Hon. George Baker:

Honourable senators, I strongly recommend referring Bill C-15 to committee. The bill is important to the government and is highly controversial.

I congratulate senators on both sides of this place for the magnificent job that they continue to do in their respective committees. As honourable senators know, I have been keeping a running tally of the number of times that Canadian courts have used Senate committee proceedings as references in their court cases. The number of references remains consistent: Senate committees are quoted 75 per cent more often than House of Commons committees are quoted in Canadian courts.

The analysis is easy to do with access to Quicklaw and WestlawCarswell electronic search engines. It requires simple entries of the Senate committee names and the House of Commons committee names resulting in a display of the references to all reported cases. That includes not only the provincial courts, supreme courts of the provinces, courts of appeal and the Supreme Court of Canada but also all boards that are adjudicative panels and quasi-judicial tribunals.

The websites locate every single tribunal that makes a decision that incorporates something into law, whether passed here or by a province. Over the past 15 years, the results have been consistent. When experts provided evidence or when judges made determinations, Senate committees were quoted 923 times during the past 8 years compared to 443 times for the House of Commons. That is an incredible display of just how important the Senate standing committees are compared to those of the House of Commons.

As honourable senators know, I spent 29 years and 9 months in the House of Commons, where I sat on practically every committee. I can attest to the fact that the Senate committees are referenced by our courts and by our tribunals simply because honourable senators give sober second thought to legislation. Activities in the House of Commons committees are primarily pure politics. Certainly they have an idea of the issues but their main concern is being re-elected. The main concern of honourable senators is for the next generation and the proper passing of laws.

New members of the Senate should listen carefully when someone asks what does the Senate do. Could we not do away with the Senate and just have the House of Commons pass our laws?

In the past session, the past year or year and a half, one bill came to the Senate that every single political party in the House of Commons had voted for. We saw one section — and it was a member of the Conservative Party who saw it and said, no, this is wrong — that would have released all the birthdates of everyone who is on the voters' lists in Canada.

Honourable senators can imagine what would happen if that information was released. It would be a gift to all those people who are looking for ways to bilk our seniors out of money. We saw the problem in the Senate, and we amended the bill.

Some people would say honourable senators should not amend legislation, especially when all parties passed it in the House of Commons. They would ask honourable senators why they were second-guessing the elected members of the House of Commons.

Honourable senators, that is precisely why we are here. The Senate provides sober second thought.

An even worse situation, for the information of new senators, is a bill that was passed in the House of Commons in this past session. Every single political party voted for it, overwhelmingly. Most members were present for all the voting, second reading and committee stage. They passed something like 50 amendments in the committee; yet they missed nine pages in the bill. How can they pass 50 amendments and miss nine pages in the bill?

I went back over the procedure used in the House of Commons. I discovered that in large bills they present the motions in blocks of clauses. In other words, the question is: Shall clauses 1 to 55 carry? Shall clauses 100 to 199 carry? Carried.

Even with the 50 amendments that they made in committee, they did not see the key part of the bill hidden away. There were nine full pages and no one saw them.

The bill passed in the House of Commons and ended up in the Senate. At one of the meetings of the Standing Senate Committee on Banking, Trade and Commerce — I do not sit on that committee but many honourable senators here do — a couple of the members started asking questions of officials of the department. They discovered that a whole new tax regime was introduced for the film industry in Canada.

The committee members said, let us bring in some of the film industry members. The next day, a big story appeared on the front page of The Globe and Mail saying that some preacher had convinced the government to put in these provisions and to hide them away. This story made national and international news.

Then we had a Bloc Québécois member, who said to some of the members in the Senate — and I was one of them — Do anything you can do to change that bill. The NDP, who say the Senate should not exist, said publicly, We demand that the Senate change the bill. This situation occurred in the past year and a half. Please fix the bill.

Of course, our only choice in the Senate, as honourable senators know, is either to amend the bill or, if the amendment is of such a great consequence as to negate a major portion of the bill and we cannot amend it, figure out what else to do.

What did we do? The Senate intentionally sat on it. That is another action we can take as the chamber of sober second thought. What did the government do? The government agreed with us and the government did not reintroduce that bill.

When we look at those examples, honourable senators, the power of the Senate is extensive. I believe a great many of us here do not want to rewrite the law; we do not want to defeat a government that has been duly elected; and we do not want to defeat bills that originate from the government of the day. However, our job is to provide that sober second thought. Sometimes our job is to amend a bill. Sometimes, as in that instance, it is to sit on a bill and let it disappear because, honourable senators, in both those cases, every political party in the House of Commons made tragic errors.

We see it with almost every bill we pass, and we make amendments. For some of the largest bills that have gone before the Senate in the past two years, the major amendments have been made by the government, not the senators on their own initiative, but by the Government of Canada saying to the government side: Look, you have to change this and that provision.

If we did not have a Senate, how would they fix those problems? We would not have that sober second thought at all. We would need to appoint a group of people to be the watchdog over the House of Commons, which is exactly what the Senator does today.

With that brief introduction — and I was planning to say only a few words on this matter — this bill before the house is a controversial bill, and I believe we should send it to the committee.

Why is it controversial? It is controversial because it is about drugs. Bill C-15 amends the Controlled Drugs and Substances Act. It is about a huge problem in our society today, especially with young people.

I have read the bill briefly and there are only five major clauses in it. For the first three clauses, minimum sentences are introduced — minimum sentences that involve not only cocaine, but marijuana; minimum sentences on a certain amount.

They must have a certain amount of marijuana in their possession for purposes of trafficking. In other words, if they have a certain amount in their possession, there is no other answer; it must be for trafficking. If someone has a truckload of marijuana, it cannot be for personal use. An honourable senator just said, That depends.

However, a minimum sentence is affixed to possessing a certain amount. It is like the plants. In this bill, if someone is found possessing between 6 and 201 plants, the minimum sentence is six months minimum. Possessing from 201 plants to 501 plants is a nine-month sentence; but if it is proven that the plants are for trafficking, it is an 18-month minimum sentence.

If possession is beyond 501 plants, the bill does not talk about trafficking, because why else would someone have over 501 plants? The bill sets minimum sentences for various offences presently under the Controlled Drugs and Substances Act.

The remaining two clauses are fascinating, because they deal with drug-sentencing courts. Some honourable senators may know about drug-sentencing courts. They are fairly new. The first one was set up in Toronto.

A superior court judge in Toronto made a ruling that said, people on the street who are cocaine addicts — they call them cocaine addicts or some refer to them as coke heads — are not aggressive people. They are not violent people, so why are we dealing with them in the court adversarial process of throwing them in jail and when they are finished, they come back onto the street and do the same thing?

In 1998, a drug-sentencing court was set up. It has the same principle as the others today in other parts of Canada; namely that upon appearing before a judge in the court, prior to sentencing — if they are found guilty — they will go for a year under supervision. Someone is assisting them with their medical problems, employment problems or whatever other problems they might have. At the end of the year, if they successfully pass that course, then they will get either a conditional sentence or a complete discard of the charges.

The purpose of putting a clause dealing with that in this bill is that the minimum sentence will not apply for those people who have been convicted and who have gone through the drug-sentencing court and successfully passed it.

Honourable senators, it sounds like a great idea. Here is one simple problem with it. We have drug-sentencing courts that started in Toronto in 1998, in 2001 in Vancouver, and then in 2005 and 2006 in Edmonton, Regina and Winnipeg. However, they do not exist anywhere else.

Therefore, the provisions of this legislation that exclude those people who have successfully gone through a program with the drug-sentencing court, or have successfully completed a drug treatment program authorized by — I am searching for it, Senator Nolin — subsection 720(2) of the Criminal Code. I say this to Senator Nolin because we all know, appreciate and realize that he is considered to be an expert on this act, the Narcotic Control Act and the Controlled Drugs and Substances Act. He is sometimes called before superior courts to give evidence. Why is he called? He chaired a committee of the Senate that did an exhaustive review of the Narcotic Control Act and the Controlled Drugs and Substances Act.

The bill refers to completing a treatment program under subsection 720(2) of the Criminal Code. The problem in excluding persons who have successfully passed those programs is that people who live in many parts of the country are being excluded. There is no drug-sentencing court in Quebec that I can see here. Neither is there one in Newfoundland, P.E.I., Nova Scotia or New Brunswick. That will be the subject of much discussion.

Under all of these offences for which there will now be minimum sentences if this bill passes, it will put a reverse onus on everyone who is convicted of those new offences. It presents what is called a reverse onus on bail. That means a person may not get out on bail because it is one of the offences that will be added to the designated offences.

That raises all kinds of questions. When someone is arrested and charged with something, the law says that they are supposed to appear before a judge within 24 hours. That is the law. If they appear before the judge on a Friday, the judge may put it off until Monday, or the next day to give them or their lawyer an opportunity to arrange sureties for bail and so on.

Then the bail hearing takes place. The judge looks down at the charge and says, "Okay. It is not a designated offence, so here is what I will do. Is there a guarantee?" Our laws say that we all have a right to bail and that everyone is presumed innocent until proven otherwise. The judge looks at it and looks at the Criminal Code section 515 and he asks, first, "Will this person show up for court?" That is the first thing. Second, "Will that person, if released, reoffend and commit a criminal offence?" Third, called the tertiary ground that Senator Nolin and the rest of the Standing Senate Committee on Legal and Constitutional Affairs was talking about this morning, "How will it would look with the general public?" In other words, would it bring the administration of justice into disrepute, or would the public lose confidence in the system?

If someone is charged with any of these new offences under this bill, then what is the onus on them to do? The onus is on them to prove that they should be released on bail. They have to prove it to the judge. The judge says: "You are charged now with having 200 — or 6 or 8 — marijuana plants in your house. You tell me why I should release you."

The onus is on the person who is charged. Usually, it is a pretty heavy onus and that person remains on what they call remand. In other words, they remain in jail until their trial, and during their trial they remain in jail unless they can, on bail review, convince a Superior Court judge otherwise. It was a provincial court judge who first put them in jail and it is a Superior Court judge for the bail review. However, there is only one way to get out of jail, and that is to prove that the trial judge made an error in law or that there are new circumstances that come into play that say that person should be released from jail.

In closing, honourable senators, it is interesting that, of all of those people who end up on remand in the detention centres throughout the country, 35 per cent do not end up being convicted of a crime. Let us not forget that figure that stands out so much in Canada today. As of last year, 65 per cent of those people in jail end up being convicted of a crime and 35 per cent do not. For 35 per cent of people in jail, the charges are dropped, there is a stay entered by the Crown, there is a judicial stay entered or, most likely, they are found innocent of the charges.

We have a huge problem in Canada with numbers of people on remand waiting for trial. They are overloaded. We have a bill presently before the Standing Senate Committee on Legal and Constitutional Affairs. Evidence shows that there are more people to a holding cell than there are beds. The choice has to be made as to who will sleep on the floor.

When they go to the lock-up to wait for trial, then it is even worse. Someone who is arrested overnight is put in the city or town lock-up and they are in there with all the drunks and so on who have to stay overnight until they can see a judge in the morning. It is not a very pleasant place to be. The lights are on 24 hours a day.

There is this serious problem and our courts have struggled with it. Normally now in Canada, we give two-for-one credit, such that the period of time someone spends in a holding cell or detention centre awaiting trial is counted two-for-one in their sentence. In other words, if someone is there for one month, that counts as two months if they are found guilty. Therefore, the government has now said this does not look right and a sentence should be a sentence. Therefore, the law will be changed so it is one-for-one and, under extraordinary circumstances, one-and-a-half-for-one.

I must admit that every single minister of justice in Canada supports the government in that regard — but nobody else does. In other words, the committee is hearing from every professor of law and they are saying no to this bill. Members of the committee are here today and they can attest to that. The organization for Crown attorneys say it is not a good bill and that it will clog up the bail system. All of the defence lawyers say the same, although you would expect them to be opposed to the bill.

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However, everyone else who has given testimony before the committee is opposed to the bill. We all know that the ministers of justice for every single province are in favour of the bill and that is who the minister is taking his cue from. What do we do? I do not know, honourable senators. I have never seen a situation like this one in my 35 years in Parliament.

What do we do with a bill that each of the ministers from the provinces approves because it is their institutions that are under fire? Their institutions, not the federal prisons, are the holding cells — the detention centres. They are sent to a federal prison only if they receive a sentence of two years plus a day or more. We were talking about provincial jails. We have a serious problem in the committee as to what can be done. Can we amend the bill?

That committee is loaded down with work, as are many other committees in this chamber. Sometimes, to be honest with you, honourable senators, I hear political leaders from all political parties say, I wish the Senate would pass these bills. We do not want to pass bad law. That is not what we are here for. We will have a good look at these things. We try to accommodate as best we can.

I do not know what this committee will do when it receives this bill after today's debate. I only encourage honourable senators to send the bill to committee so it can be examined. If this were the House of Commons, members would talk about the bill for two years in the House of Commons.

We want to examine the bill's content and judge it on its merits. The bill is another controversial one. I encourage members to send it to the committee. We will perform our due diligence again. As honourable senators will see, our record will continue to come up, and the Senate of Canada and its committees — held in such high esteem by our courts and by all our tribunals in this country — will keep up its excellent record.


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