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

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

Madam Speaker, I would like to ask the hon. member for St. John's East this question.

Given that the Department of Justice has issued two reports in recent years showing the lack of utility of mandatory minimum sentences and the fact that we live right next door to the largest experiment in the history of the world in terms of a similar failed incarceration-drug program, would the member care to speculate on the real reasons the Conservatives have introduced this bill, since they obviously have ignored the facts when it comes to its ability to reduce abuses of drugs?

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

Madam Speaker, I think the answer is pretty clear. I do not think we need to speculate. It is clear and the evidence is clear. Even the Department of Justice, up until the current government came to power, was clearly on the record as saying that there was no evidence to support mandatory minimum sentences for drug use and that it would not work. There was no measurable effect on either drug consumption or drug-related crimes.

The obvious reason is the one we hear all the time from the Minister of Justice. Every time he talks about being tough on crime, he is actually talking about being tough on criminals. He never talks about that without, in the same sentence, saying that the Conservatives are tough on crime and the other parties are not. That is the real reason they are doing it. It is all about politics and optics, not about reality.

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

Madam Speaker, I am glad to have this opportunity to participate in the third reading debate of Bill C-15, An Act to amend the Controlled Drugs and Substances Act.

I come to this debate surprised, once again. I am surprised by this place and the kinds of things that happen here, and I am surprised by the basis on which sometimes the government acts and sometimes this place acts.

What surprises me most is the inability and the refusal of the government and the Minister of Justice to provide any shred of evidence that this piece of legislation will have any of the effects they claim it will. There was an absolute inability by the Minister of Justice to provide one study that backs up that mandatory minimum sentences have any positive effect whatsoever on the illegal drug trade, that they have any effect whatsoever on the security of our communities, that they make any difference to the illegal drug trade in Canada.

We have gone over this time and time again. Members from this side of the House, this corner of the House, the member for Vancouver East, have asked time and time again for any study, any evidence that would show the efficacy of mandatory minimum sentences, especially with regard to drug crimes, and nothing has been forthcoming.

This has not gone unnoticed. The media have reported on it. There have been editorials in newspapers across Canada that the government has not been able to provide this evidence and has not done its due diligence. It has not done the work, and it has done this piece of legislation solely for crass political reasons.

I find it very difficult to support legislation that has no basis in fact. There may be people out there who believe this is a good idea, but my job as a member of Parliament is to examine the facts and to make sure we spend the time in this institution to debate issues, that when we put forward legislation and make changes to our criminal law, that they will to the best of our knowledge accomplish the goals that are acclaimed for them. We have none of that with this bill. We do not have that ability, because there is absolutely no evidence.

When the justice committee was studying Bill C-15, the member for Vancouver East was our New Democrat representative. The first witness to appear before the committee in its study of Bill C-15 was the Minister of Justice. The member's very first question for the minister was on this issue of whether there was evidence to support the claim that mandatory minimum sentences were an effective tool.

I will quote from the record of that committee where she asked the minister the following:

One question I have for you is this. What evidence do you or the department or your government have that mandatory minimums will work for drug crimes, and will you table that evidence? I think we need to see what studies you rely on.

They discussed a couple of other issues, and the minister did not address that first request. She asked again:

I respect your opinion on that, but my question is what evidence do you have that mandatory minimums for these drug crimes will actually work, that they're actually deterrents? What evidence is there?

There was no answer from the minister in his response to that question, so the member for Vancouver East asked again:

Do you have evidence?

The minister said:

We have the evidence that Canadians have told us that.

That was his response.

The member for Vancouver East asked again, “Any studies?” And the minister did not respond to that again.

She went on. She did not give up. She was determined to find out if there was at least one study that the government was relying on. A minute later, she said:

I take it you have no evidence, though, about mandatory minimums.

The minister responded again in the same way he had before. The member for Vancouver East said again:

But you have no evidence to offer.

And the minister still did not provide anything.

This was a regular theme through that committee and through that meeting. It was also an issue for witnesses who appeared. We know that the majority of witnesses who appeared before the committee did not support this legislation. The three witnesses who did support the legislation also could not provide any evidence or any studies that mandatory minimum sentences were effective in dealing with drug crime.

We went through that whole process, and no one from the government, the minister, or the witnesses who supported the legislation could provide any evidence that it would be able to accomplish any of its purported goals.

This is very, very serious. This is a blatant dereliction of duty. I cannot imagine. I said at the beginning of my remarks that this place sometimes shocks me. I am absolutely shocked that we would proceed with serious legislation like this without one piece of evidence, one study, to back up the need for this change in our criminal law.

We already have serious penalties for trafficking, exporting, importing and production for the purposes of trafficking. The maximum penalty for that is life imprisonment. There can be no penalty in Canadian law more serious than life imprisonment. That already exists for these crimes.

Many of the witnesses who appeared pointed to other studies and to other experiences that showed that mandatory minimum sentences were completely ineffectual.

The justice department's own study, in 2002, indicated that:

Mandatory minimum sentences do not appear to influence drug consumption or drug-related crime in any measurable way.

It was not the NDP who said that, it was not some drug-crazed hippy, the Department of Justice said that.

The minister claimed he could not produce any evidence. He could have produced evidence against his position, but he chose not to do that too. He chose not to listen to the evidence from his own department.

In 2005, the justice department also reported the following:

There is some indication that minimum sentences are not an effective sentencing tool...

Yet again, the Department of Justice said that mandatory minimum sentencing is not an effective tool. I wish the government had paid attention to the research and the work of its own department in this regard.

On the other side of the equation, people who are concerned about this legislation can produce many studies showing that these are ineffective and inappropriate tools.

The John Howard Society appeared before the standing committee that was studying the bill. It provided summaries of 17 studies from the United States and the United Kingdom on mandatory minimum sentences, lengthy sentencing terms, and recidivism, which all found that longer prison terms do not reduce recidivism. They do not stop crimes from being committed. Surely that has to be the goal of this legislation. The John Howard Society cited 18 other studies, which it did not provide summaries of, that came to the same conclusion.

Detailed analysis from the United States Sentencing Commission, which was presented at committee, found that mandatory minimum sentences go after low-level criminals and they are ineffective in deterring crime. Mandatory minimum sentences are even ineffective in who they target in the criminal community. They go after what is called “the low hanging fruit”, the minor players. The big players who are causing the serious problems, the ones who cause serious disruption in our society, the ones who make the huge profits, are not touched by this kind of legislation.

That evidence came from the United States Sentencing Commission, when it looked at its own failed attempts to use these laws in the United States.

The reality is that the United States did fail. Back in 1973, New York pioneered these kinds of mandatory minimum sentences. They were called “the Rockefeller laws”, and they were a colossal failure. New York, California, Michigan, Delaware, Massachusetts, all the states that went into mandatory minimum sentences are now repealing them. They found that they did not make their communities safer, they did not stop involvement in crime, and they sucked up huge amounts of taxpayers' dollars for the prison system, usually at the expense of the education system.

We know mandatory minimum sentences have been a failure just by examining the evidence from the U.S., which went heavily into this process. Why the Conservative government would use a process similar to the failed process in the United States is beyond me when the evidence is so clear.

We heard at the standing committee from former counsel to the United States House of Representatives Committee on the Judiciary, Eric Sterling, who said clearly and emphatically that his decision to promote mandatory minimum sentences earlier in his career was probably “the greatest mistake of my entire career of over 30 years in the practice of law”.

This is a very distinguished lawyer, who worked in the Congress of the United States, who is a counsel to a congressional committee, the Committee on the Judiciary, who is basically recanting his position in favour of mandatory minimum sentences. Surely this is the kind of experience we should be learning from, not completely dismissing and ignoring as the government has chosen to do.

We know that mandatory minimum sentences have failed to reduce drug use and failed to increase safety and security in communities. They have raised the prices of drugs, increased the profitability of the drug trade, and they have lowered the purity of the drugs. They have increased organized crime in the communities in the states where they have been implemented.

We also know from evidence presented at the committee from a woman named Deborah Small from Break the Chains, that in the state of New York where these laws were implemented, they targeted the poor and racialized minorities. She testified at the committee that “while drug use is pervasive among every social or economic group, 95% of the people incarcerated for drugs in New York were poor African Americans and Latinos”.

They target the most vulnerable people in our society. The big traders still get away with the crimes they commit.

When before the committee, Mr. Sterling also pointed out the huge expenditures that these laws require for enforcement and incarceration. He said:

In 1986, when we enacted the mandatory minimums, the Federal Bureau of Prisons' expenditure was $862 million. It went up to $994 million the next year. Two years later, it was $1.2 billion... In 1991, it was $2.1 billion.

The President's request for fiscal 2010 is over $6 billion.

There is an astronomical increase in prison costs related to these laws. Why would we go down that road when we know the cost and the ineffectiveness of them and when there is no evidence?

I think it is very important to consider all these issues when we are looking at this legislation. One of the bizarre aspects of this bill is that there is mention of drug treatment courts buried in it. Somehow this is supposed to be the saving grace of this legislation.

I think drug treatment courts are an important step to take. I am not sure that everything has been written yet about their efficacy in dealing with drug crimes. The jury is still out on them, as well. The reality is that there are only six drug courts in Canada, so they are very limited in scope.

The reality, too, is that with drug treatment courts we need the treatment spaces to make it effective. With any drug strategy, we need treatment spaces to make any effective progress. We know that there are not enough treatment spaces, and that is probably because we spend 73% of our resources on enforcement and only 14% on treatment in the area of drugs. We have to reverse that before we are going to make any progress at all.

Appearing before the committee, Chief Vernon White of the Ottawa police said, “I'm not a treatment specialist, I'm not a psychologist, to be fair, but I can tell you as a cop and as a parent and as a community member that there are some people out there who need this”, meaning treatment, “and we don't have near the capacity for those who want it, let alone those we need to persuade to take it”.

Even the police are acutely aware of the lack of treatment spaces. We need to make sure we have a treatment space for someone addicted to drugs that they can get into the moment they make the decision to seek treatment. If we miss that moment, we have missed the boat. We know it will be weeks and months before that possibility comes around again.

Until we can make that connection between the determination to seek treatment and the availability of a space, we will continue to fail these people and our communities, and we will fail to make any progress on these issues. That is a huge continuing failing of our approach on this issue.

This bill limits judicial discretion, and I, for one, want to stand up for the ability of our judges to have discretion when they come to sentencing, when they come to do their important work. They are the ones we charge to sit and listen carefully to all the testimony and assess the circumstances presented. I want to make sure that judges have the ability to use their discretion. That is what we ask them to do. It is a tough job. Sometimes they make mistakes—we all do—but I have great faith in our judges to make those decisions. I am very skeptical of constant attempts to limit the discretion of judges when it comes to sentencing. That is what this mandatory minimum sentencing bill will do with regard to these drug crimes.

I believe prohibition is a failure. We know the historical record shows that alcohol prohibition was a huge failure. If people would care to trace the parallels between alcohol prohibition programs, that whole legal framework, and drug prohibition, they will see the very direct parallels.

During alcohol prohibition in the United States there were huge problems with gang violence. There was all that mythology about gang violence associated with the alcohol trade during prohibition. It is exactly what we are seeing in Canada now, thanks to drug prohibition and the huge profitability of the illegal drug trade. Until we deal with the issue of the profitability of black market drugs, we will never be able to address the problems of crime, the social problems that arise from drug use.

When we look at the record of alcohol prohibition, we see the safety issues associated with black market alcohol production, such as exploding stills, which caused huge problems and burned people's homes down. We see those same kinds of problems with marijuana grow ops or crystal meth labs in our communities today. Exactly the same kind of effect that we know was caused by alcohol prohibition is happening now because of drug prohibition.

We saw huge family dislocation in the period of alcohol prohibition and we are certainly seeing that now with respect to criminal activity and addiction issues associated with the drug trade. We saw a lot of untreated addictions back in the period of alcohol prohibition and we are seeing it today. When a substance is illegal, there is a huge stigma about acknowledging one's addiction and seeking treatment for it, because of the criminal activity that is usually related to it. We need to address that issue as well.

During the period of alcohol prohibition, we also saw huge problems associated with the kinds of illegal products that were produced and the poisonous nature of some of them. Certainly we have seen that today with impure drugs and the problems they cause for drug users in our communities.

If we look at the historical record and try to learn from the experience of alcohol prohibition, we would see the failure of drug prohibition. We would even have a model for how to approach rectifying that situation.

We need to address the issue of profitability. One member likes to ask the question, “Is it not good to put a drug dealer off the street and into jail for a number of years, and does it not make our community safer just by doing that?” No, it does not, because the moment we put one of those people in jail, there is somebody ready to take his or her place. The reason someone is ready to take that person's place is because it is so profitable to be involved in the illegal drug trade.

Until we address that issue, it does not matter how long we put somebody away for, we have missed the boat on addressing the issue and the real problem. We need to take that very seriously.

I do not think there is anyone in the House who does not want to address the very serious problems related to drugs and the use of drugs in our society. I am certainly one of them, but I want to do it on the basis of what is effective, what will make the important changes, and what will ensure people get the help they need. The road that the Conservatives have chosen is one that has been proven to be wrong, that they cannot support with any evidence as to its efficacy, and we need to hold them accountable.

I have heard quietly from some of my Liberal colleagues that they do not like this bill but they are going to vote for it anyway because they think it is popular in the community. I want to challenge them to do the right thing. They know this is not going to make their communities safer. This is not going to address the problems that people are concerned about in their communities. Why pretend otherwise?

We are not sent here to pretend to produce solutions. We are here to do a job, to examine what comes before us and make decisions based on the best evidence we can get.

[Pierre Poilievre, Conservative, Parliamentary Secretary to the Prime Minister and to the Minister of Intergovernmental Affairs]

Madam Speaker, though I do not always agree with the member's sentiments, he certainly does make a lucid presentation in the House and I do believe he is a sincere advocate for helping people with substance abuse problems.

On that note, I want to question him about the investments that I have secured in the Ottawa area for Police Chief Vern White's s.t.e.p. initiative, which includes both treatment for those addicts who are already hooked on drugs, and beds to segregate them from the sources of those addictions, and also education for people who are at risk, to prevent them from becoming involved in a life of drugs in the first place.

On Monday I will be holding a benefit in my constituency that will raise funds for that program, in addition to the $1 million that our government has already provided. The funds from this benefit will also go to the Harvest House initiative, which is a non-governmental body that takes in people with substance abuse problems for six months or a year. It accepts no government money but has an enormously high success rate in turning the lives of young people around. That is very much part of this government's approach to fighting the scourge of drug addiction.

I wonder if the member would agree with us and find common ground with me on the great potential and the present-day success of the Harvest House initiative and the s.t.e.p. program investment, led by Ottawa police chief Vern White.

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

Madam Speaker, I have to say, it is great that members of the community, organizations in the community, and the member of Parliament for Nepean—Carleton are prepared to be involved in these kinds of programs. We need to do that.

However, it strikes me like the old argument: Would it not be great if someday we did not have to hold bake sales for education but that the armed forces would have to hold a bake sale to have funds for carrying out war?

It would be really nice if governments could fund treatment appropriately so that these individual organizations did not have to do this kind of fundraising to support their programs, that we had programs on such a scale that people could get into them when they needed to, rather than having to wait.

When Chief White from Ottawa appeared before the committee, he talked about how programs were failing, how we were failing people with addictions because we did not have treatment places for them to go to as soon as they needed them.

We know that is true in Vancouver as well, where we are failing people who have made a determination that they need to deal with their addiction issues but they cannot get into a treatment program. When they wait, they backslide and the determination sometimes fails. We have to get those people into those programs immediately.

We also have to make sure that, when they come out of programs, they have transitional housing. Housing is a crucial issue around the issues of addiction. We need to make sure that people have decent housing to go to, housing that is probably not associated with their former routines and former neighbourhood and perhaps their former friends, so that they can make a clear break and establish themselves in a new pattern of life.

There are a number of issues related to all of this.

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

Madam Speaker, I would like to thank the member for his contribution to this debate. I listened intently as he provided a critique of prohibition and drew some analogies to prohibition earlier in the last century regarding alcohol. I suppose there are some parallels with respect to the safety of stills versus the safety of grow ops.

My specific question to him is this: If he is against prohibition, is he only against prohibition with respect to cannabis, or does his opposition to prohibition extend to harder drugs, including cocaine and methamphetamine?

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

Madam Speaker, I have made it very clear in the House that I oppose drug prohibition. I have cited examples of countries that have gone down that road.

The other day in debate at report stage I talked about a study that was recently done about the situation in Portugal, which decriminalized all drugs in 2001. That was nine years ago, and it has been a success in every category. In every area of empirical measurement, it has been a success. Drug use is actually down in Portugal since decriminalization. Crime is down. All these issues have been addressed, and they included serious drugs such as heroin and cocaine in their decriminalization.

I think it is a model that the Conservatives should study. At least there is evidence. At least there is a plan. At least there are laws in place. At least there is a system of regulation in place that has been proven to be effective.

Portugal is the only country of the European Union that has decriminalized all drugs and done so successfully. I think that is an example that we should all take very, very seriously in this place, because it would improve the quality of life in our communities. It would give us dollars to spend in the appropriate places, instead of on enforcement and incarceration. It would improve the lives of people who are addicted to drugs and it would improve the lives of our communities.

[Libby Davies, NDP, Vancouver East, BC]

Madam Speaker, first of all, I would really like to thank the member for Burnaby—Douglas for an outstanding contribution to this debate on Bill C-15.

His remarks are intelligent. They are rational. They are thoughtful. It is not all wound up in playing this game of fear with people. It is about honesty, and I just want to say that if more people debated like the member for Burnaby—Douglas, this would be a heck of a lot better place. So I would really like to thank the member for a terrific overview that he gave on this bill and what its problems are.

One thing that did strike me is that, on the one hand, we have a solution that is coming down from the top. We have a Conservative government that is laying on this heavy-handed regime of mandatory minimums, yet on the other side we have something like Insite, a safer injection facility in east Vancouver, on East Hastings Street, that was actually a grassroots approach. It came from the community. This is a community that began to take on the issue and find ways to solve the serious problems we were facing in east Vancouver with drugs. Yet this is the same government that is trying to shut it down.

It just seems so at odds that, on the one hand, we have things that are actually working and that are saving people's lives, literally, and the Conservatives are trying to do everything they can to shut them down. They are appealing the court decision, trying to shut down Insite, and on the other hand, trying to layer on this very radical approach of mandatory minimums, as the member says, with no evidence that it will ever work.

I wonder if he would comment on those two approaches. I know what I believe is the right one, but what are his thoughts about that?

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

Madam Speaker, I want to thank my colleague for her kind words.

I have a clear commitment to harm reduction and to neighbourhood participation. I have to say, the downtown east side of Vancouver is an incredible neighbourhood. People often think of it as a terrible place. Anyone who has any familiarity with it will know that it has some of the best qualities of a neighbourhood that we would find anywhere in Canada, the way people co-operate with each other, take care of each other, look out for each other and try to plan for the needs of that community.

When that community was discussing ways to address the drug issues in the community, I was a member of a church in the downtown east side. My partner was the minister of that congregation, the First United Church at the corner of Hastings and Gore, a central corner of the downtown east side. When the community was looking for a place to house a safe injection site, the people of the First United Church congregation, the people who run the mission at First United Church, were there to say that they wanted to participate in that.

They were willing to house that safe injection site, knowing that it was outside the law and that it was likely an act of civil disobedience to do that, but they knew the importance of that facility. They knew the importance of harm reduction. They knew that facility was going to save lives. It was eventually established not in the church but down the street, but the evidence and studies have shown that it does do all those things and that it has saved lives of people who live on the downtown east side.

Sadly, the government removed harm reduction from its approach to dealing with drug issues. That was a mistake. The community in Vancouver knows that I believe, in my riding of Burnaby--Douglas, there is a different approach that is needed. I hope that someday we will come to that. I do not have much hope that it is going to happen in this Parliament, with the current government and with this kind of legislation, but we need to come to that kind of appreciation.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Madam Speaker, this is a subject on which I did not initially intend to speak, but because it relates to a significant part of my life experience, I have decided to speak to it.

When I started working as a young crown attorney in 1966, I had never heard of marijuana. It was at just about that time that it started to be seen in Canada.

In 1967 I was offered a position by the federal government as a federal crown attorney. At that time, only the federal government handled drug prosecutions. Obviously, I was informed of the dangers of drugs and so on. I will not go into details on that. The law at that time was extremely harsh for anyone who imported marijuana. Importing marijuana was subject to a minimum sentence of seven years’ imprisonment. I have heard people say in this House that no one ever received that sentence, but that is not true, people did. When I later worked for the defence, I defended clients who were sentenced to seven years for importing marijuana.

Minimum sentences like those create injustices, which I will address a little later. However, one thing is certain: from 1966 to 1986, marijuana use rose significantly. At that time, as well, cannabis, the plant from which marijuana and hashish is obtained, as it was grown in Canada, had no hallucinogenic effect. More specifically, there was no delta-9-tetrahydrocannabinol in the cannabis that grew here. That situation has changed, and it seems that excellent cannabis is now being produced in British Columbia and Quebec.

So all the marijuana smoked starting in the 1960s and up to the 1980s was imported. Why was it that people faced minimum sentences like that? Certainly, at one point, there were so many that it was considered to be unreasonable, and deals were made with crown attorneys so that instead of marijuana importing charges they laid possession for the purposes of trafficking charges, for which there was no minimum sentence. That is one of the consequences of a bad law. I am certain that this law is just as bad in terms of the minimum sentences it provides, and that is why I am speaking to it.

As I have said before, bad laws make fortunes for good lawyers. You have to go and see lawyers to get out of the mess you are in. Bad laws lead to plea bargains. And justice is not done as it should be, by a judge who hears both parties; rather, it is administered behind closed doors. The practice became that laying possession for the purposes of trafficking charges would be laid rather than laying charges for importing.

And one day I did push the envelope. I had a client who was coming home from Morocco. Because she was fond of smoking hashish and found that it was cheap over there, she acquired some for her personal use and brought it back to Canada. So she was charged with possession for the purposes of trafficking, when clearly it was for her personal use. So I chose to try the case before a judge and jury. The Crown obviously understood that the jury would probably find that it was for her personal use, and asked me how I could risk having my client get seven years in prison and argue something like that. Ultimately the case was resolved with a non-custodial sentence, but on principle the charge of possession for the purposes of trafficking was retained. That is the kind of horse-trading that enforcing bad laws results in.

So we have overwhelming experience to show that minimum sentences produce no results. First, no one knows what these sentences are. Who in this House can tell me how many offences in the Criminal Code are subject to a minimum sentence?

There are 29. Here again, I know this only because I have just read it in one of the studies I consulted. I had heard there could be as many as 100 or something like that. I read it in a study by the Department of Justice. Who would know the fine details if we do not even know the number here? Can we expect the public to know?

Experience shows that indeed the minimum sentences are not known. That is the second reason. The third is that some understanding is required of the mentality of people who decide to break the law. In our discussion of the deterrence effect of sentences, we are reasoning as honest individuals with little fear of receiving a sentence if we break the law. We respect the law because we are educated and because we are aware of the damaging effects of criminality. We are also aware of our reputation.

However, I have practised criminal law all my life and went on to became Quebec minister of public security and minister of justice. I have always noted that a criminal generally does not calculate the sentence he will be given if he is ever caught committing a crime. He wonders what the chances are of his being caught. I am talking of a criminal who is calculating. A lot of crimes are committed on impulse, for revenge, through drunkenness and so on. Drunkenness will not put you on the road to good behaviour.

When we give it some thought, we realize that minimum sentences are of no value. We know from experience that minimum sentences are of no value. Studies worldwide have found that minimum sentences were of no value.

Before I move on to this study, I would like to mention one other terrible thing caused by minimum sentences. It is generally the most serious cases that come to mind when we think of minimum sentences. We think there should be a minimum sentence at least. We forget, however, that there are accomplices in many criminal adventures. People are drawn into committing a crime through friendship, family ties, the influence of other young people and all sorts of other reasons. It must be understood that a minimum sentence severe enough for the most serious cases applies as well to the least serious. That obliges judges to hand down sentences they consider unfair.

It must be understood that a minimum sentence can occasionally, but still significantly, be a provision obliging a judge to commit an injustice even though he is satisfied after hearing the case that the sentence is unjust.

I had a really striking example in my practice. While I was practising criminal law, I met a young woman who had been seduced by someone at a difficult time in her life. She had had a major accident, and her husband had abandoned her. She finally met an American, who was kind, educated and very attentive.

At some point, he told her that he would have to leave but would return. She began getting mail from him. She was getting what looked like books. The man warned her not to open the books because he had to take them to the public library himself at the time. She understood that something was not right. She said on the phone, because he was under surveillance, that she did not like what he was sending. He finally convinced her to keep the books. She kept the books, which contained drugs, until he came back and gave them to him.

Both were convicted of drug trafficking. If hon. members were the judge, would they agree to give both these individuals the same sentence? That is what happened: seven years each. This sense of justice is disgusting to us. It deprives judges of the possibility of taking into consideration personal motives, not only objective ones but subjective ones as well, in their sentencing.

Here we have another example that shows that minimum sentences are useless: the death penalty. If there is one serious sentence, it is the death penalty. And since the death penalty has been abolished here, we have seen a gradual decrease in homicides in Canada.

Now, and this is astonishing, the minister had with him a study on the effects of minimum sentences. I have a few quotes from that report, and they are very significant. This relates to another point I wanted to raise. I keep hearing the Conservatives talk of the principle of “tough on crime” with respect to minimum sentences. On this side of the House, we do not talk about “soft on crime” but rather “smart on crime”. Let us give appropriate sentences and then we will be effective against crime.

The U.S. is tough on crime. So tough that they imprison people seven times more often than we do. Are we seven times safer when we go to the States? Certainly not: in the United States people are three and half times more likely to be victims of murder than in Canada. Yet, proportionally, there are seven times more people in American prisons than here.

So the reason the Conservatives want to impose minimum sentences and show they are tough on crime is because it is popular. One needs a certain degree of courage and a certain degree of intelligence—I would say sometimes the courage of one's intelligence—to go against popular opinion. It is definitely popular. In fact, in the study the Minister of Justice had access to when he drafted these measures, we can read the following:

When surveys pose a general question about mandatory sentences of imprisonment, polls reveal strong public support for the concept.

I even remember the figure was 88% support.

However, when asked about specific cases, there is far less support among members of the public for restricting judicial discretion at sentencing. The most recent polls conducted in Australia and the United States demonstrate that public support for mandatory sentencing has declined in recent years.

Finally, we are beginning to follow the Europeans in realizing that it is pointless. The report also states:

Although mandatory sentences of imprisonment have been introduced in a number of western nations, few jurisdictions have evaluated the impact of these laws on prison populations or crime rates. The studies that have examined the impact of these laws reported variable effects on prison populations, and no discernible effect on crime rates.

So this study showed that mandatory sentences had no effect. Few studies have addressed public knowledge of statutory minimum penalties. Fortunately, the surveys that exist on this issue have generated the same findings: the general public has little knowledge of the offences that carry a mandatory minimum penalty, or of the magnitude of the statutory minima.

I would urge the Conservatives, who are forever telling us to talk to our constituents, to ask their own constituents whether they are aware of the minimum sentences prescribed for these crimes. They will see that not many people are aware of them. England conducted such a survey.

The justice department report states:

In 1998, members of the public responding to the British Crime Survey (BCS) were asked if they were aware of the mandatory minimum prison term of three years for offenders convicted of burglary...Even though this mandatory sentence had been the object of considerable media attention, less than one quarter of the sample responded affirmatively. This finding is consistent with earlier research in Canada that found that very few members of the public had any idea which offences carried a mandatory sentence...

The reference given is Roberts, in 1998.

I have found the 88% figure I mentioned earlier. I do not have very much time, but I could give many more examples. There is another thing that strikes me. When the Conservatives talk about increasing sentences, do they look like people who are getting ready to make considered, appropriate, intelligent decisions? No, they crow about what they are doing. They are going after this because it will bring them votes and because that is what they are hoping for.

But we have news for them, because apparently in many countries, including the United States, although support for mandatory minimums used to be very high, it is now diminishing to the point that, as mentioned by the previous speakers, certain American states are now backtracking on them. I too am struck by this kind of applause and argument.

I find myself scandalized by the continuing message from the present Justice minister, who seems to take it for granted that to get tough on crime is the only answer. It is the only answer for him. He should be very familiar with the situation on the ground. He should have a little more respect for people. Perhaps I shall never convince him, and I honestly think he believes what he says. Still, he should realize that other people think the opposite, and that those people, when they think the opposite, know that they are taking a position less popular than his own.

If those people are taking such a position, it is because they know things, because they have studied the subject, because they see the scientists, the criminologists, who write on the subject and explain why this accomplishes nothing. These people have the courage of their intelligence, and it seems to me that the minister should show a little more respect when he is exploring whether we should be “tough on crime” or “soft on crime”. He should do this for the people who are opposed to his position, who have the courage to adopt positions that are based on knowledge.

In summary, then, I believe from experience that mandatory minimums solve nothing, because generally people are not aware of them. Mandatory minimums do nothing because, before committing a crime, an offender does not calculate the sentence he will receive if he gets caught: mainly he calculates whether or not there is a risk of getting caught.

Mandatory minimums are what have affected me the most as a lawyer who has spent more than 30 years in criminal law. I have been practising criminal law since 1966, which is a long time. Actually, it is more than 40 years. I am aging faster than I think.

These provisions cause judges to commit injustices. Having examined all the pertinent factors they must consider in deciding on a sentence, judges feel forced to hand down a sentence they do not agree with, and are obliged to do so by the law. This also causes them to commit injustices when several accused before them have taken part in the same criminal conspiracy that carries a minimum sentence and they are unable to hand down different sentences proportionate to the gravity of the offence.

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

Madam Speaker, I would like to thank the hon. member for his contribution to this debate. I always find him interesting. He and I serve together on the public safety committee. He has a great deal of experience as a former attorney general and minister of public safety in the National Assembly of Quebec, and I do learn from him from time to time.

I have a question for him. Since Canada has such limited experience with minimum mandatory sentences and his research would indicated that there are only 29 minimum mandatory sentences in all of criminal law in a code that has hundreds and hundreds of offences, how can the member be so convinced that minimum mandatory sentences are not effective as a general deterrent since we have such limited experience with them?

With respect to specific deterrents, will the member not simply admit that it is impossible for offenders to sell or traffic drugs while they are in prison, so at least during the duration of the prison sentence they cannot reoffend and they cannot sell drugs?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, if I understand correctly, traffickers would have to be put in prison for life. That way we would be assured that they would not deal in drugs. Yet there is a lot of drug dealing in prison.

This last part is not really an argument, since it is the same thing for all crimes. South of the border they have experience in this regard. The Americans have had experience with minimum sentences. To be popular in the United States, where they are elected to congress every two years and to the Senate every six years, they had to be tough on crime. They were tough on crime. They added mandatory minimums and crime did not go down.

Let us profit from the experience of others. In addition, there are the reasons I mentioned earlier. These observations are of general application, but they are still significant. Furthermore they are confirmed by almost all the criminological studies I have read in my lifetime, which the department has available to it.

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

Madam Speaker, I could not help reacting to the question suggesting that people in prison could not deal in drugs. I think the hon. member for Edmonton—St. Albert will have an opportunity with the public safety committee this summer to visit some of the federal institutions, where he will undoubtedly encounter the fact of drug dealing in federal prisons. Yes, it is against the law. Yes, there is a prohibition. However, our inmates and their friends on the outside have found a way to breach the fence around the prison and he will find there are drugs there.

However, the real point is he is suggesting the logical extension of a suggestion that perhaps we should attach mandatory minimums to all of our sentences, as if that would be a solution to everything.

Would the hon. member for Marc-Aurèle-Fortin agree that this would simply have the effect of doing away with any recognition of any mandatory minimum, that it would simply be the sentence, and it would not have any impact at all?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I agree with the hon. member. They tried this in the United States and it does not produce these results.

The study was on Commonwealth countries. In all the Commonwealth countries, most judges do not like minimum sentences, basically for the reasons that I presented earlier. It forces them to commit injustices. I am not aware of a single study—and the department has not cited any—that demonstrates that minimum sentences produced results. Generally, to advance a science, you take a sample and run experiments to see if they can be given general application. You do not do the opposite to find out whether your theory can be applied generally, that is apply it generally and the experiment will show whether or not you have to decrease the sentence. Basically, this is what the hon. member opposite is proposing.

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

Madam Speaker, I am very pleased that the member for Marc-Aurèle-Fortin decided to join in the debate. He has brought the wisdom of his experience as both a prosecutor and a defence counsel for over 40 years, and that is something that is worthy for this debate. Like the member for Burnaby—Douglas , he was very lucid in his arguments and in his contribution. As a cabinet minister in Quebec, he was also active in a campaign to fight organized crime in Quebec.

Sometimes we talk about judicial discretion. That may be a bit of a misnomer because a judge has to apply for sentencing the mitigating factors which would lead to a lower sentence and the aggravating factors which might lead to a higher sentence in a particular case.

Could the hon. member comment, based on his own experience, whether that is a successful method of sentencing that leads to justice most of the time; and if there is an injustice, is it something that can be corrected?