Pubdate: Sat, 19 Nov 2011
Source: Ottawa Citizen (CN ON)
Copyright: 2011 The Ottawa Citizen
Author: Chris Cobb
Bookmark: (Mandatory Minimum Sentencing)


Critics are having a hard time understanding why the Conservatives 
would draft crime legislation that will see teenagers sent to prison 
for sharing marijuana with their friends. It's like 'cracking a nut 
with a sledgehammer,' one tells CHRIS COBB.

He's an 18-year-old the law defines as a man. He comes from a solid 
middle-class family. He's a smart, hardworking person with great 
potential and he's never been in trouble with the law.

Like millions of Canadians teenagers before him, and at least a 
quarter of his contemporaries, he's going through a marijuana phase: 
something that reliable justice statistics show he will eventually 
grow out of, just as many police officers, politicians, doctors, 
teachers and lawyers grew out of.

But times are about to change in Stephen Harper's Canada.

Under new Conservative crime legislation, this 18-year-old man might 
never get the chance to reach his professional goals, legal 
specialists say. Instead, he'll get a brutal two-year education in a 
federal penitentiary.

That's because the young man occasionally does what many in his 
circle do -- swaps small amounts of marijuana with friends.

As he's walking down a neighbourhood street one night, a police 
officer spots him hand a couple of joints to a friend. The two 
teenagers hadn't thought about it, but they're near a school -- 
wherever they go in their urban neighbourhood they're near a school. 
It's night and the school's closed but that's no excuse.

The 18-year-old gives some lip to the officer who takes him to the 
police station and charges him with trafficking. His friend didn't 
pay for the marijuana or give him anything in return. No matter. It's 
still trafficking under the Criminal Code of Canada.

When the case eventually gets to court, the Crown prosecutor presents 
the evidence, which is irrefutable, and the judge has no choice but 
to sentence the 18-year-old to two years in a penitentiary. It's the 
mandatory minimum sentence for someone caught trafficking "near" a 
school or "near" a place where children might gather.

The judge hates not having discretion to consider extenuating 
circumstances, but the government has given him no choice.

When the young man emerges from prison at the age of 20, he's 
carrying the physical and psychological baggage of being incarcerated 
with hardened criminals and he has a criminal record.

Under the Conservative government's Safe Streets and Communities Act 
currently making its way through Parliament, it is probable -- some 
say inevitable -- that young Canadian men and women with otherwise 
unblemished characters will be jailed and branded criminals by their 

The Conservative government says the new anti-drug measures and 
changes to the Youth Criminal Justice Act -- the most controversial 
of nine pieces of crime legislation -- will crack down on organized 
crime, keep drugs away from children and make streets safer.

"By moving quickly to reintroduce and pass the Safe Streets and 
Communities Act, we are fulfilling our promise to Canadians by taking 
action to protect families, stand up for victims and hold criminals 
accountable," Justice Minister Rob Nicholson said when he 
reintroduced the bill in September.

But a long line of critics say much of the legislation is an 
expensive recipe for failure.

"It is badly drafted legislation," says University of Toronto 
criminologist Anthony Doob. "The government has a role to make good 
laws and this isn't good law. We should penalize according to the 
harm caused and I don't think that the 18-year-old who gives his 
17-year-old friend marijuana deserves a penitentiary sentence. How 
did kids sharing marijuana suddenly become organized criminals?"

After a recent House of Commons justice and human rights committee 
hearing into the legislation, Quebec Defence Lawyers Association 
vice-president Joelle Roy used the example of an 18-year-old going to 
a rave and being arrested for giving an ecstasy pill to a friend.

"It can happen to you, or me or to our children and even to their 
children," she said, with a nod toward Conservative MPS on the committee.

"I see it every day in court. The judge sees in front of him a good 
kid of 18 years who goes to school and comes from a good family and 
now he has to send that young man to penitentiary for two years for 
one ecstasy pill. It makes no sense. The kid isn't a criminal, but 
when he comes out he probably will be."

Mandatory minimum sentences are an attack on the freedom and 
independence of the justice system, said Roy.

"People who commit crimes time after time will be sentenced for those 
crimes. We have a system and it works. The government says they want 
so much to help victims, so why don't they take that money they will 
use to build more jails and put it into programs for victims? Canada 
is a very, very safe country. Why is this government doing this?"

The answer, says pollster Frank Graves, is complicated but lies 
partly with a politically-shrewd government appealing to its base and 
to an aging population that craves moral certainty. And, unlike the 
majority of young Canadians, they vote.

"They tend to be anti-intellectual, anti-science and with little 
interest in debating the evidence or listening to expert opinion," 
says Graves. "Many simply want people who do bad things to be 
severely punished whether it makes streets safer or not."

The majority of Canadians still favours measures that prevent crime 
rather than punish it, but the gap has been narrowing since 9/11, adds Graves.

"But Canadians are still remarkably progressive when it comes to 
issues of marijuana (more than 70 per cent support 
decriminalization), same-sex marriage and abortion, and are becoming more so.

"So this may well be the first majority government that achieved its 
victory with issues on which the majority of Canadians disagree," he adds.

"That includes tough-on-crime legislation, the F-35 jet purchase, 
climate change, and scrapping the long gun registry. The majority is 
opposed, but the majority is scattered and not tightly alloyed around 
the issues."

The drug legislation will ensnare a disproportionate number of young 
people, especially those from minority communities, predicts veteran 
NDP MP Joe Comartin, who until recently was a justice committee member.

"The fundamental flaw with this legislation is that it is drafted 
from the perspective of a sleazy, organized drug pusher and ignores 
the reality that a good deal of drug trading is among kids coming out 
of the same economic class and same ethno-cultural communities.

"When I watch Rob Nicholson answering questions about this in the 
House," says the former criminal lawyer, "he clearly doesn't 
understand how easy it is to convict someone of trafficking. You 
don't even have to be selling it -- if you're giving it away to 
friends and families, you're trafficking."

Only pressure from the provinces will have any influence on whether 
the legislation is amended before it becomes law, adds Comartin. Or 
maybe not. Quebec Justice Minister JeanMarc Fournier made an 
impassioned plea to the Conservative majority on the justice 
committee to freeze what is an extraordinarily rapid fast-tracking of 
the legislation and consult with the provinces.

The legislation, especially as it impacts young offenders, is "soft" 
crime, he said. "What we want is a sustainable protection of the 
public," he said. After 40 years of working on the rehabilitation of 
troubled youth, Quebec has become a much-admired international model, 
said Fournier, adding emphatically that Quebec will not pay a penny 
of the millions of dollars it will cost to implement the new legislation.

Ontario Premier Dalton Mcguinty won't pay either. "It's easy for the 
federal government to pass new laws dealing with crime but if there 
are new costs associated with those laws that have to borne by 
taxpayers in the province of Ontario, I expect that the feds would 
pick up that tab," he said.

In response, Prime Minister Stephen Harper seemed unimpressed and 
urged the provinces to do their constitutional duty.

Other provinces, including New Brunswick and Manitoba, favour the 
legislation, although neither has said how it intends to pay the extra cost.

The lineup of individuals and groups opposed or concerned about the 
legislation in its current form is long and varied: The Canadian Bar 
Association, the Quebec Defence Lawyers Association, the Canadian 
Association of Crown Counsel, the Union of Canadian Correctional 
Officers, Canadian Students for Sensible Drug Policy, and the 
Canadian HIV/AIDS Legal Network. And although they do not speak 
publicly except from the bench, judges deeply dislike mandatory sentencing.

"For young people whose substance use does not constitute a full 
addiction, incarceration will be the only option under this bill," 
the Students for Sensible Drug Policy told MPS in a brief. "This 
proposed legislation does not recognize the wide spectrum of reasons 
why people use drugs. Those young people now branded with the stigma 
and criminal record as a 'drug dealer' will have their future 
employment opportunities further reduced -- the opposite of a 
successful rehabilitation effort."

Richard Elliott, executive director of the Canadian HIV/AIDS Legal 
Network, says prison, where unsafe drug use is rampant, is the worse 
place for young drug addicts.

"This is exactly what we should not be doing as a matter of sound 
public policy," he says. "Instead of spending hundreds of millions to 
house people in prisons, think of what that money could do if it was 
put into expanding access to voluntary treatment in the community. It 
would pay enormous dividends for public health and individual wellbeing."

Incarcerating people for relatively minor marijuana offences is 
"cracking a nut with a sledgehammer," adds Elliott.

"Do we really need to throw young people in jail for this?"he says. 
"I'm sure the majority of Canadians don't feel that this kind of 
activity warrants a criminal record or imprisonment. Why make the 
vast majority of your population potential criminals for sharing 
marijuana plants. Where is the sense of proportion?"

Ottawa police officers who are part of a program of interaction with 
area high school students say they see little evidence that drugs are 
a major problem, and when school authorities do find marijuana it is 
in small quantities.

Ottawa Carleton District School Board trustee Cathy Curry says kids 
need to be punished when they break the law, but incarceration is "simplistic."

"It isn't taking into consideration what happens in real life," she 
says. "Trustees and educators across Canada have learned that there 
is so much change going on in the teenage brain that they aren't 
always as capable of making good decisions as they were when they 
were 10 and 11. Any parent of teenagers understands that. There are 
times when your teenager is like someone you've never met before."

The legislation has vocal supporters and almost all of the current 
round of committee hearings have included victims of horrendous crime 
and leaders of police associations.

One vocal advocate is Line Lacasse, a Laval mother whose son 
Sebastien was brutally beaten and stabbed to death by youth gang in 2004.

"They were 10 young people with no respect for human life," she told 
the committee. "If your child was killed in this way you would vote 
for this bill. We have a life sentence when we lose a loved one. 
There are no serious consequences for these crimes."

Quebec Justice Minister Fournier, and others opposed to the increased 
incarceration of young people, say nothing in the legislation will 
prevent similar crimes from occurring and accused the government of 
using high-profile tragedies to justify draconian punishments.

Strong opposition from federal and provincial prosecutors and defence 
lawyers who say the new laws will cripple an already overloaded court 
system, and from prison guards who argue that more overcrowding will 
make prisons more dangerous for inmates and guards, appears to be 
having no effect.

There is no incentive for the government to backtrack, says pollster 
Frank Graves

"They have a majority in the Commons and Senate, a neophyte official 
Opposition whose talent is jockeying for the leadership, a humbled 
Liberal party and a public that's sick of politics and isn't paying 
attention. And this is a government that clearly signalled its 
intentions during the last election.

"The likelihood any opposition will stop this is close to zero."

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Highlights of the Safe Streets and Communities Act

The federal government's Safe Streets and Communities Act includes 
nine separate piece of legislation

1. Increasing Penalties for Organized Drug Crime

Mandatory minimum sentences are the cornerstone of the legislation, 
with critics arguing it is modelled after U.S. laws that some states, 
including Texas and California, are now abandoning as too expensive, 
ineffective and crippling to the criminal justice system.

Those convicted of growing as few as six marijuana plants for 
trafficking will get six months in jail and anyone growing 500 plants 
or more will get two years. The maximum penalty for marijuana 
production is doubled to 14 years.

Those caught trafficking will get a minimum one-year jail term, 
increased to two years if the trafficking was near a school or a 
place where children might gather.

Justice Minister Rob Nicholson says mandatory minimums will crack 
down on the "scourge" of drugs and have the support of Canadians. 
Critics say the legislation will do little to combat organized crime 
and leave leaders of drug gangs untouched, but will see more young 
Canadians imprisoned.

2. Protecting Society from Violent Young Offenders, a.k.a. Sebastien's Law

This legislation, named after a young Quebecer killed by a street 
gang, is meeting huge resistance from those who say it sets the 
justice system back decades and will create criminals out of young 
people who could otherwise be rehabilitated. The most bitter 
resistance is coming from Quebec where provincial Justice Minister 
Jean-Marc Fournier calls it "soft on crime" and an affront to decades 
of experience, study and statistics.

The legislation makes it easier for courts to consider an adult 
sentence for offenders aged 14 and older convicted of murder, 
attempted murder, manslaughter and aggravated sexual assault, and to 
seek often lengthy pre-trial incarceration for offences carrying a 
five-year sentence or more. Courts may also lift a publication ban on 
a young offender's name.

Queen's University law professor Nick Bala says that, far from being 
a deterrent, being named in the press would be a badge of honour for 
young offenders.

3. Ending House Arrest for Property and Other Serious Crimes

For a range of crimes, including drug offences, weapons offences, 
bail breach, criminal harassment, luring a child, theft over $5,000 
and human trafficking, those formerly allowed house arrest will now 
be incarcerated if they are prosecuted by indictment rather than 
summary conviction, which is usually reserved for less serious offences.

The result, say critics, will be more crowding in already overcrowded 
jails and penitentiaries. The government says it is protecting Canadians.

4. Eliminating Pardons For Serious Crimes

This legislation resulted from a pardon granted four years ago to 
Graham James, the former hockey coach whose sexual assault victims 
included Sheldon Kennedy.

Criminals will no longer be 'pardoned' but will be 'ordered' a 
'record suspension,' which is meant to remove any suggestion that the 
criminal has been forgiven. The legislation eliminates pardons for 
sex offenders targeting children and for those who have accumulated 
'three strikes' -- or three serious offences. Many convicted 
criminals will now have to wait five years, rather than three, for a 
'suspension.' A pardon, or suspension, means that criminal records do 
not show on background checks unless sex offenders apply to work with 
young people.

Critics say the legislation removes valuable incentives for prisoners 
who want to reform.

5. Protecting children from sexual predators

Among the least politically contentious of the nine bills is one that 
would create new offences and impose new mandatory sentences for 
offences involving children. Offenders will face a minimum 90 days in 
jail, up from 14 days. More serious offences will carry a minimum six 
months, up from 45 days.

New offences under the act address 'grooming' of children over the 
Internet and making sexually explicit material available to children 
as a precursor to an offence.

6. Increasing Offender Accountability

This gives victims a say in 'conditional release' (parole) board 
hearings and keeps victims informed of how offenders are behaving. 
Offenders will be required to complete a correction plan and police 
will be allowed to arrest offenders on release -- without a warrant 
- -- if they 'appear' to be contravening the terms of their release.

7. International Transfer of Prisoners Back to Canada

This gives the government greater power to deny the transfer of a 
Canadian citizen sentenced to jail time in a foreign country back to Canada.

8. Supporting Victims of Terrorism

Victims of terrorism will be given the right to sue, in Canadian 
courts, individuals, groups or foreign countries that the government 
has identified as supporters of terrorism.

9. Protecting Vulnerable Foreign Nationals against Trafficking, Abuse 
and Exploitation

This is an effort to deny work permits to those the government 
decides are vulnerable, including exotic dancers, low-skilled 
labourers and potential victims of human trafficking. Denial of a 
work permit will require the agreement of two immigration officers.
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MAP posted-by: Jay Bergstrom