Madam Speaker, this is a subject on which I did not initially intend to speak, but because it relates to a significant part of my life experience, I have decided to speak to it.
When I started working as a young crown attorney in 1966, I had never heard of marijuana. It was at just about that time that it started to be seen in Canada.
In 1967 I was offered a position by the federal government as a federal crown attorney. At that time, only the federal government handled drug prosecutions. Obviously, I was informed of the dangers of drugs and so on. I will not go into details on that. The law at that time was extremely harsh for anyone who imported marijuana. Importing marijuana was subject to a minimum sentence of seven years’ imprisonment. I have heard people say in this House that no one ever received that sentence, but that is not true, people did. When I later worked for the defence, I defended clients who were sentenced to seven years for importing marijuana.
Minimum sentences like those create injustices, which I will address a little later. However, one thing is certain: from 1966 to 1986, marijuana use rose significantly. At that time, as well, cannabis, the plant from which marijuana and hashish is obtained, as it was grown in Canada, had no hallucinogenic effect. More specifically, there was no delta-9-tetrahydrocannabinol in the cannabis that grew here. That situation has changed, and it seems that excellent cannabis is now being produced in British Columbia and Quebec.
So all the marijuana smoked starting in the 1960s and up to the 1980s was imported. Why was it that people faced minimum sentences like that? Certainly, at one point, there were so many that it was considered to be unreasonable, and deals were made with crown attorneys so that instead of marijuana importing charges they laid possession for the purposes of trafficking charges, for which there was no minimum sentence. That is one of the consequences of a bad law. I am certain that this law is just as bad in terms of the minimum sentences it provides, and that is why I am speaking to it.
As I have said before, bad laws make fortunes for good lawyers. You have to go and see lawyers to get out of the mess you are in. Bad laws lead to plea bargains. And justice is not done as it should be, by a judge who hears both parties; rather, it is administered behind closed doors. The practice became that laying possession for the purposes of trafficking charges would be laid rather than laying charges for importing.
And one day I did push the envelope. I had a client who was coming home from Morocco. Because she was fond of smoking hashish and found that it was cheap over there, she acquired some for her personal use and brought it back to Canada. So she was charged with possession for the purposes of trafficking, when clearly it was for her personal use. So I chose to try the case before a judge and jury. The Crown obviously understood that the jury would probably find that it was for her personal use, and asked me how I could risk having my client get seven years in prison and argue something like that. Ultimately the case was resolved with a non-custodial sentence, but on principle the charge of possession for the purposes of trafficking was retained. That is the kind of horse-trading that enforcing bad laws results in.
So we have overwhelming experience to show that minimum sentences produce no results. First, no one knows what these sentences are. Who in this House can tell me how many offences in the Criminal Code are subject to a minimum sentence?
There are 29. Here again, I know this only because I have just read it in one of the studies I consulted. I had heard there could be as many as 100 or something like that. I read it in a study by the Department of Justice. Who would know the fine details if we do not even know the number here? Can we expect the public to know?
Experience shows that indeed the minimum sentences are not known. That is the second reason. The third is that some understanding is required of the mentality of people who decide to break the law. In our discussion of the deterrence effect of sentences, we are reasoning as honest individuals with little fear of receiving a sentence if we break the law. We respect the law because we are educated and because we are aware of the damaging effects of criminality. We are also aware of our reputation.
However, I have practised criminal law all my life and went on to became Quebec minister of public security and minister of justice. I have always noted that a criminal generally does not calculate the sentence he will be given if he is ever caught committing a crime. He wonders what the chances are of his being caught. I am talking of a criminal who is calculating. A lot of crimes are committed on impulse, for revenge, through drunkenness and so on. Drunkenness will not put you on the road to good behaviour.
When we give it some thought, we realize that minimum sentences are of no value. We know from experience that minimum sentences are of no value. Studies worldwide have found that minimum sentences were of no value.
Before I move on to this study, I would like to mention one other terrible thing caused by minimum sentences. It is generally the most serious cases that come to mind when we think of minimum sentences. We think there should be a minimum sentence at least. We forget, however, that there are accomplices in many criminal adventures. People are drawn into committing a crime through friendship, family ties, the influence of other young people and all sorts of other reasons. It must be understood that a minimum sentence severe enough for the most serious cases applies as well to the least serious. That obliges judges to hand down sentences they consider unfair.
It must be understood that a minimum sentence can occasionally, but still significantly, be a provision obliging a judge to commit an injustice even though he is satisfied after hearing the case that the sentence is unjust.
I had a really striking example in my practice. While I was practising criminal law, I met a young woman who had been seduced by someone at a difficult time in her life. She had had a major accident, and her husband had abandoned her. She finally met an American, who was kind, educated and very attentive.
At some point, he told her that he would have to leave but would return. She began getting mail from him. She was getting what looked like books. The man warned her not to open the books because he had to take them to the public library himself at the time. She understood that something was not right. She said on the phone, because he was under surveillance, that she did not like what he was sending. He finally convinced her to keep the books. She kept the books, which contained drugs, until he came back and gave them to him.
Both were convicted of drug trafficking. If hon. members were the judge, would they agree to give both these individuals the same sentence? That is what happened: seven years each. This sense of justice is disgusting to us. It deprives judges of the possibility of taking into consideration personal motives, not only objective ones but subjective ones as well, in their sentencing.
Here we have another example that shows that minimum sentences are useless: the death penalty. If there is one serious sentence, it is the death penalty. And since the death penalty has been abolished here, we have seen a gradual decrease in homicides in Canada.
Now, and this is astonishing, the minister had with him a study on the effects of minimum sentences. I have a few quotes from that report, and they are very significant. This relates to another point I wanted to raise. I keep hearing the Conservatives talk of the principle of “tough on crime” with respect to minimum sentences. On this side of the House, we do not talk about “soft on crime” but rather “smart on crime”. Let us give appropriate sentences and then we will be effective against crime.
The U.S. is tough on crime. So tough that they imprison people seven times more often than we do. Are we seven times safer when we go to the States? Certainly not: in the United States people are three and half times more likely to be victims of murder than in Canada. Yet, proportionally, there are seven times more people in American prisons than here.
So the reason the Conservatives want to impose minimum sentences and show they are tough on crime is because it is popular. One needs a certain degree of courage and a certain degree of intelligence—I would say sometimes the courage of one's intelligence—to go against popular opinion. It is definitely popular. In fact, in the study the Minister of Justice had access to when he drafted these measures, we can read the following:
When surveys pose a general question about mandatory sentences of imprisonment, polls reveal strong public support for the concept.
I even remember the figure was 88% support.
However, when asked about specific cases, there is far less support among members of the public for restricting judicial discretion at sentencing. The most recent polls conducted in Australia and the United States demonstrate that public support for mandatory sentencing has declined in recent years.
Finally, we are beginning to follow the Europeans in realizing that it is pointless. The report also states:
Although mandatory sentences of imprisonment have been introduced in a number of western nations, few jurisdictions have evaluated the impact of these laws on prison populations or crime rates. The studies that have examined the impact of these laws reported variable effects on prison populations, and no discernible effect on crime rates.
So this study showed that mandatory sentences had no effect. Few studies have addressed public knowledge of statutory minimum penalties. Fortunately, the surveys that exist on this issue have generated the same findings: the general public has little knowledge of the offences that carry a mandatory minimum penalty, or of the magnitude of the statutory minima.
I would urge the Conservatives, who are forever telling us to talk to our constituents, to ask their own constituents whether they are aware of the minimum sentences prescribed for these crimes. They will see that not many people are aware of them. England conducted such a survey.
The justice department report states:
In 1998, members of the public responding to the British Crime Survey (BCS) were asked if they were aware of the mandatory minimum prison term of three years for offenders convicted of burglary...Even though this mandatory sentence had been the object of considerable media attention, less than one quarter of the sample responded affirmatively. This finding is consistent with earlier research in Canada that found that very few members of the public had any idea which offences carried a mandatory sentence...
The reference given is Roberts, in 1998.
I have found the 88% figure I mentioned earlier. I do not have very much time, but I could give many more examples. There is another thing that strikes me. When the Conservatives talk about increasing sentences, do they look like people who are getting ready to make considered, appropriate, intelligent decisions? No, they crow about what they are doing. They are going after this because it will bring them votes and because that is what they are hoping for.
But we have news for them, because apparently in many countries, including the United States, although support for mandatory minimums used to be very high, it is now diminishing to the point that, as mentioned by the previous speakers, certain American states are now backtracking on them. I too am struck by this kind of applause and argument.
I find myself scandalized by the continuing message from the present Justice minister, who seems to take it for granted that to get tough on crime is the only answer. It is the only answer for him. He should be very familiar with the situation on the ground. He should have a little more respect for people. Perhaps I shall never convince him, and I honestly think he believes what he says. Still, he should realize that other people think the opposite, and that those people, when they think the opposite, know that they are taking a position less popular than his own.
If those people are taking such a position, it is because they know things, because they have studied the subject, because they see the scientists, the criminologists, who write on the subject and explain why this accomplishes nothing. These people have the courage of their intelligence, and it seems to me that the minister should show a little more respect when he is exploring whether we should be “tough on crime” or “soft on crime”. He should do this for the people who are opposed to his position, who have the courage to adopt positions that are based on knowledge.
In summary, then, I believe from experience that mandatory minimums solve nothing, because generally people are not aware of them. Mandatory minimums do nothing because, before committing a crime, an offender does not calculate the sentence he will receive if he gets caught: mainly he calculates whether or not there is a risk of getting caught.
Mandatory minimums are what have affected me the most as a lawyer who has spent more than 30 years in criminal law. I have been practising criminal law since 1966, which is a long time. Actually, it is more than 40 years. I am aging faster than I think.
These provisions cause judges to commit injustices. Having examined all the pertinent factors they must consider in deciding on a sentence, judges feel forced to hand down a sentence they do not agree with, and are obliged to do so by the law. This also causes them to commit injustices when several accused before them have taken part in the same criminal conspiracy that carries a minimum sentence and they are unable to hand down different sentences proportionate to the gravity of the offence.