Hon. Joan Fraser

Honourable senators, the Rules of the Senate require that the person who presents a report with amendments to a bill provide an explanation of those amendments, which I shall try to do. I note that your committee adopted these amendments on division.

Bill C-15 is commonly known as the most recent drug bill, as there have been many others in the past. Its stated purpose is to provide for minimum penalties for serious drug offences, to increase the maximum penalty for cannabis or marijuana production, and to reschedule certain substances from Schedule III of the Controlled Drugs and Substances Act to Schedule I.

The stress on serious offences was confirmed by the Minister of Justice, the Honourable Rob Nicholson, when he appeared before your committee on October 8 and said, among other things:

. . . we are not targeting the university student, caught with a couple of joints or a plant or two. We are targeting those who profit off of the vulnerabilities of those addicted to drugs. We are targeting organized crime.

That is the first piece of background that I would draw to the attention of honourable senators before I discuss the specific text of the amendments.

The second piece of background is that, given that the bill is concerned with mandatory minimum penalties for offences of trafficking or production for the purposes of trafficking, it is useful to know that in the laws of Canada, trafficking of drugs is defined as, to sell, administer, give, transfer, transport, send or deliver the substance, to sell an authorization to obtain the substance, or to offer to do any of the above.

At second reading, the Senate approved Bill C-15 in principle. It is my belief that the amendments that your committee presents respect the principle of this bill and fall squarely within its scope.

The first amendment is to clause 1, on page 2. It refers to a provision of the bill that would bring in a mandatory minimum prison term of one year if someone is convicted of trafficking and if that person, within the past 10 years, has been convicted of another drug offence or has served a term of imprisonment for a drug offence within the past 10 years. Your committee believes that the clause, as written, has a very broad scope indeed. For purposes of illustration, one might have been convicted 10 years ago when one was a university student if one gave a colleague a couple of marijuana joints on his birthday, and 10 years later one might pass around a little marijuana at a backyard barbecue among friends and find oneself facing a mandatory minimum of one year in prison.

Clearly, judges need to be able to send people to prison when they have done something such that they truly deserve to go to prison. However, the amendment that your committee proposes says, in effect, that judges should retain the discretion to lighten the mandatory minimum where it is appropriate and only where it is appropriate.

The committee proposes to amend the paragraph that I described to say that the mandatory minimum sentence of one year would come into play only if the person now convicted of a drug offence today had been convicted, within the previous 10 years, of another drug offence and had served a term of imprisonment of one year or more for that offence. The mandatory minimum would thus come into play if the person had been convicted of a comparatively serious drug offence in the past. Otherwise, although the person would be guilty of today's offence and the judge would be free to impose the sentence that he or she deemed appropriate in those circumstances.

I remind honourable senators that previous convictions are already part of the aggravating factors that judges take into consideration when sentencing individuals. Therefore, this amendment would not prevent the Crown from presenting prior convictions or any other factor during the sentencing hearing for the judge's consideration. It would simply prevent the imposition of an automatic mandatory minimum sentence in that one circumstance.

The second proposed amendment is to clause 3, on page 4, of the bill. This requires a short explanation because wandering around the thickets of the Controlled Drugs and Substances Act is right up there with wandering around the Criminal Code and the Income Tax Act in terms of complexity.

As written, Bill C-15 would impose a mandatory prison term of six months for someone who produced 5 to 201 marijuana plants for the purpose of trafficking. Numerous witnesses told your committee that, as drafted, this was excessively severe and that it could lead to the over-incarceration of small-time street dealers and growers because five plants is considered to be a very low level at which to bring in mandatory prison terms.

One witness, Mr. Darryl Plecas, Director of the Centre for Criminal Justice Research at the University of the Fraser Valley, was notable on this count because he strongly supports mandatory minimum sentences for drug offences. However, even he noted that five plants was too low a level. It is quite likely to be the amount one had for individual consumption, not for trafficking as we normally think of it.

Your committee contemplated this difficulty and recommends deleting that particular mandatory minimum. It would still be an offence to cultivate marijuana and mandatory minimums would remain for those caught cultivating that number of plants if there had been aggravating factors, such as danger to public health or safety; the use of traps, devices or other objects likely to cause death or bodily harm to individuals; or the involvement of minors. In such cases, mandatory minimums would remain. Absent those aggravating factors, your committee recommends removing the mandatory minimum and restoring judicial discretion, so that the judges would be able to determine the sentence for those caught cultivating comparatively small amounts of marijuana.

The third proposed amendment is to clause 4, on page 5, which concerns the bill's proposed review provision. When Bill C-15 was before the House of Commons, a review provision was inserted. However, as has happened so often in the past, the provision did not include the Senate. It said that a review should be undertaken by a committee of the House of Commons or of both houses of Parliament.

Many honourable senators will recall that our customary practice on those occasions is to amend such clauses to say that the review shall be conducted by a committee of the Senate, of the House of Commons or of both houses. Your committee has done that in this occasion, but we have also made one other change to the review clause.

The review clause in the original bill says that the review shall be conducted within two years. A fair number of witnesses, including one serving police officer in Victoria, reminded senators that at the end of two years, we will not know that much about the way this bill has affected Canadians, and indeed the judicial process. Some trials under this legislation will not even have been concluded. Numerous statistics will not have been gathered.

For that reason, your committee proposes to preserve the requirement for review within two years, but to insert another review after five years, by which time we should have more material available.

Finally, honourable senators, in clause 5, on page 6, your committee has inserted a provision that courts not be required to impose a mandatory minimum punishment of imprisonment if the court is satisfied that the person to be sentenced is an Aboriginal person, that the sentence would be excessively harsh because of the offender's circumstances and that another sanction is reasonable in the circumstances and is available. If the court does not impose the mandatory minimum, it must give reasons for that decision.

Your committee makes this recommendation on the basis of substantial testimony that we heard about the differential impact of our judicial system on Aboriginals. In general, honourable senators, we all know that there is a differential impact, but I am not sure how many of us know how great that impact is. There are places in Canada where Aboriginals make up 80 per cent of the inmate population of prisons.

The incarceration rate in fiscal 2007-08 for non-Aboriginals in this country was 130 incarcerated for every 100,000 Canadians. I repeat, that rate was 130 for non-Aboriginals. For Aboriginals, the incarceration rate that year was 970 per 100,000, and that gap is rising.

We heard evidence that there are many reasons for this extraordinary disparity between the fate of Aboriginals and non-Aboriginals in our system. Some of the reasons relate to things like Aboriginal offenders' lack of familiarity with the judicial system, including their lack of awareness or capacity to access appropriate counsel when needed.

It is also true that particularly in the North, Aboriginals — anybody in the North, but Aboriginals in the context of this amendment — have terrible trouble accessing drug treatment. This bill provides that mandatory minimum imprisonment terms do not apply if offenders complete a proper drug treatment program under one of the provincial programs or one of the drug courts. However, there are no drug courts in the North. For that matter, there are no drug courts east of Ottawa, nor are there going to be any drug courts east of Ottawa.

Drug treatment programs are scarce in the North. All drug treatment programs tend to be oversubscribed. There is a waiting list for most programs; and this situation bears more heavily on Aboriginals, particularly those in the North, than it does on the rest of us.

It was in the light of that kind of situation that we thought it appropriate to reimpose judicial discretion when the case involves Aboriginals. Honourable senators will note that I said, "reimpose." The Criminal Code now, in section 718.2(e), instructs judges to take into account the particular circumstances of Aboriginals when they are being sentenced, and urges alternatives to imprisonment.

There are some who believe that provision of the Criminal Code will continue to operate. However, your committee heard expert testimony, including testimony from a retired judge, that if this bill were passed as is, it would override the Criminal Code's provisions for particular consideration of the circumstances of Aboriginal offenders. Honourable senators, that is why your committee proposes to, if you will, reinstate that discretion under specific circumstances.

Again, there is no question of anybody having a free ride. Individuals who commit an offence under these amendments will be liable for punishment. The only question is whether the bill should be amended to ensure that the harsh provisions for mandatory minimums apply to the people that the minister and the summary of the bill says the provisions are designed to apply to — the real crooks — and avoid sweeping up far lesser candidates unintentionally into the net of this bill.

I hope that helps honourable senators to understand what their committee did and why, and I thank honourable senators for their attention.

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