Justice Committee on April 27th, 2009

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting number 16 of the Standing Committee on Justice and Human Rights. Please note that this meeting is being televised.

As a reminder to those committee members travelling to Vancouver on Wednesday afternoon, a bus will take us to the airport at three o'clock. It's behind the Confederation Building.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Will there also be a bus that will take us from the Vancouver Airport to the hotel?

[The Chair, Conservative, Ed Fast]

Yes.

[Réal Ménard, Bloc, Hochelaga, QC]

Good.

[The Chair, Conservative, Ed Fast]

Thank you.

Appearing before us today we have a number of organizations and individuals to assist us in our review of Bill C-15.

First of all, Mr. Richard Elliott is here representing the Canadian HIV/AIDS Legal Network.

We also have Mr. Craig Jones of the John Howard Society of Canada; Graham Norton, director of the Public Safety Project for the Canadian Civil Liberties Association; Dr. Darryl Plecus, criminologist and RCMP research chair and director, Centre for Criminal Justice Research at the University of the Fraser Valley. And finally, we have Tara Lyons, executive director of the Canadian Students for a Sensible Drug Policy.

To introduce you to our process, you will have 10 minutes to present and then we'll open up the floor to questions from our committee members.

Perhaps, Ms. Lyons, you could start. You have 10 minutes.

[Tara Lyons, Executive Director, Canadian Students for Sensible Drug Policy]

Thank you for the opportunity to present to you today about our concerns with Bill C-15. I'm speaking on behalf of the Canadian Students for Sensible Drug Policy, also known as CSSDP.

We are a national grassroots network, comprised of youth and students, who are concerned about the negative impacts that many of Canada's drug policies have on individuals, families, and communities.

[The Chair, Conservative, Ed Fast]

Perhaps I could ask you to read a little bit slower so that our interpreters can keep up.

[Tara Lyons]

Okay, sorry, I'll try. I'm nervous.

[The Chair, Conservative, Ed Fast]

Thank you.

[Tara Lyons]

We believe the current criminal justice approach to drug use is failing our generation and our society and is leading to increased harm from drug use. The Canadian Students for Sensible Drug Policy neither encourages nor condemns drug use, and we recognize the social and individual harms caused by problematic drug use. CSSDP was specifically formed to address the lack of young people's voices in Canadian drug policy.

We find it problematic that current Canadian drug policy approaches, including that of Bill C-15, are often justified in the name of protecting young people but that these young people are not consulted in the creation of the legislation. As a result, these policies do little to affect the realities of youth and in some cases result in the actual criminalization of young people.

Throughout my presentation I will focus on young people and youth, whom we consider to be anyone under the age of 25. I will address three concerns today. The first one is the introduction of mandatory minimum sentences, which I'm told I can call MMs. There are experts speaking to this today, so I'll leave that to them. They are going to speak to the disastrous impacts of MMs, so I'm only going to touch on our youth concerns.

We are against the use of MMs as a response to drug use and drug-related problems. We believe it is essential that decisions relating to the future of young Canadians who have been charged for their drug use or addictions be left in the hands of Canada's judges and not of the police or prosecutors. We are concerned not only because MMs disproportionately punish the wrong people, but also because Bill C-15's focus is on incarceration as a solution, and it ignores other important aspects of dealing with drug use and addiction in Canada. Drug use and addiction and drug-related crime cannot be dealt with effectively without looking at the broader social issues intertwined with these problems.

The astronomical financial cost associated with the implementation of Bill C-15 inevitably means a continued lack of funding for other programs dedicated to the prevention of drug use, treatment of people with addictions, and reduction of harms related to drug use. Incarceration is not an effective way to treat drug use or addiction among young people—or any person with drug addiction, for that matter. Widening the net of criminalization and marginalization will not create a safer, healthier Canada and will not create a safe, viable future for young people.

My second point is on aggravating factors contained in the bill. Bill C-15 contains several aggravating factors that automatically increase the minimum sentence for the individual charged. It is clear that many of these factors are designed to protect youth, but the dangerously vague language of this bill means that youth often can and will be harmed instead of helped.

For example, proposed item 5(3)(a)(ii)(C) in subclause 1(1) reads that a mandatory minimum sentence of two years is given if

the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence.

Clearly, this clause was added with the intent to protect youth, but the vague language means that an 18-year-old sharing a joint with a 17-year-old friend could end up in jail for two years because of this really vague language.

Another provision in this bill that is of great concern for us is in proposed item 5(a)(ii)(A), under which an individual receives a mandatory minimum sentence of two years if the offence is committed

in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years

This could literally be anywhere: the street, the mall, movie theatres, or parks. If a place is frequented by young people, then it is more likely young people who will be doing time under the MMs in our already overcrowded jails and prisons.

The government is aiming to protect youth with Bill C-15. We recognize that substance abuse among youth is a great concern in Canadian society, but there is no evidence to show that increasing the potential consequences will have an influence on the decisions of young people or anyone else to use, produce, or traffic drugs. This bill and mandatory minimums in general do nothing to address the root causes of drug use.

The third point I'm going to touch on concerns drug treatment courts.

While recognizing the important role that treatment can play in deterring crime, we have several concerns with the bill's inclusion of drug treatment courts. Perhaps most importantly for this bill, only six cities have drug treatment courts and therefore only a select group of people will have the option to participate. Building drug courts in cities that don't currently have one is an expensive process, and drug courts are not viable in rural areas because the population is too small. First and foremost, drug treatment courts cannot be used to justify this bill, because they are only available to a small number of people, excluding individuals in smaller cities and rural areas.

We are also concerned with the results we have seen from the drug courts so far. The average percentage of people who graduate from drug courts in Canada is around 10%.

The Canadian Centre on Substance Abuse found that program completion rates evidenced in the evaluations of the Toronto and Vancouver drug courts are unacceptable by any standard of care, including that for the treatment of high-risk and high-need populations. Most drug courts lack client-specific programs that are required to meet the needs of different treatment groups, including women, aboriginal communities, young people, and people with co-occurring problems.

Further, low rates of completion of the program significantly elevate the overall cost to treat a single individual. For example, the total cost to run the Vancouver Drug Treatment Court for three and a half years was over $4 million. Since only 42 people graduated, the cost per graduate was just under $100,000. This money would have been or would be better spent on evidenced-based treatment, affordable housing, employment programs that give people a chance to get out of the cycle of imprisonment, child care for women wanting to attend treatment programs, and youth-based education programs for prevention.

Drug courts also use treatment services in the community, and people who are voluntarily on the long wait list for treatment get bumped off it for people in the drug treatment courts. This sets up a system whereby one has to be criminally charged to get access to treatment services.

There are also cases of marginalization present in the drug treatment courts. As I said, they are not available to all and they are not equally effective for all. Women are less likely to apply to drug courts, and if they do, they are much less likely than men to graduate. There are numerous reasons for this, including lack of gender-specific programming and being forced into group therapy with men, including men who are former dealers or boyfriends.

This is especially important to note given that mandatory minimums for drug offences in the U.S. resulted in dramatic increases in women in prison. Therefore, not only would Bill C-15 result in more women and mothers in prison, it would unfairly set women up to have no other option than to serve the mandatory minimum sentences.

The Winnipeg Drug Treatment Court evaluation states that graduation may be biased towards better-advantaged people who are of the majority: people who are white, socio-economically advanced, and male.

While in principle we agree that treatment is a better option than incarceration for individuals struggling with drug use and addiction, the reality of drug courts in Canada leaves a lot to be desired. The dismal results of the program so far show that they have not been as effective as they are made out to be, and they do not present a fair treatment option for everyone.

If I still have time, I want to leave you with some words of a 22-year-old street-involved addict who lives here in Ottawa. She says:

When I started using opiates intravenously I was too young and naive to understand the consequences. I had no understanding of addiction or of what a physical dependancy was. I can't change the past, all I can do is try to survive through today.

In order to clean-up I need support and treatment, not drug court or a prison sentence. You wouldn't punish my PTSD with a 2yr minimum sentence so why would you put me in jail for an affliction I am ashamed to have.

Incarceration won't solve my addiction, it will make it stronger and I will loose more control. The reasons I use drugs won't just dissapear because I change where I live. When I get jailed because of Bill C-15 I will loose my motivation and hope for sobriety, I will have no access to sterile...equipment, use more/different drugs and learn about crime (of which i presently know nothing). How will I re-intergrate? I want a job, I want an appartment, I want methadone, and to have a future where I can travel.

I don't want to go to jail. I want to get clean. I deserve a chance, with Bill C-15 that chance will be taken away.

In terms of recommendations, given the evidence that mandatory minimum sentences for drug offences do not deter drug use or crime and the devastating impact these sentences could potentially have on Canadian society, the Canadian Students for Sensible Drug Policy recommends that Bill C-15 be abandoned.

Thank you for your consideration. I apologize for talking too fast.

[The Chair, Conservative, Ed Fast]

Thank you, and thank you for staying within the time provided.

Mr. Jones, you have 10 minutes.

[Craig Jones, Executive Director, John Howard Society of Canada]

Thank you.

Thank you very much for having me here, honourable members. It's great to be in front of this committee again and to be on this panel with these esteemed persons.

The John Howard Society of Canada has a long history of appearing in front of this committee. As some of you will know, my predecessor, Graham Stewart, made two or three dozen appearances here over his long tenure, and I always open these deliberations by saying that I'm not Graham Stewart. So please beat your expectations to the ground and we'll get on with it.

We are Canada's oldest voluntary sector and non-governmental charitable organization committed to safer communities and reduced reoffending through pro-social reintegration of prisoners at the end of their sentences. Our mission statement calls us to have “effective, just and humane responses to the causes and consequences of crime”. Bill C-15 fails on all three tests. I'll return to that in a moment.

The John Howard Society of Canada believes that criminal justice policy, precisely because it is a defining feature of Canadian civilization, ought to be the concern of all democratic citizens, not just their elected leaders. It is the obligation of NGOs like the John Howard Society of Canada to ensure that governments of all kinds adhere to the values of being effective, just, and humane in accordance with the principles of fundamental law and consistent with the best evidence on what works to create a safer society, where crime is managed according to the best available research in the scientific literature.

The John Howard Society of Canada is not soft on crime or tough on crime; the John Howard Society of Canada endorses policies and practices that are smart on crime.

I'm going to go directly to my recommendations, because you will have read at least some of these briefs, and you'll know that we share a perception that Bill C-15 is flawed across the board.

I have four recommendations.

First, as Bill C-15 targets crimes arising from business transactions related to illicit drugs, but misunderstands the nature of these transactions, the John Howard Society of Canada, in keeping with our values and principles of effective, just, and humane criminal justice policy and practice, calls on the Government of Canada to launch a royal commission to investigate and make recommendations on the best way to respond to violent crimes arising from illicit drug business transactions. The commission should call witnesses of international stature. It should, in its recommendations, be driven by peer-reviewed evidence, which I'm happy to share with you, and comparative historical experience with drug prohibition, the crimes that arise from drug transactions under conditions of prohibition, and the resulting legislative responses. All deliberations and reports should be published in full.

Second, the John Howard Society of Canada calls on the Standing Committee on Justice and Human Rights to commission a panel of independent experts to conduct an evidence-based evaluation of international experience with mandatory and minimum practices to evaluate (a) their effectiveness with respect to violent crimes arising from drug prohibition business transactions; (b) their agreement with principles of fundamental justice and human rights; (c) their concordance with principles of proportionate sentencing; (d) the potential for exacerbating reoffending by persons subjected to mandatory and minimum sentences; and (e) the public health implications for exacerbating the conditions of drug-addicted offenders and the families and communities to which they return. All deliberations and analyses should be published in full.

Third, in keeping with the government's commitment to accountability in public spending, the John Howard Society of Canada calls on the Standing Committee on Justice and Human Rights to commission the Parliamentary Budget Officer to expedite a cost-benefit analysis of the fiscal implications for provincial justice, including legal aid and correctional systems, of the effects of mandatory and minimum sentences in Bill C-15, and to publish this analysis in full.

Last, in keeping with the government's commitment to accountability in public spending, the John Howard Society of Canada urges the Standing Committee on Justice and Human Rights to amend Bill C-15 to mandate a cost-benefit analysis, by the Parliamentary Budget Officer, of the projected crime reduction outcomes of mandatory sentences, as envisioned by Bill C-15, no later than 2012, and to publish this evaluation in full.

Thank you. I look forward to taking your questions.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Jones.

We'll move on to Mr. Elliott. You have 10 minutes.

[Richard Elliott, Executive Director, Canadian HIV/AIDS Legal Network]

Thank you, Mr. Chair and committee members, for the opportunity to speak with you today. The Canadian HIV/AIDS Legal Network is a national non-governmental organization, an NGO, with special consultative status with the United Nations. Its mission is to promote law and policy that help with HIV prevention and care and to oppose law and policy that hinder it. I'm afraid I have to say that Bill C-15 falls into the latter category, and today we're here to speak to you about a number of problems with Bill C-15 and why, in our view, it should not proceed.

I've shared with the committee members a copy of our brief and some additional material. I hope you have a chance to read it, and I'd be happy to speak to anything in that material. You'll also find in the material that we've given to you a copy of a letter signed by almost 150 organizations and individual experts from across Canada who share our concerns with Bill C-15. This includes front-line AIDS organizations, people who work on the front lines providing addiction treatment services, and people who work with prisoners and ex-prisoners. It includes leading academic researchers. It includes the Centre for Addictions Research in B.C., and it includes the Centre for Addiction and Mental Health based in Toronto. All of them share our concerns with Bill C-15.

In our view, Bill C-15 is both misleading and misguided. It is misleading particularly in the way it's been presented to the Canadian public. Bill C-15 creates minimum prison terms for a variety of drug offences involving any quantity of a number of controlled substances. It's presented to the public as getting tough on serious drug crimes, and in particular on producers and traffickers of illegal drugs, and it's presented as a bill that will help ensure the safety and security of neighbourhoods and communities.

The objective of enhancing public safety and security, of course, is laudable, and we share it. However, the means chosen, as embodied in Bill C-15, are not, and it is misleading to present Bill C-15 as in any way likely to achieve these objectives. In particular, let me note the fundamental premise that we can draw a clear distinction between traffickers, the dealers that are supposedly targeted by Bill C-15, and users, the addicts, the people with drug dependence, who are supposed to be helped under our national anti-drug strategy. There is no such bright-line distinction, and in fact many people with addictions will engage in small-scale trafficking in order to support their addictions. There is evidence of this from any number of jurisdictions, including those here in Canada. These are the people who will be most easily targeted for prosecution under Bill C-15, the people who will, if the experience in the United States and indeed here in Canada is any guide, be the ones who will end up in prisons. They will be the ones who bear the brunt of mandatory prison terms for drug offences.

So it's misleading to suggest that Bill C-15 is going to make our communities safer and that it is going to target only supposed drug dealers. It's going to hurt those it professes to help most. However, it's also misguided in other ways, and I'd like to suggest that Bill C-15 is ill-advised on a number of fiscal, public health, and human rights grounds.

First of all, it removes judicial discretion in sentencing and imposing prison terms for drug offences in a very broad range of circumstances, including a number of non-violent offences, inviting sentences that are unjust given the circumstances of the offence. It sentences a crime rather than an offender, which is contrary to fundamental sentencing principles already recognized in Canadian law.

Secondly--and this should be, I think, of primary concern to this committee--the available evidence, and there is a lot of it, indicates that mandatory minimum sentences, particularly for drug offences and particularly including imprisonment for people who are convicted of drug offences, do not reduce the problems related to drug use, and they do not reduce drug use itself. In fact, Justice Canada commissioned its own review of the evidence a number of years ago, in 2002, and came to this very conclusion. In fact, the jurisdictions that have the most experience with mandatory minimum sentences for drug offences, including mandatory prison terms in the U.S., are now moving away from mandatory minimum sentences. Across the political spectrum, across the range of research there is an emerging consensus that these mandatory minimum sentences do not work for drug offences. They cause injustice, and in fact all they cause is a dramatic increase in the number of people in prison.

That brings me to my third point. Incarceration is extremely expensive, and this should also be of concern to all of the committee members and to all members of Parliament. It's going to be particularly expensive for the provincial governments, who are going to bear the primary cost of the enforcement of mandatory prison sentences. Many of those who are subject to mandatory prison terms under Bill C-15, if enacted, will receive mandatory terms that fall under the two-year threshold for doing that time in a federal prison. It would be interesting to know what the actual cost implications are, especially for the provincial governments, of Bill C-15. I would imagine that provincial governments might have something to say about the federal government passing legislation for which they will have to pick up the tab.

Of course—and here's a fourth point—incarceration carries tremendous societal costs of disrupting families, including for the children in those families, and when the net of incarceration is cast so widely as to encompass a very significant number of people convicted of non-violent offences or offences that could be better managed in the community, the cost is that much more excessive, compared to the basically non-existent benefit to be achieved from Bill C-15.

Fifth, increased incarceration generates poor health outcomes generally, in particular putting more people in prison and in particular people with addictions, and it is particularly ill-advised as a matter of public health. We know that drugs get into prisons, notwithstanding all of the efforts to date and no doubt all of the efforts that will come to keep drugs out of prisons.

Correctional Services Canada's own research estimates that about 80% of people in federal prisons have a history of substance abuse. Their own data also confirms regularly that people who have addictions continue to use drugs in prisons, including by injecting those drugs. What people don't have access to in prisons are sterile needles. This means—and we have evidence of this—that people share injection equipment in prisons, putting them at a much higher risk of HIV infection and hepatitis C infection. Therefore, it is no surprise that we see exceedingly high levels of HIV and hepatitis C infection among prisoners, which is somewhere in the order of 10 to 20 times higher than the prevalence of those diseases in the Canadian population as a whole.

Finally, let me share with you the perspective of people who use drugs. I want to share with you some text of a letter that was sent recently to the Hon. Rob Nicholson, Minister of Justice, and the Hon. Leona Aglukkaq, Minister of Health.

This is from Rosemary Fayant, who is the president of AAWEAR, which stands for Alberta Addicts Who Educate and Advocate Responsibly. She writes that AAWEAR is the provincial drug users' group in Alberta. She also facilitates a local users' group in Edmonton. They have a sister group in Calgary, which is called Grateful or Dead—I think that's pretty funny—as well as a group in Red Deer called The Next Step. There are newly-formed groups in Fort McMurray, Grand Prairie, Medicine Hat, and Lethbridge.

She says:

The groups are comprised of people who use or have used drugs in their lifetimes. ... Many of our members now have stabilized [their drug use], have had housing since their involvement with the groups, some have quit using drugs and feel a part of the “mainstream”.... As well, many of us have been incarcerated for drug offences, or drug related offences at some period in our lives.

Although all of our life stories are different, there is a common underlying theme--we all made a decision that ended up with us being imprisoned, and our lives' have never been the same since. Prisons are now places filled with gang members, violence, and there are not many, if any rehabilitative programs available.

She goes on to say:

The war on drugs in the United States has shown that it does not work, and with the implementation of Bill C-15 our provincial and federal prison systems will be overflowing with people just like in the States. Many people who have “made an error in judgment” will now be imprisoned and come out with a criminal record, and even with a pardon they will not be allowed entry into many of the countries of the world. The vast majority of people who sell drugs are doing so to support their own drug problem, and when one is ill from not having their drugs they will do anything to get them. Instead of treating people who use drugs as criminals, perhaps more thought should be put into treating them as people with a medical condition. The government should really do more to target the high level dealers, instead of wasting tax payer's dollars on the street level dealers.

Speaking on behalf of the members of AAWEAR it is a proven fact that many of us have continued to use while in prison, and there are no real programs for people with addictions within our prison systems. Until the issues surrounding drug use are dealt with, people will continue to use. Perhaps more money should be put to better use in combating homelessness, because until one has a roof over their heads they cannot address any issues surrounding their life.

We are therefore strongly urging you to withdraw Bill C-15 and refocus on the studies that show scientifically-proven approaches to addressing drug use and drug-related crimes within Canada, which are approaches that work for people who use drugs and for our communities more broadly.

And I—

[The Chair, Conservative, Ed Fast]

I'm going to have to stop you there.

[Richard Elliott]

I will simply end by asking that the government withdraw Bill C-15 and that members of other parties vote against this legislation.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Graeme Norton, representing the Canadian Civil Liberties Association.

[Graeme Norton, Director, Public Safety Project, Canadian Civil Liberties Association]

Thank you very much, Mr. Chair and members of the committee, for the opportunity to speak before you today.

I'm here on behalf of the Canadian Civil Liberties Association. We are a civil liberties watchdog and advocacy organization. We've been around in Canada in excess of 40 years. Some of our primary objectives include the promotion of respect for and observance of fundamental human rights and civil liberties in Canada. Our major objectives also include the promotion and legal protection of individual freedom and dignity against unreasonable invasion by public authority.

We've provided the clerk with a brief, setting out some of our concerns about Bill C-15, and I will be reviewing some of those concerns in my presentation before you today.

In short, our overriding concern with Bill C-15 is that it is insufficiently nuanced and casts too wide a net. We share many of the concerns that some of the other witnesses have already expressed, and I'll review those now.

We're concerned, in large part, that persons who do not pose a significant danger to Canadian society will be lumped in with those who do and will be targeted for mandatory imprisonment. In our view, a more tailored approach is necessary to ensure that the bill does not cause significant collateral damage through the pursuit of its otherwise legitimate objectives and public safety goals.

Our primary concern with Bill C-15 relates to its overriding purpose: the introduction of mandatory minimum sentences for drug crimes in Canada. The CCLA has generally opposed mandatory minimums in all areas of Canadian law. We're particularly concerned about them when they're used to combat drug crime. Such sentences can be appealing because they purport to offer simple solutions to complex problems. The available evidence, however, suggests that the purported benefits of mandatory minimum sentences are somewhat of a mirage. Mandatory minimum sentences have not proven capable of effectively preventing or reducing crime. Studies have shown that citizens are generally unaware of which crimes come with mandatory minimum sentences and which do not. Indeed, the majority of social scientists who have studied the impact of such sentences have found they offer no value as a crime deterrent.

Such findings have been particularly pronounced with respect to drug crimes, where observers have found no discernible impact whatsoever on drug consumption or related drug crime as a result of the imposition of a mandatory minimum sentencing regime.

Moreover, because of their rigidity, such sentences create the risk that a particular offender will receive a sentence that is not appropriately tailored to the nature of their particular crime. Simply put, predetermined one-size-fits-all sentences are not capable of being sufficiently responsive to the unique characteristics of certain crimes, or of those who may commit them.

Inevitably, situations will arise where a predetermined mandatory sentence is excessive compared with the facts of a particular case. We've set out a couple of examples in our brief where courts have found the sentences they've had to impose as a result of mandatory minimum legislation to be, in their view—that is, in the view of those with the closest perspective of a particular case—unjust or unduly excessive.

While these negative consequences can result under any mandatory sentencing regime, they appear to be particularly from the use of such sentences to address drug crime. Drug crime, as others have noted, is a type of criminal activity in which a wide range of people can become involved for a wide range of purposes. Some, for sure, are violent offenders, profiting from drug users and drug addicts. There's no question about that. Others, however, may be addicts themselves, or users without addictions. Some persons may become involved in drug crime through low-level production or trafficking activity on a one-time basis, in order to deal with a personal financial crisis, for example.

Indeed, the danger posed to society by different drug offenders may differ widely, and courts should retain sufficient discretion to ensure that offenders receive sentences that are both appropriate for and proportionate to their particular offences.

In our view, Bill C-15 is not sufficiently nuanced to achieve proportionality in sentencing. And it is not difficult to imagine excessive sentences, should the bill become law.

The provisions relating to the production of marijuana, for example, would require that the same minimum sentence of six months' imprisonment be imposed on offenders who grow a single plant for profitless distribution to friends and on offenders who grow 200 plants to be sold for profit to strangers. While one can certainly imagine that the courts may wish to differentiate between such offenders, Bill C-15 permits no such distinctions. The likely result of this rigidity, of course, is that persons for whom imprisonment may be inappropriate could find themselves being incarcerated, nonetheless.

There is simply no reason for Canadian law to risk this type of injustice, as there are alternatives to mandatory minimum sentences that can minimize their negative consequences. Indeed, Parliament could instead set out presumptive minimum sentences, which would apply, unless the relevant court believes there are exceptional circumstances relating to the offence or the particular offender that would warrant diverging from the presumptive sentence in a particular case. The key distinction, of course, between these two options is that one takes final discretion away from courts and one leaves final discretion with courts.

As a result of the foregoing, our first recommendation regarding Bill C-15 is that all of its mandatory sentencing provisions should be excised. Such action would significantly reduce the potential for injustice created by the bill and in no way undermine its legitimate goals of promoting and protecting public health and safety.

A second point of concern set out in our brief relates to the aggravating factor under the trafficking provision that would require that a mandatory minimum sentence of two years' imprisonment be imposed on anyone trafficking certain substances--I quote from the legislation now--“in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years”.

While we take no issue with the notion that dealing drugs to or near minors could be an aggravating factor in assessing the appropriate sentence, we are deeply concerned by the broad and vague language used by the bill to describe such circumstances in its current form.

Indeed, there's no indication of what is meant by “near a school”. Are we talking about three kilometres, 300 metres? It's simply not clear. Similarly, the term “any other public place usually frequented by persons under the age of 18 years” could mean virtually anywhere in urban areas. This could include malls, parks, concerts, downtown streets, and so forth. Really, anyplace--other than those where minors are not permitted--could fall under that legislation, and thus require that a two-year minimum sentence be imposed.

This lack of clarity is of course particularly concerning in the context of mandatory minimum sentences. Basing a two-year imprisonment requirement on the extremely broad and unclear language of this provision is sure to result in people being sent to prison who perhaps should not be there. In our view, the overbreadth of this aggravating factor alone is sufficient to condemn its use.

Accordingly, we're recommending that to the extent that Parliament wants to make proximity to minors an aggravating factor in sentencing for trafficking offences, it should focus only on those situations where minors were present when the impugned conduct occurred.

Our third and final recommendation regarding the bill relates to its provisions regarding drug treatment courts. Such programs, of which we are generally supportive, have proven capable of effectively reducing rates of criminal recidivism, an outcome that is clearly in the interests of both society and individual offenders. By allowing certain offenders to avoid mandatory punishment by participating in such a program, these provisions of Bill C-15 will help ameliorate some--I stress, only some--of the negative consequences that the mandatory provisions in the bill do incur. In our view, however, drug treatment court participation is unduly restricted by the bill.

While we acknowledge that the presence of certain aggravating factors may be an appropriate basis for determining ineligibility for such programs, we believe such assessments, like the assessment of the appropriate sentence for a particular crime, are best made by the courts, who have an on-the-ground view of what's actually happening with a particular offender. Legislation is simply not sufficiently aware of a particular case to make that type of analysis, which is very complex.

The automatic exclusion of such offenders from drug treatment court will result in people who may need drug treatment going without it. Cycles will not be broken, and the risk of criminal recidivism will be less effectively addressed.

I would also point out, as Ms. Tara Lyons has pointed out, that there are only drug treatment courts in certain cities in Canada. This is not something that's going to apply everywhere where somebody could be charged with a drug crime. So we're going to be treating people differently, effectively by where they're located in the country.

As a result, we are recommending that Bill C-15 should permit broader access to drug treatment courts and not limit access on the basis of the enumerated aggravating factors.

Those are our remarks. Thank you very much.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Norton.

Dr. Darryl Plecas will be our final presenter.

You have ten minutes as well. Thank you.

[Dr. Darryl Plecas, Royal Canadian Mounted Police Research Chair and Director of the Centre for Criminal Justice Research, School of Criminology and Criminal Justice, University College of the Fraser Valley, As an Individual]

Thank you.

Thank you very much for the opportunity to be here.

First, I want to tell you I strongly support this legislation and I hope I can give you some solid reasons why you should too. Of course, I don't think for a minute, and I know you don't, that this legislation is the be-all and end-all, and certainly through sentencing practices, we are not going to make some of the kinds of gains doing something about the drug problem as we might through public education and treatment programs, the kinds of things you all know are being done right now through the national drug strategy. There's no question that all kinds of other things that could be done are being done.

We also know, looking at those kinds of things that are being done--it's true now and it's been true for a long time--that we still have a problem. None of those things work as well as we want them to. Nowhere is that more obvious than when you come to British Columbia. Certainly, when you talk about production and distribution of drugs, we have a serious gang/organized crime problem in British Columbia. Why do we have that problem? That can be traced directly to drug production. There is no question about that.

We also know, with regard to this legislation, and we certainly heard it here today, that people have a number of concerns about it. There are concerns we're going to limit judicial discretion; there are concerns we're going to sweep up people in the course of this; and that mandatory minimums are not effective at all anyway. I ask you to consider those criticisms in the face of what we know now about what's going on with respect to sentencing and correctional practices.

To begin with, on the matter of sentencing at judicial discretion, I would say strongly that you want to be attentive to what judges are doing now and what they have been doing for the last decade. They are, in a word, doing an absolutely terrible job at sentencing. We should be doing something to limit their discretion. Let me tell you why I think that.

One of the things judges are supposed to take into account is prior record. If they don't take into account prior record, at the very least, they argue, they take into account prior record on like offences. That is an absolute lie. Nothing could be further from the truth. I have studied that specifically. I know other research out there claims to have studied that, and I would argue they haven't studied that properly. When you look at that and drill down to exactly what's happened to people today and over the last two decades with regard to that, you will find--and I have some charts here, if somebody wants to look at those later--that if somebody is sentenced, for example, on their seventh offence and they're not getting any more time than they did on their first offence.... For example, somebody shows up in court for their seventh assault; those individuals get the same amount of time as they did on their first, and they walk into that seventh sentencing with over 30 prior convictions. It's the same kind of nonsense that I find whether I'm looking at break-and-enters, at assaults, at robbery, or at drug offences. It never changes. The claim that judges take into account prior record is not true, and I would challenge anybody to find otherwise.

The second issue is on what I also know from my own research about what happens in sentencing, and I have studied this under a microscope. I've studied entire communities of individuals who have been apprehended for one reason or another, before the courts for one reason or another, and one of the things I know for sure, and I'm not the only person who's made this observation, is that most people, especially people who are highly recidivist, can't even get through the sentence they're awarded without being convicted of another offence. We have a problem here with what we're doing. We're not even able to provide effective sentences in the first instance.

The third thing I call your attention to, which you may be aware of--and these are statistics hot off the press from StatsCan with regard to what's happened with sentencing over the last decade. That report came out in October and showed, if you can believe it, that 27% of people who are given a prison sentence in this country are given a sentence of eight days or less.

We also have a situation where we have people who are given a sentence of less than a year. That amounts to most sentences. We're not talking serious sentences here. As a matter of fact, that report calls our attention to the fact that those percentages, in terms of under eight days, has literally doubled in the last decade. Those claims that the judges aren't becoming more lenient certainly flies in the face of that Statistics Canada data.

The more important thing I would ask you to consider is, why would we be doing this anyway? What are we trying to do? The concern is that we're trying to get tough. Certainly, I wouldn't argue that there's a need to get tough, but there's a need to get effective. Sentencing is supposed to address rehabilitation, public safety, general deterrence, specific deterrence--of course, it isn't only deterrence--and denunciation of the offence. It's those five things. I ask anybody in this room, is there a single soul here who believes for a minute that you could address any one of those goals, let alone any collection of them, with an eight-day sentence? What are we doing?

I call this absolutely stupid sentencing. It's particularly tragic because we also know that we have an opportunity within our federal system. I know people have criticized the prison system. Well, the statistics and track record of federal corrections and national parole simply don't hold up in terms of the reported failure of those systems. It's simply not true. Most people who set foot in a federal institution in Canada never set foot there again. Of course, we should expect that to be the case, because what they have there and are not getting elsewhere are treatment programs and rehabilitation programs.

We also want to remember that it isn't only about treatment. People who find themselves in these situations come there with a multiplicity of problems. They need a multifaceted approach and they need stuff on post-release. What those prison sentences of two years or more do, which we can't get any other way, is an insurance policy that allows us to aspire to reach the goals of that sentencing, and if they don't work, then we have an opportunity to hold that person for the entire length of time.

People talk about mandatory prison sentences as though somebody flattens it. Nothing could be further from the truth. If you get a sentence in Canada of two years or more, as you all know, you can be released in as early as one-sixth of the time. Anybody who ends up doing more than one-sixth has gone through a battery of assessments that tells correctional officials and parole officials that there's some concern about public safety, rehabilitation, or whatever.

I would argue, why wouldn't we seize on that opportunity to have that multiplicity of assessments and give credit to those who deserve to be released early? As well, as I read this legislation, every person would have that opportunity. Why would we say we're not interested in that, but put it in the hands of a single individual, a judge, who, I'm reminded, may well be someone who has never taken a single course in psychology, let alone have the ability to make assessments about somebody's capacity or suitability for rehabilitation, public safety, or whatever?

I think we have to put this whole thing in perspective. What are we doing now? I would argue that if we don't do this kind of thing, doing what we're doing now is a colossal big zero. We have evidence that we can be effective and this points us in the right direction.

The other thing about which I would remind people is that we have, particularly in British Columbia, an outrageous disrespect for the criminal justice system. By various polls we have shown that 90%-plus of British Columbians believe that our courts are doing a lousy job, that politicians aren't doing enough, and that other people in the criminal justice system aren't doing enough. Of course they think that. They're mad, especially victims are mad, because we're not doing enough. We're not doing things that are effective. Again, the issue is not getting tough.

Finally, I caution you to be guarded when looking at that research that comes out of the United States. I would argue that it is seriously methodologically flawed. We have a wildly different situation here in Canada.

We are not talking about locking people up for forever and a day, 25 years, life, that kind of thing. Of course that's stupid. But when you're talking about sentences as proposed here, relatively short sentences, the only thing I would do differently is increase the length of minimum sentences by some distance, because even if you awarded somebody a six-year sentence, conceivably that person can be released after one year. Then we have the assurance, as a society, of the effectiveness of rehabilitation, public safety, deterrence, whatever.

Again, I feel good about it because I know the track record of the system that would be responsible for implementing it.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you so much.

We're now going to open it up for questions.

Mr. Murphy, I believe you are going to start. You have seven minutes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

Thank you, witnesses, for your testimony.

This bill is an interesting bill. I'm going to say right off that I'm intrigued by the drug treatment courts, DTC, aspect of the bill. A large part of my questioning will be on that.

First of all, Mr. Plecas, you mentioned that you had studies. Have they been tabled? You touched on some studies.

[Dr. Darryl Plecas]

I have them here.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Is that what we have?

[Dr. Darryl Plecas]

I thought there were only six people here for some reason, foolishly. People can see at a glance here what I'm talking about, the situation—