Statement made on 12 May 2010 by Senator George Baker
Hon. George Baker:
Honourable senators, this is the first opportunity I have had to welcome Senator Marshall to this place. Senator Marshall has had a distinguished career in the provincial legislature and prior to that as the auditor general for the Province of Newfoundland and Labrador. She truly brings great experience to this place, and I welcome her here. I also note that she is only the second person from Newfoundland and Labrador to be appointed to the Senate who was born in Canada.
An Hon. Senator: That means she is young!
Senator Baker: The rest of us were born in a foreign nation called Newfoundland. The first person appointed to the Senate is Senator Fabian Manning. I reminded him the other day that three of us have sat in the Newfoundland House of Assembly. Back in 1965, I was the law clerk and then the chief clerk. In that capacity, I wrote the rules of procedure for the Newfoundland's House of Assembly. His response to me was: "I wondered what caused all the chaos."
Honourable senators, I want to recognize the great contribution made by two senators in the chamber today, to the subject matter currently under debate. They are the two recognized people in the Parliament of Canada who, perhaps, know more about this subject than anyone else knows. One senator sits on the side opposite and one senator sits on this side. The first person I recognize is the Honourable Senator Nolin.
Some Hon. Senators: Hear, hear!
Senator Baker: Senator Nolin chaired a Senate committee mandated to study the use of illegal drugs in Canada. The committee produced a report in 2001 that has been referenced many times in court proceedings in Canada. Today, Senator Nolin is a recognized expert on the subject. Within the past year, I noticed that he was recognized as an expert witness in the Supreme Court of British Columbia, where he was called upon to testify on the subject of controlled drugs.
The second person I recognize sits on the Liberal side. He is considered an expert in the subject; is known throughout the country because of a television series; was the chief coroner in British Columbia for a brief time; and recently has written a magnificent book on the subject of the use of illegal drugs entitled, A Thousand Dreams. The author is the Honourable Senator Larry Campbell.
Some Hon. Senators: Hear, hear!
An Hon. Senator: Bravo!
Senator Baker: When I was reading case law one day, I noticed that Senator Campbell's name had been used by the judge in reference to the fact that as the chief coroner, he had subpoenaed an academic who had authored a report. The case revolved around the discovery of a body in the ocean, I believe. There was a difference of opinion and a great deal of discussion as to whether the chief coroner had done the right thing. A couple of months ago, that academic author appeared as a witness before the Senate Legal Committee. Senator Campbell sat across the table at committee, prepared to cross examine the witness. To my surprise, they got along well. It was like old home week. They were happy to see one another. I suggested to Senator Campbell after the meeting that the two of them had resolved their differences. He asked me what I meant. I reminded him of the court case those many years ago when he subpoenaed the academic author who had objected to his actions as chief coroner. Senator Campbell asked me if I had not read his recent book. I said that I had not read it and he replied that I should buy it and read it because the other person I was talking about had co-authored the book. I recommend this reading to anyone. It would be a particularly good Christmas present.
Honourable senators, I will make a brief reference to a point in Bill S-10 that is worthy of visiting. The mover at second reading on the government side talked about mandatory minimum sentences.
Honourable senators, mandatory minimum sentences, as we know them, are really not mandatory in most cases. I am saying that because there is a sort of fail-safe in this legislation to the mandatory minimum sentence that is taking away the discretion from the judge. There is also a discretion that is given to the Crown prosecutor. It is taking away the discretion from the judge and then transferring it to the Crown prosecutor, and it is in the law.
For example, how many times does one read in the newspaper that someone was convicted of impaired driving for the twentieth time in the last ten years? It is common, is it not? One wonders, as a legislator, "How could that be possible? We have mandatory minimum sentences for impaired driving."
I was on every committee that dealt with that, and I know that subject inside out. I know that if one is found to be impaired, on their first conviction there is a mandatory minimum. One pays a thousand dollar fine, and loses their licence for a mandatory minimum of one year.
If one is picked up a second time, there is a mandatory minimum 30 days in jail and a mandatory loss of licence for two years minimum. If one is picked up a third time, as per section 255.(1)(a), there is mandatory minimum of 120 days in jail and one loses their licence for three years.
Beyond that, our mandatory minimum regime in the Criminal Code under impairment says it is an extra 120 days each time and an extra three years for which one loses their license. Honourable senators can figure it out: If a fellow has been caught 10 times — not 20 times — he has lost his license for 30 years.
I am talking about MMs — not the candy M&M's, but the mandatory minimums, as they are called. One would have lost their licence for 30 years and been in jail for five and a half years in that 10-year period. Therefore, how could one be out driving in order to have another 10 convictions?
Of course, the answer to the question is found in the clause that is contained in this bill. Unfortunately, in my opinion — and in a great many other people's opinion — the provision should not be present as far as impaired driving convictions are concerned, but it is.
Let me read the sentence so that there will be no doubt about it. It is also in this provision, clause 8 of the bill. It says this:
The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General's intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.
That is the Attorney General and the Crown prosecutor for the province. In the bill we are dealing with, it is a Crown prosecutor for the federal government. It is a federal Crown. In most cases, one will find a federal Crown and a provincial Crown if there is a mixture of charges. The point is that there is such a thing as prosecutorial discretion, which is built into every single act that we have, in one way or another, regarding mandatory minimum sentences.
The first thing we have to realize is that in the case of mandatory minimums in certain circumstances they differ from province to province. There is a prosecutor's manual in every single province. It is not the same in every province.
For example, in Ontario, what is considered to be a dated offence — that is, out of date — is beyond five years. If one has a conviction, say, for impaired driving more than five years old, the prosecutor has discretion as to whether or not to enter it under their rules. That is not present in Newfoundland. In Newfoundland, if one had a prior conviction 20 years ago, that is a prior conviction. There is no such thing as a dated impaired driving conviction.
Having made that point concerning the main point of the government as far as mandatory minimums are concerned, my chief problem with this bill, honourable senators, is a provision that has nothing to do with mandatory minimums. I will tell you what it is. It is a scary provision. I realize that the Liberals in the other place have supported this legislation. Let us not forget this. The Liberals in the other place support this legislation, as do the Conservatives. However, this is sober second thought in this chamber. That is what we are known for.
I will tell you about the scary provision that I find in this legislation, honourable senators. It will take me just a second to do it, and I will illustrate it with a couple of cases within the past year concerning university students.
The first one was in December 2009, Carswell B.C., 644. I quote:
 The accused is charged with one count of trafficking in ecstasy. . . .
 . . . he gave one ecstasy pill to an undercover officer, Cst. Haines, at a Rave event at the Pacific Coliseum.
 . . . Cst. Haines, pretending to be a party-goer, dressed up for the event.
Then it goes on to describe how she was dressed — this is an undercover police officer — which I will not read. She did have a mini skirt on, cowboy boots and so on. She had to do that, of course, because she was on an undercover job at this dance. It happens in every city in Canada, these undercover operations take place.
Here is the third sentence, paragraph 9 and 10:
Cst: Do you have some stuff for me?
Acc: No, let's dance. I'll get it for you later.
Cst: Uh No. I need it now. I want to be happy now.
Acc: Ok wait here, don't move.
Cst: Ok I'll be here.
This is the judge speaking:
The accused left and walked back towards the main stage area, disappearing into the crowd. He re-appeared some 3 minutes later and placed a rolled up paper into the constable's hand. There was an ecstasy pill inside the paper. There was a brief conversation.
Cst: Oh wow, thanks. How much?
Acc: Oh nothing, for you free.
Cst: Oh wow, really? You're a sweetie. Thanks.
The constable then gave the accused a hug. She signalled the arrest team to indicate that a transaction had occurred.
Then it says:
The accused was taken into custody.
He was handcuffed, searched and then brought to jail.
The second case, which I will just read two sentences from, is 2009 Carswell BC 3405. This is testimony from a police officer. How often does this happen?
Prior to this Rave, Constable Kinney had acted as an undercover buy-officer at three prior Raves. It was her experience and opinion that drugs, in particular ecstasy and Raves were closely associated.
Prior to Project Twilliger, Detective Kazuta had been involved with "Project Temporal" deployed to a Coliseum Rave on December 31, 2004, which resulted in ten arrests for trafficking or possession for the purpose of trafficking. P In 2005, he was involved with "Project Thirst" deployed to a Rave at the Coliseum, which resulted in 13 arrests for trafficking or possession for the purpose of trafficking. Finally, "Project Tirana, which was deployed to a Rave at the Coliseum on December 31, 2007, and resulted in 11 trafficking arrests and six arrests for possession for the purpose of trafficking.
Honourable senators, all of those cases involved the exchange of a pill or two pills. In half the cases, no money was exchanged. You might say that is only the Pacific Coliseum. There is case law and there is a big arena in Calgary, Toronto, Montreal, Halifax, and the cases go on.
Why am I so concerned about this possibility? Obviously, you are not supposed to have illegal drugs. You are not supposed to be using illegal drugs.
Honourable senators, just listen to the summary of this bill. Herein lies the key. Do not forget that over the years, as Senator Nolin would attest, we have been careful to structure the schedules to the Narcotics Act and the Controlled Drugs and Substances Act so that cocaine and heroin are Schedule I drugs. Marijuana derivatives, et cetera, are Schedule II drugs. In Schedule III are what are considered to be the less serious drugs. This bill eliminates Schedule III and brings everything in Schedule III up to life imprisonment in Schedule I.
This is an interesting question, and one that I am sure will be debated in the committee. What is wrong with that? I will tell you what is wrong with it. Without a massive advertising campaign, here is what will happen. I am not too concerned about someone who is charged under a provision that now says that if you give one ecstasy pill to someone, it is life imprisonment; you are in that category. It is not being in the category of risk of life imprisonment; it is not that.
However, what is concerning in the law regarding controlled drugs, as Senator Nolin would tell you, is that when you are convicted of an offence for which life imprisonment is a possibility, other parts of the Criminal Code come into play. For example, conditions of release carry with them 10-year prohibitions. Anyone convicted of this offence after the passage of the bill would have a 10-year prohibition, for example, on the ownership or use of a firearm. Let us use that as an example. Suppose you were convicted and that after you served your sentence, you came out and had to serve a 10-year conditional sentence. Suppose you wanted to get a pardon.
Senator Stewart Olsen: No pardons.
Senator Baker: There is legislation coming in to that effect. You would normally wait five to six years — this is the law — before you can apply for a pardon. You have someone, just on one condition, waiting 15 years. Suppose it is a university student, waiting 15 years before he or she can even receive consideration for a pardon, all for exchanging an ecstasy pill with someone. This is a young university student in that situation at a rave dance.
My point is that I would say the bill will pass. The bill will pass because the Liberals agree with it and the PCs agree with it in the other place. The bill will pass. However, honourable senators, surely we can do something to say that we need an advertising campaign. We need to alert these young people that what they did last year is no longer acceptable because they could end up facing a charge of life imprisonment, have their life ruined, never be able to get a job, never be able to go to the United States or any foreign nation, because that is the condition of their conviction.
That is the main point I wanted to make, and it is a very important point; it is one of the main subjects of the bill. The summary of this bill says:
This enactment amends the Controlled Drugs and Substances Act to provide for minimum penalties for serious drug offences, to increase the maximum penalty for cannabis (marijuana) production and to reschedule certain substances from Schedule III to that Act to Schedule I.
When you look at the substances, you would never know it is something called ecstasy. It consists of about 50 letters and it starts with "N-Phenyl," something, something, something. Believe me, I have read enough case law to know that that is the drug I just referred to, which is ecstasy. Others of those drugs that are in Schedule III are there for a specific purpose, and at the time the schedules were invented and added on to, they were not considered to be Schedule I drugs.
Honourable senators, that is the main point that I want to make. I wish to make just one observation concerning mandatory minimum sentences. I served in the House of Commons for many years. The House of Commons did a thorough study on mandatory minimum sentences, the only study ever done. It is the only complete study on the record.
The conclusion at page 70 says the committee does not generally support the introduction of further minimum sentences beyond murder, high treason and also the repeat of sexual offences. It was a conclusion of a House of Commons committee in 1988. I remember it well; I had been in the house 15 years at that time.
An Hon. Senator: Who was on the committee?
Senator Baker: Honourable senators, I will not say that Senator Nolin knows the answer, but the chair of the committee was David Daubney and the report is referred to as the Daubney report. Mr. Daubney is a great lawyer and has a great legal mind. I know him well; he is a good friend of mine. Where does he work now? He works with the Department of Justice, I believe in the minister's office, but I wonder who was the vice-chair of the committee? The Honourable Rob Nicholson, P.C. Thank you very much.