Bill S-10: "Penalties for organized drug crime act"
Debate in the Senate - May 11, 2010

SENATE TRANSCRIPT - May 11, 2010
Bill to Amend – Debate at Second Reading
Source: parl.gc.ca

*emphasis added

Senator John Wallace moved second reading of Bill S-10, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts.

Hon. John D. Wallace (Conservative Senator):
Honourable senators, I rise today to speak to Bill S-10, entitled the Penalties for Organized Drug Crime Act. This is an act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other acts.

Honourable senators, you may recall that this is the third attempt of our government to have this very important legislation adopted and brought into force. This bill is specifically aimed at tackling a problem that is of the most serious concern to all Canadians, and that is the problem of illicit drug crimes, particularly drug trafficking and drug production, both of which occur within all regions of our country.

Honourable senators, Bill S-10 is being reintroduced exactly as it was passed by the other place in the previous session of Parliament. It includes the amendments that were adopted by the [House of Commons] Committee on Justice and Human Rights after hearing from the Minister of Justice, officials from the Department of Justice Canada, as well as a wide range of stakeholders and experts, including representatives of law enforcement.
[Note: The amendments made by the Bill C-15 Senate Committee were not included.]

These committee amendments were then adopted by the other place, and this is the bill that is now before us.

Honourable senators, I believe it is extremely important to point out to you that this bill must be viewed within the context of Canada's National Anti-Drug Strategy that was announced by the Prime Minister in October 2007. Moreover, this bill follows through on one of our government's key priorities, namely, to tackle crime and, particularly, organized crime.

In this regard, Canada's National Anti-Drug Strategy is composed of three action plans, one of which is a plan for combating both the production and distribution of illicit drugs. This particular action plan contains a number of key elements, which include ensuring that strong and adequate penalties are in place for serious drug crimes.

Bill S-10 falls clearly within this particular action plan. The bill proposes a number of mandatory minimum penalties to ensure that the appropriate, significant sentences are imposed on those who commit serious drug crimes.

Honourable senators, it is also important to realize that Bill S-10 is not about applying mandatory minimum penalties for all drug crimes. It introduces targeted mandatory minimum penalties for serious drug crimes and ensures those who carry out these crimes will be appropriately penalized.

Before addressing the specifics of Bill S-10, I would like to take a few moments to explain the nature of the problem that this bill seeks to address.

During the last decade, domestic operations related to both the production and distribution of marijuana and synthetic drugs have dramatically increased, resulting in extremely serious problems in some regions of our country, problems which often overwhelm the capacity of law enforcement agencies. These illicit drug operations pose serious health and public safety hazards to those in or around them. They produce environmental hazards, pose cleanup problems and endanger the lives and health of Canadians and their communities.

These operations are lucrative businesses and attract a variety of organized crime groups. Huge profits are available with little risk to operators, and these profits are used to finance other criminal activities. Existing penalties and sentences related to these offences are considered by many to be far too lenient and not commensurate with the level of harm imposed upon our communities by such criminal activities.

According to Statistics Canada, the rate of marijuana cultivation or production offences has more than doubled from approximately 3,400 offences in 1994 to 8,000 in 2004. According to a study on marijuana grow operations in British Columbia in 2003, approximately 39 per cent of all reported cultivation cases, numbering 4,514, were located in British Columbia. Between 1997 and 2000, the total number of these cases increased by over 220 per cent.

Although the number of individual operations in British Columbia levelled off between 2000 and 2003, the estimated quantity of marijuana produced increased from over 19,000 kilograms in 1997 to a seven-year high of over 79,000 kilograms in 2003. That is a fourfold increase due directly to the size and sophistication of individual operations.

Honourable senators, these observations are provided to you so there can be a full appreciation of the seriousness of the drug crime situation in our country.

The Government of Canada has recognized this. It has recognized that serious drug crimes, such as large-scale grow operations and clandestine labs, most definitely pose significant threats to the safety of our streets and our communities. In this regard, Bill S-10 is a vitally significant part of our government's strategy to address this very serious problem.

[*CannabisFacts.ca comment: Despite Senator Wallace's repeated assertions that Bill S-10 will target "serious drug crimes" such as " large-scale grow operations," Bill S-10 seeks to impose mandatory jail time for a person growing as few as six marijuana plants. View proposed sentences ]

This bill proposes certain amendments to strengthen the Controlled Drugs and .ubstances Act provisions in regard to penalties for serious drug offences by ensuring that these types of offences are punished by the imposition of mandatory minimum penalties. With this bill, our government is demonstrating its commitment to improving the safety and security of Canadians and communities across our country.

As has been stated before, our government recognizes and acknowledges that not all drug offenders and drug offences pose the same risk of danger and violence. Bill S-10 recognizes this fact, and that is why it proposes a focused and targeted approach in dealing with serious drug crimes. Accordingly, the new penalties will not apply to the offence of drug possession, nor will they apply to offences involving all types of drugs. This bill focuses on the more serious drug offences that involve the more serious illicit drugs.

Overall, the amendments included within Bill S-10 represent a tailored approach to the imposition of mandatory minimum penalties for serious drug offences, including trafficking, importation, exportation and production involving such drugs as cocaine, heroin, methamphetamine and cannabis. This bill provides a seamless approach to dealing with serious drug offences and, to this end, proposes a number of significant amendments to the Controlled Drugs and Substances Act.

The illicit drug offences being targeted by Bill S-10 are trafficking, possession for the purpose of trafficking, production, importing, exporting and possession for the purpose of exporting drugs. The drugs that would be covered are described as Schedule I drugs, which include cocaine, heroin, methamphetamine, and also Schedule II drugs, such as marijuana.

Bill S-10 does not apply to drug possession offences or to offences involving less serious drugs, such as diazepam or Valium.

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For Schedule I drugs — that is, drugs which include heroin, cocaine or methamphetamine — Bill S-10 proposes a one-year mandatory minimum penalty for the offence of trafficking or possession for the purpose of trafficking in the presence of certain aggravating factors.

These aggravating factors include: the offence is committed for the benefit of, at the direction of, or in association with organized crime; the offence involved violence or threat of violence or weapons or threat of the use of weapons; or the offence is committed by someone who was convicted in the previous 10 years of a designated drug offence.

If youth are present during the commission of the offence, or if the offence occurs in a prison, the mandatory minimum penalty is increased to two years.

In the case of importing, exporting and possession for the purpose of exporting, the mandatory minimum penalty is one year if these offences are committed for the purpose of trafficking.

A one-year mandatory minimum penalty will also be imposed if an offender abuses his authority or his position, or if the offender has access to a restricted area and uses that access to commit these crimes.

The mandatory minimum penalty will be increased to two years if these offences involve more than one kilogram of a Schedule I drug. A mandatory minimum of two years is also provided for a production offence involving a Schedule I drug.

The mandatory minimum sentence for the production of Schedule I drugs increases to three years where the aggravating factors relating to health and safety are present. These particular factors include:

*the illicit drug production constituted a potential security, health or safety hazard to children who were in the location where the offence was committed or in the immediate area;

* the illicit drug production constituted a potential safety hazard in a residential area;

* or the person who committed the offence placed or set a trap.

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For Schedule II drugs, including marijuana and cannabis resin, the proposed mandatory minimum penalty for trafficking and possession for the purpose of trafficking is one year if certain aggravating factors are present, such as: violence, recidivism or organized crime.

If factors such as trafficking to youth are present, the mandatory minimum penalty is increased to two years.

For the offences of importing or exporting and possession for the purpose of exporting marijuana, the mandatory minimum penalty is one year imprisonment, if the offence is committed for the purpose of trafficking. A one year minimum penalty will also be imposed if an offender abuses his authority, or his position, or if the offender having access to a restricted area uses that access to commit these crimes.

For the offences of marijuana production, Bill S-10 proposes mandatory minimum penalties based on the number of plants involved:

* The production of six to 200 plants cultivated for the purpose of trafficking would bring a minimum of six months imprisonment. In this regard, it is significant [?] that the minimum number of plants was increased to six plants from one plant as a result of an amendment that was proposed in the other place [House of Commons] by the Justice Committee.

* The production of 201 to 500 plants would bring a minimum one year imprisonment.

* The production of more than 500 plants would bring a minimum of two years imprisonment. The production of cannabis resin [hash] for the purpose of trafficking would bring a minimum one year imprisonment.

* The mandatory minimum extensions for the production of Schedule II drugs increase by 50 per cent when any of the aggravating factors relating to health and safety, which I have just described, are present.
[e.g.: the mandatory minimum sentence for growing six plants would increase from 6 months to 9 months.]

* The maximum penalty for producing marijuana would be doubled from 7 to 14 years imprisonment.

* Amphetamines and the "date rape" drugs GHB and Rohypnol would be transferred from Schedule III to Schedule I, thereby enabling the courts to impose higher maximum penalties for offences involving these drugs.

Honourable senators, it is extremely important to recognize that Bill S-10 also provides the courts with the discretion to impose a penalty other than the mandatory minimum on a serious drug offender who has entered and successfully completed a court drug treatment program. As honourable senators will recall, when predecessor Bill C-15 was introduced last year in this chamber, a number of amendments were made to it. I would like to speak to two of those amendments.

Predecessor Bill C-15 also proposed mandatory minimum penalties that were based on the number of plants involved in the marijuana production operation. It provided for a mandatory six months imprisonment in cases involving the production of six to 200 plants and if the plants were cultivated for the purpose of trafficking. Once again, the minimum number of plants had already been raised to six plants from one plant as a result of the amendment that was adopted by the Justice Committee and passed by the other place.

Under Bill C-15, persons who cultivated five plants or less would not have been subjected to a mandatory minimum penalty. Rather, the minimum penalty would have applied only where the offender cultivated more than five plants and fewer than 201 plants, and the offender was growing the plants for the purpose of trafficking. It is not a possession offence, but it is a production offence for the purpose of trafficking.

One of the amendments proposed and adopted by the Senate committee in respect of the predecessor Bill C-15 changed this approach in a very significant way. That particular amendment removed the mandatory minimum penalty for persons producing between five and 200 plants if the production was for the purpose of trafficking. It removed that mandatory minimum. This amendment would have meant that any person would have been allowed to operate a production grow operation of up to 200 plants with the intent to traffick and not be exposed to a mandatory minimum penalty of any kind whatsoever if convicted of producing marijuana.

Honourable senators, this amendment amounts to an invitation for criminals to become involved in the business of producing 200 marijuana plants or less for the express purpose of trafficking and to not fear imprisonment. In my view, such an amendment would send out the absolute wrong message and most definitely should not be repeated.
[Note: At the time of the amendment, Senator Wallace seemed to think this amendment made the bill tougher.]

I draw the attention of honourable senators to another amendment proposed and adopted by the Senate committee in respect of Bill C-15. It would have given judges the discretion to impose a penalty that would be less than the mandatory minimum for any of the serious drug offences covered by that bill when the court is satisfied that, where the offender is an Aboriginal person, the sentence would be excessively harsh under the circumstances and another sanction would be reasonable and available. That particular amendment would have meant that an Aboriginal offender who committed a serious drug crime of any kind would not face a certain term of imprisonment, as would all other offenders in similar circumstances. I also remind honourable senators that Bill S-10 provides the courts with the discretion to impose a penalty other than the mandatory minimum for a serious drug crime offender who enters and successfully completes a drug treatment program. That is regardless of whether the program is monitored by a drug court or an ordinary court.

Our government recognizes that Aboriginal offenders constitute a significant percentage of the inmate population in our jails and penitentiaries. Moreover, our government is cognizant of the Criminal Code provisions that permit courts to pay particular attention to the circumstances of Aboriginal offenders during sentencing. However, as the Supreme Court of Canada found in R v. Gladue in respect of the Aboriginal offender, this is not to be taken to mean that, as a general practice, Aboriginal offenders must always be sentenced in a manner that gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation and separation. It would be reasonable to assume that Aboriginal people believe in the importance of these goals and that such goals must be given due consideration in appropriate cases.

Even when an offence is considered serious, the Supreme Court of Canada has held that the length of a term of incarceration must be considered. In some circumstances, the length of the sentence of an Aboriginal offender may be less and in others, it may be the same as that of any other offender. In this context generally, the Supreme Court of Canada has held that the more serious and violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is Aboriginal or non-Aboriginal.

With this in mind, I remind honourable senators that Bill S-10 is about dealing with serious drug offenders. The bill proposes that mandatory minimum penalties be imposed when serious aggravating factors are proven to exist. In my view, and under these circumstances, the Aboriginal and non-Aboriginal offender should be treated in the same manner in consideration of the imposition of the minimum penalty. It would still be open to the courts to impose less severe maximum penalties in appropriate cases involving Aboriginal offenders. It would also be open to the courts to refer, in appropriate cases and where possible, Aboriginal offenders to drug treatment programs and to impose a penalty other than the mandatory minimum if the offender has successfully completed the drug treatment program.

Honourable senators, Bill S-10 is a vital part of our government's continuing commitment to take the steps necessary to protect Canadians and make our streets and communities safer. Canadians want, and expect, a justice system that has clear and strong laws that denounce and deter the commission of serious crimes in this country, and this includes, of course, serious drug crimes. Canadians want laws that impose penalties that adequately reflect the serious nature of these crimes, and Bill S-10 does just that.

Thank you, honourable senators.

---[Q&A]---

Hon. Hugh Segal: I wonder if the senator would take a question?

Senator Wallace: Certainly.

Senator Segal: I am a great admirer of Senator Wallace and the tremendous work he has done on some of these difficult Criminal Code, sentencing and related issues. I am particularly impressed by the fairness and balance he has brought to the arguments that he has made on behalf of the government both he and I support.

I am worried, though, about laws that, in their specificity, may have the unintended circumstance of bringing the administration of justice into disrepute. I am not a lawyer, and I defer to others in this chamber who are. I have no experience with marijuana. I was once asked by Craig Oliver in 1998 if I had ever tried marijuana. I said that I did not like it very much. I was not a smoker and I preferred smoked meat.

Having said that, there is a big difference between 200 plants and six plants. If one looks at the studies on what might be going on in university residences across the country, I am led to believe by those who understand this more than myself that there might be as many as three, four or five plants found on occasion in a student's room, maybe as many as six or seven. The notion that that constitutes prima facie evidence of the intent to traffic and sell strikes me as putting an undue burden on our police. Last I checked, the police are pretty busy dealing with serious crime, such as the real traffickers and the big grow-ops that the OPP and the RCMP, as Senator Runciman knows, have found in rural eastern and northern Ontario, where there are serious issues of people conspiring to break the law in a big way.

Does Senator Wallace think there is any give in the gap between 200 plants, which may be excessively, if you excuse the expression, liberal with respect to some protection, and six plants? On occasion, local police officers may find that hard to enforce. Local Crown Attorneys might find it puts them in the circumstance where they have to prove intent in face of competent defence lawyers who would argue that six plants may be excessive in terms of the specificity of the law, but by no means constitute intent to traffic or give to others for reasons that are intrinsically unlawful.

I put the question to the senator, knowing that he may want to reflect on it, but hoping that he might give some consideration to the prospect of a modestly more relaxed approach.

Senator Wallace: I thank the honourable senator for the question. The issue of marijuana production is significant in this country. We know from our study of Bill C-15 and the evidence that came before us at that time that there are differences of opinion on the topic. There is no question, though, with our government, and I firmly believe this myself, that marijuana production is a serious problem, and it is one that fuels organized crime to a great extent. As the honourable senator may know, in the United States, British Columbia is thought to be a major source of marijuana production and exportation, and it is a serious concern.
[Note: Canada is not a "major source" of marijuana to the United States. Canada only supplies about 2% of marijuana available in the U.S., while Mexico supplies close to 50%.]

Regarding the range of six plants to 200 plants, production has to be proven to be for the purpose of trafficking. The Crown is required to prove that. The subject is not taken lightly. It is a serious matter to prove that it was for the purpose of trafficking. At the upper end of the scale, and I remember this from the work we did with Bill C-15, the wholesale value of 200 plants equates roughly to $350,000, so it is significant money.
[Note: This value estimate is not accurate. Police estimate the value of marijuana plants use a value of $1000 per plant, no matter what size they are. A 200 plant grow op would be valued by police at $200,000.]

At the lower end of the scale, as I mentioned in my presentation, the initial thought in the house was to start at one plant. There was a lot of discussion about where between 1 and 200 that limit should fall. There was considerable discussion with all law enforcement throughout this country on where that figure should start. The departments of justice in the various provinces were very much involved in that whole consultative process. As a consequence of that, the one was increased to five, so now it is anything that is less than six. Having gone through that exercise and taking it seriously, the number was not grabbed out of the air. It was done through consultation with those who are knowledgeable about these issues and, in particular, serious drug crime in this country, which is what this is all about. We are focusing on this to make our streets safer and protect our children. That is what this is about. It is to impact in a significant way the serious problems that organized crime presents.

Having said all of that, the question was about the chance, at this stage, having gone through this process, that there would be a change in that, and I would think not.

Hon. Joan Fraser: Will the honourable senator take another question?

Senator Wallace: Yes.

Senator Fraser: My question follows on from the interesting line of reasoning advanced by Senator Segal. I would tend to agree that six to 200 is too broad a range. It is the range the House of Commons sent to us. Perhaps this is an occasion for some sober second thought.

However, looking at the lower end of that range, six, 10, or maybe 15 plants, my recollection of the work of the Senate committee is that one of the concerns was that, true, the plants would have to be being produced for the purposes of trafficking. Unlike Senator Baker, I do not have my Criminal Code with me. Can Senator Wallace confirm for us that the Criminal Code definition of trafficking is extremely broad? It includes giving or even offering to give. Someone in a suburb who grows 20 plants so that he can have a nice pot party once or twice a year with his neighbours, just good respectable suburban folks, would be considered to be growing those plants for the purposes of trafficking even if it were only for the three or four immediate neighbours. Am I correct in my recollection about what the Criminal Code says about trafficking?

Senator Wallace: I thank the honourable senator for the question. This is not from personal knowledge, but my understanding is that five marijuana plants, which is the average that is being used for consideration, do produce a significant amount of marijuana. To answer specifically the honourable senator's question, it is true that trafficking does include more than the sale of product, and it would cover giving as well.

Hon. Grant Mitchell: I have two questions, and I will ask one at a time.

The honourable senator was making the point that this will reduce organized crime, which is somehow fuelled by marijuana trafficking. Can he tell me how it is that organized crime would be interested in six plants? That does not seem like a significant amount for an organized crime operation to be worried about, so why would we be worried about it in that context?

Senator Wallace: The bill, as the honourable senator knows, involves a far broader range of serious drugs: heroin, cocaine, methamphetamine, and marijuana. There is no question that production and sale of those drugs are a financial lifeline for organized crime. We have heard that from law enforcement and I fully believe that.

As to the honourable senator's question of where the interest of organized crime begins and where to slot in the beginning point in production to gear to that, that could be an endless debate. The point is that there has to be a beginning — the beginning point of six plants was one that was not taken lightly — and there is no question that the focus of this bill is to deal with serious drug crime. It is the government's view that production from six plants and up does constitute serious drug crime.

Senator Mitchell: The real fear is that a university student growing some plants in a few rooms in a university residence or a house near campus could literally have their lives ruined by something that, in fact, is not particularly pernicious, does not lead to organized crime and might well be commensurate with any number of events that senators in this house got themselves into when they were 19 and 20 years old. When quantifying the level at six plants or five plants, that is the risk you will run. We will start to see what we have seen in the United States, where people who make a relatively minor mistake are in jail for five and ten years — admittedly, you are saying for six months — and their lives are literally ruined. I make that as a statement.

This bill will undoubtedly result, the government would hope in many more people going to jail. Its tough-on-crime bills always tout that purpose, which is the irony because if these measures actually worked fewer people would go to jail due to the disincentive for committing the crimes this kind of penalty represents.

Has the government done any analysis of how many more people will go to jail for who knows how much longer, into facilities we do not yet have but must build and operate, because this bill increases the number of people who will be creating the demand for them? Remember that one cell costs $100,000 to build and one person in that cell costs $100,000 a year to operate. Have you an estimate on what this bill will actually cost the Canadian people?

Senator Wallace: I have a couple of comments. You suggest it is the government's hope or my hope that many more people will go to jail because of this measure. I would hope just the opposite. We can debate the deterrence of impact of mandatory minimums and stiffer sentences. It would certainly be my hope that there will be a deterrent effect and as a result fewer who would involve themselves in criminal activity. That is an endless debate, I realize, but the point that we would somehow hope more people will go to jail and that is what we stand for is not the case.

Having said that, criminal activity is a significant issue in this country and I believe it is necessary for law enforcement and for legislators to support the efforts of law enforcement to disrupt that criminal activity. Yes, to do that there are times that separating those who will be involved in trafficking, production, importation, and exportation of serious drugs and incarcerating them is what will have to be done to protect our citizens and to make our streets safer. Quite frankly, if that is what it takes to do it, I fully support it.

Hon. James S. Cowan (Leader of the Opposition): Honourable senators, I wish to follow up on Senator Mitchell's question.

Assuming this bill goes forward and goes to the committee, will Senator Wallace ensure or alert the officials in the department that we would like access to any studies that might have been done by the government that show what impact this measure might have to deter criminal activity, as the honourable senator would hope it would, and also the cost of implementing this bill as a result of increased incarceration rates be? Would the honourable senator ensure that appropriate witnesses are available to the committee for that purpose?

Senator Wallace: The full gamut of issues that this bill involves will be considered at committee, as it was when we dealt with Bill C-15. I know there are a number of witnesses within the Department of Justice and otherwise who will speak to all of the issues that this bill involves. It is not the first time the issues you raise have been raised, as you are well aware. They will be raised again and I am sure will be adequately addressed at committee.

(On motion of Senator Tardif, debate adjourned.)

The Definition of "Trafficking"
(from the Bill C-15 Senate Committee transcripts)

Senator Joyal: You have raised the issue of the meaning of trafficking, and Senator Baker also alluded to it. I think it is important that we put on the record section 2 of the Controlled Drugs and Substances Act, which defines what "trafficking" means.

“Traffic” means, in respect of a substance included in any of Schedules I to IV,
(a) to sell, administer, give, transfer, transport, send or deliver the substance, or
(b) to sell an authorization to obtain the substance, or
(c) to offer to do anything mentioned in paragraph (a) or (b) . . .

Video from the Bill C-15 Senate Committee on November 19, 2009
Senator John D. Wallace just doesn't get it!
...even after many expert witnesses explained it to him.

The so-called "gutting" of Bill C-15 by Liberal Senators
Bill C-15 Senate Committee - December 3, 2009
Senator Wallace thought this amendment to Clause 3 made the bill tougher!