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

2/17/2012 Vancouver’s Downtown Eastside • Home to some of the poorest and most vulnerable Bill C ‐ 10: people in Canada tough on crime, tougher on marginalized people • 4,600+ injection drug users • Methamphetamine, heroin and cocaine use prevalent Scott Bernstein, Lawyer Health and Drug Policy Campaign University of Waterloo February 11, 2012 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 Hastings street, near Main • Canada’s only sanctioned supervised injection site Photo: Austin Andrews / ZUMA Press Photo: Austin Andrews / ZUMA Press “an open ‐ air drug market where everyone buys, even the sellers” – Dave, cocaine addict Home to InSite , Canada’s only sanctioned supervised injection site 1

2/17/2012 Police response to crime in DTES • Periods of leniency and crackdowns Photo: Austin Andrews / ZUMA Press • Big crackdown before the Olympics • Now, VPD usually turns blind eye to dealer/user • Bill C ‐ 10 may change InSite operates at full capacity and some won’t wait that Photo: Austin Andrews / ZUMA Press Photo: Austin Andrews / ZUMA Press Bill c ‐ 10 Some important changes: Criminal Code • Important changes to criminal legislation: Clause 34: Conditional sentencing • Non ‐ custodial punishment – Criminal Code • Sentence served in community – Controlled Drugs and Substances Act • Provincially ‐ administered probation • Includes “restorative justice” for aboriginal offenders – Corrections and Conditional Release Act – Youth Criminal Justice Act – Always precluded where mandatory minimums – Criminal Records Act prescribed 2

2/17/2012 Some important changes: CDSA Some important changes: CDSA Clause 39: MMS of 1 year for trafficking / possession for MMS of 2 years for trafficking/ possession for purpose of trafficking if (AF set #2): the purpose of trafficking if (Aggravating factors set #1): – committed near a school or other – crime related to organized crime public place frequented by – used or threatened violence persons under 18 – carried, used or threatened to use a weapon ‐ OR – offence committed in prison OR – was convicted of a “designated substance offence” or had served a – person used services of a minor in Hope in Shadows 2012 Hope in Shadows 2012 term in prison for a DSO within the committing the offence. last 10 years Offence – trafficking/ possession What is a “designated substance offence”? for purpose of trafficking, CDSA s.5(1) • Any offence in CDSA Part 1 other than Minimum if aggravating factors Minimum if aggravating possession of scheduled substance [s.4(1)] (set #1) factors (set #2) • Includes: ‐ organized crime ‐ near school/public place ‐ threatened violence where minors usually are • Unauthorized prescriptions ‐ weapon ‐ in prison ‐ previous DSO ‐ used a minor in committing • Trafficking • Possession for the purpose of trafficking Schedule I or II drug 1 year 2 years • Importing/exporting • Production Offence – unauthorized Some important changes: CDSA production of drug, CDSA s.7(1) Clause 41 – Mandatory minimums for production of Minimum Minimum if scheduled substances aggravating factors (set #3) – 6 ‐ for ‐ 6 : Starts at 6 months Schedule I drug (any amt./any purpose) 2 years 3 years imprisonment for 6 marijuana plants produced for trafficking Schedule II other than cannabis 1 year 18 months + for trafficking – AF (set #3) adds 50% more to sentence Cannabis: • Used land/housing belonging to 6 ‐ 200 plants + for trafficking 6 months 9 months third party • Security, health, safety hazard to 201 ‐ 500 plants 1 year 18 months Hope in Shadows 2012 minors in area 501+ plants 2 years 3 years • Potential public safety hazard in residential area 3

2/17/2012 Some important changes: CDSA Some important changes: CDSA Clause 43(1) – incorporates consideration of aggravating factors in NON ‐ mandatory minimum offences that are Clause 43(2) – Court may delay sentencing to DSOs (set #4): enable offender to participate in Attorney – Carried, used or threatened a weapon General approved drug treatment court program. – 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 Hope in Shadows 2012 – Used services of a minor in committing offence Problem # 1: Less conditional sentencing And now – some problems with all of that…. The Supreme Court of Canada in R. v. Gladue , [1999] 1 SCR 688: Problem #1: with more mandatory minimums, less opportunity for judges to order conditional sentencing Hope in Shadows 2012 “Section 718.2( e ) is not simply a s.718.2 A court that imposes a sentence shall also take into codification of existing consideration the following principles: jurisprudence. It is remedial in nature. Its purpose is to … ameliorate the serious problem ( e ) all available sanctions other than imprisonment that are of overrepresentation of reasonable in the circumstances should be considered for all aboriginal people in prisons, and offenders, with particular attention to the circumstances of to encourage sentencing judges aboriginal offenders. to have recourse to a restorative approach to sentencing. ” Problem # 1: Less conditional sentencing Problem # 1: Less conditional sentencing • Clearly CC s.718.2 and principles of Gladue run “Section 718.2( e ) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, contrary to the new changes 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 • Opens door for Charter and other legal have played a part in bringing the particular aboriginal offender before the courts; and challenges (B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.” 4

2/17/2012 Problem #2: MMS are draconian by standards Problem #2: too draconian of most Canadians Hope in Shadows 2012 • “6 ‐ for ‐ 6” or imprisonment for passing a tab of • Charter challenges! Ecstasy would capture many people – s.12 ‐ grounds of cruel • DTES user/sellers would be caught and imprisoned and unusual punishment for “possession for purpose of trafficking” – s.15 discrimination • Disproportionate impact to aboriginal people / – s.7 liberty people with mental health issues / renters • Overbroad aggravating factors of “schools” or places Punishment is grossly disproportionate to public interest where minors frequent leads to much harsher served and/or overbroad  violates principles of penalty fundamental justice Problem # 3: Provision for drug treatment Problem # 4: Exorbitant costs court is no remedy • New prisons to accommodate • Currently in only six cities in Canada offenders (Vancouver, Toronto, Ottawa, Regina, Winnipeg, and Edmonton) • No incentive to plea bargain  – What about unfair impact to people in other cities & more trials/court costs rural communities? • Who will pay? • Entire federal budget for program is a paltry – Ontario says will cost $1 Billion to $3.5 million implement F ed justice minister, Rob Nicholson: • Studies on effectiveness are inconclusive “[Ottawa] doesn't have a $1 ‐ billion cheque for Ontario." Daniel Werb et al. Drug treatment courts in Canada: an evidence ‐ based – Quebec says $500 million review — HIV/AIDS Policy & Law Review 12(2/3) (2007) But, recent SFU study showed decrease in recidivism of 50% – Newfoundland says they’re maxed out, others worried Hope in Shadows 2012 Problem # 4: Exorbitant costs Conclusions • Is the government’s answer privatization of Bill c ‐ 10 is: prisons? – Awful and mean ‐ spirited – Central North Correctional Centre, – Unfair to marginalized people, including Penetanguishene, ON – after five years as Canada’s only private prison, returned to public Aboriginals, people with addictions, people with control in 2006 mental health issues, people with low ‐ income • Found public prison was better on security, health care, – Not cost ‐ effective and recidivism rates – Not good evidence ‐ based policy – Surrey pre ‐ trial: BC’s first P3 prison ready in 2013 – Form over substance • Will this become a trend? – Challengeable on legal and political fronts 5

2/17/2012 Bill C ‐ 10: tough on crime, tougher on marginalized people Scott Bernstein, Lawyer Health and Drug Policy Campaign Pivot Legal Society, Vancouver BC scott@pivotlegal.org Hope in Shadows 2012 6