FAZED AND CONFUSED

Critics are having a hard time understanding why the Conservatives
would draft crime legislation that will see teenagers sent to prison
for sharing marijuana with their friends. It's like 'cracking a nut
with a sledgehammer,' one tells CHRIS COBB.

He's an 18-year-old the law defines as a man. He comes from a solid
middle-class family. He's a smart, hardworking person with great
potential and he's never been in trouble with the law.

Like millions of Canadians teenagers before him, and at least a
quarter of his contemporaries, he's going through a marijuana phase:
something that reliable justice statistics show he will eventually
grow out of, just as many police officers, politicians, doctors,
teachers and lawyers grew out of.

But times are about to change in Stephen Harper's Canada.

Under new Conservative crime legislation, this 18-year-old man might
never get the chance to reach his professional goals, legal
specialists say. Instead, he'll get a brutal two-year education in a
federal penitentiary.

That's because the young man occasionally does what many in his
circle do -- swaps small amounts of marijuana with friends.

As he's walking down a neighbourhood street one night, a police
officer spots him hand a couple of joints to a friend. The two
teenagers hadn't thought about it, but they're near a school --
wherever they go in their urban neighbourhood they're near a school.
It's night and the school's closed but that's no excuse.

The 18-year-old gives some lip to the officer who takes him to the
police station and charges him with trafficking. His friend didn't
pay for the marijuana or give him anything in return. No matter. It's
still trafficking under the Criminal Code of Canada.

When the case eventually gets to court, the Crown prosecutor presents
the evidence, which is irrefutable, and the judge has no choice but
to sentence the 18-year-old to two years in a penitentiary. It's the
mandatory minimum sentence for someone caught trafficking "near" a
school or "near" a place where children might gather.

The judge hates not having discretion to consider extenuating
circumstances, but the government has given him no choice.

When the young man emerges from prison at the age of 20, he's
carrying the physical and psychological baggage of being incarcerated
with hardened criminals and he has a criminal record.

Under the Conservative government's Safe Streets and Communities Act
currently making its way through Parliament, it is probable -- some
say inevitable -- that young Canadian men and women with otherwise
unblemished characters will be jailed and branded criminals by their
government.

The Conservative government says the new anti-drug measures and
changes to the Youth Criminal Justice Act -- the most controversial
of nine pieces of crime legislation -- will crack down on organized
crime, keep drugs away from children and make streets safer.

"By moving quickly to reintroduce and pass the Safe Streets and
Communities Act, we are fulfilling our promise to Canadians by taking
action to protect families, stand up for victims and hold criminals
accountable," Justice Minister Rob Nicholson said when he
reintroduced the bill in September.

But a long line of critics say much of the legislation is an
expensive recipe for failure.

"It is badly drafted legislation," says University of Toronto
criminologist Anthony Doob. "The government has a role to make good
laws and this isn't good law. We should penalize according to the
harm caused and I don't think that the 18-year-old who gives his
17-year-old friend marijuana deserves a penitentiary sentence. How
did kids sharing marijuana suddenly become organized criminals?"

After a recent House of Commons justice and human rights committee
hearing into the legislation, Quebec Defence Lawyers Association
vice-president Joelle Roy used the example of an 18-year-old going to
a rave and being arrested for giving an ecstasy pill to a friend.

"It can happen to you, or me or to our children and even to their
children," she said, with a nod toward Conservative MPS on the committee.

"I see it every day in court. The judge sees in front of him a good
kid of 18 years who goes to school and comes from a good family and
now he has to send that young man to penitentiary for two years for
one ecstasy pill. It makes no sense. The kid isn't a criminal, but
when he comes out he probably will be."

Mandatory minimum sentences are an attack on the freedom and
independence of the justice system, said Roy.

"People who commit crimes time after time will be sentenced for those
crimes. We have a system and it works. The government says they want
so much to help victims, so why don't they take that money they will
use to build more jails and put it into programs for victims? Canada
is a very, very safe country. Why is this government doing this?"

The answer, says pollster Frank Graves, is complicated but lies
partly with a politically-shrewd government appealing to its base and
to an aging population that craves moral certainty. And, unlike the
majority of young Canadians, they vote.

"They tend to be anti-intellectual, anti-science and with little
interest in debating the evidence or listening to expert opinion,"
says Graves. "Many simply want people who do bad things to be
severely punished whether it makes streets safer or not."

The majority of Canadians still favours measures that prevent crime
rather than punish it, but the gap has been narrowing since 9/11, adds Graves.

"But Canadians are still remarkably progressive when it comes to
issues of marijuana (more than 70 per cent support
decriminalization), same-sex marriage and abortion, and are becoming more so.

"So this may well be the first majority government that achieved its
victory with issues on which the majority of Canadians disagree," he adds.

"That includes tough-on-crime legislation, the F-35 jet purchase,
climate change, and scrapping the long gun registry. The majority is
opposed, but the majority is scattered and not tightly alloyed around
the issues."

The drug legislation will ensnare a disproportionate number of young
people, especially those from minority communities, predicts veteran
NDP MP Joe Comartin, who until recently was a justice committee member.

"The fundamental flaw with this legislation is that it is drafted
from the perspective of a sleazy, organized drug pusher and ignores
the reality that a good deal of drug trading is among kids coming out
of the same economic class and same ethno-cultural communities.

"When I watch Rob Nicholson answering questions about this in the
House," says the former criminal lawyer, "he clearly doesn't
understand how easy it is to convict someone of trafficking. You
don't even have to be selling it -- if you're giving it away to
friends and families, you're trafficking."

Only pressure from the provinces will have any influence on whether
the legislation is amended before it becomes law, adds Comartin. Or
maybe not. Quebec Justice Minister JeanMarc Fournier made an
impassioned plea to the Conservative majority on the justice
committee to freeze what is an extraordinarily rapid fast-tracking of
the legislation and consult with the provinces.

The legislation, especially as it impacts young offenders, is "soft"
crime, he said. "What we want is a sustainable protection of the
public," he said. After 40 years of working on the rehabilitation of
troubled youth, Quebec has become a much-admired international model,
said Fournier, adding emphatically that Quebec will not pay a penny
of the millions of dollars it will cost to implement the new legislation.

Ontario Premier Dalton Mcguinty won't pay either. "It's easy for the
federal government to pass new laws dealing with crime but if there
are new costs associated with those laws that have to borne by
taxpayers in the province of Ontario, I expect that the feds would
pick up that tab," he said.

In response, Prime Minister Stephen Harper seemed unimpressed and
urged the provinces to do their constitutional duty.

Other provinces, including New Brunswick and Manitoba, favour the
legislation, although neither has said how it intends to pay the extra cost.

The lineup of individuals and groups opposed or concerned about the
legislation in its current form is long and varied: The Canadian Bar
Association, the Quebec Defence Lawyers Association, the Canadian
Association of Crown Counsel, the Union of Canadian Correctional
Officers, Canadian Students for Sensible Drug Policy, and the
Canadian HIV/AIDS Legal Network. And although they do not speak
publicly except from the bench, judges deeply dislike mandatory sentencing.

"For young people whose substance use does not constitute a full
addiction, incarceration will be the only option under this bill,"
the Students for Sensible Drug Policy told MPS in a brief. "This
proposed legislation does not recognize the wide spectrum of reasons
why people use drugs. Those young people now branded with the stigma
and criminal record as a 'drug dealer' will have their future
employment opportunities further reduced -- the opposite of a
successful rehabilitation effort."

Richard Elliott, executive director of the Canadian HIV/AIDS Legal
Network, says prison, where unsafe drug use is rampant, is the worse
place for young drug addicts.

"This is exactly what we should not be doing as a matter of sound
public policy," he says. "Instead of spending hundreds of millions to
house people in prisons, think of what that money could do if it was
put into expanding access to voluntary treatment in the community. It
would pay enormous dividends for public health and individual wellbeing."

Incarcerating people for relatively minor marijuana offences is
"cracking a nut with a sledgehammer," adds Elliott.

"Do we really need to throw young people in jail for this?"he says.
"I'm sure the majority of Canadians don't feel that this kind of
activity warrants a criminal record or imprisonment. Why make the
vast majority of your population potential criminals for sharing
marijuana plants. Where is the sense of proportion?"

Ottawa police officers who are part of a program of interaction with
area high school students say they see little evidence that drugs are
a major problem, and when school authorities do find marijuana it is
in small quantities.

Ottawa Carleton District School Board trustee Cathy Curry says kids
need to be punished when they break the law, but incarceration is "simplistic."

"It isn't taking into consideration what happens in real life," she
says. "Trustees and educators across Canada have learned that there
is so much change going on in the teenage brain that they aren't
always as capable of making good decisions as they were when they
were 10 and 11. Any parent of teenagers understands that. There are
times when your teenager is like someone you've never met before."

The legislation has vocal supporters and almost all of the current
round of committee hearings have included victims of horrendous crime
and leaders of police associations.

One vocal advocate is Line Lacasse, a Laval mother whose son
Sebastien was brutally beaten and stabbed to death by youth gang in 2004.

"They were 10 young people with no respect for human life," she told
the committee. "If your child was killed in this way you would vote
for this bill. We have a life sentence when we lose a loved one.
There are no serious consequences for these crimes."

Quebec Justice Minister Fournier, and others opposed to the increased
incarceration of young people, say nothing in the legislation will
prevent similar crimes from occurring and accused the government of
using high-profile tragedies to justify draconian punishments.

Strong opposition from federal and provincial prosecutors and defence
lawyers who say the new laws will cripple an already overloaded court
system, and from prison guards who argue that more overcrowding will
make prisons more dangerous for inmates and guards, appears to be
having no effect.

There is no incentive for the government to backtrack, says pollster
Frank Graves

"They have a majority in the Commons and Senate, a neophyte official
Opposition whose talent is jockeying for the leadership, a humbled
Liberal party and a public that's sick of politics and isn't paying
attention. And this is a government that clearly signalled its
intentions during the last election.

"The likelihood any opposition will stop this is close to zero."

[sidebar]

Highlights of the Safe Streets and Communities Act

The federal government's Safe Streets and Communities Act includes
nine separate piece of legislation

1. Increasing Penalties for Organized Drug Crime

Mandatory minimum sentences are the cornerstone of the legislation,
with critics arguing it is modelled after U.S. laws that some states,
including Texas and California, are now abandoning as too expensive,
ineffective and crippling to the criminal justice system.

Those convicted of growing as few as six marijuana plants for
trafficking will get six months in jail and anyone growing 500 plants
or more will get two years. The maximum penalty for marijuana
production is doubled to 14 years.

Those caught trafficking will get a minimum one-year jail term,
increased to two years if the trafficking was near a school or a
place where children might gather.

Justice Minister Rob Nicholson says mandatory minimums will crack
down on the "scourge" of drugs and have the support of Canadians.
Critics say the legislation will do little to combat organized crime
and leave leaders of drug gangs untouched, but will see more young
Canadians imprisoned.

2. Protecting Society from Violent Young Offenders, a.k.a. Sebastien's Law

This legislation, named after a young Quebecer killed by a street
gang, is meeting huge resistance from those who say it sets the
justice system back decades and will create criminals out of young
people who could otherwise be rehabilitated. The most bitter
resistance is coming from Quebec where provincial Justice Minister
Jean-Marc Fournier calls it "soft on crime" and an affront to decades
of experience, study and statistics.

The legislation makes it easier for courts to consider an adult
sentence for offenders aged 14 and older convicted of murder,
attempted murder, manslaughter and aggravated sexual assault, and to
seek often lengthy pre-trial incarceration for offences carrying a
five-year sentence or more. Courts may also lift a publication ban on
a young offender's name.

Queen's University law professor Nick Bala says that, far from being
a deterrent, being named in the press would be a badge of honour for
young offenders.

3. Ending House Arrest for Property and Other Serious Crimes

For a range of crimes, including drug offences, weapons offences,
bail breach, criminal harassment, luring a child, theft over $5,000
and human trafficking, those formerly allowed house arrest will now
be incarcerated if they are prosecuted by indictment rather than
summary conviction, which is usually reserved for less serious offences.

The result, say critics, will be more crowding in already overcrowded
jails and penitentiaries. The government says it is protecting Canadians.

4. Eliminating Pardons For Serious Crimes

This legislation resulted from a pardon granted four years ago to
Graham James, the former hockey coach whose sexual assault victims
included Sheldon Kennedy.

Criminals will no longer be 'pardoned' but will be 'ordered' a
'record suspension,' which is meant to remove any suggestion that the
criminal has been forgiven. The legislation eliminates pardons for
sex offenders targeting children and for those who have accumulated
'three strikes' -- or three serious offences. Many convicted
criminals will now have to wait five years, rather than three, for a
'suspension.' A pardon, or suspension, means that criminal records do
not show on background checks unless sex offenders apply to work with
young people.

Critics say the legislation removes valuable incentives for prisoners
who want to reform.

5. Protecting children from sexual predators

Among the least politically contentious of the nine bills is one that
would create new offences and impose new mandatory sentences for
offences involving children. Offenders will face a minimum 90 days in
jail, up from 14 days. More serious offences will carry a minimum six
months, up from 45 days.

New offences under the act address 'grooming' of children over the
Internet and making sexually explicit material available to children
as a precursor to an offence.

6. Increasing Offender Accountability

This gives victims a say in 'conditional release' (parole) board
hearings and keeps victims informed of how offenders are behaving.
Offenders will be required to complete a correction plan and police
will be allowed to arrest offenders on release -- without a warrant
- -- if they 'appear' to be contravening the terms of their release.

7. International Transfer of Prisoners Back to Canada

This gives the government greater power to deny the transfer of a
Canadian citizen sentenced to jail time in a foreign country back to Canada.

8. Supporting Victims of Terrorism

Victims of terrorism will be given the right to sue, in Canadian
courts, individuals, groups or foreign countries that the government
has identified as supporters of terrorism.

9. Protecting Vulnerable Foreign Nationals against Trafficking, Abuse
and Exploitation

This is an effort to deny work permits to those the government
decides are vulnerable, including exotic dancers, low-skilled
labourers and potential victims of human trafficking. Denial of a
work permit will require the agreement of two immigration officers.