Drug legislation would clog courts, say critics

OTTAWA - The Conservative government is tackling crack cocaine and the crystal-meth plague with a vengeance in a bill that would bring new mandatory minimum sentences for drug production and trafficking. But the sweeping range of the legislation - including a possible minimum jail term of six months for growing just one marijuana plant to sell or give away - will lead to Charter challenges and clog the courts, legal critics say.

It would also strip judges of the ability to apply discretion for mitigating circumstances and could turn Canadian correctional institutions and penitentiaries into U.S.-style inmate warehouses, says Mark Ertel, president of the Defence Counsel Association of Ottawa.

Coming as it did as part two of a crime-legislation trilogy, the bill to amend the Controlled Drugs and Substances Act drew only a smattering of attention from a Parliamentary press gallery fixed on the Mulroney-Schreiber affair last week.

Justice Minister Rob Nicholson tucked the drug bill between Monday legislation amending the Youth Criminal Justice Act and Wednesday legislation to combat identity theft.

The bill delivers on a Conservative Throne Speech promise to get tough on drug traffickers, and also puts paid on a get-tough-on-crime pledge going back to the party’s campaign platform for the 2006 federal election.
“By introducing these changes, our message is clear: if you sell or produce drugs, you’ll pay with jail time,” Nicholson said when he unveiled the 10-page bill C-26.

A background table the justice department released at the same time reveals the Conservatives have inner-city crack cocaine and the creeping danger of cheaper and more debilitating methamphetamines, crystal meth, near the top of their hit list.

A conviction for simple production of substances listed in schedule I of the act, including cocaine, heroin and methamphetamine, would bring a mandatory minimum of two years in prison even for the first offence.
Unlike other drugs covered by the bill, no aggravating circumstances, like connections to organized crime or involvement of weapons or proximity to anyone under 18, would be required to impose the minimum.

A three-year minimum would apply if the drugs were produced on someone else’s property, its production threatened the security, health or safety of children in the production location or if booby traps had been set.

With an eye on past complaints from the U.S. that Canadian chemical drugs and the country’s booming illegal marijuana industry are threats to America, the bill imposes a two-year minimum for possession of more than one kilogram of a schedule I drug for the purpose of export trafficking. Possession of cannabis and marijuana for the purpose of exporting – with no aggravating factors or minimum amount – would carry an automatic one-year minimum.

But, despite the political drumbeats about drugs and the image of public hysteria, Ertel says the legislation goes too far, too severely.
A conviction for producing from one to 200 marijuana plants for the purpose of trafficking carries a minimum jail sentence of six months. The scale rises to a two-year automatic sentence for the production of more than 500 plants. The maximum penalty for production of marijuana for the purpose of trafficking jumps to 14 years from seven.

“This is obviously crazy stuff,” says Ertel. “They’ve got a minority government and they’re playing cheap politics and the idea of the cheap politics is ‘go ahead and vote against us on this crazy bill and then we’re going to say you guys love drugs.’”

He argues the automatic jail time - no allowance for mitigating considerations - will inevitably prompt the kind of appeal that led to a 1987 Supreme Court of Canada decision striking down a seven-year mandatory-minimum sentence under the Narcotic Control Act as cruel and unusual punishment.

In R. v. Smith, the case of a B.C. man who pleaded guilty to importing seven and a half ounces of cocaine from Bolivia, Justice Antonio Lamer wrote, “The serious hard drugs dealer who is convicted of importing a large quantity of heroin and the tourist convicted of bringing a ‘joint’ back into the country are treated on the same footing and must both be sentenced to at least seven years in the penitentiary.”

Justice Lamer, though, included this obiter: “A minimum mandatory term of imprisonment is obviously not in and of itself cruel and unusual punishment.”
Ertel says the new Conservative bill may not only violate s. 12 of the Charter in certain circumstances, but it also targets the wrong problem, with the wrong weapon.

“Nobody’s putting anybody who’s making liquor into jail, and almost all violent crime, it’s above 90 per cent, is alcohol related,” he says. “I’ve never seen a case where somebody beat up their wife after they smoke a joint; it doesn’t happen.”

A Statistics Canada Juristat report shows drug trafficking accounted for four per cent of all cases in Canadian adult criminal courts in 2004, compared to 11 per cent for impaired driving. Common assault accounted for another 11 per cent, theft cases were nine per cent and major assault accounted for six per cent. Homicide, including attempted murder, accounted for 0.2 per cent of the cases.

Ertel says the mandatory minimums will mean more and longer drug trials because it will be impossible to bargain pleas: “The courts grind to a halt when there’s no incentive for pleading guilty.”

NDP MP Joe Comartin, a former criminal lawyer in Windsor, offers another twist. He says prosecutors will stay drug charges in an attempt to ration court time.
“They just can’t prosecute, they’ve run out of resources,” says Comartin. “They’ve got 100 more files behind them.”

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