Vancouvers Downtown Eastside Home to some of the poorest and most - - PDF document

2/17/2012 1 Bill C‐10: tough on crime, tougher on marginalized people

Scott Bernstein, Lawyer Health and Drug Policy Campaign University of Waterloo February 11, 2012

Vancouver’s Downtown Eastside

• Home to some of the poorest and most vulnerable

people in Canada

• 4,600+ injection drug users
• Methamphetamine, heroin and cocaine use prevalent

Vancouver’s Downtown Eastside

• Mental health issues, abuse, homelessness, criminal

histories, work in sex‐trade industry, HIV/AIDS (40%), hep C and other social/health issues pervasive

• 18% are Aboriginal
• Public health emergency declared in September 1997
• Canada’s only sanctioned supervised injection site

Hastings street, near Main “an open‐air drug market where everyone buys, even the sellers” – Dave, cocaine addict

Photo: Austin Andrews / ZUMA Press Photo: Austin Andrews / ZUMA Press

Home to InSite, Canada’s only sanctioned supervised injection site

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Photo: Austin Andrews / ZUMA Press

InSite operates at full capacity and some won’t wait

Police response to crime in DTES

• Periods of leniency

and crackdowns

• Big crackdown before

the Olympics

• Now, VPD usually

turns blind eye to dealer/user

• Bill C‐10 may change

that

Photo: Austin Andrews / ZUMA Press Photo: Austin Andrews / ZUMA Press

Bill c‐10

• Important changes to criminal legislation:

–Criminal Code –Controlled Drugs and Substances Act –Corrections and Conditional Release Act –Youth Criminal Justice Act –Criminal Records Act

Some important changes: Criminal Code

Clause 34: Conditional sentencing

• Non‐custodial punishment
• Sentence served in community
• Provincially‐administered probation
• Includes “restorative justice” for aboriginal offenders

– Always precluded where mandatory minimums prescribed

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Some important changes: CDSA

– crime related to organized crime – used or threatened violence – carried, used or threatened to use a weapon ‐ OR – was convicted of a “designated substance offence” or had served a term in prison for a DSO within the last 10 years

Clause 39: MMS of 1 year for trafficking / possession for

the purpose of trafficking if (Aggravating factors set #1):

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– committed near a school or other public place frequented by persons under 18 – offence committed in prison OR – person used services of a minor in committing the offence.

Some important changes: CDSA

MMS of 2 years for trafficking/ possession for purpose of trafficking if (AF set #2):

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What is a “designated substance offence”?

• Any offence in CDSA Part 1 other than

possession of scheduled substance [s.4(1)]

• Includes:
• Unauthorized prescriptions
• Trafficking
• Possession for the purpose of trafficking
• Importing/exporting
• Production

Minimum if aggravating factors (set #1) ‐organized crime ‐threatened violence ‐weapon ‐previous DSO Minimum if aggravating factors (set #2) ‐near school/public place where minors usually are ‐in prison ‐used a minor in committing Schedule I or II drug 1 year 2 years

Offence – trafficking/ possession for purpose of trafficking, CDSA s.5(1)

– 6‐for‐6: Starts at 6 months imprisonment for 6 marijuana plants produced for trafficking – AF (set #3) adds 50% more to sentence

• Used land/housing belonging to

third party

• Security, health, safety hazard to

minors in area

• Potential public safety hazard in

residential area

Some important changes: CDSA

Clause 41 – Mandatory minimums for production of

scheduled substances

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Minimum Minimum if aggravating factors (set #3) Schedule I drug (any amt./any purpose) 2 years 3 years Schedule II other than cannabis + for trafficking 1 year 18 months Cannabis: 6‐200 plants + for trafficking 6 months 9 months 201‐500 plants 1 year 18 months 501+ plants 2 years 3 years

Offence – unauthorized production of drug, CDSA s.7(1)

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– Carried, used or threatened a weapon – Used or threatened violence – Trafficked or possessed for purpose near school or place where minors usually go – Trafficked or possessed for purpose to person under 18 – Previously convicted of DSO – Used services of a minor in committing offence

Some important changes: CDSA

Clause 43(1) – incorporates consideration of aggravating

factors in NON‐mandatory minimum offences that are DSOs (set #4):

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Clause 43(2) – Court may delay sentencing to enable offender to participate in Attorney General approved drug treatment court program.

Some important changes: CDSA And now – some problems with all of that….

Problem #1: with more mandatory minimums, less

• pportunity for judges to order conditional sentencing

s.718.2 A court that imposes a sentence shall also take into consideration the following principles: … (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all

• ffenders, with particular attention to the circumstances of

aboriginal offenders.

Problem # 1: Less conditional sentencing

“Section 718.2(e) is not simply a codification of existing

• jurisprudence. It is remedial in
• nature. Its purpose is to

ameliorate the serious problem

• f overrepresentation of

aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. ”

The Supreme Court of Canada in R. v. Gladue, [1999] 1 SCR 688:

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“Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because

• f his or her particular aboriginal heritage or connection.”

Problem # 1: Less conditional sentencing

• Clearly CC s.718.2 and principles of Gladue run

contrary to the new changes

• Opens door for Charter and other legal

challenges Problem # 1: Less conditional sentencing

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Problem #2: MMS are draconian by standards

• f most Canadians
• “6‐for‐6” or imprisonment for passing a tab of

Ecstasy would capture many people

• DTES user/sellers would be caught and imprisoned

for “possession for purpose of trafficking”

• Disproportionate impact to aboriginal people /

people with mental health issues / renters

• Overbroad aggravating factors of “schools” or places

where minors frequent leads to much harsher penalty

• Charter challenges!

– s.12 ‐ grounds of cruel and unusual punishment – s.15 discrimination – s.7 liberty

Problem #2: too draconian

Punishment is grossly disproportionate to public interest served and/or overbroad  violates principles of fundamental justice

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Problem # 3: Provision for drug treatment court is no remedy

• Currently in only six cities in Canada

(Vancouver, Toronto, Ottawa, Regina, Winnipeg, and Edmonton)

– What about unfair impact to people in other cities & rural communities?

• Entire federal budget for program is a paltry

$3.5 million

• Studies on effectiveness are inconclusive

Daniel Werb et al. Drug treatment courts in Canada: an evidence‐based review — HIV/AIDS Policy & Law Review 12(2/3) (2007) But, recent SFU study showed decrease in recidivism of 50%

• New prisons to accommodate
• ffenders
• No incentive to plea bargain 

more trials/court costs

• Who will pay?

– Ontario says will cost $1 Billion to implement

Fed justice minister, Rob Nicholson:

“[Ottawa] doesn't have a $1‐billion cheque for Ontario."

– Quebec says $500 million – Newfoundland says they’re maxed

• ut, others worried

Problem # 4: Exorbitant costs

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• Is the government’s answer privatization of

prisons?

– Central North Correctional Centre, Penetanguishene, ON – after five years as Canada’s only private prison, returned to public control in 2006

• Found public prison was better on security, health care,

and recidivism rates

– Surrey pre‐trial: BC’s first P3 prison ready in 2013

• Will this become a trend?

Problem # 4: Exorbitant costs

Conclusions

Bill c‐10 is:

– Awful and mean‐spirited – Unfair to marginalized people, including Aboriginals, people with addictions, people with mental health issues, people with low‐income – Not cost‐effective – Not good evidence‐based policy – Form over substance – Challengeable on legal and political fronts

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Scott Bernstein, Lawyer Health and Drug Policy Campaign Pivot Legal Society, Vancouver BC

scott@pivotlegal.org

Bill C‐10: tough on crime, tougher on marginalized people

Hope in Shadows 2012