Justice Committee on May 13th, 2009

[Réal Ménard, Bloc, Hochelaga, QC]

If we are talking about treatment, that means that we have passed the prevention stage.

[Cathy Sabiston]

You did say prevention and treatment, so I was responding in that regard.

[Réal Ménard, Bloc, Hochelaga, QC]

I thought that you would be generous on my birthday, but I see that you are very strict.

[The Chair, Conservative, Ed Fast]

I thought you wanted less work on your birthday. We could have shortened the time.

[Réal Ménard, Bloc, Hochelaga, QC]

No, no.

[The Chair, Conservative, Ed Fast]

I'm just teasing you. It is your birthday.

We'll move on to Ms. Leslie. You have seven minutes. By the way, welcome, officially.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

Actually, my questions follow along the lines of those of Monsieur Ménard, so I'll follow up for him.

Thank you all for appearing, first of all. I have learned a lot from your testimony.

Going along the lines of those questions, there's $332 million for the entire national anti-drug strategy. I see, though, there's a prevention action plan, a treatment action plan, an enforcement action plan, but there's no harm reduction action plan. So there isn't one. When was harm reduction removed from the mandate of Health Canada?

[Cathy Sabiston]

It was 2007.

[Megan Leslie, NDP, Halifax, NS]

So does it then stand to reason that if you take the $30 million for prevention and the $85 million for treatment, the full remaining is for enforcement?

[Cathy Sabiston]

Numbers are dastardly little things. What I'm referring to are the Health Canada moneys only out of the $232 million. So it's $30 million for our prevention, $85.5 for the treatment action plan that Health Canada manages, and then we do have a small budget also that we contribute to the enforcement activities around drug analysis and inspections of precursor chemicals, and that's $24.4 million. So that represents about $140 million out of the total $232 million that the government announced for the national anti-drug strategy. So those are just Health Canada's numbers.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

My next question is actually for the CBA. I noticed that you end your submission by saying about the bill, “we urge that it not be passed into law”. I have a quick question for you. Do you think we should abandon it entirely or do you think it can be saved through amendments?

[Sarah Inness]

We submit that the existing legislation that's already in place, section 718 of the Criminal Code, the aggravating factors set out there as well as the Controlled Drugs and Substances Act and the important role of judicial discretion, already achieve the goals that have been identified with respect to this legislation.

[Megan Leslie, NDP, Halifax, NS]

Do you think the drug treatment courts as they're set out in this bill do anything to achieve the goals?

[Sarah Inness]

With respect to the drug treatment courts, the bill prevents entry into the drug treatment courts if any of the aggravating factors are met. Our submission on that point is that entry into the drug treatment courts shouldn't be precluded by those particular factors and that they should be left to each of the individual drug treatment courts for consideration. They have their own factors that they consider.

We also have identified our concern about the fact that there aren't drug treatment courts available in all jurisdictions, particularly in rural areas even within the provinces where they're available right now. Also, there's what appears to be some ambiguity in respect of proposed subsection 10(5), because proposed subsection 10(5) provides that for people who successfully participate in and complete a drug treatment program, the mandatory minimum sentence wouldn't apply, but if they successfully participate in and complete a treatment program, as defined in section 720 of the code, which is required to have court supervision, a mandatory minimum sentence would apply. So it would seem that when there are two different individuals who presumably have been successfully rehabilitated, one is going to be subject to a mandatory minimum sentence and the other would not be.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

I noted on page 3 of your submission you talked about the fact that fewer accused would likely plead guilty and the impact that could have on the court system. I'm thinking about section 7 of the charter and the principle of fundamental justice, that folks have the right to have a trial within a reasonable amount of time. I'm wondering if you have thoughts about whether or not the unintended consequence of this bill could be such a buildup at the court level that in fact more people will have their cases dismissed.

[Sarah Inness]

We could identify two points in the criminal justice process where there may be a result of increasing delays because of this legislation. The first would be the fewer number of people who we would anticipate pleading guilty by virtue of the automatic mandatory minimum sentence being triggered. More people might say, “I'll contest my trial; there are some issues with respect to defences, and I'd rather run the risk of having a trial rather than pleading guilty knowing I'm automatically going to go to jail.” So the increased number of trials could create a strain on the resources.

The second difficulty with the strain on the resources would come into play at the sentencing stage, where in my experience oftentimes I won't hold all crown attorneys to the strict proof of aggravating factors by calling evidence. I would say they could read in those aggravating factors, and I would talk about my mitigating factors, and we would let the judge decide.

It may be the case where more counsel now are going to put the crown to the strict proof of proving all of those aggravating factors because they trigger a mandatory minimum sentencing, again increasing the length and complexity of sentencing hearings.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

You talked about how the CBA has consistently opposed the use of mandatory minimum sentences. We want to have policy that's based on evidence, right? In your submission you talked about the Department of Justice actually coming up with this report A Framework for Sentencing, Corrections and Conditional Release: Directions for Reform, and you use a quote there. The quote is:

The evidence shows that long periods served in prison increase the chance that the offender will offend again.... In the end, public security is diminished, rather than increased, if we “throw away the key”.

I'm was hoping you could elaborate a little bit on that.

[Sarah Inness]

What we know about offenders who go into penal institutions is that in terms of the resources available for rehabilitation, there may be less depending on the penal institution, depending on how far the person might be from their family in terms of where they're incarcerated. And it interrupts what might otherwise be a rehabilitative process in the person's life with respect to employment. In the end, it increases the likelihood of re-involvement, as we state in our submission.

[Megan Leslie, NDP, Halifax, NS]

So re-involvement and bogging up the court system, so far.

[The Chair, Conservative, Ed Fast]

A quick question, very quick, and a very quick answer.

[Megan Leslie, NDP, Halifax, NS]

Quick question: do you have any thoughts on constitutionality when you take into consideration section 718.1 on proportionality and section 12 about cruel and unusual punishment? Do you have any thoughts about constitutionality?

[Sarah Inness]

Well, any piece of legislation, obviously, would be subject to potential arguments on whether or not it's cruel and unusual punishment, but we've identified the primary legislative difficulties we have with respect to its implication. Any legislation has to comply with section 12. That would be a determination for the court to make.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Yost, I think you indicated you wanted to respond to one item regarding drug treatment schemes.

[Greg Yost]

As I understand it, my capacity is to make technical remarks here as to how things work. Perhaps this will help assist the committee. This is the point raised by the Canadian Bar Association with respect to being allowed into a treatment program. The drug treatment program, if you read the section, lists six of the seven aggravating factors. If you have any one of those—in a school, criminal organizations—you're not allowed in. The only one that allows you in is if you've had a previous conviction for a serious drug offence. It's very tailored for the person who's doing the trafficking and continuing to traffic, probably to support their own habit.

The second one is wide open to any kind of treatment program. It could be anger management, who knows? Presumably it's a drug treatment program in these circumstances. The theory, at least, is that the person in the second one—perhaps he has one of those other factors that was involved, the criminal organization or whatever—will still face the mandatory minimum, but presumably if he completes the course, the judge will drop the sentence somewhat to show he's made some progress. That's the theory of how the two work together.

[The Chair, Conservative, Ed Fast]

Okay, thank you.

We'll go to Mr. Rathgeber. You have seven minutes.