By Matt Elrod
No matter your opinion of the Harper government, the Conservatives seem to think poorly of Canadians – and perhaps rightfully so. The Conservatives have been pushing a cynical, populist, “tough-on-crime” agenda since gaining office, and daring the opposition to stand in their way.
The record shows that the Conservatives do not sincerely believe that their crime agenda is critical for public safety. They introduced 17 tough-on-crime bills in the previous session, but only three were passed into law. The others died on the Order Paper when Harper prorogued Parliament last December.
Nonetheless, sadly, the time- honoured strategy of appearing tough- on-crime and accusing critics—within the media, the scientific community, and opposition parties—of being “soft-on-crime,” appears to be succeeding politically.
Thankfully, one of the crime bills to die last year was C-15, which would have mandated minimum prison sentences for various “serious” drug law offenses, including trafficking cannabis and cultivating cannabis for the purpose of trafficking. C-15 made no allowance for medicinal use, and could have easily snared compassion club operators and providers.
Despite falling crime rates, a majority of Canadians are under the misapprehension that crime rates are spiraling out of control, that our courts coddle criminals, and that mandatory minimum prison sentences are the solution.
The disconnect between actual and perceived crime rates is common, and well-documented around the world. As with cannabis prohibition, our irrational fear of crime is largely the result of the police lobbying for larger budgets, and sensationalism in the mainstream media.
The misconception that longer prison sentences deter criminals and make our communities safer is also quite popular. A recent Angus Reid poll found that 65 percent of Canadians have a moderate or strong feeling that mandatory sentences “send a tough message” to criminals.
In reality, every major study of the subject has concluded that mandatory minimums are extremely expensive and actually erode public safety through a number of mechanisms, not the least of which is making dysfunctional, hardened criminals out of functional, taxpaying parents and their orphaned children.
For example, the Urban Health Research Initiative, a program of the BC Centre for Excellence in HIV/AIDS, just conducted a systematic review of all the available scientific literature in the English language on the impacts of drug law enforcement on drug market violence. They conclude that “drug law enforcement efforts do not reduce drug supply or drug-related violence and may paradoxically increase violence in Canadian communities.”
Mandatory minimums for non-violent drug law offences increase violence by raising the stakes, by making the market for illicit drugs more profitable, and by misallocating finite criminal justice resources— cops, crown prosecutors, public defenders, courts, prison cells, etc.—away from the investigation, prevention, and prosecution of violent and predatory crimes.
Where before offenders might plead guilty, they will more often contest their charges in court. Where before they might give up peacefully, stiffer sentences will encourage them to resist arrest, some- times violently, putting the police at greater risk.
As with wolves and their prey, drug law enforcement tends to focus on the least “organized” drug law offenders, cull- ing out and deterring the weak “mom and pop” growers, to the unintentional benefit of violent gangs.
Drug gangs recruit young Canadians in prison, and they can make a kiliing dealing drugs inside. Those who go in must eventually come out, likely with new addictions, gang affiliations, and infectious diseases.
Even Federal Justice Minister Rob Nicholson, who is championing the government’s crime agenda and intends to revive Bill C-15, did not support manda- tory sentencing when he was a Mulroney backbencher.
In 1988, Nicholson was vice-chair of a Parliamentary committee that argued against mandatory minimums, noting that they “have had the undesirable effect of contributing to rapidly increasing prison populations in the United States.” Indeed, state governments, with shrinking budgets, are hastily abandoning mandatory mini- mums and “three-strikes” provisions.
Witnesses appearing before the House of Commons committee studying Bill C-15 testified overwhelmingly that mandatory sentences do not deter drug use or so-called “drug-related” crime. A 2002 Justice Department report reached the same conclusions: “Drug consumption and drug-related crime seem to be unaffected, in any measurable way, by severe MMS.”
However, it is clear from government pronouncements that they are basing their crime agenda on public opinion polls, not expert testimony, peer-reviewed research, history, or the American experience.
When Rob Nicholson appeared before the House Committee studying C-15, Committee Member Libby Davies asked the Justice Minister point blank, “What evidence […] does your government have that mandatory minimums will work for drug crimes?” His non-response, “We are absolutely convinced in our consultation with Canadians that this is exactly what Canadians want us to do.”
When asked by Davies how much implementing C-15 will cost Canadian tax- payers, Nicholson simply repeated, “I can tell you that this is welcomed across this country.” The government claims to have projected the costs of imposing mandatory minimum sentences for drug offences, but has not made the numbers public.
When asked about the wisdom of warehousing non-violent offenders in over-crowded prisons for growing six or more cannabis plants, Stephen Harper and his ministers have assured us that their intent is to “target” the worst of the worst—repeat violent offenders, sexual predators, and organized crime leaders—but C-15 is not so narrowly focused.
A Senate committee heard from dozens of experts from many disciplines, from all over North America, who provided stacks of congruent peer-reviewed research warning that C-15 will cost a fortune, increase crime and violence, and unjustly incarcerate many non-violent or otherwise law-abiding people for whom all hope of rehabilitation is not yet lost.
Nevertheless, seemingly anticipating being labelled soft-on-crime and obstructionist, opposition senators acquiesced, ignored most of the expert witnesses and scientific evidence, and made only two minor amendments to C-15. One would have exempted Aboriginals, and the other would have exempted cannabis cultivators who grow less than 200 plants.
The Senate committee’s cannabis plant amendment was less progressive than it might at first seem, because minimum sentences would still have applied for growing as few as six plants on rented property, for having a prior drug-related conviction, for cultivating in proximity to minors or weapons, or for creating a public safety risk. Canadian jurisprudence has already established that growing a single cannabis plant is hazardous, if for no other reason, cannabis plants attract cannabis thieves—and nervous cops. Under C-15, trafficking any
amount of cannabis to a minor would be subject to a mandatory prison sentence, and under the Controlled Drugs and Substances Act, trafficking is defined as providing a so-called “controlled drug or substance” to someone, with or without compensation. As the “Prince of Pot” Marc Emery demonstrated, passing along a roach at a party is drug trafficking, even if the passer (pusher) and his friend (victim) refrain from taking a toke.
Opposition members on the Senate committee were evidently impressed by kinder, gentler language in C-15 which supported the concept of “drug courts,” in which selected drug law offenders are offered treatment in lieu of punishment. However, as witnesses who appeared be- fore the committee pointed out, C-15 contained no new funding for drug courts, and only a handful of Canadian cities offer them.
Despite the Senate’s timid amendments, Prime Minister Harper wasted no time in labeling the opposition soft-on- crime. “The Liberals have abused their Senate majority by obstructing and eviscerating law-and-order measures that are urgently needed and strongly supported by Canadians.”
The few legislators with the courage to question Harper’s tough-on-crime agenda, such as Libby Davies, have been accused of caring more about the rights of violent, repeat offenders than about the families of victims and the victims of crime.
The once liberal-dominated Senate is about to take a sharp turn to the right, as Harper fills vacated seats with his Conservative allies, but all hope is not yet lost.
Mandatory minimums for cannabis law offences may be unconstitutional. In ruling against activist David Malmo-Levine and his constitutional challenge of cannabis prohibition in 2003, the Supreme Court of Canada remarked that they might have ruled differently if the Controlled Drugs and Substances Act mandated minimum prison sentences. “The lack of any manda- tory minimum sentence together with the existence of well-established sentencing principles mean that the mere availability of imprisonment on a marihuana charge cannot, without more, violate the principle against gross disproportionality.”
The unavailability of drug courts in rural areas, in cities east of Ottawa and in the North, may also make the next incarnation of C-15 unconstitutional, insofar as federal laws must be applied equally from coast-to-coast.
Bill C-15 will probably need to be re-introduced from scratch under a different name in Parliament, and support for it might have eroded in the House since they approved C-15.
It is not too late to write your Member of Parliament, and especially opposition party leaders and members, and count yourself among the minority of Canadians who believe that our drug laws should be based on evidence, reason, and compassion—not ignorance, fear, and politics.
NOTE: Bill C-15 is now called Bill S-10