DRUG LEGISLATION WOULD CLOG COURTS, SAY CRITICS

OTTAWA - The Conservative government is tackling crack cocaine and
the crystal-meth plague with a vengeance in a bill that would bring
new mandatory minimum sentences for drug production and trafficking.
But the sweeping range of the legislation - including a possible
minimum jail term of six months for growing just one marijuana plant
to sell or give away - will lead to Charter challenges and clog the
courts, legal critics say.

It would also strip judges of the ability to apply discretion for
mitigating circumstances and could turn Canadian correctional
institutions and penitentiaries into U.S.-style inmate warehouses,
says Mark Ertel, president of the Defence Counsel Association of Ottawa.

Coming as it did as part two of a crime-legislation trilogy, the bill
to amend the Controlled Drugs and Substances Act drew only a
smattering of attention from a Parliamentary press gallery fixed on
the Mulroney-Schreiber affair last week.

Justice Minister Rob Nicholson tucked the drug bill between Monday
legislation amending the Youth Criminal Justice Act and Wednesday
legislation to combat identity theft.

The bill delivers on a Conservative Throne Speech promise to get
tough on drug traffickers, and also puts paid on a get-tough-on-crime
pledge going back to the party's campaign platform for the 2006
federal election. "By introducing these changes, our message is
clear: if you sell or produce drugs, you'll pay with jail time,"
Nicholson said when he unveiled the 10-page bill C-26.

A background table the justice department released at the same time
reveals the Conservatives have inner-city crack cocaine and the
creeping danger of cheaper and more debilitating methamphetamines,
crystal meth, near the top of their hit list.

A conviction for simple production of substances listed in schedule I
of the act, including cocaine, heroin and methamphetamine, would
bring a mandatory minimum of two years in prison even for the first
offence. Unlike other drugs covered by the bill, no aggravating
circumstances, like connections to organized crime or involvement of
weapons or proximity to anyone under 18, would be required to impose
the minimum.

A three-year minimum would apply if the drugs were produced on
someone else's property, its production threatened the security,
health or safety of children in the production location or if booby
traps had been set.

With an eye on past complaints from the U.S. that Canadian chemical
drugs and the country's booming illegal marijuana industry are
threats to America, the bill imposes a two-year minimum for
possession of more than one kilogram of a schedule I drug for the
purpose of export trafficking. Possession of cannabis and marijuana
for the purpose of exporting - with no aggravating factors or minimum
amount - would carry an automatic one-year minimum.

But, despite the political drumbeats about drugs and the image of
public hysteria, Ertel says the legislation goes too far, too
severely. A conviction for producing from one to 200 marijuana plants
for the purpose of trafficking carries a minimum jail sentence of six
months. The scale rises to a two-year automatic sentence for the
production of more than 500 plants. The maximum penalty for
production of marijuana for the purpose of trafficking jumps to 14
years from seven.

"This is obviously crazy stuff," says Ertel. "They've got a minority
government and they're playing cheap politics and the idea of the
cheap politics is 'go ahead and vote against us on this crazy bill
and then we're going to say you guys love drugs.'"

He argues the automatic jail time - no allowance for mitigating
considerations - will inevitably prompt the kind of appeal that led
to a 1987 Supreme Court of Canada decision striking down a seven-year
mandatory-minimum sentence under the Narcotic Control Act as cruel
and unusual punishment.

In R. v. Smith, the case of a B.C. man who pleaded guilty to
importing seven and a half ounces of cocaine from Bolivia, Justice
Antonio Lamer wrote, "The serious hard drugs dealer who is convicted
of importing a large quantity of heroin and the tourist convicted of
bringing a 'joint' back into the country are treated on the same
footing and must both be sentenced to at least seven years in the
penitentiary."

Justice Lamer, though, included this obiter: "A minimum mandatory
term of imprisonment is obviously not in and of itself cruel and
unusual punishment." Ertel says the new Conservative bill may not
only violate s. 12 of the Charter in certain circumstances, but it
also targets the wrong problem, with the wrong weapon.

"Nobody's putting anybody who's making liquor into jail, and almost
all violent crime, it's above 90 per cent, is alcohol related," he
says. "I've never seen a case where somebody beat up their wife after
they smoke a joint; it doesn't happen."

A Statistics Canada Juristat report shows drug trafficking accounted
for four per cent of all cases in Canadian adult criminal courts in
2004, compared to 11 per cent for impaired driving. Common assault
accounted for another 11 per cent, theft cases were nine per cent and
major assault accounted for six per cent. Homicide, including
attempted murder, accounted for 0.2 per cent of the cases.

Ertel says the mandatory minimums will mean more and longer drug
trials because it will be impossible to bargain pleas: "The courts
grind to a halt when there's no incentive for pleading guilty."

NDP MP Joe Comartin, a former criminal lawyer in Windsor, offers
another twist. He says prosecutors will stay drug charges in an
attempt to ration court time. "They just can't prosecute, they've run
out of resources," says Comartin. "They've got 100 more files behind them."