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.