Law Times

www.lawtimesnews.com Page 6 January 28, 2008 / Law Times S parse media coverage has been allotted to the poten- tial impacts of the Conser- vative government's bill C-26, which would amend the Con- trolled Drugs and Substances Act by introducing new mandatory minimum sentences for drug production and trafficking. Nor has this bill been widely recognized as part of this govern- ment's now-silent war on the judi- ciary, or the U.S. war on drugs. "By introducing these changes, our message is clear: if you sell or produce drugs, you'll pay with jail time," Justice Minister Rob Nich- olson said in unveiling bill C-26, which had first reading in the House on Nov. 20, 2007. And while the bill provides for some ongoing usage of drug-treat- ment courts, its mandatory mini- mums — the impacts of which re- main unknown — disallow other forms of conditional or alternative sentencing. About one-third of the 7,000 people convicted in Canada for drug trafficking every year receive conditional sentences — generally offenders considered to be smaller players in the drug chain. The mandatory minimums in C-26 are also likely to have sig- nificant impacts on the aborigi- nal offender population, which is already overrepresented in Canada's justice system. Conditional sentencing became part of the Canadian justice system with the passage of Bill C-41 in 1995; since the enactment of s. 718.2(e) of the Criminal Code, courts are further directed to consider "all available sanctions other than imprison- ment that are reasonable in the circumstances . . . with particular attention to the circumstances of aboriginal offenders." In the wake of these changes and of the seminal Supreme Court of Canada R. v. Gladue decision of 1999, many aborigi- nal offenders have received con- ditional sentences. Aboriginal peoples currently make up about 17 per cent of all inmates serving conditional sentences. Serious questions have already arisen pertaining to the use of man- datory minimums as a weapon in the American war on drugs. Back in 1993, U.S Supreme Court justice William Rehnquist noted that mandatory minimum sentences tended to result in low- level criminals such as the "mules" in the drug trade ending up in prison, rather than those direct- ing. Retired Republican New York State senator John Dunne also concluded, "[Mandatory sentences] have not stemmed the drug trade. The only thing they've done is to fill the prisons." A study by the RAND Cor- poration concluded that manda- tory minimum sentencing has done little to keep illegal drugs off America's streets, and that the money spent locking up people for drug possession and traffick- ing would have been better spent on treating drug users. So why does the bill fly in the face of logic and criminological science? Shouldn't a government of any political stripe pass laws rooted in fact and reason, rather than ideology? The truthiness of the purport- ed drivers behind this legislation become increasingly apparent once one considers the two wars being fought beneath the radar of tough-on-crime rhetoric. The proposed legislation includes a minimum jail term of six months for growing one marijuana plant to sell or give away; of two years in prison for the production of more than 500 marijuana plants; and an automat- ic one-year minimum for posses- sion of cannabis and marijuana for the purpose of exporting, with no minimum amount of the drug. There are also numerous aggra- vating factors enumerated in the bill which increase the mandatory minimum for given offences. We can safely assume that this government will not be reintroduc- ing decriminalization legislation for marijuana, much to the relief of the United States, which has been giv- ing Canada flak for years over our soft approach, while we continue to play nice about their guns com- ing over the border. Not a very fair trade, though I guess there's no ba- sis for a NAFTA complaint. In addition to the American war on drugs, there's the now more subdued Conservative war on the judiciary. They have by stealth focused on chipping away at judicial discretion through vari- ous criminal legislation bills. The proposed legislation would strip judges of the ability to apply discretion for mitigating circumstances. Is justice without context really justice? This despite the fact that man- datory minimums have proven to fail in the U.S. They will require the building of more penal institu- tions, at great cost to the taxpayer, and are likely to lead to Charter challenges in already thoroughly choked provincial court systems. Sure, the bill delivers on the throne-speech promise to get tough on drug traffickers and props up the party's tough-on-crime reputation, but its real potential impacts have been ignored at our peril. Addicted to pandering for votes, the Conservative party hasn't provided adequate evidence to back up its criminal justice proposals. Let's hope the political revolving door hits them on their way out at election time. Michelle Mann is a Toronto lawyer, writer, and consultant. Her web site is www.michellemann.ca, or e-mail her at michelle@michellemann.ca How life turns out — 20 years later T he "news" truly does work in mysterious ways. Take for ex- ample the names Dr. Henry Morgentaler and Jean Guy Tremblay: former top headliners loosely linked by subject matter some twenty years ago, who now both have come back into the public arena at the same time — albeit for starkly different reasons. This time, their stories may even be written by reporters too young to remem- ber at least one of the names, or to even think to ask, "Whatever happened to . . ." In fact, in a wholly unscientific poll con- ducted in Law Times offices, we found the under-30 set recognizes Morgentaler in a vague, "Isn't he an abortion doctor?" way, but Tremblay's name elicits blank stares. So, for those who don't know, Morgen- taler's back because today, Jan. 28, marks the 20th anniversary of the landmark case, R v. Morgentaler, that struck down Canada's abortion laws. It was followed in 1989 by Daigle v. Tremblay, the case which amplified and clarified Morgentaler. Tremblay is the aforementioned Jean Guy who convinced the Quebec Supreme Court to grant an injunction prevent- ing his then-fiancée Chantal Daigle from having an abortion. Though Daigle did get one in the U.S., the SCC went on to unanimously overturn the lower court, finding a fetus has no legal status. And now, two decades later, in one of those weird, cosmic twists of fate, the Ontario Court of Appeal has coinciden- tally released a decision pertaining to Tremblay in the same time frame as the Morgentaler anniversary. The appeal court has overturned Trem- blay's conviction — and 15 month sen- tence — for breaching a condition that he report to his probation officer all relation- ships he enters into with women. It seems that over the years, Tremblay has acquired multiple convictions for crimes against women and was branded a longterm of- fender, which can result in supervision for up to 10 years after release from prison. In April 2006, the same month he got out of Joyceville and Ottawa police issued an advisory that he was in a half- way house there, Tremblay met a woman in a laundromat. They had a 90-minute conversation, during which he even told her about his long-ago Supreme Court case as part of his wooing repertoire. Then he gave her his number in case she wanted to go for coffee with him. But police were "monitoring" Tremblay and interviewed the woman. A few days later when Tremblay failed to report the encounter, he was charged. The court, however, found that there's a difference between initiating a relation- ship and chatting up, and that this didn't constitute a breach. "He is not prohib- ited from having any casual contact with women, nor is he required to report such contact — he is only required to report relationship he enters into." Meanwhile, late last year Tremblay was convicted of criminally harassing a Toronto car saleswoman. The Crown is now seeking a dangerous offender tag. So, on the one hand there's a man who has worked much of his life on behalf of women's rights; on the other is a man who has persistently breached women's rights. Just a story about two men whose names are forever linked by landmark case law — the only thing they seem to have in common. — Gretchen Drummie Editorial Obiter Editorial Obiter The revolving door of mandatory minimums COMMENT Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca circulations & subscriPtions $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign address- es. 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Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Social Justice By Michelle Mann LT *Pages 1-16.indd 6 1/24/08 6:10:30 PM

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