Senate Amends Mandatory Minimum Drug Legislation
Canada’s Senate recently voted to remove several mandatory minimum sentence requirements from Bill C-15, a controversial piece of legislation that introduces stiff mandatory penalties for a range of different drug crimes. As tabled, the Bill would have brought in minimum sentences for many drug production, trafficking, and importing/exporting offences. While many of these mandatory penalties remain in the Bill, the Senate’s amendments have limited their application in several areas. Notably, the minimum number of plants that a marijuana grower would have to be cultivating to trigger a mandatory six month jail sentence has been raised from five to 200. The Senate has also granted the Courts discretion to diverge from the one-year mandatory sentence for drug traffickers previously convicted of a drug-related offence.
Bill C-15 has been controversial since it was first introduced, polarizing opinion as to whether it is a step forward or backward for Canadian drug policy. The CCLA has long opposed the use of mandatory minimum sentences in all areas of Canadian law, and in April of 2009, appeared before the federal Standing Committee on Justice and Human Rights to speak out against Bill C-15. In its submission, the CCLA highlighted the necessity of maintaining Judge’s discretion in sentencing (that is what they are paid for). Injustice may result from the imposition of rigid mandatory minimum sentences. Others, including the Canadian Association of Crown Counsel, have also expressed concerns that Bill C-15 could contribute to the overcrowding of Canadian prisons.
In the CCLA’s view, claims that Bill C-15 will make our streets safer are unconvincing. Mandatory sentencing legislation has been used to combat drugs in the United States where it has come up short in terms of its deterrent and crime prevention effects. While tougher sentences may result in increases in the length of time that a number of drug dealers spend in jail, they do not effectively deal with the social problems that result from drug trafficking and use. This is why some American states are taking steps to repeal existing mandatory sentencing drug laws.
The recent Senate vote marks the first time that the upper house has substantially altered an important component of the government’s crime agenda. The CCLA welcomes these changes to Bill C-15, though it remains concerned about the many mandatory minimum sentences that remain in Canadian law. The Bill will now go back to the House of Commons where the Senate’s amendments will be further considered.
Boissoin Judgment: The Right Balance between Freedom of Expression and Equality?
In the summer of 2002, Mr. Stephen Boissoin, a former pastor, wrote a letter titled “Homosexual Agenda Wicked” to the Red Deer Advocate. The piece, which was published on the opinions page, spoke strongly against those involved in the gay rights movement. Mr. Boissoin asserted that homosexuality was immoral, and expressed particularly alarm at those who ‘targeted’ children and youth, teaching them that homosexuality was normal. His words were inflammatory, and offensive. A complaint was filed with the Alberta Human Rights Commission, and five years later a Commission Panel ruled that Mr. Boissoin had contravened the Alberta Human Rights Code’s by publishing a letter that was likely to expose gays and lesbians to hatred or contempt because of their sexual orientation. Among other things, he was ordered to “cease publishing, in newspapers, by email, on the radio, in public speeches, or on the internet, in future, disparaging remarks about gays and homosexuals.”
CCLA intervened at both the Commission Panel and upon appeal before the Queen’s Bench to argue that a broad interpretation of the provincial hate speech laws was an unjustifiable infringement on freedom of expression. Although CCLA strongly disagrees with Mr. Boissoin’s remarks – indeed, CCLA would be included in Mr. Boissoin’s negative description of “homosexual activists” – we nevertheless support Mr. Boissoin’s right to make such offensive remarks. Absent incitement to violence or direct causal link to discriminatory acts, speech should not be restricted. CCLA urged both the Panel and the Court to either find the law unconstitutional, or to read the Act more narrowly and require a direct connection between the hateful speech and unlawful discrimination.
On December 3, 2009 the Court of Queen’s Bench of Alberta overturned the Panel’s. The Court explicitly adopted CCLA’s position, ruling that the prohibition only applied to hateful expression that itself signals an intention to engage in discriminatory behaviour, or seeks to persuade another person to do so in a way that is likely to bring about prohibited discrimination. In doing so, the Court struck a delicate but necessary balance between freedom of expression and protecting people from discrimination. Although the actual provision in the Alberta Human Rights, Citizenship and Multiculturalism Act is still written in unacceptably broad terms, the Court’s narrow interpretation provides an appropriate measure of protection to freedom of expression. Now it is up to the provincial legislature to amend the Act to reflect the Court’s ruling, and assure Albertans that expressing opinions that only offend will be responded to with more speech, not censorship.
Thanks to our counsel Janet McCreadie and Pat Peacock of Peacock Linder & Halt LLP in Calgary for their hard work on the case.
Petition for an Inquiry into the Conditions of transfer of Afghan Detainees
CCLA has been concerned for the last two years about reports of torture of Afghan detainees and intervened in a case before the Federal Court of Appeal last year requesting the court to find that the Charter applied to the actions of Canadian forces in Afghanistan. Although that Court held that the Charter did not apply in these circumstances, the Court did recognize that international law applies and accordingly, Canadian forces must act to prevent torture, and cruel, inhuman and degrading treatment or punishment.
CCLA has written an open letter to Prime Minister Stephen Harper calling for an immediate, independent, impartial and transparent public inquiry into the reported transfers of Afghan detainees by Canadian forces to subsequent torture. The inquiry should aim to (1) determine what exactly happened in Afghanistan regarding the transfer of Afghan detainees by Canadian forces; and (2) make recommendations to correct any systemic flaws resulting in the transfer of Afghan detainees to torture.
The prohibition against torture is found in Canada’s laws and values, and in Canada’s obligations under international law. CCLA believes that Canadian forces must act to prevent torture, and cruel, inhuman and degrading treatment or punishment. It also believes that Canadians have the right to know what is being done in their name and how the conduct of Canadian officials contributes to the eradication of torture.
If you would like to join us and help in the call for a public Commission of Inquiry, please sign the petition on our website.
Partnership with Pro Bono Canada for a Monitoring Network on civil liberties
Pro Bono law students from faculties across Canada are recruited to help establish and run a national civil liberties monitoring network. Students will monitor civil liberties issues that arise in a specifically assigned area – for example their provincial courts and legislatures, local municipal councils, their local media, or their municipal or university communities. Each student monitor will submit bimonthly posts to a citizen news blog. With contributions from every law school across Canada, the blog will serve as an on-the-ground monitoring tool. It will inform CCLA’s national advocacy strategy and provide an invaluable information resource to other civil liberties groups and service organizations. Students are supervised by mentors throughout Canada and are encouraged to engage in debate and participate in a national civil liberties dialogue. Students will gather in Toronto to share their research techniques and participate in a conference on civil liberties. We want to thank our partners: Torys and Fasken Martineau.
