Justice Committee on May 13th, 2009

[The Chair, Conservative, Ed Fast]

I call the meeting to order. This is meeting number 23 of the Standing Committee on Justice and Human Rights. Today is Wednesday, May 13, 2009. Before we do anything else, I want to congratulate one of our colleagues, Réal Ménard, on his 47th birthday today. Congratulations.

[Some hon. members]

Hear, hear!

[The Chair, Conservative, Ed Fast]

Okay members, you have before you the agenda for today. By order of reference, we still have before us Bill C-15, an Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts. This is our last day for witnesses, as agreed.

I regret to have to advise you that two of our witnesses will not be appearing. We were advised that Judge Craig is a member of the Human Rights Tribunal, and it was felt this would make it inappropriate for him to comment on federal policy at this time. Also, our clerk had set up a video conference for Professor Julian Roberts, but unfortunately that has run into technical difficulties. We tried to shift it to another studio, and that didn't work out either. Unfortunately, we won't be able to hear from him. I am asking the clerk to ensure Professor Roberts provides us with a written submission, so we have that for the record.

We still have before us a number of organizations and individuals to assist us in our review of Bill C-15. First of all, we have Cathy Sabiston, Jane Hazel, and Colleen Ryan of the Department of Health. Welcome here. We also have Chuck Doucette from the Drug Prevention Network of Canada. He is appearing by video conference. Welcome here. Then we have Greg Yost from the Department of Justice; he's back before our committee to address one small item regarding the actual bill. Then finally, representing the Canadian Bar Association, we have Gaylene Schellenberg and Sarah Inness. Welcome here.

I think you've been apprised of the routine we have here. You'll have 10 minutes to present as an organization, and then we'll open the floor to questions.

Why don't we start with the representatives from the Department of Health, whoever is going to go.

[Cathy Sabiston, Director General, Controlled Substances and Tobacco Directorate, Department of Health]

Thank you, Mr. Chairman, and thank you to the members of the Standing Committee on Justice and Human Rights for allowing me this opportunity to speak to you about Canada's national anti-drug strategy. This strategy represents Canada's approach to reducing the supply of and demand for illicit drugs and addressing crimes associated with illegal drugs. I am delighted to be here.

I understand that during your recent deliberations on Bill C-15, a bill to impose mandatory minimum sentences for serious drug crimes, you were keen to learn more about the federal government's broader national anti-drug strategy. After all, Bill C-15 is not an isolated piece of legislation; it is only one element of the government's much larger strategy that partners Public Safety Canada and Justice Canada together with Health Canada to build safer and healthier communities.

Launched in 2007, the Government of Canada's national anti-drug strategy sets out three priorities: preventing illicit drug use among youth, treating people with drug dependencies, and fighting the illicit production and distribution of drugs with the help of legislation like Bill C-15. There are three corresponding action plans: the prevention action plan, the treatment action plan, and the enforcement action plan, which detail the steps the government is taking to achieve its goals.

Health Canada is an integral partner in the implementation of the strategy. Specifically, Health Canada has overall responsibility for the implementation of the prevention and treatment action plans, and it contributes to the enforcement action plan.

It is about the involvement of Health Canada in the delivery of this strategy that I'm here to talk to you today. This involvement focuses on helping youth make smart choices about drug use and supporting innovative approaches to treating and rehabilitating Canadians with illicit drug addiction who pose a threat to themselves and their communities.

Allow me to begin with the Prevention Action Plan. As its name suggests, the Prevention Action Plan aims to dissuade people from ever using drugs. In other words, it aims to eliminate the problem before it arises. Research indicates that the later in life a person tries drugs, the less likely he or she will suffer from substance abuse. In turn his or her community is less likely to suffer from the negative consequences of drug use too. The key is early intervention.

Obviously a number of jurisdictions have roles to play in the area of prevention, but for its part, the Government of Canada has invested $30 million over five years in a targeted mass media campaign that raises awareness among youth between the ages of 13 and 15 about the dangers of illicit drugs. The first of its kind since 1993, the campaign began with a message to parents: reinforce your influence over your teenagers and talk to your sons and daughters about illicit drugs. Early indications are that the campaign is reaching its target and the messages are resonating. In fact, the parent component of the campaign drove over 2,900 calls to our information centre and over 280,000 visits to our website. Also, more than 123,000 copies of the parent booklet have been ordered, with thousands more downloaded from the website.

A post-campaign survey confirmed that parents within our target audience took action because of the campaign. Adults sought out the information booklet and spoke to their kids about the dangers of drugs. It will take time, however, before we can expect meaningful results in terms of reduction in drug use among young teenagers. That is why, in addition to the overall prevention envelope of the national anti-drug strategy funding, Health Canada has also committed nearly $40 million to support health promotion and drug use prevention projects. Through the drug strategy community initiative funds, Health Canada will help reduce illicit drug use among teens by supporting community-based initiatives that help identify and respond to the unique needs of local youth.

Health Canada is also investing another $10 million to support the Canadian Centre on Substance Abuse's national youth prevention strategy, an initiative that mobilizes prevention effort, informs drug prevention policy and practices, and builds relationships between not-for-profit organizations, the private sector, and all levels of government.

Unfortunately, prevention comes too late for those who have already experimented with drugs and whose social, physical and mental health suffer as a result. For this reason, the Government of Canada has also made significant investments to implement the second critical component of the National Anti-Drug Strategy: the Treatment Action Plan.

Under the plan, the Government of Canada has allocated $100 million in new funding over five years to help ensure Canadians who suffer from substance abuse can access the treatment services they need. A significant portion of this funding will bolster Health Canada's existing investments in the drug treatment funding program, an initiative that supports provincial and territorial governments in the delivery of quality drug treatment services. Under this initiative, Health Canada is committing over $111 million to provinces and territories to strengthen their ability to deliver treatment services and adopt national best practices, apply new research findings to clinical practice, and better measure and evaluate the effectiveness of their drug treatment systems.

In addition to this national investment, the Government of Canada is dedicating funds to address the needs of especially vulnerable populations: residents of Vancouver's downtown east side and members of first nation and Inuit communities. As many of you know, Vancouver's downtown east side is home to an incredibly vulnerable population, individuals who suffer from addiction to heroin, cocaine, crack, crystal meth, and other drugs. These people need help to regain their health and hope for the future. In response, Health Canada is dedicating an additional $10 million to establish an assertive community treatment team that will work around the clock in Vancouver's downtown east side to provide psychiatric, medical, nursing, therapeutic, and rehabilitation services. This funding has also created 20 new treatment beds for female drug users who are engaged in the sex trade, women who need a safe, stable environment in which to overcome their addiction. Another $2 million is allocated to improve addiction services for aboriginal people living in this neighbourhood.

The Government of Canada's Treatment Action Plan also focuses on first nation and Inuit communities. Drug and alcohol abuse remains a problem. This government is taking a number of steps to help communities deal with these serious issues.

Every year Health Canada provides $59 million through the national native alcohol and drug abuse program to support 54 treatment centres as well as drug and alcohol prevention services in over 500 first nations communities across Canada. Under the treatment action plan, Health Canada is investing an additional $30.5 million over five years to increase access to and improve the quality of addiction services for first nation and Inuit youth and families in Canada.

Mr. Chairman, the third and final component of the national anti-drug strategy is the enforcement action plan, which represents an overall government investment of approximately $102 million in new funding over five years. Under the enforcement plan, Health Canada is enhancing Canada's capacity to ensure compliance with the precursor control regulations and to reduce and prevent the diversion of precursor chemicals by increasing the number of inspectors and investigators. In addition, the drug analysis service of Health Canada receives funding to provide accurate and timely analysis of suspected illegal drugs seized by Canadian law enforcement officers to support enforcement and prosecution efforts and prevent exhibit backlogs.

While the prevention and treatment action plans diminish demand for illicit drugs, the enforcement action plan, under the purview of Public Safety Canada and the Department of Justice, approaches Canada's drug problem from another angle. The enforcement action plan restricts the supply of illicit drugs. It aims to curtail the production and stop the distribution of illicit drugs.

Mr. Chairman, as many appreciate, Bill C-15 represents one component in the Government of Canada's comprehensive and balanced approach to curbing the illicit drug problem in Canada.

In closing, the national anti-drug strategy provides an approach that is tough on the producers and distributors of illicit drugs, but is also compassionate with those who have an addiction and prevents young people from engaging in drug consumption.

Thank you.

I would be pleased to answer any questions you may have, with the help of my colleagues.

[The Chair, Conservative, Ed Fast]

Thank you.

Now we'll move to Vancouver, actually, by video conference.

Mr. Chuck Doucette, you have ten minutes to present.

[Chuck Doucette, Vice-President, Drug Prevention Network of Canada]

First of all, thank you for hearing me and for making this facility available, as I was not able to travel to Ottawa to speak to you in person. I am representing the Drug Prevention Network of Canada. I am currently the vice-president of that organization and a member of the International Task Force on Strategic Drug Policy.

The Drug Prevention Network of Canada was formed in 2005 to serve the Canadian population on a national level. We are dedicated to working with like-minded organizations and individuals to advance abstinence-based drug and alcohol treatment and recovery programs to promote a healthy lifestyle free of drugs. We are equally dedicated to opposing the legalization of drugs in Canada. We are very involved with the new national youth substance abuse prevention program. I co-chair the national advisory committee on that.

The International Task Force is a network of professionals and community leaders from across the globe who support and promote effective drug demand reduction principles and strive to advance communication and cooperation among non-government organizations who are working to stem illicit drug use and promote sound drug policy around the world. Both of these organizations believe in the need for a comprehensive drug policy that includes prevention, treatment, and enforcement.

I retired from the Royal Canadian Mounted Police in 2007, after serving for more than 35 years. For over 30 of those years, I worked in various sections within the drug enforcement branch, all in the Vancouver area. My experience includes working undercover, long-term conspiracy investigations, drug intelligence, and drug prevention. The last 12 years were spent in charge of the drug awareness program in British Columbia. As such, I was involved in many discussions about the impact of drug abuse on society and the strategies to reduce both the demand and supply of drugs. I have represented the RCMP on a number of committees over the years at the community, provincial, and national levels.

I do not profess to be an expert on the effectiveness of mandatory minimum sentences on reducing drug abuse. However, I can tell you what I have learned from my experience. Things have changed from when I first started in drug enforcement in 1977. Over those 30 years, I saw the sentences for drug offences getting progressively weaker. At the same time, I saw the problems related to drug abuse getting progressively larger. I also saw the drug scene in downtown Vancouver increase as the enforcement efforts in that area decreased. From my perspective, I do not see how anyone could possibly examine the past 30 years and make a case that weaker sentences lead to less damaging social consequences. My experience is that the more lenient we got, the more problems we got. I also believe that other countries have experienced the same thing, and I would like to make a comparison.

I have travelled to the Netherlands, Germany, and to Sweden to observe the drug situations in those countries. It seems to me we should be looking at Sweden as the model for successful drug policy. The problems related to drug abuse are lower in Sweden than they are in the Netherlands, Germany, or Canada. Yet we have been encouraged by some to follow the policies of the Netherlands and Germany rather than those of Sweden.

In Sweden, after a period of less restrictive drug policy and increased drug use, they achieved their success in lowering drug use by getting more restrictive with their policy. At the same time, they increased their efforts in prevention and treatment. The key to their success was their effort to strike a balance between prevention and treatment while maintaining a strong policy of enforcement. In Sweden, when they arrest someone for a drug offence, they introduce that person to a drug treatment worker before he or she is released. Although not common, if it is deemed necessary for the health of the person, that person can be forced into drug treatment. Getting those addicted to drugs into treatment is essential in order to reduce the related problems in our society.

This can be done in a number of ways. One way is through the drug treatment courts. While it is important to put drug traffickers in prison for an appropriate amount of time, it is also important to get those addicted to drugs into treatment. While I have not done any studies to determine the effectiveness of the drug courts, I have spoken to addicts who have graduated from the drug treatment courts. Their opinion of why they were successful in reaching abstinence through the drug court system, when they had failed before, was because of the continuous monitoring by their caseworker. The caseworker follows them to pick them up and put them back on track when they have fallen off. This does not happen through the regular health care system. I believe that the drug court system is a good way to get drug addicts who break the law into treatment.

We only have to make sure we have enough drug treatment courts available wherever needed, and that there are enough treatment facilities available to handle the need. It is very important, and I would caution that there be enough treatment also available for those addicts who are not in the drug court system, as we would not want to create a situation where people are tempted to commit an offence simply to get treatment.

In Canada we have been influenced by the international harm reduction movement, which would have us believe that the drug laws cause more harm than the drugs do. This influence seems to have reached the judges, who have become progressively more lenient with their sentences. One gets the impression they are more concerned about the individual drug user than they are to the harm caused to society or to specific family members.

Drug-endangered children are a real concern that we are only starting to address in this country. While taking an addicted parent away from a child may seem tragic, one has to compare this to the harm caused by leaving a child in a situation where they are being neglected or harmed by the environment of the severe drug abuse.

I agree that an addicted person needs treatment. However, that treatment may have to come along with a prison sentence when appropriate. While I agree that putting an addict into prison without treatment is a mistake, it is also a mistake not to have a meaningful sentence for those who make their living from contributing to the misery of others.

This is especially true when dealing with members of organized criminal gangs. These gang members, who are not addicted to drugs, are very aware of the risks and consequences involved in trafficking in the different places throughout the country, just as they know the sentences are lower in Canada than they are in the United States. They also know the sentences are weaker in Vancouver than elsewhere in Canada.

One of the main reasons that so many gangs got involved in cannabis grow operations in the Vancouver area is because of the weaker sentences here compared to sentences for trafficking elsewhere, and for trafficking in cocaine and/or heroin. The risk-to-wealth ratio is much better. The small fines they were receiving were simply considered to be the cost of doing business.

It is also not hard for leaders to convince people to help maintain or watch the crops if the risk of going to prison is low. Although recent laws have helped to make it easier to take back some of the profits they are making, we still need a stronger deterrent. We need them to fear the chance of going to prison for a long time. This bill makes sure that message is loud and clear.

The same has to be said for the use of weapons during the commission of a crime. Regardless of the original intention of the offender, once a weapon is presented, the chance of serious injury or loss of life from that action is huge. Those offenders who resort to use of weapons are clearly more of a threat to society and should pay a proportionately higher consequence for their actions. The best way to lower that risk to society is to remove the offender. The longer the offender is removed from society, the longer society is free from that threat.

When we see the vast majority of offences committed by a small number of offenders, it stands to reason that the longer sentences should result in less crime. Regardless of why the sentences have gotten weaker, the fact is that they have. In my opinion, we need to change that trend. I believe this bill has the potential to do that and therefore support it.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Doucette.

We'll move on to Mr. Greg Yost, representing the Department of Justice. I don't know if you're going to need the full 10 minutes.

[Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice]

I really have no opening statement. It was my understanding there were some technical questions about how the bill worked, and particularly whether a person who traffics in one joint to a friend is subject to the minimums. The answer to that, quite shortly, is no, because that particular section, which is the amendment to the new paragraph 5(3)(a) begins with, “subject to paragraph (a.1),” and (a.1) goes on to state: “if the subject matter of the offence is a substance included in Schedule II”--obviously cannabis--“in an amount that is not more than the amount set out for that substance in Schedule VII,”--which is three kilograms--“is guilty of an indictable offence and liable to imprisonment for a term of not more than five years less a day”.

There is no mention of a minimum penalty there whatsoever. So the person who is giving less than three kilograms is not subject to the mandatory minimums.

I understand that was a question that had arisen.

[The Chair, Conservative, Ed Fast]

We'll leave it open for the members to ask you specific questions once we get that far.

Finally, we have Sarah Inness and Gaylene Schellenberg. I assume Ms. Schellenberg is making a presentation.

You have ten minutes.

[Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association]

Thank you. Good afternoon.

I'm Gaylene Schellenberg, a lawyer with the legislation and law reform directorate of the Canadian Bar Association. Thank you for the invitation to present the views of the CBA on Bill C-15 to you today.

The CBA is a national association of over 38,000 lawyers, law students, notaries, and academics from across the country. An important aspect of the CBA's mandate is seeking improvements in the law and the administration of justice. It's from that perspective that we appear before you today.

With me is Sarah Inness, a member of the executive of the CBA's national criminal justice section. The section represents a balance of crown and defence lawyers from every part of the country, and Ms. Inness is a criminal defence lawyer from Winnipeg.

I'll turn it over to her to present the highlights of our submission to you.

[Sarah Inness, Branch Sector Chair, National Criminal Justice Section, Canadian Bar Association]

Thank you very much, Mr. Chair and members of the committee, for the opportunity to present to you today the CBA's national criminal justice section submission on Bill C-15.

We acknowledge that this committee has heard numerous presentations already on this bill from different groups with their own particular areas of expertise. We believe we bring a unique perspective to this committee, one focused on the impact this bill would have on the administration of justice.

The members of our organization work in the justice system, including the criminal courts, on a daily basis. We have provided to you our written submission in advance, and I wish today to highlight our primary concerns with respect to this bill for you.

At the outset, I wish to state that the CBA opposes the use of mandatory minimum sentences on the basis that they do not advance the goals of deterrence; they do not target the most serious of offenders, who are already sentenced stiffly; they catch less culpable offenders, subjecting them to lengthy terms of imprisonment; they have a disproportionate impact on those minority groups who are already disadvantaged; and they subvert important aspects of the sentencing regime, including the principles of proportionality and the individualization of the sentencing process.

We point out that several factors contained within Bill C-15 that trigger mandatory minimum sentences are already listed as aggravating factors in the CDSA and the Criminal Code, which must be considered by the sentencing judge. Some of the factors triggering a mandatory minimum sentence already constitute separate criminal offences; for example, the offence of uttering threats, the criminal organization offence, or firearms offences. Some of these offences already carry with them mandatory consecutive prison sentences—for example, in the case of the criminal organization offence—and already carry mandatory minimum sentences, as for example for possession of a prohibited or restricted firearm with ammunition. The bill is silent on how these overlapping provisions ought to operate.

There appears also in this bill to be some ambiguity or confusion with respect to the reading of proposed subsection 10(5) in subclause 5(2), which indicates that mandatory minimum sentences will not be triggered when an offender successfully completes a “drug treatment court program”. The legislation as it's proposed by this bill allows for individuals to participate in “a treatment program”; however, it indicates that the mandatory minimum sentence would apply if an individual is successful in completing “a treatment program” but would not if an individual has successfully completed a “drug treatment court program”. There appears to be some confusion with respect to the distinction of the two, because both are required to be court-supervised.

We are concerned about the fact that Bill C-15 would require a mandatory minimum sentence even when the circumstances of the offence and the degrees of responsibility vary significantly. The penalties set out in the bill are also based upon arbitrary factors that do not meaningfully distinguish between levels of culpability. We offer the following examples.

For example, a young adult occasional user of marijuana who is growing ten plants for his own use and to share with some friends attracts an MMS of six months. We would say that this sentence violates the principle of proportionality and the importance of rehabilitation.

A person making a small amount of cannabis resin for use and to share with friends would be subject to an MMS of one year and to 18 months if he did so in a house that he was renting. The legislation apparently fails to address a situation in which the third party owner of the property is aware of and complicit in the use of the property for the offence.

Bill C-15 also imposes escalating levels of incarceration depending upon the number of plants an individual grows for trafficking. For instance, this bill would require an MMS of six months for 200 plants, yet twelve months for 201 plants. It is contrary to common sense and well-established sentencing principles for a person to receive double the length of a sentence for a difference of one plant.

We believe the impact upon the administration of justice of this bill, if it is passed, will be significant. Fewer people will plead guilty, preferring to contest the charges rather than be subject to an automatic mandatory minimum sentence upon pleading guilty. This will increase the length of time it takes for cases to be heard in the courts, increase the number of trials, and inevitably increase the strain on court resources. Given the significant prison terms proposed within Bill C-15, the crown should be required to prove beyond a reasonable doubt the aggravating factors triggering an MMS as well as the mens rea component of those aggravating factors; for example, the requisite degree of awareness of the number of plants, or the fact that the offence was being committed at or near a school or at a place usually frequented by those under the age of 18.

We point out the lack of a definition with respect to “in or near a school”, or places “usually frequented” by those under 18. We make the point that the crown ought to be required to prove not only the mens rea of the offence itself but also that with respect to the aggravating factor that would trigger a mandatory minimum sentence.

Bill C-15 does not adequately allow for a fair and just sentencing of those with addictions, including the need for treatment and rehabilitation. Those who sell even small amounts to support an addiction would be captured by a mandatory minimum sentence. While the bill allows for exemptions to MMS in the case of participation in drug treatment courts, we propose that participation in drug treatment courts should not be restricted as under proposed subsection 10(5) in subclause 5(2) of Bill C-15; it should be available for all offenders for whom rehabilitative considerations are appropriate. We wish to note that drug treatment courts are not available in all jurisdictions in Canada, and there are limits with respect to the entry into drug treatment courts depending upon the capacity of each individual court.

Bill C-15 removes judicial discretion. The CBA section believes that Canada's judges have a critical role to play in the operation of the criminal justice system. The judicial discretion that is removed by Bill C-15 plays an important role in crafting a sentence that balances all of the goals of sentencing and tailors individual sentences to individualized cases. Judges are well equipped to consider the circumstances of the offence and of the offender, having regard to the needs of the community where the crime occurred.

In my experience as a defence lawyer, often what happens is that the crown attorney will submit to the judge by way of facts and statements all of the aggravating factors. The defence counsel will do the same with respect to mitigating factors and won't call upon the crown to necessarily go to the strict standard of proof of those aggravating factors. The sentencing judge is then in the best-placed position to weigh all of those factors and principles and come to the appropriate sentence. Prosecutors bring to the judge's attention the facts that warrant lengthy prison terms, and in our experience, repeat offenders and serious traffickers already receive lengthy sentences, even in excess of those proposed in Bill C-15.

The discretion vested with sentencing judges ensures meaningful distinctions made in the sentencing process, taking into account varying degrees of culpability. Judges are able to impose sentences that emphasize rehabilitation, where there's a real prospect of it, and to impose lengthy periods of incarceration for those who need to be deterred. There's appellate review available for sentences that are demonstrably unfit or in which an error of law has been committed.

Bill C-15 conflicts with well-established sentencing principles. The Criminal Code sets out the purposes and principles of sentencing that are to guide the sentencing process. The codified principles already in place require a judge to weigh all of the competing considerations. Incarceration is a sanction of last resort, particularly for aboriginal offenders, who are already overrepresented in penal facilities. Section 718 of the Criminal Code requires that incarceration only be imposed when necessary. Sentences must be imposed that are proportionate to the offence and the degree of responsibility of the offender.

We know that the goals of deterrence and denunciation are already given great weight in sentencing hearings for CDSA offences. Judges have guidance from section 718 of the Criminal Code and from the CDSA in determining the venue and the length of the sentence. Judicial discretion exercised in the delicate balancing of existing sentencing principles is the best mechanism to ensure that individuals are treated fairly and justly within our system of justice.

In summary, we believe that the current legislative tools available already meet the goals of public safety and fair, proportionate, and accountable sentencing of offenders who commit drug offences.

Thank you very much.

[The Chair, Conservative, Ed Fast]

Thank you.

Now we'll start with questions.

Mr. Murphy, you have seven minutes.

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

Thank you, Mr. Chair.

And thank you, witnesses. There were some very interesting comments made about drug treatment courts, Mr. Doucette. And I know, Mr. Yost, that we're probably going to get into splitting hairs on the implications of this law. I'll leave that to my friends here.

I want to spend my time with CBA. I've been a member of CBA since 1984. I'm not beating up on you. I know that we have Law Day.

To me it's an issue of public education and awareness, because it seems to me, after coming back from out west--we had hearings out west--that a lot of this seems to have sprung from a lack of understanding of how the legal system works. That may be partially our fault as lawyers and our not explaining to the public that lawyers speak for their interests and don't always represent the whole of the community of lawyers.

Frankly, this attack on judicial discretion may be a symptom of a lack of respect for the judiciary. We certainly saw out west, in some quarters, a lack of respect for the system. You hear terms thrown around like “some defence lawyer”. We don't at these committees say things like “some cop” or “some judge”--we do sometimes, but....

People who aren't lawyers might say that the CBA section consists of defence lawyers, prosecutors, and legal academics. I've been saying for some time that we don't hear a lot of prosecutors. We know it's the Canadian Defence Lawyers association. They're the defence guys. But we have hardly ever called, in three and a half years, the prosecutors association, if they have one. They're supposed to be represented out of your tent.

Ms. Inness, you're a defence lawyer. You very capably presented the position of the defence bar.

Ms. Schellenberg, the CBA is a large tent. In an adversarial system, you can't represent all points of view, but consistently the CBA, when doing briefs, tends--in my opinion--to sort of represent the defence bar of the section. If that were made clear, maybe everyone would understand that this is really the position of the CBA defence lawyer subsection.

Maybe I could have your comments on that.

[Gaylene Schellenberg]

The broad strokes of the CBA's policy directions and principles are set by the CBA's national council, which is the equivalent of our parliament. When the CBA considers a response to a specific criminal law initiative, we refer it to the 1,200 or so members of our criminal justice section, which comprises, pretty much equally, crown and defence lawyers from every part of the country. The positions are debated, and there are sometimes differences of opinion, but generally they are able to come to a compromise position.

Generally, we do present. There have been a few bills on which we have been silent because an agreement wasn't possible. But the position we put forward is one that the crowns and the defence lawyers within the section have supported.

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

The other point I want to make, I think, is that it seems to me that the CBA slices and dices the legal aspect of any legislation, and it's not, in a sense, your file to talk about the societal or legislative aims of legislation. So when you're presented with a piece of legislation, you're going to look at it and see where the legalities are. That I understand. But very rarely are you going to get into aspects of policy, such as whether there should be more people in jail. Am I right about that?

[Gaylene Schellenberg]

No, our mandate includes improvement in the law and the administration of justice, which does allow some scope for consideration of the broader policy implications rather than just the technical analysis of the bill. So I think we take those considerations into account.

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

I'm sure it's not as broad as the average caucus meeting of the Conservative Party.

[Voices]

Oh, oh!

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

“Broad” would be a compliment.

How much time do I have? I probably took some time off by making that comment.

The last aspect was respect, or accountability. Let's call it judicial accountability. There was some talk about Darryl Plecas, who was a witness here, and the statistics, particularly in British Columbia, of very small sentences being given to repeat offenders, and talk about who keeps these judges accountable.

There is a Canadian Judicial Council. The CBA is supposed to represent respect for the system as well, or the aspect of respect for the system. Can you tell us how you think the two work together to keep judges accountable, if at all, I guess?

[Sarah Inness]

As I stated in my submission, of course we hear anecdotally about different cases, and each case is subject to its own individual sentencing process, which is why we support the important role of judicial discretion.

If in any given particular case there is an opinion that the sentence that was imposed is not in accordance with the principles and purposes of sentencing, then there is an appellate court review process where that sentence that's imposed can be reviewed. Within the common law, in cases that have applied the sentencing principles in CDSA offences, deterrence and denunciation is a principle that judges give great weight to, so there's an appellate court review of that process if there's a belief that those principles weren't given sufficient weight in any given case.

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

In short, you would see the MMS system in general as an attack on judicial discretion, which is working just fine.

[Sarah Inness]

We would say it does eliminate judicial discretion, which is working just fine.

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

Okay. Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Ménard. You have seven minutes.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

I also thank all of my colleagues for their kind wishes. I will begin with a question for Mr. Yost, from the Department of Justice.

Mr. Yost, you know how much I love interacting with you. It is a pleasure I hope never to be deprived of again.

Ultimately, my question is simple. Obviously, we have concerns as far as the definition of the word “traffic” is concerned. In order to do away with any ambiguity, I would like to know at what point the trafficking of marijuana, for example, will be subject to mandatory minimum sentences under this legislation, in its current form.