Bill C-15 (Historical)

An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts

This enactment amends the Controlled Drugs and Substances Act to provide for minimum penalties for serious drug offences, to increase the maximum penalty for cannabis (marihuana) production and to reschedule certain substances from Schedule III to that Act to Schedule I.
As well, it requires that a review of that Act be undertaken and a report submitted to Parliament.
The enactment also makes related and consequential amendments to other Acts.

Controlled Drugs and Substances Act

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Yes, the plea of the accused before the court. The minimum sentence cannot be used unless notice is given of intent to prove the factors. No attorney general will take the time to prove the factors when it comes to the little guy. When it comes to the big guys, how could we naively think they would get away with a custodial sentence of less than a year to begin with?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Madam Speaker, my colleague from Scarborough—Rouge River and I have worked on a number of justice issues. I know he has identified this as a point, as has his colleague from Mississauga.

I wish I could share their optimism. I think there are attorneys general across the country, much as in the ideological bent of the Conservative government, who will give directions to the prosecutors at the local level to give notice that they will be attempting to use the mandatory minimums on a regular basis. We hear that they will only use it when they are going after the top end of that pyramid, about which I talked. I am not that optimistic this will happen.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Madam Speaker, I would like to ask my colleague, as somebody who has a lot of experience in these areas, a couple of simple questions.

Does he not think that one of the great challenges of the federal government is to work with provinces to ensure that provincial institutions, where the majority of inmates are serving two years less a day, have the resources to ensure inmates have access to skills training and drug and alcohol treatment?

Also, one of the great challenges of our country is the prevention of fetal alcohol syndrome and fetal alcohol effects. Fifty per cent of inmates are deemed to have FAS or FAE. This is the leading cause of preventable brain damage in children. Their average IQ is about 78 and it is entirely preventable.

Does my colleague not think FAS, FAE and the measures I mentioned to work with the provinces is one of the most pressing issues of our country and if we address these issues, then we will go a long way to preventing a lot of crime and reducing our inmate population?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Madam Speaker, there is no question, the answer is yes. One problem at the provincial level is the sentencing is usually of a relatively short nature. Because they have so little programming, hardly anybody gets any treatment at the provincial level.

At the federal level, we find it is quite usual, even in lengthy sentences of more than five or seven years, that people do not get treatment with those kinds of conditions until the last six months or a year. It is not long enough, and we know that.

I want to make one other point. About three years ago, a member from the Correctional Service Department came before the public safety committee come forward and said that more than 50% of all the people incarcerated that year were suffering from not just mental health problems, but severe psychiatric level mental health problems and that they should not be in our prisons, but in psychiatric institutions, where they would get daily treatment for their severe conditions. We are not even touching that group at all, and they eventually get out.

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, I am pleased to have an opportunity today to join in the debate on Bill C-15, an act that has the effect of imposing mandatory minimum sentences for drug offences.

I listened with great interest to my colleague, the member for Windsor—Tecumseh, explain the rationale behind the bill, if there is such a rationale, which is an attempt to somehow, through minimum mandatory sentences, increase public safety in our country, and the failure of this bill to have that effect.

Lest we be under any illusions, we should know one thing. The starting point is a current law when it comes to offences under our Controlled Drugs and Substances Act. The seriousness of the penalties already exist. The maximum sentence for trafficking, exporting, importing and production for the purposes of trafficking in schedules I and II in the act is life imprisonment.

There is no doubt that our criminal law already takes extremely seriously this type of crime. The law recognizes that this kind of activity can be seriously detrimental to individuals and to our society. That is the maximum sentence.

The fact is the appropriate sentence for an individual case is a matter for the discretion of a judge. The judge will use his or her judgment in accordance with the law, legal precedent and the facts and circumstances of each case to define an appropriate sentence. What this law does is say that Parliament will say, regardless of the circumstances, the individual, the facts of a particular crime, there will be a mandatory minimum.

Here is what Justice John Gomery said about the previous bill to the same effect. I think parliamentarians know a lot about Justice Gomery and his inquiry into the scandal related to the activities of the previous government, the Gomery Inquiry. Mr. Justice Gomery said, “This legislation basically shows a mistrust of the judiciary to impose proper sentences when people come before them”.

However, it does more than that. It fails to follow the principle that our judges have been given an important task in determining not only the guilt and innocence of an accused, but also the appropriate sentence under the supervision of appeal courts.

The bill also fails to follow a principle of governance, that decisions should be evidence-based. If the Conservatives are going to say that the bill will protect the public, as we have heard speakers from the other side say, then let us see the evidence that supports this.

In fact, the justice department said in 2002 that mandatory minimum sentences did not appear to influence drug consumption, which is one of the things people are concerned about, or drug-related crime in any measurable way. If we are talking about being tough on crime, the bill, according to the justice department in 2002, is not going to influence drug-related crime in any measurable way.

Where is the evidence to support any notion that Bill C-15 would in fact reduce drug consumption or drug crime? If we do not have that, what are we doing seeking to push through a bill that is going to do something that is harmful, and I will get to that in the rest of my speech, costly and ineffective in reducing crime, or doing the thing we want to do, which is to influence a reduction in drug consumption?

That is the problem with this bill.

[The Acting Speaker, Denise Savoie]

The hon. member will have 14 minutes when the debate resumes.

The House resumed consideration of the motion that Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts, be read the third time and passed, and of the motion that this question be now put.

[The Speaker, Peter Milliken]

When the bill was last before the House, the hon. member for St. John's East had the floor. There are 14 minutes remaining in the time allotted for his remarks. I therefore call upon the hon. member for St. John's East.

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, before question period I was on my feet speaking about Bill C-15, which brings about mandatory minimum sentences for certain drug offences, most of which already incur a life sentence.

Instead of having judicial discretion, which has been exercised for many decades in this country on the issue of drug offences with certain exceptions, as my colleague from Windsor—Tecumseh pointed out earlier in his remarks, most of the drug offences have a range of sentencing which the judiciary is trained and experienced in applying to the facts and circumstances of a particular case.

My colleague pointed out an anomaly that existed prior to the introduction of the charter of rights and talked about this matter being debated when he was in law school. It was also the law when I was in law school that there was a mandatory minimum sentence of seven years for the importation of as much as a single marijuana cigarette. Someone coming across the border between the United States and Canada would be guilty, therefore, of importing marijuana into Canada and, upon conviction, the judge would have no choice but to impose a sentence of seven years imprisonment.

It was a matter of great consternation among law students in my day that there would be this manifest injustice in our law, that this was something that our law could contemplate, and yet individuals had been sentenced to seven years in jail for very minor offences, particularly when one thinks of the times when it was very common for people to go back and forth across the border.

My colleague from Windsor—Tecumseh talked about the border between Windsor and Detroit where people go back and forth as a matter of course on an ongoing daily basis. Importation of that particular drug was a simple matter of people having a marijuana cigarette in their pockets, which would bring about a sentence of seven years imprisonment. People's lives were ruined by that law.

It was only the coming into law of the Charter of Rights and Freedoms that allowed a court to determine that this kind of penalty for that kind of offence amounted to cruel and unusual punishment and was declared to be contrary to the then new Charter of Rights and Freedoms. We should not have to have a Charter of Rights and Freedoms to have sensible laws.

What we are seeing here, though, is the bringing about of new laws to provide mandatory minimum sentences when the current law is adequate. Why do I say it is adequate? It is adequate because the punishment fits the crime whereas mandatory minimum sentences do not bring about a system where the punishment fits the crime or the punishment is fair.

The American Bar Association Justice Kennedy commission in 2004 called on Congress to repeal mandatory minimum sentences saying that they tend to be tough on the wrong people. What that means is the people who are receiving the mandatory minimum sentences are not the people who need to be severely punished for their crimes.

The United States has a lot of mandatory minimum sentences for crimes, including drug offences. What the United States sentencing commission concluded, and this is the Kennedy commission we are talking about, was that mandatory minimum sentences failed to deter crime and reported that only 11% of federal drug defendants were high level drug dealers, 59% of crack defendants were street level drug dealers, and 5% of defendants were high level crack dealers. In other words, the people who were getting nailed by the mandatory minimum sentences and filling up the jails in the United States were the small-time operators, the street-level operators, not the people who were the major drug dealers, the ones who, our government says, this bill is aimed at.

We are going to see the same thing happen here in Canada and I know the member for Edmonton—St. Albert also, I think, accepted that this might not have the right kind of effect, that it might not actually get the people we want.

So, we do have a problem with it for that reason, too, that it would not be a fair system. It would not comply with the needs for reduction in crime. This was the conclusion of our justice department in 2002.

Members might say that was seven years ago, that we have better evidence now. In fact, no evidence was presented to the committee, or to this House, to indicate and show that mandatory minimum sentences would in fact deter or influence drug consumption or drug-related crime in any measurable way.

This is what the Department of Justice said in 2002 and I will quote it once again for members who are listening and for those watching the proceedings on CPAC:

Mandatory minimum sentences do not appear to influence drug consumption or drug-related crime in any measurable way. A variety of research methods concludes that treatment-based approaches are more cost effective than lengthy prison terms. MMS are blunt instruments that fail to distinguish between low and high-level, as well as hardcore versus transient drug dealers.

In other words, the supposed targets of these crimes, the kingpins, those who are involved heavily in organized crime, would be in the best position to negotiate lighter sentences and no-sentence deals with prosecutors, and in fact would not be affected by mandatory minimum sentences.

The problem is that it would move totally away from a rational, reasonable approach to dealing with drugs and the lack of an adequate drug strategy for this country.

There was an approach that was recognized as being valuable, a more balanced approach, the so-called four pillar approach, dealing with prevention, treatment, harm reduction and, yes, enforcement. Enforcement is extremely important. Unfortunately, the reality that has transpired in terms of what effort is being directed toward these four pillars is not a balanced approach. We are spending 30 times more on enforcement than we are on prevention. Drug prevention programs in this country account for 2.6% of the expenditure in relation to our drug strategy; whereas enforcement accounts for 73%. That shows that the priorities are wrong.

We want to reduce drug consumption in this country. We want to deter crime. We want to protect our citizens. That is the whole purpose: to protect the public, young people especially, and all those in our communities who could be harmed by the use of these harmful and addictive substances. However, we need to have a balanced approach, not the approach that has been adopted, that of having mandatory minimum sentences, which has been determined would not work.

Witnesses coming before Parliament, the 2 or 3 people out of the 16 who supported mandatory minimum sentences were asked to provide evidence or point to any study that would show that mandatory minimum sentence for drugs would be effective in deterring the use of drugs or the trafficking of drugs.

Not one person was able to show it was aware of any study. Here is a question that was asked. Has any study been found? I only want one that demonstrates that minimum prison sentences are good, correct and that they help with rehabilitation. Could someone answer that question? I would greatly appreciate it. Apparently, there is not. Witnesses were asked, but these did not come forward.

The majority of the witnesses that came before the committee wanted to scrap Bill C-15. Academics, lawyers, professors specializing in criminology, drug policy and psychology, a former judge, front line community workers and the criminal law branch of the Canadian Bar Association made up of defence council and prosecutors across the country said quite definitively that they did not believe the bill was effective. They believed it would be costly and ineffective and that it would not deter crime.

The Canadian Civil Liberties Association and the John Howard Society, a national organization working with prisoners in the criminal justice system for over 100 years, are extremely interested in rehabilitation and criminal law matters. They are opposed to this because of the effects it would have on our system. We also have the benefit of the experience of our neighbours to the south, because they have had 30 years experience with mandatory minimum sentences. Their experience goes back a long time and they have dealt with drug sentences of significance. They are now looking the other way and starting to change their approach.

The American experts also oppose the effectiveness of this method of dealing with drug use and the pervasive, unfortunate and seriously criminally wrong trafficking of drugs. We already have laws that are doing the job of ensuring that people who are charged and convicted of drug trafficking have a sentence that is appropriate to the crime they have committed, to the circumstances and to the danger to society involved.

We hear the other side talking about the victims of drug crimes. We are well aware of these. Not only that, we are well aware that the judge who is sentencing in a situation like that will have those facts and circumstances before him or her and will use those powers to increase the sentence in any particular case.

We have had debate here today, indicating the extreme high cost, the effect on our correction system and the fact that there is zero proof that the bill will be effective in reducing crime or deterring the use and consumption of drugs, yet the bill is still before the House. I ask hon. members who plan to support the bill to change their minds and recognize that an evidence-based approach to legislation and public policy should be the order of the day and not some simple ideological approach, which seems to be behind the bill.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, I always enjoy the hon. member. We used to serve together on the public safety committee, and I always find his input and experience as both a provincial legislator and a lawyer helpful. However, with all due respect, I must disagree with his position with respect to Bill C-15.

The NDP is fond of submitting and arguing that 13 out of 16 of the witnesses who appeared before the committee were against the minimum mandatory sentences. I would like him to acknowledge a couple of simple points.

First, almost all of the witnesses were there at the invite of the NDP caucus, specifically the member for Vancouver East. They all said the same thing. The other thing they said, and this is critical, is that they were against prohibition. If they are against prohibition, they will be against minimum mandatory sentences. That is self-evident. If people are against it being illegal, they will be against minimum jail sentences.

Does the member support that? Does the member also support abolishing prohibition and making substances, including cocaine and methamphetamine, legal as the majority of those 13 witnesses said? He is looking for evidence that this law will work. Will he not acknowledge that while a person is incarcerated, he or she is unable to import, export or traffic in drugs during that period of incarceration?

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, the hon. member and I are both fellow lawyers in our non-political lives and past, and I always listen carefully to his arguments. Unfortunately in this case, what we are talking about is whether the bill is going to be effective in reducing the consumption of drugs in our society and in deterring trafficking and the other crimes that it sets in order to protect the public. That is the important thing, not whether someone we lock up is able to get access to drugs.

I understand that in our corrections system, it is not exactly a given that people do not have access to drugs, so it is really a red herring. One could say the same thing about locking up anybody. If we lock anybody up for life, it will be harder for that person to commit crimes in our communities.

That is not an attack on crime. This is an attack on criminals. We have criminals and we want to protect society by ensuring we have fewer of them. To have fewer of them, we need a policy that works, where people who go to jail and get rehabilitated see some hope for the future.

The protection of the public is about more than locking people up for long periods of time. We need a policy that makes sense, that is based on evidence. In this case, there is no evidence. The hon. member knows that anybody on a committee can suggest witnesses. If there were evidence to support the bill, the Conservatives would have had them there.

The member is a very clever, educated and knowledgeable person. I am sure if that were an issue before the committee, the Conservatives would have found at least one study, somebody, to prove that mandatory minimum sentences worked and that they would deter trafficking and reduce the consumption of drugs. They did not have one. They had the opportunity. They have had the opportunity here today and have not done it.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I know that in my colleague's time in the House, he has also had an interest in Correctional Service Canada. He will know that just recently the federal correctional investigator, Howard Sapers, issued a report that contained warnings about the situation in Canada's prison system. He was talking about the dangers of overcrowding and the need for additional capacity, especially if these Conservative so-called tough on crime measures actually come into effect.

Could the member speak briefly about how this bill, which will increase mandatory minimum sentences and technically increase the length of stay that people have in jail, might affect situation in our prison system in light of Mr. Saper's recent report?

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, it is an important consideration. We do have a serious crisis in our prison system.

In many cases, we now have cells that were designed for one person holding two people. It has been suggested that if this bill were to pass, the estimated increase in the number of people incarcerated would go up by 10% to 25%, so we will see not one person in a cell designed for one, but three.

Most of this will happen at the provincial level, another cost being passed on by the Government of Canada without any consultation. The legislation has a cost and nobody from the government side has put a price tag on this. The Conservatives are supposed to be fiscally prudent and responsible spenders of the public money. They pride themselves on this, yet they bring in legislation that would have not only an increased cost but excruciating conditions in our correctional institutions, leading not to greater rehabilitation but to greater resentment and suffering of prisoners. That is the end result of it.

Is there anybody from the other side who has a price tag to put on this, or who will say what the government is prepared to do to deal with the increased costs? Is the government going to build more prisons? Is it going to fill them up with people who are going to have mandatory minimums? What is it going to do to deal with the consequences of the legislation it has before the House?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, I asked the hon. member two questions and he chose not to answer either of them, so I will try again.

Will the member not agree that while a person is incarcerated, that individual cannot import, export or traffic drugs? Does he agree with the witnesses who appeared before committee, who he is so fond of quoting, that prohibition is a bad idea and that serious drugs, including methamphetamine and cocaine, ought to be legalized? Does he agree with that?

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, we have a situation where the government wants to incarcerate people for longer periods of time. This has nothing to do with prohibition, although I know the experience with prohibition was it was not successful when it came to alcohol, and it is not very successful when it comes to drugs.

That debate is a worthy to engage in, but we are talking about mandatory minimum sentences. How did the gangsters who were engaged in the alcohol trade get caught? Did they caught by Eliot Ness going around shooting up the shebeens, or did they get caught by finally taking action to get the money that Al Capone was not paying in taxes and putting him in jail for that?

Is he not aware that the people who are the real gangsters seem to manage to carry on their crimes whether they are in jail or not?