Joe Comartin

[Truth in Sentencing Act, June 5th, 2009]

Madam Speaker, we are confronted with an interesting phenomenon in this piece of legislation. It seems fairly straightforward. It is a very small piece of legislation. There are really only two sections to it when we actually analyze it.

What it does is bring to the fore a debate and an analysis that we as parliamentarians should be involving ourselves in to a much greater degree than we have up to this point.

The reason we have not done so up to this point with the government--and I would have to be critical of the prior Liberal administrations over the last decade or so--is that we are confronted with this reality: we have declining crime, but increasing populations in our prisons, both at the provincial level and at the federal level.

Another phenomenon that I think very few members of this Parliament understand is the shift that has occurred over roughly the last 10 years in the number of people incarcerated in pretrial detention centres, as opposed to those who are incarcerated after sentencing, whether at the provincial level or at the federal level.

The ratio of the pretrial, pre-sentencing, custodial population and the post-sentencing population has reversed itself. It used to be roughly two to one; that is, one-third of the population in incarceration in this country at any given time would be in pretrial custody, and two-thirds would have been incarcerated post-sentencing and would be in our federal prisons. I want to be clear that I am only talking about the adult population.

We have a provision within the Criminal Code that allows our judges, as a sentencing guideline, to take into account the pretrial custody period of time, and the conditions, in sentencing after conviction.

Over a period of time, as the number of individuals in pretrial custody shifted to such larger percentages and a corresponding deterioration occurred in the conditions in those detention centres, a practice grew up in our courts--and this is true at provincial court levels across the country, in the territories and at the federal superior court level--for the judges to begin universally granting credit for that pretrial custody in excess of a one-to-one ratio.

In fact, by the time this bill came before this House, it was fairly common for credit to be given--on average, for all sentences--at close to a two-to-one ratio. Actually, as we heard in the committee, it is somewhat less than two, but it is right around there.

Then in some extraordinary cases over the last two or three years, we also had the phenomenon developing across the country of credit being given at a three-to-one ratio. The reason for that was not only the basic humanity of our judges, but also our international obligations: as a nation, we have signed on to protocols to treat our prisoners in a humane fashion in both pretrial settings and post-sentencing settings.

One of the specific provisions in those international protocols is that prisoners serve their time in cells that are designed for one person and that have only one person in them. What has occurred in both the pretrial custody setting and more and more in the post-sentencing setting is that we are finding people in ratios greater than one to one in the cells. As often as not, it is three to one, and in some cases it is four to one.

I am going to concentrate my remarks on some of these detention centres, because this evidence was before our courts on a regular basis. Some of them are very old, there is no programming in terms of any education and sanitary conditions generally are poor. We can go down the list.

As the judiciary across the country heard evidence on this in individual cases, the practice of granting two-to-one credits became very common. It was almost universal. It was not mandated by any statute, whether our corrections statutes or the Criminal Code. It is certainly not in any sentencing guidelines in the code. It was simply because judges, on an individual basis, knew how bad the conditions were in the detention centres where they were placing people.

That was all about the judiciary trying to send a message to the political level of government, the administrative level of government, that they had to do something about this. We have signed on to these international protocols and have the responsibility to treat prisoners humanely, and we are not doing it. That is really the message that was going out.

The message that was received was that judges were just going off on their own and playing around with this. I have heard sometimes offensive comments from legislators at both the provincial and the federal levels attacking our judiciary, believing that somehow they were granting two-to-one and three-to-one credits just on whims.

That is not the reality. We have an excellent judiciary. I have said this in the House before and I am going to repeat it again. If we do not have the best judiciary in the world, there are none that are better. That is true whether we are at the provincial court level or at the federal level of judicial appointments.

They do not do this on a whim. For the better part of a decade they have been wanting to send the message to the legislators that we are not getting it, because we are not deploying necessary resources. Not only are we not deploying the necessary resources to clean up the pretrial detention centres, but at this federal level of government, in this chamber--and this has been true of not just the Conservatives, although they may be going a little faster than the Liberals--we are consistently going quite rapidly toward increasing the number of charges that would result in jail times. We are also increasing the length of time that people are spending in jail.

The result is that we have this backlog in our courts, as more and more defendants are not pleading guilty. We have rules that are developing that require greater disclosure. That again is justifiable in terms of a fair trial, but it is taking longer for cases to get through, so we have this growing population, now at almost a two-to-one ratio, in pretrial custody in conditions that by international standards are not humane. Our judges want the legislators at both the provincial and federal levels to do something about that.

Instead of doing something about it--instead of deploying added resources or perhaps using other mechanisms, such as community programming, to divert prisoners from lengthier sentences--what we do is respond with this piece of legislation, in effect saying to the courts that we do not trust their judgment on how to handle pretrial credits.

This bill really is quite disrespectful to judges in that regard. It says that we are going to impose mandatory requirements. If this bill goes through--as it almost certainly is going to, because the other three parties are clearly going to support it--we are going to mandate only one-to-one credit as the standard. The effect of that is to lengthen the time people will spend in post-trial custody.

In circumstances that are justifiable, the bill will allow judges to go to 1.5-to-one credit, even though, as I said earlier, the standard across the country is now closer to two to one on average.

I was very clear in committee to try to get this information. There are no additional resources being planned to assist the provinces because all the pretrial detention centres, with very few exceptions in the territories, are operated by the provinces. There is absolutely no plan on the part of the government to provide the provinces with additional resources for better quality settings for pretrial detention centres. The conditions will remain as they are and get worse at the pretrial level.

We heard from lawyers who appeared in committee that we inevitably would be faced with a charter challenge. We are not in keeping with the international standard on to which we have signed. We already know what the standard is. It is not like we can argue we are close to it. We are not and we know that. The standard is a very clear one at the international level. That is offensive to the section 12 of the charter, which requires us not to provide for cruel and unusual punishment, and it amounts to that.

If we proceed with this, all we will do is provide the scenario or circumstances for a while. I think the courts will do what they can to provide the 1.5 credit because the circumstances will be bad enough to do that. Inevitably, there will be a charter challenge and I have believe that challenge will be successful.

If a charter challenge is successful, there has to be a result to that. There has to be a diminution on the part of the court to compensate for the charter breach. We then are going to find and more and more judges making a finding of a charter breach and releasing more and more prisoners from custody. I do not find any appreciation on the part of the Minister of Justice of this.

Judges will provide bail when they would not have otherwise or they will release them, maybe even dismiss the charges because of the breach of the charter, specifically section 12, cruel and unusual punishment. That is coming down the road. All this bill does is hasten it coming.

I want to be quite clear about this. Even if we do not pass the bill, that will probably happen, unless the federal government provides additional resources to divert or build more prisons. Again, there is no indication that it will do that.

I want to talk about another consequence of the legislation. Maybe one has to have practised law for a while to appreciate the reality of this. If this goes through as proposed and the courts can grant, in justifiable circumstances, an extension from the 1 to 1 credit to the 1.5 to 1 credit, much more evidence will have to be presented to the court. Even if there is a guilty plea, instead of sentencing taking on average—

[Truth in Sentencing Act, June 5th, 2009]

Madam Speaker, I have a comment that is not too harsh. It is a small criticism directed at the Bloc and its support for this bill.

The information obtained by the Standing Committee on Justice and Human Rights indicates that there is not enough room for inmates in provincial and federal prisons. As far as I know, the Bloc likes to portray itself in this House as the protector of the interests of Quebec and its citizens. Having said that, we know that in Quebec, as in all the other provinces, the jails are full and there is no money to expand them.

I ask my Bloc colleague, is it not irresponsible to support this bill, because it will increase the number of inmates in the province of Quebec and in all the other provincial and federal prisons?

[Truth in Sentencing Act, June 5th, 2009]

Madam Speaker, I take issue with my friend on that last point. We do not know only from prisoner advocates or the defence bar, we know from Correctional Services. I know my friend wants to leave, but I have to pin him down. We know from Mr. Head and Mr. Sapers, who is very directly involved, that we have overcrowding. Mr. Head told us at committee that we had a huge number of cells designed for one inmate, in which two and, more and more often, three inmates were in them.

We also know that the justice minister came before our committee. When I asked him a question about the capacity in our prison systems to handle the additional inmates, he said that he had talked to the public safety minister and gave the assurances that we had the capacity to take additional prisoners. That was before Mr. Head, the real person who knows what is going on, because the Minister of Public Safety does not, came before us and said that we did not have the capacity. As much as he tried to be diplomatic about not contradicting his minister, he said that we were overcrowded already, that we had large numbers of cells holding two inmates, which are only designed for one, and that we had a large number of cells in which there were three inmates, and that was getting worse.

I come back to my friend from Moncton. If we have that kind of ignorance level on the part of the government, on the part of the minister responsible for corrections, what hope do we have if we pass the bill and we have that increase in population? I am not talking programming. I am talking about physical space to handle these prisoners. What assurances do we have, what sense of hope do we have that the government is going to do anything about increasing the number of prisons in the country?

[Truth in Sentencing Act, June 5th, 2009]

Madam Speaker, I agree with the member for Moncton's analysis of the current system in corrections. He did not make much reference to the provincial level, but it is certainly the same at the provincial level. It is overcrowded. We certainly do not have anywhere near the resources to provide the necessary programming to ensure, as much as possible, a reduction in recidivism by inmates leaving the system once they have served their time.

I want to ask my colleague on the justice committee whether he does he not see a fundamental flaw in his argument in support of this bill. From a practical standpoint, the Liberal Party, and the Bloc as well, should not be supporting the bill at this time in light of the lack of resources in the system to deal with the inmates who are already there.

I think he agrees that inevitably the number of inmates is going to go up as a result of this bill and others that are in the works or that have already been passed. We have not seen the growth in the inmate population yet, but it is coming and to quite a significant degree. We know that the judges do not like giving more than equal time for pretrial custody, but they feel compelled to do it because of the standards in the pretrial custody.

Is it not irresponsible on the part of the Liberals and the Bloc to support this bill until such time as we have a very clear commitment and actual implementation of those additional resources by the government?

[Justice, June 5th, 2009]

Mr. Speaker, there is a very specific provision in this order, and quite an unusual one, but it is a reflection of how badly this file has been bungled by the government. It requires that Mr. Abdelrazik be back before the Federal Court by the first week of July.

That is not a long time to get the arrangements made. Has the government begun to do the work on it, even if it is going to appeal?

[Justice, June 5th, 2009]

Mr. Speaker, the government's refusal to repatriate Mr. Abdelrazik is a violation of the Charter of Rights.

According to the RCMP, CSIS and the Federal Court, he is not linked to terrorism. Even if the government decides to waste public money by appealing the ruling, it should do what it takes to bring Mr. Abdelrazik home immediately.

Have Foreign Affairs officials begun preparing the documents to bring him home right away?

[Controlled Drugs and Substances Act, June 4th, 2009]

Madam Speaker, there is no question, the answer is yes. One problem at the provincial level is the sentencing is usually of a relatively short nature. Because they have so little programming, hardly anybody gets any treatment at the provincial level.

At the federal level, we find it is quite usual, even in lengthy sentences of more than five or seven years, that people do not get treatment with those kinds of conditions until the last six months or a year. It is not long enough, and we know that.

I want to make one other point. About three years ago, a member from the Correctional Service Department came before the public safety committee come forward and said that more than 50% of all the people incarcerated that year were suffering from not just mental health problems, but severe psychiatric level mental health problems and that they should not be in our prisons, but in psychiatric institutions, where they would get daily treatment for their severe conditions. We are not even touching that group at all, and they eventually get out.

[Controlled Drugs and Substances Act, June 4th, 2009]

Madam Speaker, my colleague from Scarborough—Rouge River and I have worked on a number of justice issues. I know he has identified this as a point, as has his colleague from Mississauga.

I wish I could share their optimism. I think there are attorneys general across the country, much as in the ideological bent of the Conservative government, who will give directions to the prosecutors at the local level to give notice that they will be attempting to use the mandatory minimums on a regular basis. We hear that they will only use it when they are going after the top end of that pyramid, about which I talked. I am not that optimistic this will happen.

[Controlled Drugs and Substances Act, June 4th, 2009]

Madam Speaker, let me do it in the reverse order.

First, I have already indicated in my speech that the use of the bill to deal with the date rape drug Rohypnol is one we would support.

As much as my colleague from Vancouver East and I have some disagreement over this, I at least would be willing to support the continued use of the drug courts as means of diverting people from the correction system. There are parts of the bill that we would support.

Where the fault lies in the bill is that it is a bit of a camouflage for what it really does, which is increase the use of mandatory minimums in the drug prosecution area. It does not work and it will have such dire consequences on the judicial system, the criminal justice system and the corrections system. It does no good to move that way. It is a gross disrespect for our judiciary as well.

The member made the points about drugs being sold around schools and other places where there are children and where drugs are sold and a gun is involved. Our judges are giving sentences that are appropriate for that type of conduct, but it is typical of the government, all the way up to the Prime Minister. We have seen how disrespectful he is to our judiciary. The Conservatives know they are being disrespectful and they are intentionally being disrespectful. However, they have absolutely no studies to show that in a factual situation when people are convicted of selling drugs in schools that they will get a penalty that is at least as high as the mandatory minimum that they put in. They have not done any studies on that whatsoever, but the evidence would show that.

[Controlled Drugs and Substances Act, June 4th, 2009]

Madam Speaker, when I was preparing notes for today, I began thinking about my experience when I was at university, in law school in Windsor, the best law school in the country by the way.

In that period of time, prior to the Charter of Rights and Freedoms being brought into play in Canada, there was a sentencing provision under the Criminal Code that if someone imported any drug, there was a mandatory minimum sentence of seven years.

In this period of time, the mid-1960s, late 1960s and early 1970s, being across from Detroit, Michigan, a great deal of personal use of marijuana was going on. Quite regularly, people would be moving back and forth across the border. It is the most active border in the world, actually, certainly in North America. Families and friends were moving back and forth. They were shopping on both sides of the border. There was entertainment and recreation on both sides of the border.

People were regularly being caught and accused of possession of marijuana and of importing it into Canada. Then they were automatically exposed to a sentence of seven years. There were a number of those sentences imposed. Fortunately, in most cases our prosecutors had the good will and the good sense to drop those charges. If the prosecutors moved at all, they would move on charges of simple possession. However, what happened was that a good number of people's lives were ruined, people who were sentenced to prison for seven years for what was a simple possession of marijuana.

That ended shortly after the charter came into effect. Our courts simply said that the consequences and the penalties were so disproportional that it amounted to an offence under section 12 of the charter in terms of it being cruel and unusual punishment. So that section was struck down.

Now, some 35 years later, we see the government taking us back to that type of era. Maybe that makes them feel good as Conservatives, but it certainly does not make for good public policy.

What we are going to see, although none of the penalties in Bill C-15 are as severe as seven years in terms of mandatory minimums, is a substantial abuse perpetrated on people who are drug abusers and those who are trafficking in marijuana at the lower end.

From the evidence we have heard repeatedly from our police forces, including the evidence we heard in the committee hearings for this bill, we know that the vast majority of people who are going to be caught by this legislation, who are going to be imprisoned for mandatory minimum periods of time, anywhere from six months to three years, are by and large users of drugs, whether marijuana or stronger drugs, who have gotten caught up in the whole cycle, the whole under-life of the drug trade, and who are in fact trafficking in order to feed their habit.

I think it is appropriate that we think about and understand how organized crime has taken over, almost exclusively, all of the drug trade in this country, and to a significant degree right across the globe. We have to see it as a pyramid, a very large-based pyramid with a very small, fine point at the top. The kingpins and the ones who really make the money off the drug trade are the very small numbers at the top, and then there is this huge base below.

Although we hear from the government that the intent of Bill C-15 is to target the traffickers and that little group at the top, the reality is it will not do that. We know that beyond any shadow of a doubt because exactly the same type of approach was taken starting 20 to 30 years ago in the United States. We have gone through a whole generation using this approach. The intent was the same, that is, to go after the kingpins, the real leaders, the ones who really make the money off the drugs. What happened and what continues to happen, other than in those states that have begun to repeal those laws, is that it was the base that was caught. It was the base that was imprisoned for extended periods of time. It was the base that overloaded the prisons, which took money from other social programs and dumped it into the prisons because it was the only way to keep up with the need.

As we heard, there are some small parts of the approach in Bill C-15, such as the date rape drug change, and moving those drugs into a controlled substance list in order to be better able to try to control it, that in fact would gather support from ourselves and I believe from the Bloc Québécois.

This bill really is about ideology from the Conservative government. It is about an ideological belief that if the government throws all this weight behind a punitive approach to controlling the drug trade, it will be successful. It is glossed over to some degree by saying, no, the government's intent is to go this way, but the reality is the government knows it is not going to work. The Conservatives have absolutely no evidence to show that this will work and they have overwhelming evidence to show that it will not work.

When we hear the demagogic comments from the member from Fort McMurray about victims and when we hear other Conservatives in this debate stand and talk about victims, it is shameful they are taking that approach. It is shameful the way they have conducted this campaign in the last number of elections because they lead the Canadian public, who are victims of organized crime, to believe that this is a solution. That is dishonest. It is totally out of keeping with what we know about how to deal with the drug problem. They continue to perpetuate that and that is shameful.

We know if we are going to deal with the drug problem, much as we dealt with alcohol abuse in terms of impaired driving, and much as we dealt with the campaign to try to reduce the consumption of tobacco, there are alternative methods, there are alternative programs that in fact are effective.

If we approach this as we in the NDP have argued, that the government look at prevention, that it look at enforcement, and only then go to the punitive, it would be effective. I can point to any number of countries around the globe that use that methodology to reduce drug consumption. In fact, even in those countries, there is an argument to be made that they could be doing more and be more effective in reducing it.

We can look at what has been done in this country to combat the consumption of tobacco and how effective that has been. The consumption of tobacco in this country has dropped from close to 50% at its peak, down to around 16% or 17% now. There is no reason to believe that we could not do the same thing with the consumption of illicit drugs and, in particular, with the consumption of marijuana and cannabis.

Then we look at what in fact is done. We spend this huge amount of money on enforcement and the punitive end, in terms of corrections in particular, and so little on the preventive end. In that regard, I want to draw to the House's attention what happened in the United States. In 1986, when the Americans began at a national level using mandatory minimums on drugs, the Federal Bureau of Prisons was expending $862 million for corrections, just at the federal level. Each state also has its own prison system. Just two years later, the amount jumped to $1.2 billion. Five years later, in 1991, it was $2.1 billion. In 2010, for the coming year, the request is for $6 billion to be spent on corrections. Over that 20 year period, if my math is correct, it has increased by a multiple of about eight.

We are going to see the same pattern here, although I have to say that the provinces are going to bear the brunt of it. As I said earlier, most of the mandatory minimums getting at that base are going to be in the six-month to 18-month range. All of those sentences, based on our relationship with the provinces, are spent in provincial prisons.

I want to emphasize what happened in the United States as the Americans moved mandatory minimums in at the state and federal levels. We heard evidence at the committee on this bill that in New York State, for every increased dollar that was spent on prisons and corrections in that state, a dollar was taken out of education in that state. There was a direct dollar-for-dollar correlation. Again, we have every expectation that is what is going to happen in Canada.

Because we will have to build additional prisons and increase the number of staff in the existing prisons, we are going to be looking at a shortage of tax dollar revenue for other social programs. Whether it be education or health, the dollars simply are not going to be there. That is particularly true given the current fiscal crisis and the economy overall.

There is another point I want to make about this. It was interesting to listen to the member for Mississauga South in terms of his analysis that this bill was somehow not going to do anything. Quite frankly, I hope he is right. I hope we do not see a significant influx of new inmates in our provincial and federal prisons. I have to say that I do not share that optimism. I believe we are going to attempt to enforce the terms of this bill right across the country in all the provinces and territories.

When we do that, we are going to see, in my estimation, increases at the provincial level of at least 10%, and it could be as much as 25%, in the incarceration rate in our provincial prisons. It will be less than that at the federal level. I can say this because we just had evidence as recently as a week ago in front of the justice committee of the impact that other legislation is going to have on the increase in population.

In spite of assurances from the Minister of Public Safety, the reality is that every one of our federal prisons is over-occupied already. We just had confirmation of that yesterday from Mr. Sapers, who is the federal Correctional Investigator. He said that any increase of any substance in the prison population at the federal level is dangerous. We do not have enough programming now.

We heard in front of the justice committee a week or so ago on another bill that we already have, in every single prison in this country at the federal level, cells that were designed for one person regularly over-occupied by a second person. We are at the stage where there are three inmates in cells that are only designed for one and that will continue to increase, not only because of this bill, although this is probably going to be the most significant one, but others the government has introduced.

In spite of what we heard from the member for Fort McMurray—Athabasca that more prisons are being built, that is absolutely false. There was not a dime for new prisons at the federal level in this year's budget or last year's budget. There was an increase in spending simply to deal with inflation, but there was not a dime for new cells. As we continue to overload the prisons, we are going to see cells with three inmates when there should only be one.

We are at a stage where we are so far behind in international protocols that we have signed onto in terms of the occupation in our prisons that we are probably going to be faced shortly with a charter challenge. That is going to mean perhaps a number of prisoners being released earlier. It is certainly going to affect the sentencing and what our judges are going to do if that case ultimately goes ahead and is successful.

This bill will just lop on a whole bunch more new inmates. We come back to the argument that if we do that, at least we get them off the streets for a while. I have heard that repeatedly from the Parliamentary Secretary to the Minister of Justice at the committee. What we also heard repeatedly at the committee from police agencies across the country is if we take the person off the street, because organized crime has so much control over the drug trade, that person is simply replaced by someone else immediately. That is a phenomenon which is not unique to Canada; it is true right across the globe. If organized crime is involved in the activity, the person who went to jail is replaced by someone else immediately. It does not reduce the trade in drugs in this country one iota, not at all.

We have a policy that is going to increase the number of inmates. We have a policy that is going to cost a huge amount of money. It is not just the corrections systems. What is going to happen to legal aid? What is going to happen to the judiciary in terms of the number of judges we are going to need?

When faced with a mandatory minimum, people do not plead guilty. They may try to make a deal to get it dropped, but they do not plead guilty. Already as much as 50% of the cases in our courts are drug related. That is going to increase dramatically in terms of time consumption because people are going to stop pleading guilty, or if they do plead guilty, it is because the mandatory minimum was dropped. Therefore it makes the bill ineffective.

If the courts are going to continue to push for the mandatory minimum, which I believe they are going to do, the time consumption is going to go up dramatically for these cases. We are going to need more judges, more prosecutors, more police to be in court for longer periods of time. There has been no budgeting for that either.

There is a boycott right now in Ontario of the legal aid system because of the low rates that are being paid and it is the most extensive plan in the country. We are faced with that as another problem.

My colleague from Skeena—Bulkley Valley talked about unintended consequences. I would like to believe that the Conservatives do not know about these unintended consequences, but we told them. Our political party has told them. All sorts of experts have told them. The Conservatives are so ideologically driven that they are going to go ahead with the bill, and to the shame of the Liberals, they are going to support them. I cannot understand what the Liberals are doing, other than for straight partisan politics and not wanting to be seen as weak on crime. It is bad strategy on their part. It is bad for the country.

In summary, this is a bad bill. It is bad public policy. It is not going to do what it is supposed to do. It is absolutely useless and we should all be voting against it.