Justice Committee on April 27th, 2009

[Craig Jones]

Okay, let me be very clear about this. Currently in this country we regulate the production, consumption, and distribution of illicit drugs. I repeat, we regulate the production, consumption, and distribution of illicit drugs. We don't call it regulation. But in effect what we do is hand it over to the contest between the police and organized crime and let them fight it out. That's our form of regulation. It goes by the name of prohibition. It is the most dysfunctional form of regulation we could have imagined. So you will have organized crime and you will have unregulated and unspecified and unknown dosages of ecstasy and all other drugs for as long as you have prohibition. I'm afraid it's a “cake and eat it too” proposition. You cannot have drug prohibition without organized crime.

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

I understand that. I understand that there's an economy for these prohibited products. My question was, is it your solution that we abolish prohibition and make these substances legal?

[Craig Jones]

My solution is that we re-regulate the production, consumption, and distribution of illicit drugs to suppress organized crime; introduce widespread harm reduction measures: and educate, treat, and ameliorate the worst conditions that fall out from prohibition.

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

You have your hand up?

[Richard Elliott]

Yes. I would like to say two things.

First, of course, we have the historical example of alcohol prohibition. We repealed prohibition. We regulate alcohol. It's worked a lot better.

The second thing I'd like to say is that we have lots of evidence to say that even if you take out the low-level dealer, the next day or the next week there will be another person in that position. Prohibition is not a sustainable exercise. Yes, you can take somebody off the streets temporarily, but others will fill that void. That's how the laws of supply and demand work.

The circumstance you've described is tragic. But mandatory minimum sentences will not prevent it from happening. Harsher prohibition will not prevent it from happening.

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

You talk a lot about deterrence--

[The Chair, Conservative, Ed Fast]

Mr. Rathgeber, you're at the end of your time.

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

I was just getting started, Mr. Chair.

[The Chair, Conservative, Ed Fast]

I know you were. You might get another chance.

Mr. Murphy, you have five minutes.

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

Thank you.

I want to get into the role of the players, I guess, in the system. I don't want to sound like the Law and Order introduction, but there are the police, there are the prosecutors, there are the judges and the defence lawyers. They all have a role, and I hope we all admit that.

But you know what? I've heard for some three years now what I think is a more or less unintended attack--I won't say it's an intended attack--on judicial discretion. And I want to key in on the civil liberties aspect of this.

Yesterday I listened to Borovoy on the CBC--that's the public broadcaster that you guys cut money to--and it was a wonderful interview. How fair he was on all subjects. He didn't come off as a raving lefty or righty or whatever.

Mr. Norton, you haven't had the hard questions today yet. I feel bad about doing this to an expectant father, but I still have to ask this.

Since when does the Civil Liberties Association feel that judicial discretion is a good thing? In the old days, it gave us things like the Spanish Inquisition. Why wouldn't the association want a set of laws that was in the window, where everybody got the same, I guess like the mandatory minimum?

It's a bit of a philosophical question, but....

[Graeme Norton]

I think I can respond to that by suggesting that we're not opposed to Parliament providing some sort of guidance to courts as to the sentences that they see most fit. But on the idea that a predetermined sentence can fit perfectly every crime that's to come of that, to us that flies in the face of the logic that underpins judicial discretion, which is that each case has to be looked at on its own. There very well may be a standard sentence that fits most cases, but there are always going to be exceptions to that. We've provided some samples of that in our brief.

There's a case from the Ontario Court of Appeal where the court somewhat reticently approved constitutionally of a mandatory minimum sentence. But in imposing the sentence, they said that although they viewed it as “unduly excessive”--I believe those were the words they used--they were required to do it nonetheless.

There are other cases like this. There was, famously, the Robert Latimer case. The courts all the way up felt that on the specifics of that case, the sentence that was required by the legislation was excessively harsh.

There's also a case set out in our brief of a police officer who shot an individual in the process of investigating a crime. He was sentenced to six months' imprisonment. The laws have changed since then. Currently under the law he would be required to go to prison for four years.

So there are exceptions to rules. Human reality is very complex. Those complex realities, in our view, are best dealt with on a case-by-case basis rather than in a system where, as you've described it, one size fits all when you get a certain conviction.

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

I guess you are for the retention of judicial discretion in general, then.

[Graeme Norton]

Sorry, could you say that again?

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

I guess you are for the retention of judicial discretion, as are the people to your right.

[Graeme Norton]

Yes, certainly. Our position--

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

I'm going to go Mr. Plecas, because I'm sure I'm running out of time.

You would favour less judicial discretion and have these errant judges follow the script of the brain trust up here in Ottawa who make the laws--

[Dr. Darryl Plecas]

Yes, absolutely.

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

--which, by the way, you're looking at, sadly.

[Voices]

Oh, oh!

[Dr. Darryl Plecas]

Absolutely. And don't take my word for it; look at the behaviour of judges over the last couple of decades.

We have to be very, very careful of what data we look at here. I know there's been plenty of so-called evidence put forward to say that judges aren't becoming more lenient and there's no need to limit discretion, but I would say there are serious problems with the way they've done that analysis.

At the end of the day, I think there's a fundamental flaw here. Judges claim they take into account--and we know they do because they're required to--rehabilitation, deterrence, education, denunciation, public safety. Only an idiot would believe this is occurring given the current sentencing practices. Only an idiot would say they've done one of those things with a one-month prison sentence.

This is just nonsense. We have to move away from this. I would argue that means it basically needs an overhaul of that business.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Moore, for five minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Chair.

And thank you to all the witnesses. I think your testimony has been helpful on this bill.

Ms. Lyons mentioned AAWEAR.

Was that you who mentioned AAWEAR?

[Tara Lyons]

The organization?

[Rob Moore, Conservative, Fundy Royal, NB]

Sorry, it was Mr. Elliott who mentioned their proposal that we address the issues of homelessness and prevention and that type of thing.

We're dealing very specifically with this bill, but I do want to assure that group, as well as you, that our government has taken many initiatives on homelessness and low-income housing, and on prevention. Just yesterday one of our ministers made another announcement on prevention, on targeting youth at risk. We believe in targeting youth at risk, prevention, and in helping those in need.

But this deals very specifically with the Controlled Drugs and Substances Act, and the Criminal Code as it relates to the penalties that most Canadians believe, to some degree, should be in place for those who traffic in, or produce, undeniably very harmful substances.

Specifically, AAWEAR made mention of targeting the high-level offenders. That's exactly what this bill does: a one-year mandatory prison sentence for dealing drugs; a two-year mandatory prison sentence for dealing drugs such as cocaine, heroin, or methamphetamines to youths; tougher penalties for those running large marijuana grow-ops. And we haven't touched on it today at all, but in GHB, more commonly known as a date rape drug....

If we accept that there is a role for the federal government, the Criminal Code, the Controlled Drugs and Substances Act, to play in combatting the trafficking in illegal drugs, and most of us accept that, Mr. Jones, what you said took me aback a bit. Essentially my interpretation of what you said was that we gave up. We don't try to prevent someone from selling heroin or cocaine to young people. We gave up our opposition, as a government, and as a people collectively, to those who are trafficking and producing these substances. I reject that outright. To give up is to take a major step backwards. I think we have to have appropriate laws in place.

What we've heard from the people we represent, and what we've seen, is that the current Criminal Code provisions were not effective. They sent the exact wrong message. They did not result in a fair or just outcome, and people are not getting the help they need, quite frankly.

None of us around this table, no matter what party we belong to, want to see people in prison. None of us wants to see those who are addicted to drugs go without help. Hopefully, we all share that goal.

I will ask each of you, whoever wishes to comment, and we'll start with Dr. Plecas, whether there is a role for us, as keepers of the Criminal Code and the Controlled Drugs and Substances Act, in protecting young people and Canadians from these drugs: date rape drugs, heroin, cocaine. Some people want to focus specifically on one kid with a joint. Even if we rejected that part of the bill about marijuana entirely, what about these serious offences, more serious drugs? Is there a role in preventing them and not enhancing their availability in society?

[The Chair, Conservative, Ed Fast]

Unfortunately, we only have half a minute, so we'll have a very quick answer from Dr. Plecas and perhaps one from Mr. Jones.

Dr. Plecas.