Mr. Chair, members of the committee, thank you.
It gets to the point where everything that needs to be said has been said.
I come here as a retired provincial court judge from British Columbia. I was appointed in 1975 and I retired in 2003, and over those 28 years I heard over a thousand cases dealing with the possession, the use, the selling, the production, the growing, and the importation of all drugs. I saw nothing change except drugs being more potent, cheaper, and more available.
Those who have spoken before me this afternoon--and some will speak after--and others you've heard from, as I've said, have made all the very important points. They have a great deal more expertise in the specific area of penal policy, either from personal experience or as a result of their own research, than I could ever bring to bear on this subject.
I, however, am able to say that the numerous pitfalls they point out must be supported by me--that is, the fact that they've been pointed out. Mandatory minimums, in particular those dealing with what I and the organization I represent, Law Enforcement Against Prohibition, would call drug prohibition crimes, as a result of the evidence available--that they are related to drug prohibition rather than to drugs themselves--for such crimes leave only this to contend with: first, they don't deter; secondly, especially in the case of drugs, they do not overcome the law of supply and demand and therefore they're doomed to fail. Inevitably it will be usually addicted and marginalized little fish who will be caught in the net and the king fish will swim away. We have the benefit of the American experience, which we are at this point seeming to ignore.
I propose to use the brief time allotted to me to concentrate on the impact of mandatory minimums on the courts. That's my small area of expertise, such as it may be.
You've heard before reference to the 1987 Canadian Sentencing Commission when it said, “Mandatory Sentencing guidelines meet with extreme resistance from judges as well as most professionals involved in the administration of justice.” I note the reference to “guidelines”.
Having been involved with continuing judicial education throughout most of the eighties, and therefore having been in contact with my colleagues on a regular basis, I can vouch for the almost unanimous opposition of B.C. provincial court judges to all-encompassing guidelines for sentencing at large. My personal view, as a criminal court trial judge, was that sentencing was the most difficult and challenging aspect of the job. It also was and is the most common exercise of the judicial function. Guilty pleas far outnumber trials, and of course a large percentage of trials result in convictions.
To substitute guidelines for the judicial exercise of discretion under broad principles and objectives of sentencing would have so gutted the work of the judge that a number---myself included--would almost certainly have returned to private practice rather than perform the robotic function of a guideline-restrained judge.
That has never been the judicial reaction to mandatory minimums. Judges readily accept, and not grudgingly, that Parliament is where the law of the land is formulated, and it is for the judge to implement that law. So, for example, when Parliament attempted to deter drinking drivers with minimum fines or mandatory jail terms for repeat offenders, there was hardly a peep from judges. As it turned out, that didn't work. Forget the minimums; the incidence of drinking and driving didn't wane until it became socially unacceptable, much like smoking.
Similarly with gun crimes, when those minimums became law, there was little comment either from judges. On the other hand, judging from recent experience on my home turf, they don't appear to have had much of a deterrent effect either, and there's no good evidence that increasing them will have any greater impact.
But the volume of drug crimes that make it to court far exceeds that of crimes involving firearms and even drunk driving. This time, the judicial branch of government could very well react negatively, if this bill is passed.
This is what all courts in the country will have to face if this happens.
First and foremost, the sentencing function will become the prerogative of crown counsel, not the courts. The decision on the charge rests with the crown, and for reasons known only to that lawyer, he will decide what sentence the accused must face by deciding what charge to lay. Some, having been so thoroughly conditioned to be suspicious of the courts, may suggest that is a good thing. But they should think long and hard on this question: would you prefer that the most crucial decision in a criminal matter be made in a back room by an often inexperienced person beholden for his job to an attorney general, or that it be made and explained by an independent judge in an open court?
The public at large may be unaware of the gravity of that question, but parliamentarians cannot afford to be. Your very existence is the result of the decision made centuries ago that it is far healthier for the common good that the conduct of the state's affairs, including how it deals with its criminals, be open and accountable.
Second, should charges be laid for offences set out in the bill, guilty pleas will evaporate. They are the grease of criminal courts everywhere, and without them there can be little expeditious disposition of cases.
Between 2000 and 2005, the Provincial Court of British Columbia dealt with just over 50,000 cases involving the use, sale, distribution, manufacture, and production of illicit drugs. The vast majority of those were dealt with by way of guilty pleas. It's true that possession--and mainly possession of marijuana--dominates those statistics, but not too far behind are the low- and mid-level trafficking charges that will draw the penalties set out in this bill.
A number were the subject of a sort of ritual trial: trying to get a charter argument, usually related to search and seizure, accepted by the court. If that failed, the towel was thrown in and the process was really quite brief. Many others were disposed of by way of a guilty plea, and very occasionally all issues were on the table and the trial was protracted.
If the experience south of the border and in my own province over those same years is any guide, we are in for some big-time court clogging. A minimum sentence of even six months will be enough to trigger a shotgun defence and a fight to the bitter end. Let me illustrate that point and refer to my own province over these past few years.
Driving while under suspension in British Columbia once carried a minimum seven days in jail, and even that measly seven days led to the development of an arcane area of law that has never been explored before: the accuracy and sufficiency of certificates issued by the Superintendent of Motor Vehicles. There is no need to explain what that means. Suffice it to say that it's the jurisprudential equivalent of determining the number of angels that can dance on the head of a pin.
Hundreds of court hours were wasted annually with lengthy trials conducted simply because the defendant wanted to avoid those seven days in the clink at all cost. The incidence of driving under suspension, it should be added, did not change under the threat of that minimum. In any event, the minimum was removed a few years ago, and the number of trials has withered away. Many more are now pleading guilty. Some are still being sentenced to short jail terms, but they're willing to take their chances with the judge.
Last year I spent several weeks in New Zealand spreading the gospel according to LEAP--Law Enforcement Against Prohibition. In my research for that trip I came across the section of their Sale of Liquor Act that sets out its object, and I quote:
to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse, so far as that can be achieved by legislative means.
I invite you to substitute the word “drugs” for the word “liquor”, and it is hard to come up with a more rational and achievable plan for addressing the harms that drugs cause. I urge this committee to look at the issue through that prism, rather than continue with the disastrously dysfunctional and manifestly failed “get tough” approach that got us into this godawful mess in the first place.
I thank you.