Justice Committee on April 27th, 2009

[Réal Ménard, Bloc, Hochelaga, QC]

There's an old Jesuit proverb that says that a text taken out of context can become a pretext and I think that would apply to your statement, which I do not think is very rigorous. First, I think if we're interested in looking into sentences, we should be looking at the Canadian Centre for Justice Statistics. Last week we heard presentations from the Canadian Centre for Justice Statistics and they in no way supported what you are saying today before this committee.

In any case, you know full well that when it comes to administering the law, each case is unique. Saying that 14% of judges hand down sentences of eight days or less, is meaningless, with all due respect. That being said, I will happily read the studies that you have tabled.

I would like to put a question, if I have the time, Mr. Chairman, to your neighbour from the Canadian Civil Liberties Association. You mentioned the possibility of establishing minimum presumptive sentences in some cases. What was the thinking behind that type of proposal?

[Graeme Norton]

The option of presumptive sentences would involve Parliament giving some sort of guidance to judges with respect to the types of sentences they would like to see imposed. For example, I won't suggest that this is the case, but if Parliament determines that sentences are not hard enough in a particular area of crime, they could suggest that, absent overriding mitigating factors, courts should be imposing sentences of, say, one year or two years.

However, if the court determines that the conduct was the result of an addiction or can look at any other mitigating factors and determine that maybe this isn't an appropriate case for that sentence to be imposed, they would be able to diverge from that sentence.

For us, one of the biggest problems with mandatory minimum sentences is that they're absolute sentences. They don't take into account those cases that may not warrant the sentence imposed by the legislation. A presumptive sentence could accomplish an expression by Parliament of the need for stricter sentences without incurring the same degree of injustice that a mandatory sentence would.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Ms. Davies.

You have seven minutes.

[Libby Davies, NDP, Vancouver East, BC]

Thank you very much.

First of all, thank you to the witnesses for coming today. It's very interesting to hear your testimony. We don't often have witnesses come to a committee and just tell us, point blank, to abandon this bill, to get rid of this bill, that it's no good from beginning to end. So I think that's a message we need to consider very carefully.

We had the minister here last Wednesday. I tried to get him to tell us what evidence he had that mandatory minimums work. Unfortunately, he couldn't offer any. I also wondered what the costs were going to be. I think that's so important. In terms of a royal commission and an independent panel, these are things that should be done before embarking on something like this, not after.

One of the two things I'd really like to get at is who this bill is really aimed at. There's a suggestion that it's going to go after the big dealers and the kingpins and get all of these violent people off the street. The fact that the drug courts are in there suggests to me that the more low-level folks are the ones who are the easy targets, and that it's those people this bill is really aimed at. I'd be interested in your observation in terms of who you think would be impacted most by this bill.

And second, in terms of the impact of mandatory minimums, both on individuals affected and on the justice system as a whole, former Judge Paradis, a provincial court judge from B.C., said that he thinks mandatory minimums in this case would be a great motivator for trials and would jam up the court system. Basically, people are going to plead not guilty. They're going to do everything they can to avoid a mandatory minimum.

We don't have the evidence before us, but I wonder--and I'm addressing this to Ms. Lyons, Mr. Jones, Mr. Elliott, and Mr. Norton--if you have any information in terms of what you think would be the impact on the justice system overall. Do we have any idea of what the cost would be? Has anybody tried to figure this out? You are holding up a very thick binder. Maybe there's some information in there.

I feel that the committee needs to know this before we blindly go ahead and adopt this very radical approach to something about which we have no evidence to say it will even work. Whatever we think about drug policy overall, will mandatory minimums work? That's really the question we're trying to grapple with.

[Craig Jones]

No.

[Libby Davies, NDP, Vancouver East, BC]

Do you have any information on costs?

[Craig Jones]

Yes. You can have this.

[Libby Davies, NDP, Vancouver East, BC]

What is it?

[Craig Jones]

This is a volume of peer-reviewed evidence, international in scope, studying the effects and consequences of mandatory minimum sentences. This is the evidence the minister wouldn't provide for you, because virtually all of it comes down against mandatory minimums.

Now I'll go to your direct questions.

The international experience--not only that of the United States--on mandatory minimum sentences is that they have a net-widening effect, number one. They gather up more and more people at lower and lower levels of criminality. Specifically in the United States, where mandatory sentences have been, as it were, perfected, they have had the effect of growing the rate of incarceration to historically high levels. You know, or you should know, that the United States is the world's leading incarcerator at this time.

[Libby Davies, NDP, Vancouver East, BC]

And has its drug use gone down, by the way?

[Craig Jones]

No, its drug use has not gone down, nor has the rate of crime gone down anywhere proportionate to the growth in the rate of incarceration.

Number two, they do clog up the court systems.

Number three, they transfer discretion to prosecutors and police officers, but surreptitiously. They do not have the intended effects on the discretion of judges, because in the international evidence, judges and prosecutors surreptitiously subvert the mandatory sentences in order to ameliorate the harsher consequences.

[Libby Davies, NDP, Vancouver East, BC]

Is there any disproportionate impact on race, disability, or visible minorities generally? That's something we've seen in the States. I don't know whether that's in some of the evidence that has been gathered.

[Craig Jones]

That is one of the signal lessons from the United States. Mandatory sentences fall most disproportionately on populations already disadvantaged or racialized. All of that is in the international literature, notwithstanding Dr. Plecas' finding that it is methodologically unsound.

I would really like to see his deconstruction of the methodological problems in the literature that he--

[Libby Davies, NDP, Vancouver East, BC]

As a matter of interest, how many studies are you aware of? Can you give us an estimate? Is there a whole breadth of studies on this issue? I know of some that are being done, or have been done, in the United States. Anyway, maybe you can provide that information.

[Craig Jones]

There are probably 35 in this volume alone, and this is out of date by a couple of years.

[Libby Davies, NDP, Vancouver East, BC]

Okay.

Mr. Elliott, could you respond?

[Richard Elliott]

I might briefly add some information from both the U.S. context and from Vancouver.

When you look at the experience in the U.S., studies have shown that just over 5% of federal prisoners who are in prison for offences involving crack cocaine and 11% of federal drug defendants are high-level dealers, but it's mostly low-level dealers who have been spending time in prisons in the U.S. In fact, to answer your specific question on the differential impacts on different populations, what we've seen with the introduction of mandatory minimum sentences in the U.S. is that the federal incarceration of women of colour, and specifically black women, has increased by 888%. They are the people who have borne the brunt of mandatory minimum sentences: poor people, black people.

In Vancouver, we have some data from the Vancouver injection drug user study, which samples some of those who are the most vulnerable and most street-involved people who use illegal drugs. Of those, 20% reported having dealt drugs, and it was usually small-scale dealing. In fact, it was people who reported factors associated with the highest levels of addiction, such as high-intensity drug use, who were most associated with drug dealing.

The activities they engage in as dealers are direct street-level selling, 82% of them; middling or carrying drugs, 35% of them; and steering or sending addicts toward dealers, 19% of them. The most common reasons they gave for engaging in this drug-dealing behaviour were to support their own drug addiction or to pay off debts related to drug use.

These are the people who are most easily targeted for the enforcement of mandatory minimum sentences. These are the people who are the most vulnerable. We're got lots of experience from the U.S. We've got data from Canada that says the same kinds of patterns would play out here.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on now to Monsieur Petit.

You have seven minutes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Good afternoon, gentlemen, and thank you for coming.

What you're saying is very interesting but I'm rather surprised by it. I'm going to explain something to you. I don't know if you have children. I myself have four. Fortunately they are now adults but once upon a time they were teenagers. I come from Quebec, from Quebec City. As you can see I speak French. Imagine small drug peddlers, as you have described them, selling marijuana or mescaline near schools and that 11- or 12-year-old teenagers buy from them, imagine that they are your children and that they can become addicted. The parents are the ones who will pay the price of this.

Today you're telling us to not be too strict, that the judge will take care of this, that we shouldn't worry and that there isn't a problem. You are sending us a message of tolerance; I have nothing against that but I do in the case of selling drugs to teenagers. I would like to know if you would accept drugs being sold, for example mescaline, to your teenage children, if you have any, and if you think that your theory should apply, that is, that there be no minimum sentence because this is not serious. A small peddler starts with young people and eventually becomes a big dealer. That's what needs to be understood. We have to stop them at the very beginning, therefore. You're telling us that we should allow the judge to decide and that we shouldn't be alarmed. Mr. Jones, you seem to be of a certain age. I don't know if you have any children. Mr. Elliott, I don't know if you have any children but I would like to hear what you have to say about this. What should we tell parents whose children will become addicted to drugs? How should we react? Is this a one-size-fits-all or do you make any distinctions when it comes to mandatory minimum sentences?

[Craig Jones]

Mr. Petit, thank you for that question. I just want to put on the record that Quebec City is my favourite city in Canada. I've been there many times.

I'd also like to introduce you to my daughter, Hapriel, who is sitting at the laptop back here, writing, working on her novel. So, yes, I'm a father. I have two daughters, 16 and 13.

Mr. Petit, drug prohibition doesn't work. As we have practised it for the past century, it has only made worse everything we deplore about drug use and drug addiction. Mandatory minimum sentences don't work. If they worked, if they actually deterred, I would be taking quite a different position. In my opinion, and with great respect, simply saying it sends the right message is lying to the Canadian people.

[Richard Elliott]

I think I was asked to respond as well.

[The Chair, Conservative, Ed Fast]

Yes, please.

[Richard Elliott]

I am not a parent. I would take exception, however, to the implicit suggestion that those of us who are not parents somehow don't care about the welfare of young people. I think that's clearly not true. I have young people in my life; I care about them very much.

I think Mr. Jones has answered the question sufficiently to point out that if these kinds of provisions worked to the benefit of young people, to protect young people, then I think we would be having a very different conversation. The evidence is there, simply, that they don't. I think raising that fact, which is well-supported by many, many studies, does not somehow lead to the conclusion that we don't care about protecting young people from the harms that can be associated with drug use. Of course we do, and that's actually what's motivating our concern against this kind of legislation, that this is actually going to do damage to young people. It's ill-thought-out legislation, and that's one of the reasons for it.

[The Chair, Conservative, Ed Fast]

Ms. Lyons.

[Tara Lyons]

Echoing what Richard just said, we absolutely care about young people—we are young people—and that's why we're here today. We're concerned about the bill harming people.

I don't have children yet, but by the time I do, hopefully, the time will have come when we have instituted honest and realistic drug education, so that when kids are in a situation, they'll know how to respond to it in the appropriate ways. I don't think every student or youth who is approached is going to take that opportunity, nor will they necessarily become drug addicts.

I also wanted to add that I haven't heard a message of tolerance here today; I've heard a message of human rights by the first four people speaking.