SNUD Committee Report

CHAPTER 6: SUBSTANCE USE AND PUBLIC SAFETY

According to the federal government’s own policy statement, “Canada’s Drug Strategy reflects a balance between reducing the supply of drugs and reducing the demand for drugs.”²¹⁵ In furtherance of Parliament’s criminal law powers under the Constitution, as well as in the discharge of its responsibilities in the areas of border control and penitentiaries, the federal government devotes more than $400 million annually to reducing the supply of illicit substances.²¹⁶ The most important of the federal legislative controls are exercised through the Controlled Drugs and Substances Act, (CDSA)²¹⁷ which prohibits the production, trafficking and possession of a host of psychotropic substances and provides penalties specific to the nature and quantity of the substance in question. Among the many federal entities that play a role in supply reduction, the Royal Canadian Mounted Police (RCMP) are responsible for enforcing the Controlled Drugs and Substances Act, with the help and cooperation of provincial and municipal police forces throughout Canada. The Canada Customs and Revenue Agency (CCRA) is mandated to reduce the supply of illicit substances and other contraband through border control measures aimed at intercepting shipments intended for the Canadian market. For its part, Justice Canada is responsible for prosecutions, while Correctional Service Canada administers many substance-related sentences, in addition to conducting urinalysis testing and other security measures aimed at preventing offenders’ use of illicit substances and other contraband.

This Chapter will review those public safety responsibilities and initiatives that together constitute a major portion of the federal government’s contribution toward the implementation of Canada’s Drug Strategy.

1. THE CONTROLLED DRUGS AND SUBSTANCES ACT

Psychotropic substances were not regulated in Canada until 1908, when the importation, manufacture, sale, and possession for sale of opium were first prohibited. In 1911, the Opium and Drug Act was broadened to prohibit transportation and possession and to extend the law to cover morphine and cocaine. In 1923, the legislation, by then called the Opium and Narcotic Drug Act, was amended to include cannabis, heroin and codeine. Over time, amendments expanded the list of substances covered as well as the
administrative controls placed on their legal manufacture, production, and sale. Finally, in 1961, the Narcotic Control Act was adopted, forming the basis for Canada’s existing legislative scheme, contained in the Controlled Drugs and Substances Act since 1997.²¹⁸

(a) Criminal Offences and Penalties

The Controlled Drugs and Substances Act (CDSA) repealed and replaced the Narcotic Control Act and Parts III and IV of the Food and Drugs Act. The offences and penalties are set out in Part I of the Act. Offences include the production (cultivation or manufacture), importation, exportation, possession, trafficking, and possession for the purposes (of exportation or trafficking) of a long list of psychoactive substances. Those substances are set out in Schedules to the Act and the range of penalties available for a given offence is determined by the Schedule in which the substance appears and/or the number of prior convictions. For example, possession of heroin or cocaine (Schedule I) is a hybrid offence punishable by up to seven years imprisonment where the Crown proceeds by indictment. When prosecuted as a summary conviction offence, the maximum available penalty for a first offence is a $1,000 fine or six months in jail, or both, while subsequent offences may draw a fine of up to $2,000 and/or a year in jail. Possession of amphetamines (Schedule III) is punishable by up to three years imprisonment, where the Crown proceeds by indictment, while the maximum summary conviction penalties are the same as for Schedule I drugs. Cannabis products are found in Schedules II, VII, and VIII and maximum penalties for both possession and trafficking will depend upon the amount involved.²¹⁹ Laws respecting cannabis are discussed in greater detail in Chapter 9.

The Controlled Drugs and Substances Act also prohibits seeking or obtaining Scheduled substances or prescriptions for Scheduled substances, without disclosing substances or prescriptions that were obtained during the previous 30 days (so-called “double-doctoring”).²²⁰ Section 8 of the Act makes it an offence to possess any property obtained as a result of a Part I offence and section 9 prohibits the “laundering” of any such proceeds. Depending upon the value of the property involved, the maximum penalty for either offence can be up to ten years in prison when prosecuted by indictment. Section 10(1) expands upon the purpose of sentencing as set out in section 718 of the Criminal Code, by referring to the need to encourage rehabilitation and treatment of offenders “in appropriate circumstances.” Section 10(2) includes a list of aggravating factors to be considered in sentencing such as a prior conviction, the use or threatened use of a weapon or violence, and offences committed in or near schools or involving persons under the age of eighteen. Part II of the Act contains the search, seizure and detention provisions that enable enforcement.²²¹ Part II also authorizes the courts to order the restraint and/or forfeiture of offence-related property, as well as the forfeiture of proceeds of crime, while Part III of the Act governs the disposal of controlled substances.

(b) Regulatory Compliance

Because many of the substances listed in the CDSA Schedules have a legitimate medical purpose, the offences under the Act are drafted in such a way as to exempt criminal liability through Regulation. For example, Section 4 prohibits possession of a substance included in Schedules I to III, “except as authorized under the regulations.” Similarly, Section 2 defines “traffic” as selling, transporting, delivering, etc., a substance included in any of Schedules I to IV, “otherwise than under the authority of the regulations.” The Act contains similar exemptions for importing, exporting, or producing substances listed under specified Schedules.²²² Exemptions are administered under Part IV of the Act, which also authorizes the appointment of inspectors with powers to ensure compliance with the regulations. For example, inspectors can enter into any place “used for the purpose of conducting the business or professional practice of any person licensed or otherwise authorized under the regulations to deal in a controlled substance or a precursor.”²²³

Part V of the Act gives the Minister of Health the power to suspend, cancel or amend a licence, permit or authorization, in the event that a “designated” regulation is believed to have been contravened in a manner that poses “substantial risk of immediate danger to the health or safety of any person.”²²⁴ The Minister’s finding of a contravention is subject to review by an adjudicator, whose decision will determine whether the interim order may be affirmed, altered, or revoked by the Minister, or cease to have effect. Part VI contains provisions relating to the analysis of substances, the appointment of analysts, and the use of analysts’ certificates in criminal prosecutions. Part VI also gives the Governor in Council broad powers under Section 55 to make regulations relating to “the medical, scientific and industrial applications and distribution of controlled substances and precursors,” as well as the enforcement of the Act. Finally, Section 56 gives the Minister of Health the power to exempt persons or substances from the provisions of the act where “necessary for a medical or scientific purpose” or otherwise in the public interest.²²⁵

2. ALTERNATIVES TO PROSECUTION AND/OR INCARCERATION

Many witnesses told the Committee that they viewed substance dependence as a health issue. Consequently, they felt that criminal prosecution for behaviour linked to substance dependence was unlikely to have any lasting positive impact. Instead, several witnesses advocated the use of various alternatives to prosecution and/or incarceration to acknowledge and address the underlying dependence, while at the same time hold the offender responsible for his criminal behaviour.

(a) Drug Treatment Courts

One of the more popular alternatives recommended by witnesses was an expanded Drug Treatment Court program. In an approach that began in the United States, drug treatment courts utilize “a blend of judicial supervision, sanctions for non-compliance and incentives for reduced drug use to motivate offenders to successfully complete addiction treatment.”²²⁶ The Toronto Drug Treatment Court was established in 1998 and is funded through the Investment Fund of the National Strategy on Community Safety and Crime Prevention, administered jointly by the Department of Justice and the Solicitor General of Canada. A December 1998 press release by the Solicitor General described the program as a collaborative effort of the Centre for Addiction and Mental Health, Toronto’s criminal justice system, Toronto Police Services, the City of Toronto Public Health Office, and various community-based service agencies. A first of its kind in Canada, goals of this pilot project were “to reduce drug abuse and criminal behaviour through treatment, and demonstrate the cost-effectiveness of a diversion model as an alternative to incarceration.”

As part of this study, the Committee was able to observe proceedings of the Toronto Drug Treatment Court and consult with officials, staff and various service-providers associated with the Court. The Toronto program provides court-supervised treatment, through the Centre for Addiction and Mental Health, for offenders who are dependent on cocaine or opiates. Upon successful completion of the program, those with little or no criminal record who are charged with possession of cocaine or heroin can have their charges withdrawn. According to a Program Summary published by the Toronto Drug Treatment Court, non-violent offenders charged with trafficking in small quantities of cocaine or heroin must enter a guilty plea in order to participate, but graduation from the program can result in a non-custodial sentence. A final evaluation of the program is not expected until late 2004. However, the same December 2001 Program Summary cites interim reports showing a reduction in drug use and criminal behaviour among Treatment Court participants, when compared with similar offenders in the traditional court system.
Likewise, while a cost savings analysis has yet to be completed, the Summary points out that it costs an estimated $8,000 annually to provide substance abuse treatment to a program participant, as opposed to $45,000 to incarcerate the same offender for a year.

In September 2001, the Minister of Justice announced the grant of additional funding to support the operation of the Toronto court until December 2004. Since then, a second Drug Treatment Court was launched in Vancouver on December 4, 2001. The Drug Treatment Court of Vancouver is another four-year pilot project with goals and funding sources similar to those of the Toronto program. The Department of Justice has promised “rigorous” evaluations of both the Toronto and Vancouver programs in order to determine their cost-effectiveness, efficiency, and overall success.

The Committee found that support for Drug Treatment Courts is not unanimous. Some witnesses, for example, argued that coerced or mandated treatment is unlikely to be successful, while others saw drug treatment courts as simply a means of widening the net of social controls. Some of those in favour of the courts believe that there are substance-dependent offenders who need a strong external source of motivation before they will seek treatment. Some witnesses expressed conditional support for drug treatment courts, so long as they don’t replace or reduce access to voluntary treatment.

The Committee believes that Drug Treatment Courts offer a promising alternative for some substance-dependent offenders, particularly when individuals are linked with necessary social services at the same time as they are given access to treatment for their dependence. In such a context, participation in drug treatment courts should increase the likelihood of successful interventions with this group of offenders. That, in turn, could have far-reaching benefits for society as a whole, in the form of lower health care costs, as well as reduced victimization. In the event that evaluations of existing pilot projects demonstrate that offenders entering and/or completing the program have better outcomes, the Committee believes that comprehensive drug treatment court programs should be a permanent part of the criminal justice system.

(b) Mandated Treatment

In order to ensure more effective intervention and treatment, some have suggested mandatory treatment as a sentencing option for repeat offenders who support their substance dependence through criminal activity. Others adamantly opposed such measures on the ground that coerced treatment simply doesn’t work and/or runs counter to important societal values of personal freedom and autonomy. Section 10 of the CDSA points out that the fundamental purpose of sentencing under Part I of the Act includes “encouraging rehabilitation, and treatment” of offenders “in appropriate circumstances.” However, it appears that Section 10 would have no application to a sentence imposed for a Criminal Code offence, even if its commission was linked to substance dependence. At
present, the Criminal Code does permit a sentencing judge to order, as a condition of probation, attendance at “a program for curative treatment in relation to the consumption of alcohol or drugs,” for the purposes of assessment and treatment as recommended.²²⁷

It must be noted that Part II of the Narcotic Control Act at one time provided for preventive detention and detention for treatment, in provisions that were enacted in 1961 but never proclaimed in force.²²⁸ It is also instructive to consider the misgivings of the Le Dain Commission respecting whether those provisions were “sufficiently related to the issue of criminal responsibility to be a valid criminal law disposition of a case.”²²⁹ The Commission expressed doubt “despite the close connection between ‘addiction’ and crime, that Parliament’s power to legislate for the prevention of crime would give it power to provide for compulsory treatment of ‘addiction’.”²³⁰

The Committee is aware that the possibility of coerced or mandated treatment of offenders raises important practical and ethical questions. For example, treatment providers may simply refuse to treat those mandated offenders who are unwilling or uninterested in overcoming their dependency. Mandated treatment, as part of a sentence for substance-related crime, would also be manifestly unfair if it came at the expense of voluntary treatment options for persons who are not involved with the criminal justice system. Finally, the Committee acknowledges that imposed or mandated treatment runs a serious risk of offending the Canadian Charter of Rights and Freedoms.

Nevertheless, we agree that the courts are in need of more and better options for dealing with repeat offenders whose involvement with the criminal justice system comes as a result of their dependence on illicit substances, particularly where drug treatment courts are not available. For that reason, the Committee would like to see a review of the Controlled Drugs and Substances Act and the Criminal Code, to determine whether it is possible to provide sentencing courts with more creative alternatives to fines and incarceration, in appropriate cases, that would address more effectively the underlying causes of criminality.

2.1 COMMITTEE OBSERVATIONS - ALTERNATIVES TO PROSECUTION AND/OR INCARCERATION

The Committee observed the following:

In most cases, prosecution and incarceration for criminal behaviour linked to drug dependence does not achieve desired, lasting, positive outcomes.

Drug Treatment Courts can offer a promising alternative for some substance-dependent offenders, particularly when supervision and treatment are supported by the necessary social services.

Mandated or coercive treatment options may pose ethical, legal and practical questions.

Drug Treatment Courts or the use of mandatory treatment must be fully evaluated before additional investment or policy change is undertaken.

RECOMMENDATION 28

The Committee recommends continued support for existing Drug Treatment Court pilot projects and, if indicated by evaluation outcomes, the Committee further recommends permanent funding of those Courts, with support for additional sites.

RECOMMENDATION 29

The Committee recommends that the Minister of Health and the Minister of Justice propose appropriate amendments to the Controlled Drugs and Substances Act and/or the Criminal Code to provide a wider range of sentencing options, including treatment, for substance-dependent individuals involved with the criminal justice system.

3. CORRECTIONAL FACILITIES

Drug and alcohol abuse is a major concern in federal corrections. Upon admission to federal custody, almost 70% of federal offenders are assessed as having some level of substance abuse problem requiring intervention. According to results obtained on an inmate survey, 34% of offenders admitted to injection drug use
prior to incarceration and 11% indicated they have injected since they have been in custody. Twenty-five percent of inmates reported that they are under pressure to smuggle drugs into the institution.²³¹

As one way of dealing more effectively with the problem of substance use in prisons, Correctional Service Canada (CSC) implemented a pilot program in February 2000 that involved establishment of Intensive Support Units (ISU) within several penitentiaries.

The main purpose of the ISU is to provide a safe environment where offenders can live substance-free with enhanced support and intervention of staff. The Units are available to both offenders with substance abuse problems and to individuals without substance abuse problems but who wish to live in an environment that is free of drugs and interpersonal problems associated with offender drug use.²³²

CSC also offers treatment programs, like Choices for parolees and the Offender Substance Abuse Pre-Release Program (OSAPP), to those offenders who request or need intervention. In order to develop and evaluate treatment programs for federal offenders, CSC opened the Addictions Research Centre in Montague, Prince Edward Island, in May 2001. The Centre conducts its own independent studies, in addition to working with other researchers from federal, provincial and territorial agencies, non-governmental organizations and universities.

The problem of substance use in federal prisons is well documented, as is the evidence of all attendant health consequences. This should come as no surprise, since logic suggests that prisons will share many of the social ills of the population at large, including harmful use, dependence and trafficking in illicit substances. There are at least two different but important aspects of the problem of illicit substances in prisons. One concerns the threat that the illicit trade poses to the security of institutions, including staff and inmates, and the other, the devastating impact of harmful use and dependence on the health of inmates and, ultimately, on their families and society at large.

(a) Security of Institutions

Correctional Service Canada’s inability to stop the flow of illicit substances into federal prisons is seen as a major problem. Because federal prisons constitute a highly controlled environment, one might expect that prison authorities would have the advantage in stopping the flow of such contraband into their institutions. However, prisons and inmates are not closed off entirely from the outside world. The day-to-day
administration of federal institutions requires the provision of many goods and services by those outside the prison system. Likewise, many staff, inmates, and visitors pass through the doors of federal institutions on any given day.

The trade in illicit substances in prisons carries the potential for even greater problems than those that may occur outside institutions. Coercion and intimidation may be much more easily exercised in a closed environment where inmates and even visitors may feel they have little choice other than to ignore, if not co-operate with, traffickers. The Committee is aware that CSC takes the interdiction of illicit substances and other contraband very seriously and uses a number of intelligence and surveillance techniques to achieve that end, in collaboration with police agencies in the community. The Service also makes use of special equipment, such as ion scanners, to detect the presence of illicit substances and a drug dog program has been introduced that will eventually cover all CSC sites within the next three years.²³³

While it is tempting to seek a solution to this problem through more intrusive searches and a greater willingness to ban certain visitors, one must bear in mind the legislated policy statements underlying the Service’s obligation to foster links between inmates and the community. For example, Section 3(b) of the Corrections and Conditional Release Act²³⁴ makes clear that the purpose of the CSC is to contribute to a just, peaceful, and safe society by carrying out sentences imposed by the courts while “assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.” Furthermore, it is said that those inmates who are able to maintain relationships with family members throughout their period of incarceration stand a better chance of successful reintegration when finally released back into the community. Nevertheless, the Committee believes that CSC must continue to develop new technologies and procedures to curtail more effectively the traffic of illicit substances into and within institutions. For that reason, we believe policies and procedures must be reviewed on a regular basis.

(b) Health of Offenders

The health risks associated with injection drug use (IDU) in prisons are also well documented.

In Canada’s federal prison system (where offenders sentenced to prison terms of two years or more serve their terms), the number of reported cases of HIV/AIDS rose from 14 in January 1989 to 159 in March 1996 and 217 in December 2000. This means that 1.66 percent of all federal prison inmates are known to be HIV-positive. ...

Hepatitis C (HCV) prevalence rates in prisons are even higher than HIV prevalence rates: studies undertaken in the early and mid 1990s in Canadian prisons revealed rates of between 28 and 40 percent.²³⁵

The incidence of HIV among federal inmates is significantly higher than that of the general population. Furthermore, the incidence of Hepatitis C infection has reached epidemic proportions, much the same as it has among injection drug users in the population at large. The reasons behind the high infection rates are varied. For example, some injection drug users who enter prison are already HIV-positive and/or Hepatitis C-positive. Some will continue injecting in prison, where there are no needle exchange programs and where access to methadone substitution may be limited. If infected inmates share contaminated equipment with other injection drug users within the institution, the further spread of blood-borne diseases is a virtual certainty.

A number of proposals were made to the Committee aimed at addressing some of the more obvious health risks involved in injection drug use among inmates. For example, it has been suggested that CSC should eliminate random testing of urine for marijuana because it may encourage marijuana users to move to more harmful substances in order to avoid detection and sanctions (since marijuana is detectable in urine for much longer periods of time). However, CSC staff has disputed that assertion, relying on evidence of “random testing results where 49% of the positive tests continue to demonstrate THC use.”²³⁶ There have also been calls to institute needle exchange programs within institutions, since there is good evidence that the availability of clean needles has helped to reduce the spread of blood-borne viruses among injection drug users in the community.²³⁷ Citing security concerns, CSC has thus far provided bleach kits for sterilizing injection equipment, in lieu of establishing needle exchange programs. Finally, although it is possible for federal inmates to continue methadone maintenance treatment, the Committee was told that those not already enrolled in such a program, at the time of their incarceration, are able to access methadone maintenance only under exceptional circumstances.²³⁸ The Committee believes that federal inmates’ access to methadone maintenance programs should be based on eligibility criteria similar to those used in the community at large.

Furthermore, while recognizing the unique security challenges encountered in correctional facilities, the Committee believes that Correctional Service Canada must continue to explore more and better ways to protect the health of inmates, staff, and society at large.

Although some offenders will benefit from the support provided by substitution therapy or other harm-reducing measures, the Committee is aware that there are many others who would prefer to undertake treatment, particularly during their incarceration, that will assist them in adopting a new lifestyle free of alcohol and other substances. For that reason, the Committee believes that abstinence-based treatment programs must continue to be a key component of CSC’s response to the use of licit and illicit substances.

As mentioned above, the Committee is aware that CSC has established a pilot project of Intensive Support Units, within a number of institutions, for the benefit of offenders who wish to live in a substance-free environment. A majority of members applaud the innovative thinking behind such measures, even though the Committee was told that it could be difficult to exclude the pressures that may continue to be exerted on ISU inmates from elsewhere in the institution. Therefore, the Committee suggests that CSC explore the concept further by dedicating entire institutions, in both western and eastern regions of Canada, to providing highly motivated offenders with intensive, abstinence-based treatment, in a substance free and secure environment.

As previously mentioned, the Committee heard evidence of the various substance use treatment programs offered to offenders within institutions, as well as those on conditional release. However, in order to increase the likelihood of successful outcomes, the Committee agrees that offenders must be able to access treatment, upon request, without unreasonable or undue delay. To that end, the Committee urges CSC to ensure that a federally incarcerated offender’s access to such treatment is not determined by the proximity of his or her parole eligibility date, or delayed until conditional release is imminent.

3.1 COMMITTEE OBSERVATIONS - CORRECTIONAL FACILITIES

The Committee observed the following:

Correctional Service Canada’s inability to stop the flow of drugs into prisons is a major problem requiring immediate attention.

More must be done to address the alarming incidence of substance use among incarcerated offenders, as well as the health risks associated with that use.

To successfully address substance use, harmful use and dependence among incarcerated offenders, Correctional Service Canada must offer access to a full range of treatment options in a secure and substance-free environment.

RECOMMENDATION 30

The Committee recommends that Correctional Service Canada be required to develop and implement a three-year plan to reduce substantially the flow of illicit drugs into prisons. The Committee further recommends that the proposed Canadian Drug Commissioner be consulted in setting the goals of the plan and responsible for monitoring results.

RECOMMENDATION 31

The Committee recommends that Correctional Service Canada provide incarcerated offenders with access to substitution therapies, such as methadone, based on eligibility criteria similar to those used in the community at large.

RECOMMENDATION 32

The Committee recommends that Correctional Service Canada allow incarcerated offenders access to harm-reducing interventions, in order to reduce the incidence of blood-borne diseases, in a manner consistent with the security requirements within institutions.

RECOMMENDATION 33

The Committee recommends that Correctional Service Canada continue to promote abstinence as its overriding treatment objective.

RECOMMENDATION 34

The Committee recommends that Correctional Service Canada undertake, as a pilot project, the establishment of two federal correctional facilities reserved for offenders who wish to serve their sentence in a substance-free environment with access to intensive treatment and support.

RECOMMENDATION 35

The Committee urges Correctional Service Canada to ensure that there are sufficient programs and spaces available to allow offenders access to treatment for substance use, as needed, immediately following their incarceration.

4. BORDER CONTROL

The Canada Customs and Revenue Agency (CCRA) is the federal agency responsible for the interception of illicit substances and other contraband at the first point of entry into Canada. The CCRA works in partnership with the RCMP and other domestic police forces, as well as foreign law enforcement agencies like the United States Customs Service, the U.S. Drug Enforcement Agency and INTERPOL.²³⁹

At the earliest stages of this study, the Committee was briefed by officials of the CCRA on its mandate and activities, with respect to illicit substances. The Committee traveled to border crossings in the Niagara region and met with CCRA staff responsible for their control. Committee members were also received and briefed by Customs officials at Dorval Airport and the Port of Montreal. In addition, local CCRA officials appeared at Committee meetings in Toronto and Vancouver.

Although the CCRA has sophisticated contraband detection equipment, including x-ray machines, ion scanners, fibrescopes and detector dog teams, only a small amount of the illicit substances destined for Canada can be intercepted, given the sheer volume of goods and people crossing the border on any given day. This happens in spite of a highly developed system of co-operation with other enforcement agencies, as well as commercial shipping interests, for the purposes of intelligence gathering and analysis. Although CCRA officials did mention that recent amendments to the law, in the form of Bill S-23,²⁴⁰ will provide valuable assistance to their interdiction efforts, the point was also made that “the most progress could be made with appropriate funding, appropriate resource allocation that would ensure that interdiction can continue to increase.”²⁴¹

The Committee recognizes that the efficient movement of legitimate trade, in and out of Canada, is crucial to the economic health of this country. Obviously, that reality exerts additional pressure on Customs officials to fulfill their interdiction responsibilities in a timely manner, but without compromising the security of our borders. Given those demands and the absolute necessity for effective interdiction, the Committee believes that those activities of the Canada Customs and Revenue Agency must be adequately resourced.

In spite of the resources and expertise employed by the CCRA, the Committee was told that organized crime activities pose a major obstacle to the interdiction of contraband at the Port of Montreal. It seems that part of the blame for this may rest with uncertain or fragmented law enforcement responsibilities, especially since the Ports Canada Police were disbanded in 1997. The Committee was told that security for the Port of Montreal is provided by an agency under contract to the port authority, having neither the power nor the mandate to do law enforcement. Although the Montreal Police respond to calls, they do not patrol the Port of Montreal.²⁴² For the past four years, a joint forces operation of the RCMP, Sûreté du Québec, Montreal Urban Community Police, and CCRA has been responsible for conducting investigations into organized criminal activities in the Port of Montreal. Representatives from that group told the Committee they would like to see the reinstatement of police patrols in the Port of Montreal.²⁴³ Insofar as the west coast is concerned, Deputy Chief Peter Ditchfield of the Organized Crime Agency of British Columbia told the Committee “[t]he seaports of British Columbia have long been infiltrated by organized crime groups. They are used to facilitate the importation of many types of illicit drugs, the most prominent being cocaine and heroin.”²⁴⁴

Following examination of the state of security in Canada’s ports, a February 2002 Report of the Standing Senate Committee on Security and Defence made similar findings with respect to the lack of an active police presence, at least in the Port of Montreal, and cited evidence that a “sizable” proportion of dockworkers had criminal records. The Report of the Standing Senate Committee recommended compulsory background screening of employees or potential employees in order to detect possible security risks.²⁴⁵

Although it is unclear whether other major Canadian ports are faced with the same problems, it is apparent that organized crime activities have undermined the security of the ports of Montreal and Vancouver and pose a very real threat to Canadians. It also appears that joint policing efforts are beginning to make headway in curtailing those criminal activities. However, the Committee believes that effective law enforcement efforts in Canada’s ports will require more resources and/or greater integration in order to respond to ever increasing security and interdiction concerns, whether in the form of a dedicated police force or more effective coverage from existing forces.

4.1 COMMITTEE OBSERVATION - BORDER CONTROL

The Committee observed the following:

Canada must improve the effectiveness of its border control activities and efforts to interdict illicit substances, without disrupting unduly the efficient movement of legitimate trade.

RECOMMENDATION 36

The Committee recommends that the Minister of National Revenue improve the effectiveness of interdiction efforts by ensuring that the necessary resources, including state-of-the-art contraband detection equipment, are allocated to border control activities.

RECOMMENDATION 37

The Committee recommends that the Royal Canadian Mounted Police and Canada Customs and Revenue Agency be directed to make the additional contributions necessary to provide more effective drug interdiction at major ports, in consultation with local law enforcement agencies.

5. ORGANIZED CRIME

The drug trade continues to be a major source of revenue for most organized crime groups. Estimates are that approximately 80% of their funding is from drug trafficking. Ecstasy has joined cannabis, heroin, and cocaine as the most popular commodities within Canada. The Canadian illicit drug market has the potential to generate proceeds between $4 billion and $18 billion at street level. The Organized Crime Agency of British Columbia has estimated that the “B.C. bud” industry is valued at about $6 billion annually.²⁴⁶

Deputy Chief Ditchfield confirmed the importance of the British Columbia marijuana industry, citing an estimated 15,000 to 20,000 grow operations in the lower mainland of British Columbia, the profits from which “fuel the engine of organized crime in this province and provide funds for the importation and manufacture of drugs that are much more detrimental to the health and safety of Canadians.”²⁴⁷

The Committee heard evidence from law enforcement agencies and policy experts outlining the role played by organized crime in the production, importation, exportation, and distribution of all types of illicit substances, both within and outside Canada. Some also drew a link between organized crime and the financing of terrorist organizations throughout the world. While there is no disputing that organized crime is involved in the trade of illicit substances, from which it derives huge profits, the Committee found little consensus as to the policy and/or legislative reforms required to better address the issue. For example, the Committee was told that prohibition was the cause of much of the harm associated with the trade in illicit substances and organized crime.

In short, it is hard to imagine policies better suited to generating and perpetuating violence, corruption, organized crime, destruction of civil liberties, needless death, misery and social dysfunction than the prohibitionist schemes that Canada’s policy makers and Parliamentarians have promoted over the last 90 years.²⁴⁸

Others vehemently disagreed with the notion that the removal of prohibitions would reduce the involvement of organized crime.

The illegal status of a substance is only a hindrance to criminal organizations. Profit is their motivating factor. We see these groups involved in illegal activities surrounding alcohol and tobacco.²⁴⁹

Representatives from enforcement agencies tended toward the view that more resources and improved legislation are needed to achieve better results in the repression of illicit substance use and trafficking, as well as interdiction.

In recognition of the seriousness of the situation, Parliament has recently been involved in on-going legislative reform aimed at addressing the special problems created by organized criminal activity and money laundering. In 1995, Bill C-95 granted police additional powers to investigate and prosecute gang activities.²⁵⁰ In 1999, Bill C-51 granted police officers protection from criminal liability for certain activities relating to money laundering in the course of an investigation.²⁵¹ More recently, amendments contained in Bill C-24 further strengthened Criminal Code provisions relating to organized criminal activity, gangs and money laundering, in response to an October 2000 report of the Sub-Committee on Organized Crime of the House of Commons Standing Committee on Justice and Human Rights.²⁵²

The Committee is not in favour of eliminating prohibitions against illicit substances in order to remove the economic incentives that trade might provide for organized crime. On the other hand, the Committee is not persuaded that further legislative reforms are necessary at this time, since it is too soon to gauge the results of the aforementioned Criminal Code and other legislative amendments. However, the Committee agrees that the implementation and results of those measures should be evaluated systematically, to determine whether additional legislative steps are required.

5.1 COMMITTEE OBSERVATIONS - ORGANIZED CRIME

The Committee observed the following:

While the prohibition and regulation of controlled substances is the framework within which organized crime constructs its markets, our society is not prepared or equipped, at this time, to abandon such controls simply to pre-empt criminal activities, since unrestricted use of most controlled substances poses real health risks to people.

We must ensure that Canada’s criminal justice system has the enforcement tools necessary to confiscate huge profits taken by criminal organizations trading in illicit substances.

RECOMMENDATION 38

The Committee recommends that a committee of the House of Commons be asked to review and evaluate the operation of the Criminal Code and other recently enacted legislative provisions respecting organized crime and money laundering, to ensure that enforcement agencies have the legislative powers and resources necessary to target those activities effectively.

RECOMMENDATION 39

The Committee further recommends that the Seized Property Management Act be amended to ensure that a percentage of the proceeds described in section 10 of the Act, respecting fines imposed and properties forfeited in connection with designated substance offences or enterprise crime offences involving illicit substances, is used to support the work of community-based organizations in implementing Canada’s Drug Strategy (This measure is not intended to replace the core funding of Canada’s Drug Strategy.)