Bill C-26, An Act to amend the Controlled Drugs and Substances Act and to make consequential amendments to other Acts, was introduced in the House of Commons on 20 November 2007. Its intention is to amend the Controlled Drugs and Substances Act(1) (CDSA) to provide for minimum penalties for serious drug offences, such as dealing drugs for organized crime purposes or when a weapon or violence is involved. Currently, there are no mandatory minimum penalties under the CDSA. The bill also increases the maximum penalty for cannabis (marihuana) production and reschedules certain substances from Schedule III of the Act to Schedule I.
The bill contains an exception that allows courts not to impose a mandatory sentence if an offender successfully completes a Drug Treatment Court (DTC) program. This program is designed to assist certain individuals who are charged with drug-related offences (should they meet certain eligibility criteria) to overcome their drug addictions and avoid future conflict with the law. It involves a mix of judicial supervision, social services support, incentives for refraining from drug use, and sanctions for failure to comply with the orders of the court.
The Canadian Addiction Survey (CAS) was a collaborative initiative sponsored by Health Canada, the Canadian Executive Council on Addictions – which includes the Canadian Centre on Substance Abuse, among others – as well as a number of provinces.(2) Published in November 2004, it was the first national general population survey specifically dedicated to alcohol and other drug use in Canada since the 1994 study – Canada’s Alcohol and Other Drugs Survey. The Canadian Addiction Survey questioned almost 14,000 Canadians aged 15 and over on a variety of topics related to drug use. The survey focused on the impact that alcohol and drug use has on physical, mental and social well-being. It also questioned Canadians about their attitudes toward measures to control drug use, and on their beliefs about the availability of drugs and the risks associated with their use.
The results of the CAS showed an increase in the self-reported rates of use of illicit drugs such as cannabis over the decade from 1994 to 2004. Overall, 44.5% of Canadians reported using cannabis at least once in their lifetime, and 14.1% reported using cannabis in the past year, nearly double the rate reported in 1994 (7.4%). Cannabis use, however, is generally infrequent, with 45.7% of past-year users reporting use two or fewer times during the past three months. In addition, most users do not report experiencing serious harm due to their cannabis use. The authors of the CAS do note that an area worth investigating further is the use of cannabis by youth. The peak rate of use is among 18 and 19-year-olds (47.2% for past-year use) and then begins a downward trend. Cannabis use also varies by marital status, educational level, and income. Finally, there are significant provincial differences in cannabis use, yet little is known about the nature and underlying determinants of these differences.
Excluding cannabis, the most commonly reported drugs used during one’s lifetime are hallucinogens, used by 11.4%, cocaine (10.6%), speed (6.4%), and ecstasy (4.1%). The lifetime use of inhalants, heroin, steroids and drugs by injection is about 1% or less. Although approximately one in six Canadians has used an illicit drug other than cannabis in his or her lifetime, few used these drugs during the year preceding the survey. Rates of drug use during the previous 12 months are generally 1% or less, with the exception of cocaine use (1.9%). For the general population of Canadians, the use of illicit drugs is usually limited to cannabis only. About 28.7% of Canadians report using only cannabis during their lifetime, and 11.5% used only cannabis during the past year. Still, approximately 2.6% of cannabis users used drugs other than cannabis in the year preceding the survey. Once again, caveats concerning the data need to be raised, including the substantial variation in drug use according to province, varying from 8.3% to 23% for lifetime use of an illicit drug excluding cannabis.
Although comparisons are difficult when factors such as methodologies, the questions asked and the sample group vary, drug use rates across surveys suggest that the prevalence of use has risen over time. This is particularly true for cannabis, for which the rates of use, both past-year and lifetime, essentially doubled from 1989 to 2004. The data indicate that the number of Canadians reporting use of an injectable drug at some point in their life increased from 1.7 million in 1994 to a little more than 4.1 million in 2004. Of those, 7.7% (132,000) reported past-year use of a drug by injection in 1994 compared with 6.5% (269,000) in 2004. Most Canadians, though, who have used an illicit drug in their lifetime no longer continue use. In addition, the authors of the CAS note that the higher rates of use of most illicit drugs do not seem to translate into higher rates of reported harms.
Since the publication of the CAS, some regions of Canada have reported on drug use rates. Yukon and the Northwest Territories, which were excluded from the CAS, have each reported on surveys of their populations. The Yukon Addictions Survey, released in June 2005, reported that illicit drug use in Yukon was generally similar to the rest of Canada except for cannabis use. Twenty-one percent of Yukoners over the age of 15 reported using cannabis in the past 12 months, compared to 14% of Canadians overall. Over the past 12 months, usage of other illicit drugs for Yukoners showed 3% used cocaine, 1% used hallucinogenic drugs and 1% used ecstasy.(3) The Northwest Territories reported a similar level of past-year cannabis use (20.7%) to the Yukon. An estimated 2.7% of residents of the Northwest Territories 15 years of age and older reported using at least one of the following five drugs in the year preceding the survey: cocaine, hallucinogens, speed, ecstasy, or heroin.(4)
In 2007, l’Institut de la statistique du Québec released a study indicating that drug use among secondary school students had declined. The study indicated that in 2006, 30.2% of adolescents had consumed an illicit substance at least once in the previous year, while in 2000 the figure was 42.9%.(5) Furthermore, the average age at which students started to experiment with drugs increased to 13.2 years from approximately 13 years of age in 2004.(6)
The Canadian Centre on Substance Abuse published The Costs of Substance Abuse in Canada 2002.(7) This study estimated the impact in terms of death, illness and economic costs caused in whole or in part by the abuse of tobacco, alcohol and illegal drugs for the year 2002. In economic terms, abuse occurs when substance use imposes costs on society that exceed the costs to the user of obtaining the substance. These costs are designated as “social” costs. Measured in terms of the burden on services such as health care and law enforcement, and the loss of productivity in the workplace or at home resulting from premature death and disability, the overall cost of substance abuse in Canada in 2002 was estimated to be $39.8 billion. This represents a cost of $1,267 to every man, woman, and child in Canada. Tobacco accounted for about $17 billion or 42.7% of that total estimate, alcohol accounted for about $14.6 billion (36.6%) and illegal drugs for about $8.2 billion (20.7%).
In 2002, a total of 1,695 Canadians died as a result of illegal drug use, accounting for 0.8% of all deaths. This can be compared to 37,209 Canadians who died from tobacco use (16.6% of all deaths) and 4,258 from alcohol use (1.9% of all deaths). The leading causes of death linked to illegal drug use were overdose (958), drug-attributable suicide (295), drug-attributable hepatitis C infection (165), and HIV infection (87). Deaths linked to illegal drugs resulted in 62,110 potential years of life lost. Illegal drug-attributed illness accounted for 352,121 days of acute care in hospital.
The Canadian Centre on Substance Abuse has also published a document outlining the relationship between the perceived seriousness and the actual costs of substance abuse in Canada.(8) The study found that, while the total social costs associated with alcohol are more than twice those for all other illicit drugs, the public consistently rated the overall seriousness of illicit drugs as higher in the Canadian Addiction Survey. The reasons for this misperception may relate to the fact that alcohol is a legal, socially accepted product that is regularly used by the vast majority of Canadians. While over 90% of Canadians have direct, personal experience with alcohol, only 3% of CAS respondents reported past-year use of the five most popular illicit drugs so perceptions of risk will likely be inflated for these substances due to the unfamiliarity factor. The CCSA also points to the police, concerned citizen groups, political leaders and policy makers as those involved in amplifying the perceptions of the risks associated with illicit drug abuse. One example of this is methamphetamine which, while a dangerous drug, is used much less frequently than alcohol, cannabis, and cocaine. This finding raises questions about the appropriateness about the misuse of methamphetamine as a primary driver for substance abuse policy.
Canada’s first federal drug strategy was introduced in 1987 under the title “National Drug Strategy.” It acknowledged that substance abuse was primarily a health issue but continued the enforcement-based approach that Canada has adopted since enacting the Opium Act in 1908, which made it illegal to import, manufacture or sell opium. Efforts to control and regulate psychoactive substances have subsequently relied on legislation to ban the production, distribution and use of illicit drugs. The legislation used has included the Opium and Drug Act, the Narcotic Control Act, the Food and Drug Act and the current Controlled Drugs and Substances Act. In 1988, Parliament created the Canadian Centre on Substance Abuse as Canada’s national non-government organization on addictions. Its primary responsibility is to provide objective information on addiction.
In 1992, Parliament approved Canada’s Drug Strategy, a coordinated effort to reduce the harm caused by alcohol and other drugs. This strategy called for a balanced approach to reducing both the demand for drugs and their supply through such activities as control and enforcement, prevention, treatment and rehabilitation, and harm reduction. In 1997, the Controlled Drugs and Substances Act was introduced and remains the current legislation for controlling the use of illicit drugs. In 2001, the Auditor General published a report on the federal government’s role in the area of illicit drugs.(9) The Auditor General noted that there was no comprehensive public reporting on illicit drugs. Until the government provided comprehensive public reporting at the national level, it would be impossible to measure the net effectiveness of Canada’s Drug Strategy.
Canada’s Drug Strategy was renewed in 2003. It was described as an initiative to reduce the harm associated with the use of narcotics and controlled substances and the abuse of alcohol and prescription drugs. The Strategy was said to address underlying factors associated with substance use and abuse. It included education, prevention and health promotion initiatives as well as enhanced enforcement measures. Part of the Strategy involved a commitment to report to Parliament and Canadians every two years on the Strategy’s direction and progress.(10) Yet it was reported in a December 2006 article that no reports or evaluations of the renewed Strategy had been made available.(11)
On 4 October 2007, the Government of Canada introduced its National Anti-Drug Strategy. Funding in the amount of approximately $64 million has been provided in three areas: prevention ($10 million), treatment ($32 million), and enforcement ($22 million). As a complement to drug prevention and treatment efforts, the Enforcement Action Plan is said to bolster law enforcement efforts and the capacity to combat effectively marihuana grow operations and synthetic drug production and distribution operations. One part of the plan is ensuring that strong and adequate penalties are in place for serious drug crimes.(12) Bill C-26 can be seen as an implementation of the enforcement aspect of the Anti-Drug Strategy in legislative form.
The goal of the Anti-Drug Strategy (which expends $385 million a year in addition to the $64 million increase) is stated to be the reduction of the supply and demand for illicit drugs.(13) The three key priorities of the Strategy are to prevent illicit drug use, treat illicit drug addiction, and combat illicit drug production and distribution. Bill C-26 is seen by the Government of Canada as part of its Anti-Drug Strategy’s effort to combat illicit drug production and distribution by adding mandatory prison sentences for serious drug offences. This is thought to “send a signal” to growers and traffickers that this illicit activity will not be tolerated.
The government feels that the use by Canadians of illegal drugs is a growing concern. It points to the publication in 2004 of the Canadian Addiction Survey(14) which found that about one in six Canadians has used an illicit drug other than cannabis in his or her lifetime, an increase over the 1994 Canada’s Alcohol and Other Drugs Survey. Yet the 2004 Survey also found that only one in 33 Canadians has used such drugs during the past year and, therefore, suggests that more emphasis should be placed on recent use and current harms and consequences.(15) Many caveats need to be placed on interpreting the data from such surveys as there is significant variation in drug use by region of Canada and it is likely that self-reported drug use is under estimated.
The Controlled Drugs and Substances Act (CDSA) regulates certain types of drugs and associated substances. The drugs and substances are listed in Schedules I to VIII of the CDSA. There are currently no mandatory prison terms under the CDSA, but the most serious drug offences have a maximum penalty of life imprisonment. The offences in the Act include possession, “double doctoring,” trafficking, importing and exporting, and production of substances included in the Schedules to the CDSA. The punishment for the offences will depend upon which Schedule applies to the drug in question. Schedule I includes the drugs that are commonly thought of as the most “dangerous,” e.g. cocaine and methamphetamine. Schedule II lists cannabis and its derivatives, while Schedule III includes amphetamines and lysergic acid diethylamide (LSD). Schedule IV includes barbiturates.
The CDSA fulfills obligations under several international protocols and covers offences relating to property and the proceeds of drug offences. Three international conventions on illicit drugs cover cannabis, cocaine, heroin, other psychoactive substances and their precursors: the Single Convention on Narcotic Drugs, 1961, (16) the Convention on Psychotropic Substances, 1971,(17) and the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (Vienna Convention).(18) The Single Convention limits the production and trade in prohibited substances to the quantity needed to meet the medical and scientific needs of the state parties. Each state creates the necessary legislative and regulatory measures for establishing the controls within its own territory to fulfill the commitments of the Convention. Under the 1971 Convention, psychoactive substances (such as THC found in marihuana) are to be subjected to controls similar to those that apply under the 1961 Convention. Under the 1988 Convention, parties must take cooperative action to control the illicit cultivation, production and distribution of drugs of abuse.
Canada’s drug laws do not prohibit all possession or use of illicit drugs.(19) Thus, the Narcotic Control Regulations(20) allow for the distribution of controlled drugs and substances by pharmacists, medical practitioners and hospitals and outline the records that must be kept to account for the distribution of these drugs. Pursuant to section 53(3) of the Regulations, a medical practitioner may administer methadone, for example, if the practitioner has an exemption under section 56 of the CDSA with respect to methadone. Section 56 of the CDSA gives the power to the Minister of Health to exempt any person or controlled substance from the application of the CDSA if the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. The Minister may also issue a licence to cultivate, gather or produce opium poppy or marihuana for scientific purposes.(21) In addition, the Marihuana Medical Access Regulations(22) allow for authorizations to possess marihuana to be issued to those persons who can prove a medical need for it. A holder of a personal-use production licence is also authorized to produce and keep marihuana for the medical purpose of the holder.(23) A specific limitation on the lawful source of supply of dried marihuana has recently been declared invalid as contrary to section 7 of the Canadian Charter of Rights and Freedoms.(24) Further legal challenges to the regulation of marihuana in Canada may be anticipated.
One part of the effort to break the cycle of drug use and criminal recidivism has been the creation of the Drug Treatment Courts (DTCs). Drug Treatment Court is defined as “a special court within the legal system that emphasizes treating rather than incarcerating drug addicts.”(25) Canada’s first Drug Treatment Court was established in Toronto, on 1 December 1998, as part of a four-year pilot project.(26) It was first initiated by Justice Paul Bentley of the Ontario Court of Justice. According to Public Safety Canada, the Drug Treatment Court in Toronto was designed specifically to address the unique needs of non-violent offenders who abused cocaine or opiates.(27)
In February 2001, the Department of Justice announced that the governments of Canada and British Columbia had reached an agreement to develop a new DTC in the city of Vancouver. The Vancouver pilot program would modify the Toronto model in order to meet the specific needs of the community and expand the scope of the drug treatment court models in Canada.(28) The goal was to build upon the experience gained in Toronto and establish a successful made-in- BC program.
As part of the renewal of Canada’s Drug Strategy, the federal government made a further commitment to expand the use of drug treatment courts in Canada. In December 2004, a call was made for funding proposals. The proposal review committee included officials from the Department of Justice Canada, Health Canada and the Canadian Centre for Substance Abuse.(29) The review was also carried out by treatment experts in the field of addictions. Each proposal was further subjected to a comprehensive assessment based on objective criteria and the demonstrated need for a treatment court in that community.
In June 2005, the government of Canada announced that it would provide additional funding in order to establish four new drug treatment courts. It would give 13.3 million dollars over a period of four years.(30) As a result, there are now six federally funded DTCs in Canada: Toronto (December 1998), Vancouver (December 2001), Edmonton (December 2005), Winnipeg (January 2006), Ottawa (March 2006) and Regina (October 2006).(31) It is recognized that each of the drug treatment courts is unique, having its own set of partners to reflect the community in which it operates. Furthermore, each program is designed to meet the multiple and highly complex needs of its community.
One of the main goals of the Drug Treatment Court Program is to facilitate the treatment of drug offenders by providing an intensive, court-monitored alternative to incarceration. It is said that drug treatment courts have a more humane approach to addressing minor drug crimes than incarceration.(32) According to the Department of Justice, the DTCs take a comprehensive approach “intended to reduce the number of crimes committed to support drug dependence through judicial supervision, comprehensive substance abuse treatment, random and frequent drug testing, incentives and sanctions, clinical case management, and social services support.”(33)
Another purpose of DTCs is to reduce the social and economic costs of illicit substance abuse. In 2005, the then-minister of Health, Ujjal Dosanjh, said that the expansion of the DTCs underscored the government’s commitment to helping drug offenders overcome their addictions. He further stated that the benefits of these new courts would extend not only to participants but to all Canadians by helping to reduce the staggering health, social and economic costs associated with substance abuse.(34)
Funding is provided through the Drug Treatment Court Funding Program and is managed by the Department of Justice Canada, in partnership with Health Canada. (35) All of the treatment programs, “as a condition of their funding, are responsible for developing site-specific results-based evaluation/accountability frameworks, as well contributing to the national evaluation/accountability framework.”(36) The funding recipients are therefore required to complete reports of their activities annually.(37) The DTC Funding Program is responsible for collecting data on the effectiveness of the drug treatment courts and promoting and establishing standards that are consistent from region to region.(38) The compiled results are used to support annual reports to Parliament and the Canadian public.(39)
It is said that the success of the DTCs can be measured not only in terms of dramatic reductions in criminal behaviour by those engaged in the program but also by a significant reduction in drug use.(40) The positive effects may not only have an impact on the criminal justice system, but may also spill over into the health system as well. Most of the participants in the drug treatment programs demonstrate a significant improvement in their physical and mental health. In August 2006, a meta-analytic examination of drug treatment courts was done by the Department of Justice in order to determine whether or not the DTCs reduce recidivism. It was determined that the results provide clear support for the use of drug treatment courts as a method of reducing crime among offenders with substance abuse problems.(41) The study, however, did not examine the cost effectiveness of the program.
According to Health Canada, early evaluations of the Toronto DTC showed that there were high rates of retention of drug abusers and program participation. The ongoing evaluations have recognized this Canadian program as a promising form of drug intervention.(42)
Participation in the DTC program is on a voluntary basis. The accused who has been charged with a non-violent criminal offence or an offence under the Controlled Drug and Substances Act must apply for admission into the program. Individuals who are charged with violent offences or have a history of violent offences generally do not qualify for the DTC program.(43)
The participants in the DTC are most commonly charged with theft, possession of stolen property, non-residential break and enter, mischief, communication for the purpose of prostitution, and breaches of court orders. With respect to drug offences, the more frequent offences are those of simple possession, possession for the purpose of trafficking and trafficking (at the street level). These offences are generally known to be committed by individuals who are trying to feed an addiction.
An application form must be completed and then reviewed by the DTC team. The applicant’s eligibility is determined by the Crown Attorney, who acts as the gatekeeper. The prosecutor has a veto with respect to the nature of the offence and/or the applicant’s criminal record.(44) Eligibility is determined on a case-by-case basis. Therefore, a criminal record will not necessarily keep an applicant from being considered for the program. Offenders who are gang members or who used a weapon in the commission of their office may not be eligible for the DTC.(45)
A common condition of being admitted to the DTC is a plea of guilt. The participant is assessed in order to create a treatment plan that is tailored to his or her specific needs. He or she will be stabilized and receive medical attention. If necessary, the methadone program will be administered. Drug treatment court staff will help ensure that the participant has safe housing, stable employment and/or an education. If required, job training will also be provided. The length of the program is approximately one year. As it is considered an outpatient program, the offender will be required to attend both individual and group counselling. Each participant is subject to random urine screening. The participant will be required to appear personally in court on a regular basis. It is expected that the participant will be honest and disclose any high-risk activities and information on whether or not he or she has relapsed. The judge will review his or her progress and can either impose sanctions or provide rewards.(46)
As the program is designed to assist individuals who have severe and long-term addictions, a relapse will not necessarily lead to expulsion from the program. This being said, persistent non-compliance with the treatment program, such as the continued use of substances, could lead to the individual being removed from the program.
Once the participant has met the minimum participation requirement, he or she may apply for graduation. Participants who successfully graduate from the DTC may receive a non-custodial sentence. The sentence may include a period of probation, restitution and/or fines.(47)
Drug treatment courts also exist in the United States, Jamaica, Bermuda, Brazil, Ireland, Scotland and Australia. DTCs in the United States have been in existence since 1969. There are well over a thousand drug treatment courts in that country, where follow-up studies indicate that only a very small percentage of program graduates reoffend.(48)
According to Public Safety Canada(49) one of the lessons learned in the Toronto Drug Treatment Court project was that when planning the program, more attention needed to be given to women and young people under the age of 25. It was observed that a significant number of people in these groups would not return to the project after their initial assessment or would often drop out in the early stages of the program. It was further recommended that monitoring techniques be used to assess and address the needs of women.
Dawn Moore, a professor of criminology at Carleton University, is conducting a nationwide study of women in treatment programs. She is interested in knowing why there is such a high rate of females who drop out of the programs. She has observed that the programs are largely designed without accounting for the specific needs of women.(50)
Bill C-26 consists of 14 clauses. The following discussion highlights selected aspects of the bill and does not review every clause.
Sections 5 to 7 of the CDSA deal with, respectively, the offences of trafficking in a controlled substance, importing and exporting such a substance, and the production of a controlled substance. Clauses 1 to 3 of Bill C-26 amend each of these sections.
The current section 5(3)(a) of the CDSA makes trafficking in a substance included in Schedule I or II an indictable offence. The maximum punishment for this offence is imprisonment for life. This measure reflects the seriousness with which these substances are viewed, particularly the opiates and coca and its derivatives found in Schedule I. One exception is found in section 5(4) of the Act and concerns trafficking in Schedule II substances, mainly cannabis and its derivatives. Should the amount trafficked not exceed the amounts set out in Schedule VII to the Act (3 kg of cannabis resin or cannabis (marihuana)), the maximum possible punishment is imprisonment for a term not exceeding five years less a day.
Clause 1 of Bill C-26 amends section 5(3)(a) of the CDSA to provide for mandatory minimum terms of imprisonment for the offence of trafficking in a substance included in Schedule I or in Schedule II if the amount of the Schedule II substance exceeds the amount for that substance set out in Schedule VII. There will be a minimum punishment of imprisonment for one year if certain aggravating factors apply: the offence was committed for a criminal organization, as that term is defined in section 467.1(1) of the Criminal Code (a group of three or more people whose purpose is to commit serious offences for material benefit); there was the use or threat of violence in the commission of the offence; a weapon was carried, used or threatened to be used in the commission of the offence; or the offender was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years. A “designated substance offence” is defined in section 2 of the CDSA to mean any of the offences in sections 4 to 10 of the CDSA, except the offence of possession of a substance found in Schedule I, II, or III to the Act, as set out in subsection 4(1).
Clause 1 amends the CDSA to impose a minimum punishment of imprisonment for a term of two years if certain other aggravating factors apply, including that the offence was committed in or near a school, on or near school grounds, or in or near any other public place usually frequented by persons under the age of 18 years. Defining such places may prove to be difficult. The use of the term “community centre” in subsection 810.1(3)(b) as a restriction on the movements of those who may commit a sexual offence against a child was found to be overly broad and, therefore, a violation of section 7 of the Canadian Charter of Rights and Freedoms.(51) The minimum two-year punishment will also be imposed if the offender used the services of a person who is under 18 years of age, or involved such a person, in committing the offence or committed the offence in a prison, or on its grounds. The term “prison” is defined in section 2 of the Criminal Code to include a penitentiary, common jail, public or reformatory prison, lock-up, guard-room or other place in which persons who are charged with or convicted of offences are usually kept in custody.
New section 5(3)(a.1) of the CDSA reenacts the current section 5(4) of the CDSA and imposes a maximum punishment of imprisonment for five years less a day if the trafficking offence is for a small amount of cannabis or its derivatives, as listed in Schedule II.
The current section 6(3)(a) of the CDSA makes the importing into Canada or exporting from Canada of a substance included in Schedule I or II of the Act or the possession of such a substance for the purpose of exporting it from Canada an indictable offence. The maximum punishment for this offence is imprisonment for life. Lesser maximum punishments apply if the offence is committed in relation to substances in the other schedules.
Clause 2 of Bill C-26 imposes a mandatory minimum punishment of imprisonment for one year if the offence is committed for the purpose of trafficking and the substance involved is included in Schedule I and is in an amount that does not exceed one kilogram, or is listed in Schedule II. As in clauses 1 and 3, the maximum punishment of imprisonment for life is retained. Under new section 6(3)(a.1), the mandatory minimum punishment increases to two years’ imprisonment if the Schedule I substance that is trafficked is in an amount that exceeds one kilogram.
The current section 7(2)(a) of the CDSA makes the production of a substance included in Schedule I or II of the Act, other than cannabis (marihuana), an indictable offence with a maximum punishment of imprisonment for life. Subsection 7(2)(b) of the CDSA makes the production of cannabis (marihuana) an indictable offence with a maximum punishment of seven years’ imprisonment.
Clause 3 of Bill C-26 imposes a mandatory minimum punishment of imprisonment for two years if the subject-matter of the production offence is a substance included in Schedule I, with a maximum punishment of imprisonment for life. The mandatory minimum punishment is increased to three years if any of the health and safety factors listed in new section 7(3) apply. These health and safety factors are:
If the substance produced is one listed in Schedule II, other than cannabis (marihuana), new section 7(2)(a.1) imposes a mandatory minimum punishment of imprisonment for one year if the production is for the purpose of trafficking or for a term of 18 months if the production is for the purpose of trafficking and any of the health and safety factors listed above apply. If the subject-matter of the production offence is cannabis (marihuana), subsection 7(2)(b) will double the maximum possible term of imprisonment from 7 to 14 years.
Mandatory minimum punishments will also be introduced for the production of cannabis (marihuana), with their length depending upon the number of marihuana plants produced. The term of imprisonment will be at least six months if the number of plants produced is less than 201 and the production is for the purpose of trafficking. The minimum penalty increases to nine months in these circumstances if any of the health and safety factors apply. If the number of plants produced is more than 200 and less than 501, the minimum term of imprisonment is one year, which increases to 18 months if any of the health and safety factors apply. The minimum term of imprisonment will be two years if the number of plants produced is more than 500, which will increase to three years if any of the health and safety factors apply. There is no mention of the production being for the purposes of trafficking when the number of plants is more than 200.
Section 10 of the CDSA sets out the aggravating factors to be considered by a court imposing sentence. Many of these factors have been included in the amended section 5 of the CDSA. The new wording of section 10(2) of the CDSA, as set out in clause 5(1) of Bill C-26, distinguishes between the aggravating factors that lead to the imposition of a mandatory minimum punishment and the aggravating factors that should be considered by a sentencing court when no minimum punishment is specified.
The key part of clause 5 is that, with the consent of the prosecutor, a sentencing court may delay sentencing to enable the offender to participate in a drug treatment court program approved by the Attorney General of Canada. If the offender successfully completes the drug treatment court program, the court is not required to impose the minimum punishment for the offence for which the person was convicted.
There are certain restrictions on participating in a drug treatment court program. None of the aggravating factors set out in the new subsection 5(3)(a)(i)(A) to (C) may apply. These factors are that the offence was committed for the benefit of, at the direction of, or in association with a criminal organization; the offender used or threatened to use violence in committing the offence; or the offender carried, used or threatened to use a weapon in committing the offence. In addition, none of the aggravating factors set out in new subsection 5(3)(a)(ii) may apply. These factors are that the offender committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years; the offender committed the offence in a prison; or the offender used the services of a person under the age of 18 years, or involved such a person, in committing the offence. If any of these aggravating factors have been proven in relation to the offence, the drug treatment court program will not be an option.
The suspension of the imposition of a sentence while an addicted accused person takes an approved treatment program is intended to encourage the accused person to deal with the addiction that motivates his or her criminal behaviour. If the person successfully completes the program, the court normally imposes a suspended or reduced sentence. It should be kept in mind that the Drug Treatment Court Program only operates (as of May 2008) in certain cities and so will not be available to large numbers of offenders.
The Schedules to the CDSA are amended by Bill C-26. Clause 6 of the bill transfers items 1, 25, and 26 of Schedule III to become items 19, 20, and 21 of Schedule I. The first item encompasses the amphetamines, their salts, derivatives, isomers and analogues and salts of derivatives, isomers and analogues. Methamphetamine had earlier been transferred to Schedule I. The other two items transferred are flunitrazepam and any salts or derivatives thereof and 4-hydroxybutanoic acid (GHB) and any salt thereof. Flunitrazepam is a benzodiazepine (sedative) readily soluble in ethanol and also known as Rohypnol. Gamma-hydroxybutyrate (GHB) has sedative effects that are very similar to those of alcohol. Both of these substances are commonly referred to as “date rape drugs.” The effect of this change will be to ensure that, when the offences addressed in the bill concern amphetamines or the date rape drugs, the mandatory minimum punishments will apply. Furthermore, possession of Schedule I substances in contravention of section 4 of the CDSA is more harshly punished than is possession of substances listed in the other Schedules. Clauses 7 and 8 of the bill remove these three items from Schedule III.
Clause 9 will clarify that any of the offences listed in sections 5 to 7 of the CDSA will lead to a firearm prohibition, unless the justice granting release on bail feels it is not required. The broader language in this subsection will take account of additions to the CDSA, such as the new subsection 7(3). Clause 11 does the same for the portion of the National Defence Act that deals with firearms prohibitions.
Clause 10 takes into account the fact that the current section 5(4) of the CDSA has been replaced by the new subsection 5(3)(a.1). New subsection 553(c)(xi) of the Criminal Code will mean that a provincial court judge has absolute jurisdiction to try an accused charged with trafficking in small amounts of substances included in Schedule II of the CDSA (cannabis and its derivatives).
Clause 12 of Bill C-26 is designed to ensure that that the new wording of Criminal Code section 515(4.1)(c) set out in clause 9 of the bill will be the language that remains. This will mean that all of the newly amended sections 5, 6, and 7 of the CDSA, and not just certain parts of them, will be taken into account when a justice is considering a firearms prohibition as part of judicial interim release.
Clause 13 of Bill C-26 refers to Bill C-13 which, as of May 2008, was still being debated in Parliament. Clause 35 of Bill C-13 will add section 720(2) to the Criminal Code,which will allow a court to delay sentencing to enable an offender to attend a treatment program approved by the province under the supervision of the court. Examples of such programs are an addiction treatment program or a domestic violence counselling program. Clause 5(2) of Bill C-26 refers to a possible delay in sentencing to enable an offender to participate in a drug treatment court program. If both these provisions come into force, then the addition of subsections 10(4) and (5) of the CDSA made in clause 5 of Bill C-26 will be replaced by the subsections set out in clause 13. These subsections state that either a drug treatment court program or a treatment program under subsection 720(2) of the Criminal Code are available to offenders. If the drug treatment court program is successfully completed, the court is not required to impose the minimum punishment for the offence for which the person was convicted.
Support for the measures proposed in Bill C-26 is seen by some as an expression of the anger felt toward the “revolving-door” justice system and the perception that sentencing for drug crimes is treated as a minor cost of doing business.(52) The status quo is seen as making a mockery of the law, which must show strength or remain a laughing stock. In this view, the judiciary has for too long seen rehabilitation of offenders as more important than crime deterrence and the right of law-abiding citizens to go about their lives without fear in an orderly society.
The 2007 National Justice Survey would seem to reinforce the view that Canadians view the sentences imposed in Canada as being too lenient. Two-thirds of those surveyed said that they support the strengthening of sentencing laws and tougher penalties for serious drug offenders. Approximately one quarter of Canadians endorse mandatory minimum sentences even for relatively minor crimes, while about half back them depending on the circumstances of the crime and the offender. (53) Yet a survey on public attitudes to sentencing published in January 2007 found that the strongest public support lay with the restorative sentencing objectives of promoting a sense of responsibility in the offender and securing reparation for the crime victim. There was less support for what might be termed the more traditional purposes of sentencing, namely deterrence and incapacitation. There was also strong public support for mandatory sentencing legislation that also permits a limited degree of judicial discretion. The public appear to support mandatory sentences in which courts may impose a lesser sentence where exceptional circumstances exist.(54)
Mandatory minimum sentences have the support of Barry McKnight, who heads the drug abuse committee at the Canadian Association of Chiefs of Police. He says that, in order to build safe and healthy communities, we must deal with the demand reduction as well as the supply management side of the drug abuse equation. The CACP drug policy, adopted in August 2007, said that police chiefs are committed to destroying the criminal infrastructure that keeps the crime cycle going and victimizes communities. Vancouver police spokesman Constable Tim Fanning also supports anything that will reduce the drug problem in his city as at least 80% of the city’s property crime is linked to drugs.(55)
The option of going through a drug treatment court program in order to have a sentence reduced or suspended has been applauded by Ottawa Chief of Police Vernon White. He notes that many drug addicts turn to crime to feed their habits. According to Chief White, if they face mandatory jail time, some of those addicts may choose treatment programs to avoid going to prison. Since many addicts are involved in criminal behaviour, the drug treatment court programs will become a crime prevention tool.(56) Paul Welsh, the Director of the Rideauwood Addiction and Family Services Centre in Ottawa, also welcomed the emphasis on treatment for addiction as an alternative to incarceration.(57)
Much of the negative reaction to Bill C-26 centres on opposition to the expansion in the use of mandatory minimum sentences. Mark Ertel, president of the Defence Counsel Association of Ottawa, has said that Bill C-26 would strip judges of the ability to apply discretion for mitigating circumstances and could turn Canadian correctional institutions and penitentiaries into US-style inmate warehouses.(58) Mr. Ertel argues that automatic jail sentences, with no allowance for mitigating considerations, will inevitably prompt the kind of appeal that led to a 1987 Supreme Court of Canada decision (R. v. Smith) striking down a seven-year mandatory-minimum sentence under the now-repealed Narcotic Control Act as cruel and unusual punishment. He also argues that the bill targets the wrong problem as almost all violent crime is alcohol-related yet liquor manufacturers will not be prosecuted.(59)
Some opponents of the mandatory sentencing that is a feature of Bill C-26 have noted that the increase in costs to operate prisons will draw funds away from social programs, like improved education, health care and those addressing child poverty, which reduce crime.(60) Incarceration is seen as poor stewardship of both money and human resources.
Other opponents of mandatory minimum sentencing have taken note of the fact that the United States, which has championed the use of such sentences for many years, is, in some cases, moving away from them. The thinking is that by depriving judges of discretion and forcing them to apply rigid and arbitrary sentencing rules, the United States built irrationality into its justice system.(61) Yet, even though American courts mete out sentences that are double that of British and three times that of Canadian courts, the US violent crime rate is higher than in those two countries.(62) In addition, while crime rates in both Canada and the United States have fallen almost the same amount in recent years, they did so in Canada without a massive increase in the prison population.(63)
Opponents of the mandatory minimum sentences that are a feature of Bill C-26 point to two Department of Justice studies that conclude that such laws are not effective and are increasingly unpopular as crime-fighting measures in other countries. A 2005 study concluded: “There is some indication that minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits.”(64) A 2002 study,(65) meanwhile, found that mandatory minimum sentences do not appear to deter crime. The reasons for this lack of deterrence include the fact that they bar judges from using their discretion to sentence individuals. As a result, prosecutors and police take up the discretionary role, often choosing not to charge people with offences that would automatically lead to a prison term. Mandatory minimum sentences also sometimes lower conviction rates, as juries refuse to convict accused people facing automatic but seemingly unfair prison terms. Furthermore, while these types of sentences show success in deterring firearms or drunk driving crimes, they appear to have no impact on drug crime.(66)
Those who support mandatory minimum sentences argue, in part, that there can never be positive proof that sentencing policies have an impact on the rate of crime – the variables involved are simply too complex. Mandatory minimum sentences are imposed in any event because society believes in denouncing certain crimes and holding people responsible for them. In addition, “common sense” dictates that such sentences have at least some deterrence value, even if it is not possible to prove how much.(67) Deterrence and denunciation remain very important sentencing principles. Mandatory sentences are needed because the judiciary cannot be trusted to impose appropriate sentences so Parliament must do the job for them. Finally, the longer violent, repeat offenders spend behind bars, the fewer crimes they commit.(68)
Concerns have been raised by some as to the impact of Bill C-26 on prison capacity and costs. In British Columbia, for example, it has been suggested that the province will need to find space in its already crowded jails for approximately 700 more marihuana growers each year. According to Darryl Plecas, a criminologist at the University College of the Fraser Valley, the bill will make necessary the construction of a new prison.(69) Most of the marihuana growers will end up in provincial jails but BC Corrections spokesperson Lisa Lapointe has stated that provincial correctional centres are at capacity. Former Solicitor General John Les, however, said the province will not let capacity issues stand in the way of appropriately dealing with those who break the law.(70) The cost of housing a prisoner is about $57,000 a year in a provincial jail and $88,000 a year in the federal system.(71) In addition to the financial cost of a larger prison population, the Canadian HIV/AIDS Legal Network has noted that higher incarceration rates lead to higher infection rates of blood-borne diseases such as HIV and Hepatitis C.(72)
Finally, the entire criminal law approach to drug use taken by the Controlled Drugs and Substances Act has been called into question by those who assert that politicians and the public have ignored the lessons of Prohibition in formulating drug policy.(73) In the attempt to stop people from drinking alcohol in the early part of the 20th century, revenues from selling alcohol illegally swelled the coffers of organized crime and magnified levels of corruption in local governments. Violence flourished as attempts were made to control the lucrative market for illegal liquor. Many died from drinking alcohol put on the market without quality control. To critics of the current policies of governments in the United States and Canada, the parallels with the “War on Drugs” are clear. An alternative approach has been advocated by Craig Jones, Director of the John Howard Society. He has suggested that legalization and regulation of street drugs would reduce crime in the same way that the lifting of prohibition against alcohol did decades ago.(74)
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