Thank you, Mr. Chair and members of the committee.
I want to thank the committee for giving us the opportunity to comment on Bill C-9.
I'm here speaking today on behalf of the Canadian HIV/AIDS Legal Network. You may be wondering at first glance why it is that an AIDS organization is concerned about this legislation. I hope that by the end of our time today you may have some sense of why we think this is a dimension of this legislation that the committee needs to grapple with as you go forward in your deliberations.
First, briefly let me tell you about our organization, the Canadian HIV/AIDS Legal Network. We are a national non-governmental organization, one of approximately 10 in this country that work in partnership with the federal government and other orders of government to respond to the AIDS epidemic in Canada. Over 14 years we've become one of the world's leading organizations working on legal and policy issues related to HIV.
We have over 200 members across the country and some internationally, many of them AIDS service organizations that are based in the community and are working on the front lines of the response to the AIDS epidemic. It's because of that particular expertise and those particular concerns that we're here today.
In brief, we're concerned that there may be some unintended consequences—or we would hope they are unintended consequences—of this legislation that need to be considered as it moves forward. We are concerned in particular that Bill C-9 may in fact be counterproductive and may undermine some of the efforts to respond to the HIV epidemic among some of those Canadians who are most vulnerable to HIV—who are most vulnerable in the sense of being socially and economically marginalized and who will, we fear, because of that, as I will explain in a moment, bear the brunt in particular of this kind of legislative approach.
For many years now, Canada has recognized in its stated policy that the issue of problematic substance use is a health issue first and foremost rather than an issue to be dealt with via the criminal law and law enforcement.
Unfortunately the rhetorical commitment to dealing with this as a health issue, which has also been accompanied by a rhetorical commitment to dealing with HIV through measures that are shown by the evidence to be effective and in ways that actually respect and protect human rights, has not always been reflected in the actual practice, certainly at the federal government level, in the response to drugs in Canada.
It's particularly the application of Bill C-9 to drug offences that we are speaking about today; we're not offering any comment on any other aspects of this legislation.
When I say that this stated commitment to dealing with substance use as a health issue rather than a criminal law issue has not been reflected in the practice of the government's response, I want to recall to you that a few years ago, in 2001, the Auditor General issued a report on the spending at the level of the federal government in response to drugs, which was around $500 million. She reported at that time that almost 95% of that money was spent on law enforcement and criminal justice expenditures, notwithstanding the fact that Canada has repeatedly said we have a so-called “balanced” approach to responding to problematic drug use in Canada that includes not only law enforcement as one of the four pillars, but the three other pillars of measures to prevent drug misuse, to provide treatment for those with addiction and other problematic substance use, and to adopt proven and well-studied harm reduction measures, including things such as needle exchange programs.
Unfortunately now, in our view, with this legislation we are not moving in the right direction. We are in fact risking exaggerating the existing imbalance within the federal government's response to drugs. I want to urge upon this committee that you take some time after the comments you hear today to think about how this legislation may play out in the context of drug offences, and about what ultimately that means in terms of impact upon the health of some of Canada's most vulnerable and marginalized people and the public health more broadly.
Before this legislation was introduced, when it was something being contemplated, we put out a briefing paper that speaks in general terms of the notion of mandatory minimum sentences being applied to drug offences. We have tried to highlight why this is not necessarily good justice policy or good public health policy, particularly with a focus on an effective response to the HIV epidemic among people who use drugs. That briefing paper, I believe, has been shared with committee members. If it has not yet, we will make sure that it is. But since the bill was tabled and we've seen the actual provisions in the bill, we've prepared the additional brief that you have before you today, which looks specifically at how Bill C-9 will apply to offences under the Controlled Drugs and Substances Act.
In our view, Bill C-9 is a form—it's a variant—of mandatory minimum sentences; that is, Bill C-9 does not specify that if you commit x offence, you must spend a minimum y number of years or you must be subject to such and such a minimum sentence. It does, however, say in its removal of the availability of conditional sentences for some of the Controlled Drugs and Substances Act offences that if you commit those offences, a conditional sentence will no longer be an option if the sentence imposed is a term of imprisonment; that is, it mandates that a sentence of imprisonment be served in a correctional facility rather than a conditional sentence. So it mandates a certain minimum level of harshness of penalty, if you will.
There are two things I want to say specifically about how the legislation will apply to drug offences.
The first is a positive feature of the legislation, although I think it's really more a happy happenstance of the legislation in the way it's drafted. Simple possession offences under the Controlled Drugs and Substances Act would not be covered by Bill C-9, and therefore, conditional sentencing would still be an option available to the court, assuming of course that the other criteria set out in the Criminal Code have been satisfied. This, in our view, is the silver lining in legislation that is, on balance, problematic.
Let me give you another example of how this legislation will apply to drug offences and why we think it's particularly problematic, and that is specifically the question of the offences of trafficking and possession for the purposes of trafficking. Why is it that we say that it would be problematic to apply Bill C-9, that is, to withdraw conditional sentences in the event of someone charged with a trafficking offence under the Controlled Drugs and Substances Act? There are a number of reasons for this.
The first is that, although it might be tempting to pretend that we can fairly simplistically target just so-called drug dealers and somehow not bring to bear the full weight of the criminal law against people who are simply drug users and who are dealing with addictions, and to think that therefore this is consistent with the notion that we deal with drug offences and drug misuse as principally a health issue rather than a criminal issue, it's not that simple to actually differentiate. In fact, the way the legislation is drafted right now, it would mean that someone convicted of trafficking any quantity of, for example, heroin, even someone who is in possession of a fairly small amount and is perhaps sharing that with someone else in their drug-using network, would not be able, if a sentence of imprisonment is ordered by the court, to serve that sentence in the community.
We're mandating sending people to prison for offences that are not necessarily a violent offence and that involve perhaps trafficking even very small quantities. In fact, there is evidence, including Canadian evidence from the largest cohort of injection drug users who have been studied over many years in Vancouver, to show that a significant number of people who are users by injection of certain controlled substances have also in fact engaged in small-scale, street-level dealing, often to support their habit. It's those people in particular who are going to be most easily targeted for law enforcement efforts and most likely to be caught up and charged with trafficking offences. They would also be the people who would therefore be most likely to be sentenced to spend time in prison if a conditional sentence were not available for someone convicted of trafficking. It would be rare that in fact it is the real profiteers, those who are engaged in very large-scale trafficking of drugs--criminal organizations and so on--who would actually be caught by the trafficking offences.
What we've seen amongst drug users in the Vancouver cohort, for example, is that a significant number of them have engaged in direct selling of small quantities of drugs, again to support a habit, or they've engaged in what's called “middling”, that is, carrying small quantities, or what is called “steering”, that is, directing someone to a dealer where they can purchase the drugs they're needing. Those kinds of things could all fall within the definition of trafficking of a controlled substance under the CDSA, and as a result, given that the penalties for trafficking set out in the Controlled Drugs and Substances Act would be caught by this 10-year threshold in Bill C-9, we would lose the opportunity for conditional sentencing of those cases.
I think it's also very important to understand that of those people who use drugs, who have also engaged in these “trafficking activities”, it's predominantly those who have the highest levels of addiction who have been involved in these things.
The study that will be published fairly shortly from Vancouver finds that the involvement in this small-scale, low-level street dealing of drugs has been associated with the frequency of heroin or cocaine injection, binge drug use, borrowing and lending of syringes, accidental overdose, and recent incarceration. All of those are markers of a higher intensity of addiction, so in effect we're talking about targeting people who are users, many of them with addictions, with this kind of legislation.
I'm not suggesting that's necessarily the purpose behind this legislation, but it is a consequence of this legislation of which the committee should be mindful.
I mentioned that incarceration was one of the factors associated with those who had engaged in small-scale street-level trafficking, and that leads me to a point about why it's bad public health policy to actually be incarcerating people who are drug users. No one, including Correctional Service Canada, disputes that drugs are in prisons. This is a reality in every country in the world, and there's no dispute that prisoners are injecting drugs in prison.
Over a decade ago, Correctional Service Canada reported that 40% of federal inmates admitted using drugs in prison, 11% of them by injection. What we also know, of course, is that there is little or no access to sterile injection equipment in prison, so we're sentencing people with addictions to drugs, many of them who use their drugs by injection, to a setting in which they're engaged in drug use in one of the riskiest ways possible because they can't actually get sterile injection equipment, even though we've had very successful needle exchange programs operating across Canada for over 20 years now. Time and time again, in Canada and around the world, every single study that has looked at needle exchange programs has concluded that this is one of the most important interventions in responding to HIV and the spread of other blood-borne diseases among people who inject drugs.