Canadian Tories' Mandatory Minimum Drug Bill Draws Stiff Opposition, But Can It Be Stopped?

Canada's Conservative federal government last week introduced legislation -- bill C-26 -- that would create mandatory prison sentences for drug trafficking and drug producing offenses, including marijuana cultivation. The move marks a firm embrace of US-style drug war policies by the government of Prime Minister Steven Harper and comes as part of a larger "tough on crime" legislative package. While the measure has strong support among Harper's culturally conservative base and the law enforcement community, it has also excited a firestorm of opposition, and efforts to move it through parliament are sure to result in a battle royal.

But the Harper drug bill will advance -- or not -- within the context of a minority government able to wield the threat of any early call for elections against a Liberal opposition party that doesn't think it is up to the challenge just now. Because Harper's is a minority government, it will need the support of some opposition members to pass, and whether the Liberals will want to make tougher sentences for drug offenders a make or break issue remains to be seen.

While New Democratic Party (NDP) drug policy critic MP Libby Davies (Vancouver East) has already denounced the measure, neither the Liberals nor the Bloc Québecois have issued statements on it. Nor had either party responded to Chronicle requests for comment by press time.

"Drug producers and dealers who threaten the safety of our communities must face tougher penalties," said Minister of Justice Rob Nicholson in a statement announcing the legislation. "This is why our government is moving to impose mandatory jail time for serious drug offenses that involve organized crime, violence or youth."

According to the justice minister, the legislation will amend Canada's drug law, the Controlled Drugs and Substances Act, to include the following mandatory minimum sentences and other enhanced penalties:

• A one-year mandatory prison sentence will be imposed for dealing drugs such as marijuana when carried out for organized crime purposes, or when a weapon or violence is involved;

• A two-year mandatory prison sentence will be imposed for dealing drugs such as cocaine, heroin or methamphetamines to youth, or for dealing those drugs near a school or an area normally frequented by youth;
• A two-year mandatory prison sentence will be imposed for the offense of running a large marijuana grow operation of at least 500 plants;
• The maximum penalty for cannabis production would increase from 7 to 14 years imprisonment; and
• Tougher penalties will be introduced for trafficking GHB and flunitrazepam (most commonly known as date-rape drugs).

"Drugs are dangerous and destructive, yet we see Canadian youth being exposed to and taking drugs at such young ages, and grow-ops and drug labs appearing in our residential areas," said Minister Nicholson. "By introducing these changes, our message is clear: if you sell or produce drugs -- you'll pay with jail time."

According to a justice ministry backgrounder on the legislation, marijuana trafficking offenses involving at least three kilograms of weed would be subject to one- or two-year mandatory minimum sentences if "aggravating factors" are present. To earn a one-year mandatory minimum sentence, the offense would have to be "for the benefit of organized crime," involve the use or threat of force or violence, or be committed by someone convicted of a similar offense within the past 10 years. Aggravating factors that can garner a two-year mandatory minimum include trafficking in a prison, in or near a school or "near an area normally frequented by youth," in concert to a youth, or selling to a youth.

The proposed legislation also includes mandatory minimum sentences for any marijuana cultivation offense -- if "the offense is committed for the purpose of trafficking." For up to 200 plants, it's six months mandatory jail time; for 201-500 plants, it's one year in jail; and for more than 500 plants, it's a two-year mandatory minimum. The penalties increase to nine months, 18 months, and 36 months, respectively, if "health and safety factors" are involved. Those factors include using someone else's property to commit the offense, creating a potential health or safety hazard to children, creating a potential public safety hazard in residential areas, or setting traps.

"How fast can we go backwards?" asked attorney and University of Ottawa criminology professor Eugene Oscapella, head of the Canadian Foundation for Drug Policy. "The government is lurching from mistake to mistake on drug policy issues. The Canadian Supreme Court shot down a mandatory minimum seven-year penalty for importing narcotics, and now this government is trying to slip in and establish mandatory minimums that will meet constitutional muster. It is the wrong thing to do in terms of a sensible drug policy," he said.

The legislation could have unintended consequences if it passes, Oscapella said. "By bumping up penalties from seven to 14 years for growing cannabis, it could scare away the "Ma and Pa" operators and leave the field open for organized crime. This bill acts as a broom to sweep out the minor players, and who will fill that gap?"

"This bill will make George W. Bush very happy," said the NDP's Davies. "He will know that at least Stephen Harper is following his lead. The bill has all the dirty hallmarks of the so called 'war on drugs' that has been raging in the United Sates for close to 40 years. As in the US, the rhetoric and spin on this bill plays on fears of drug pushers, especially regarding youth, as the bill promises to get tough on traffickers and dealers, and to protect our children in and around school premises."

Too bad it won't work, said Davies. "The only problem is, as history and reality shows us, this heavy handed reliance on law enforcement is not only a failure; it is a colossal failure, economically, socially, and culturally. Law enforcement regarding drugs typically targets low level dealers and users, and ironically re-enforces the monopoly of organized crime and the drug kingpins, who either escape enforcement or are in the best position to negotiate deals."

The legislation wasn't winning any kudos from Canada's cannabis community, either. "While being portrayed as balanced in government talking points, this legislation is anything but," said Tim Meehan of Patients Against Ignorance and Discrimination on Cannabis, a recently formed medical marijuana advocacy organization based in Ontario. "Unlike the de facto leniency Canadians mostly get before the courts if they have a very small home garden, in this bill there is no personal growing exemption -- even one plant will get you six months, which is effectively nine months unless you are growing in your own house, in a rural area, and are miles from schools or even a park where kids hang out."

"They define organized crime as at least three people operating to the benefit of at least one," pointed out Cannabis Culture magazine publisher Marc Emery, perhaps Canada's best known marijuana advocate. "That means if you grow a plant and give some to me and I sell some to someone else, we're now organized crime. If you're growing a few plants for sale, that's a nine-month mandatory minimum and they take your kids away. They're going to need a new prison in British Columbia every year if this passes."

Emery also predicted other unintended consequences. "The price will go up within a year of passage, and that will cause us to be importing weed from the US for the first time ever," he prophesied.

But, of course, the bill does have its supporters, not only among the Conservative base, but also among powerful law enforcement organizations. "We support the legislation," said Fredericton, New Brunswick Police Chief Barry MacKnight, head of the Canadian Association of Chiefs of Police. "Our overall position is that there must be a balanced approach to the drug problem, and mandatory minimum sentences are just part of that. A very aggressive judicial approach toward drug dealers and manufacturers is consistent with our objectives," he said. "This isn't aimed at that young person smoking a joint behind a building."

While such words may be intended to provide reassurance to the likes of Meehan and Emery, Canada's cannabis nation should not mistake the chief's attitude as one of tolerance. "When it comes to marijuana, our message is clear," said MacKnight. "The jury is in: Marijuana is a harmful drug. Clearly, we are focused on the most harmful drugs, but you can't isolate marijuana from this debate. When it comes to production and trafficking, marijuana is part of the drug subculture."

Ever the guerrilla warrior, Emery is calling for a a nationwide series of demonstrations outside parliament members' offices on December 17. "There are 308 MP offices, and we plan to have at least a dozen people outside each one of them dressed in prison uniforms and holding signs saying 'This is your child with the new Tory drug laws,'" he said. "There won't be any pot-smoking at these events -- this is about politics, not defiance -- and we'll also have people in suits handing out information. The object is to educate the MP and the public. We're telling everyone to tell their MP to stall the bill, or better yet, reverse it -- legalize pot and end prohibition."

While Emery takes the battle to the streets, others will be walking the hallways as they seek to block the bill. The Canadian HIV/AIDS Legal Network has long opposed mandatory minimum sentencing, even publishing a 2006 briefing paper detailing its objections. The group's executive director, Richard Elliott, said Wednesday it would fight the bill in parliament.

"We don't know whether we'll be able to stop it, but we will try to talk to the relevant MPs and we will request to appear before the Standing Committee on Justice, as we did last year," Elliott said. "We'll also make the case as to why this is not a particularly good approach to the relevant ministers, although I doubt they will be open to hearing any criticism."

And so it will come down to the Liberals, the NDP, and the Bloc to stop the bill, and as the largest opposition party, the Liberals are key. With the Conservative threat to call early elections looming in the background, the question is whether the Liberals risk provoking elections over the drug bill. Don't count on it, said Elliott.

"Even if we manage to convince some Liberals this is the wrong approach, I'm not sure they're willing to fall on their swords over this particular issue," he said. "The current political situation is really quite favorable to the governing party because the opposition parties aren't ready to go."

"This is one of those gut-reaction issues," said Oscapella. "When you talk about how we have to tough on drugs, politicians tend to tag along. But it's very important that this bill be blocked; once you have mandatory minimums, they are very difficult to get rid of."

To that end, look for a growing coalition of opponents to emerge and attempt to coordinate. Some portions of the opposition parties will join the fight, as will civil society organizations, and perhaps, given the costs they would have to bear, some provincial governments. But they need to organize quickly; the Conservatives could move fast.

"I suspect this will be one of their top priorities," said Elliott. "They can move this quickly, and I suspect there will be committee hearings early next year, and after that, a vote by the House on a final reading," he predicted.

"This is about creating the perception they are tough on crime," Elliott said. "Unfortunately, we are heading more in your direction with this legislation, and this will only make matters worse."

"These are frightening times," said Oscapella. "We look down and what a colossal failure these policies have been in the US and say, 'Hey, let's do that, too.'"