cetera.
Now, the duty to consult reflects the honour of the Crown. The source of that duty is in the honour of the Crown. When we look at section 35, and when we look at subsection 718.2(e), one is not arguing directly that subsection 718.2(e) is an Aboriginal right. However, one can argue that it is a reflection of the Crown's attempt to act honourably in terms of the fact that colonization has had such a negative impact on Aboriginal peoples.
In that respect, we can make an argument with section 35, but it would take a significant effort to do so.
The Chair: Do you want to go to section 7?
Mr. Chartrand: No, I am fine.
Senator Baker: No, that is sufficient.
The Chair: That is a mini graduate seminar right there. The witching hour is upon us. We are now at our final question.
Senator Chaput: Chair, my question has to do with Mr. Chartrand's paper that he wrote in 2001. By answering Senator Baker's question, I have received the answers I wanted from Mr. Chartrand. I was preoccupied with whether mandatory sentencing prevents the realization of equality for Aboriginal peoples and whether it can be seen even as a violation of Aboriginal rights. Those were my questions.
The Chair: We had a lovely, clear explanation of his views on that subject.
Senator Chaput: Thank you.
The Chair: Mr. Jones, were you trying to add something before I cut you off at the knees?
Mr. Jones: No.
The Chair: Gentlemen, thank you so much. This testimony was important and enlightening. We are grateful to you all and we are sorry for having kept you here later than we told you we would. That is sometimes the nature of parliamentary work — it expands.
However, honourable senators, we shall meet again in this room at 10:30 tomorrow morning. At that time we shall proceed to clause-by-clause consideration of this bill. However, before we proceed with that, I will ask for a series of housekeeping motions that in steering we thought we would address tonight, but I think it is fairer to deal with them when we have a greater representation of both sides. Is that agreed?
Do you trust us, Senator Lang? You can move anything you like.
Senator Lang: I have a lot of confidence in the chair.
The Chair: No, we will deal with them tomorrow morning at the opening of business because they will not take long. Then we shall move to clause-by-clause consideration of this bill.
(The committee adjourned.)