Liberal Senators May Buckle and Pass Tories’ ‘Flawed’ Crime Bills

The government’s two crime bills currently held up in the Senate are “flawed,” and could be unconstitutional, but the Liberals are afraid of being labelled soft on crime and Grit Senators may succumb to political pressure and vote against amending the bills, says a Liberal Senator who supports the amendments.

“There is a real possibility that the amendments may be turned down by the Senate,” said Newfoundland Liberal Senator George Baker.

“And then the problems would cease and the bill would pass on third reading as it is, without amendment. And the same thing may happen to the Controlled Drugs and Substances Act [Bill C-15].”

The two bills, C-25, and C-15 are part of the government’s touted law and order agenda. The first bill, C-25, would eliminate the practice whereby convicted criminals can get two-for-one credit for each day they spend in pre-trial custody before being convicted. Critics of the law say criminals who know they will be convicted sometimes refuse bail and choose to remain in remand in order to shorten the total amount of time they’ll have to spend in jail. The second bill, C-15, would bring in mandatory minimum sentences for drug crimes, which would change the law so that someone caught with as few as five marijuana plants would spend a minimum of six months in jail.

Sen. Baker said he disagrees with the “general philosophy” behind both bills, but aside from that, he also said the bills contain enough legal errors to justify the Senate bringing in amendments. For example, Bill C-15 stipulates that if drug offenders agree to go to a so-called drug court, through which they can broker a plea deal that usually involves treatment and random drug tests, then they can get out of doing jail time. Drug courts only exist in six Canadian cities Toronto, Vancouver, Edmonton, Winnipeg, Ottawa and Regina and so if you don’t live in one of those cities you don’t have the option of avoiding jail. Bill C-25 says a judge does not have to explain why someone charged with a crime is refused bail, which Sen. Baker said was red-flagged by expert witnesses when the Senate Legal and Constitutional Affairs Committee studied the bill.

The Conservatives have been attacking the opposition Liberals in the House of Commons and the media for the Liberal-dominated Senate holding up the bills. The Tories say it proves Liberal Leader Michael Ignatieff (Etobicoke-Lakeshore, Ont.) and his caucus are “soft on crime,” even though they voted to pass both bills.

“What the Liberal Party should do…is go down to the Senate and, instead of playing this two-faced game where they pretend to support tough-on-crime legislation but block it in the Senate, they should tell their own Senators to be honest with the Canadian people, to pass that legislation and stop letting criminals get away,” Prime Minister Stephen Harper (Calgary Southwest, Alta.) said recently in Question Period.

The Senate Justice Committee voted to change the two-for-one law to time-and-a-half served, meaning convicts would get 1.5 days’ credit for every day served pre-sentencing, as opposed to eliminating it altogether, which Bill C-25 proposes. The amendment would also give judges discretion in awarding pre-sentencing credits, and would require an explanation for their decision. No amendments have yet been proposed for Bill C-15, but they are expected to be forthcoming since the Senate voted to examine it in committee. Some of the Senators who proposed the amendments supported Liberal MP Bob Rae (Toronto Centre, Ont.) during his 2006 leadership bid, which led to speculation that Mr. Rae urged them to stall the bill to create headaches for Mr. Ignatieff, which Mr. Rae denied.

Sen. Baker also said his colleagues in the Senate might not want to provide the Tories with any more ammunition to attack Mr. Ignatieff.

“Liberal Senators may sit down and say, ‘Look, the leader and the Liberal Party in the House of Commons is in favour of this bill. They don’t want changes made to it. This is what the declaration was, so therefore we’re going to vote against these amendments that the [Senate] committee has approved.’ That is a real possibility,” said Sen. Baker.

Bill C-25 was unanimously passed in the House of Commons, but Bill C-15, which would change Canada’s Controlled Drugs and Substances Act, passed without the support of the NDP and the Bloc Québécois. The Liberals joined forces with the Harper government to pass it. When the House of Commons Justice Committee studied the latter bill, witnesses were overwhelmingly critical of the use of mandatory minimums in relation to drug offences. A 2001 government report done by the Justice Department reached the same conclusions.

“Mandatory minimum sentences in the U.S. [both at the state and federal levels]have imprisoned mostly low-level, nonviolent offenders. Drug consumption and drug-related crime seem to be unaffected, in any measurable way,” the report said.

Mandatory minimum sentences will lead to more overcrowding of prisons in Canada, and also remove some of the discretionary powers of judges and put them in the hands of politicians and the police, said Eugene Oscapella, who teaches drug policy at the University of Ottawa. He said that despite the overwhelming opposition from experts, and evidence that more comprehensive drug policy that focuses on treatment and reserves tough sentences for high-level drug dealers has been far more effective, the Tories and the Liberals are taking the path they believe is the most politically expedient.

“Promising to get tough on crime, to get tough on drugs, it’s easy. It fits on a bumper sticker. To explain why the use of the criminal law not only doesn’t work but causes enormous harm to society, takes a lot longer,” he said. “Obviously the Liberals think the Canadian public can’t be trusted with the facts, and so they’re doing exactly the same thing the Conservative government is doing. They’re trying to out tough each other.”

Last week The Globe and Mail reported the government plans to increase the size, and budget for federal penitentiaries in order to accommodate the influx of prisoners resulting from the new crime bills. The annual budget for prisons has grown from $88.5-million in 2006-07 to $195.1-million this year. And is projected to reach $211.6-million in 2010-11.

Prof. Oscapella, who testified before the House of Commons committee that was studying the bill in the spring, pointed to Justice Minister Rob Nicholson’s (Niagara Falls, Ont.) remarks to the committee on April 22 as proof the government’s only reason for bringing in the mandatory minimums is political. Mr. Nicholson was repeatedly asked what evidence the government had that mandatory minimums were effective.

“We’re absolutely convinced, from our consultation with Canadians, that this is exactly what Canadians want us to do. … We have the evidence that Canadians have told us that,” Mr. Nicholson responded.

Past Liberal governments have put forward bills to decriminalize the possession of small amounts of marijuana, in 2003 and in 2004, but both times the bills ended up dying on the order paper and were never reintroduced. Liberal MP Keith Martin (Esquimalt-Juan de Fuca, B.C.), who abstained from the whipped vote on bill C-15, said his party supported the legislation because they’re spooked by Conservative attacks that they’re not tough on crime.

“That’s an Achilles heel for the Liberal Party, that we’re perceived as being soft on crime when we’re not. And we have done an appalling job of communicating what we have done,” he said.

NDP MP Libby Davies (Vancouver East, B.C.) said the Liberals missed an opportunity to show they weren’t buying into the Conservatives’ “politics of fear.”

“People are fearful about drug use in their neighbourhoods, parents are very worried about their kids, and what the Conservatives do is play on that fear,” she said. “Instead of having an honest debate about drug policy and what we need to do in our society they say, ‘Oh, we’ll just come out with a tougher law’.”

Once a mandatory minimum law is on the books it’s not easily repealed in the future, and most Canadians don’t believe marijuana possession is something people should be sent to prison for, said Ms. Davies.

“There’s loads and loads of people who are very worried about their kids, or young people, or students having a sentence because they pass a joint to someone. … The thousands of Canadians who have convictions just from marijuana, simple possession, is huge. I think people are very concerned about that because they don’t see it as something that should result in a criminal record.”

A 2007 United Nations report found that Canadians use marijuana at four times the world average, making it the leader of the industrialized world in consumption of the drug. The report revealed that 16.8 per cent of Canadians aged 15 to 64 smoked marijuana, while the world average is 3.8 per cent. Canada ranks fifth in the world for marijuana use.

– Article from The Hill Times on October 19, 2009.