10/25/22 Sarah Niman

Century of Lies
Sarah Niman
Canadian Drug Policy Coalition

This week on Century of Lies: Canada’s Bill C-5, Too Little & Too Late. We hear from Beeta Senedjani, Dialogues Program Coordinator with the Canadian Drug Policy Coalition; Nicole Luongo, Systems Change Coordinator with the Canadian Drug Policy Coalition; Safiyya Ahmad, Student-at-Law with the BC Civil Liberties Association; Niki Bains, Policy Staff Counsel with the British Columbia Civil Liberties Association; Caitlin Shane, Staff Lawyer with the Pivot Legal Society; Sarah Niman, Legal Counsel and Assistant Manager of Legal Services with the Native Women's Association of Canada; and Pam Hrick, Executive Director and General Counsel with the Women’s Legal Education and Action Fund.

Audio file

DEAN BECKER: (00:00)
The failure of drug war is glaringly obvious to judges, cops, wardens, prosecutors, and millions more. Now calling for decriminalization. Legalization the end of prohibition. Let us investigate the century of lies.

DOUG MCVAY: (00:18)
Hello, welcome to Century of Lies. I'm your host Doug McVay up in the northern part of Abu Yala in the country, currently referred to as Canada. Bill C five is making its way through Parliament Bill C five, an act to amend the criminal code and the Controlled Drugs and Substances Act has made it through its third reading in the Commons and is currently in the Senate where it's being considered by the Standing Committee on Legal and Constitutional Affairs. The committee has held a number of hearings on the measure. We're going to hear some testimony from two of the most recent hearings on October 19th and 20th from October 19th. First up is Beta Senate Johnny Dialogues program coordinator with the Canadian Drug Policy Coalition

Beeta Senedjani: (00:56)
And we will speak mainly to the seduced amendments in Bill C5 related to the Controlled Drugs and Substances Act. This is an issue that we take very seriously and the time for change is long overdue. Bill C5 is coming in a context where decriminalization is a national reality. Next year BC will be implementing de crim and municipalities and provinces across the country are in the process of decriminalizing. There's broad consensus that criminalization of people is deeply problematic. It is not clear to us that Bill C5 will have an impact on reducing CRI criminal charges related to possession.

Speaker 4: (01:38)

Beeta Senedjani: (01:41)
Okay, thank you.

Beeta Senedjani: (01:44)
So Bill c5, It does not go far enough. We would like to refer you to our submitted brief and our National Civil Society decriminalization platform called De Crim done right. For further details on recommendations related to the C DSA and reform to the Controlled Drugs and Substances Act in general, we recommend full de criminalization of simple possession and necessity trafficking. This is the best way to ensure legislative reform has a better chance of supporting civil rights in this country. Now in particular, we would like to draw the committee's attention to section 10.22 in Bill C five related to warnings and referrals for possession. While Section 10.21 states that peace officers shall consider alternatives to laying charges by considering whether to take no further action to warn an individual or to make a referral. Section 10.22 maintains that any charges are valid despite the failure of a peace officer.

Beeta Senedjani: (02:38)
To consider these aforementioned options, we would like to see section 10.22 struck from the bill not doing so with severely undermined the purpose of the bill, which is to address disparities in sentencing among black, indigenous and other Canadians. Striking section 10.22 would help ensure reduction in criminal charges for possession. Secondly, we'd like to refer the C committee to section 10.6, which is the sequestration system for setting aside any records of convictions related to possession which would come into effect after two years. Of course, stigma being rampant, we would like to see section 10.6 amended to state that the sequestration system must be implemented immediately rather than including a lag period of two years and that within one year of the the system being implemented that as soon as possible we see those records fully expunged.

DOUG MCVAY: (03:29)
That was Beta and Johnny Dialogues program coordinator with the Canadian Drug Policy Coalition. Now here's Nicole Longo systems change coordinator with the Canadian Drug Policy Coalition.

I'm going to speak, uh, to the Declaration of principles in the bill as well as, uh, evidence-based diversion measures more broadly. Uh, so we want to kind of critically interrogate the underlying premises of these principles and how they are contravened by the actual contents of the bill. First, it is crucial to recognize that most substance use is not problematic, so we recommend eliminating the word problematic from principle A as it relays nothing about one's relationship to drug use. It derives meaning in this context solely from the fact that the drugs in question are illegal, uh, related. Those who develop chaotic or compulsive relationships with the illegal drugs usually do so alongside material deprivation and exposure to trauma, including the trauma linked to poverty, homelessness, negative encounters with police and discrimination. We thus recommend amending principles b and E to highlight that all interventions for both possession and necessity trafficking must protect the human rights, dignity, and health of people who use drugs by being entirely voluntary and addressing structural vulnerabilities.

We also recommend amending, uh, Principle E to commit to investing public resources in societal reintegration versus a more narrow focus on individual rehabilitation. Now pertaining to warnings and referrals, uh, the federal government regularly states that it seeks to mitigate structural stigma related to drug use. However, rather than reduce stigma, the assumption that all people who use drugs require interventions paradoxically exacerbated. For example, research demonstrates that first responders and medical service providers perceive people diagnosed with addiction. As dangerous interviews conducted with employers reveal a low willingness to hire people who are diagnosed with addiction, and this interpersonal stigma can also fuel internalized stigma. The majority of treatment for addiction is ideologically rooted in programs design nearly a century go and they're widely criticized for being unsupported by contemporary evidence. Research on the effects of these programs suggest that enrollments contributes to viewing oneself as in state un unstable, incompetent, and untrustworthy, and people are at a significantly increased risk of non-fatal and fatal overdose immediately following discharge from these programs. So acknowledging the disproportionate impacts of prohibition on black and indigenous communities, as well as Canada's stated commitment to reconciliation and in the spirit of enhancing public health, human rights, and bodily autonomy, we strongly discourage the introduction of any diversion initiatives that are not entirely consensual, which is not actually possible under a framework of prohibition.

DOUG MCVAY: (06:31)
That was Nicole Longo Systems Change coordinator with the Canadian Drug Policy Coalition testifying before the Canadian Senate's Standing Committee on Legal and Constitutional Affairs on bill C five, an act to amend the criminal code and the Controlled Drugs and Substances Act. Broadly speaking, Canada's bill C five. Among other things, repeals certain mandatory minimum penalties allows for greater use of conditional sentences and establishes a diversion measure for simple drug possession offenses. Let's hear more from that October 19th hearing. Here's Sophia Ahmed, student at law with the BC Civil Liberties Association.

My name is Sophia ama. Then I'm joined by my colleague Nicki Baes. We're from the BC Civil Liberties Association. I'm joining from the unseated territory of the Musqueam Squamish and Slay with Tooth Nations. Acknowledging the territory upon which we live and work reminds us all of our obligations towards indigenous people and this informs our work today on Bill c5. B C supports many of the changes the bill seeks to make, but in our view it does not go far enough. Currently, the bill is unlikely to have the desired impact of addressing systemic discrimination in the criminal legal system. In our written brief, we outlined for the committee four areas of concern with Bill c5. First, we recommend that all mandatory minimum sentences be repealed. There is considerable research and case law to show that mandatory minimums contribute to the mass incarceration of indigenous and black people and cause disproportionate harm to people with mental illnesses.

We also have decades of scholarly research establishing that mandatory minimums do not provide the deterrent effect for which they're so often justified. Mandatory minimums, thus cause immense harm without any apparent benefit, which is why we strongly urge the committee to repeal all MA remaining mandatory minimums if parliament is not willing to take this step at this time. At the very least, we urge the committee to add a provision allowing judges to use their discretion to depart from a mandatory minimum. Such a provision should not be restricted to exceptional circumstances as this would unfairly place the burden on marginalized individuals to prove the disproportionately harmful effect uh, of mandatory minimums. We emphasize that this provision would be a stop gap measure until the remaining mandatory minimums are fully repealed.

DOUG MCVAY: (09:03)
That was Sophia Oped student at law with the BC Civil Liberties Association. Now here's Nikki baes policy staff counsel with the BC Civil Liberties Association.

Niki Bains: (09:12)
I'm speaking to you from Emma Scotchy with Sky Gun 3D six Territory. Our recommendation is to remove all unnecessary restrictions on the availability of CSOs. Bill C five removes some while leaving in place. Three restrictions contained in paragraphs 7 42 0.1 sub B C even as amended and the consistent with the original form of the CSO provision introduced in 1996 and the need to repeal all mandatory minimums. Section 7 42 0.1 need only be restricted to sentences of two years less a day, and the requirement that serving the sentence in the community would not endanger community safety and be consistent with sentencing principles as is already set out in paragraph A As outlined in our written materials, expanding the availability of CSOs creates space for indigenous legal orders to be respected and implemented. Indigenous nations are actively working to reclaim and reinvigorate their systems of law and governance systems that have been targeted by the state, including parliament itself for hundreds of years.

Niki Bains: (10:25)
Community based sanctions like CSOs provide an opportunity for indigenous peoples to hold citizens accountable in ways that are meaningful to them. Expanding the availability of CSOs is a small but important step parliament can take and should take to support indigenous people's work in revitalizing their legal orders. Repealing mandatory minimum sentences and expanding the availability of CSOs are necessary steps to address the mass incarceration of indigenous, black and other racialized people. Our third recommendation is to repeal section four of the C DSA and to decriminalize necessity trafficking, which is defined as the selling and sharing of a controlled substance for subsistence to support personal drug use costs and to provide a safe supply. In the interest of time, we will refer you to our written materials. And finally, in our brief we provide a detailed list of recommendations respecting the diversion measures proposed under the C dsa. If simple possession and necessity trafficking continue to be criminalized, the approach taken in Bill C5 must be strengthened in order to protect human rights and promote equitable outcomes. In particular, we are concerned about the reliance on police and prosecutorial discretion in the bill. Further, the bill should not require the identity of the individual to be included in police records of warnings or referrals. Importantly, people who have been convicted of simple possession prior to Bill C5 coming into force should not be arbitrarily excluded from the mechanisms available for expungement of records of conviction.

DOUG MCVAY: (12:08)
That was Nikki Banes policy staff counsel with the BC Civil Liberties Association. Now here's Caitlin Shane, staff lawyer with the Pivot Legal Society.

Caitlin Shane: (12:17)
My name is Caitlin Shane. I'm the staff lawyer of drug policy at Pivot Legal Society and I'm joining you from Vancouver BC on the stolen lands of the Musk Squamish Insoo nations. I've circulated a more detailed brief that explains Pivots position in full, but for today I'm going to focus on Bill C5 s proposed amendments to the Controlled Drugs and Substances Act and specifically those under part 1.1. Evidence-based diversion measures. In short pivot is concerned that by proposing measures that lessen but don't fundamentally alter the criminalization of drug use, Bill C5 is currently faded to maintain the status quo and in doing so to fail in its own stated purposes. And I'll unpack that a bit. So Bill c five's principles correctly identify that substance use is not a criminal issue but a health and social issue. It rightly finds that interventions should be founded on evidence-based practices that protect the human rights, health and dignity of people who use drugs.

Caitlin Shane: (13:27)
It recognizes significantly I think that criminal sanctions for drug possession increased stigma and are not consistent with established public health evidence. But despite accurately identifying the principles and evidence and issue, Bill C5 proceeds to propose solutions that don't follow those principles or evidence to their logical conclusion. If Bill C5 wants in good faith to honor its principles, it should actually decriminalize drug possession and necessity trafficking. This is being called for desperately by people who use drugs, their families, numerous chief public health officers, over 180 civil society organizations across the country, the province of bc, various entities of the United Nations. It is time to listen to the experts and legislate accordingly. I'm primarily concerned that when it comes to people who are actually being criminalized for drug use, these, these diversion measures will just continue to cycle people through the criminal justice system. And I'll explain why Bill C5 retains police and prosecutorial discretion to lay drug possession charges and it explicitly provides that if police fail to follow protocol, there are no consequences either for the officer or the person who has been failed.

Caitlin Shane: (14:58)
We know that poor and racialized drug users are consistently disproportionately targeted for drug possession charges. If these provisions don't actively combat that reality, we cannot expect it to change. Bill C5 requires that police collect information including personal identification for people that receive warnings or referrals, and that information is then made available to police in the courts. This provision alone mimics criminalization and is absolutely enough to keep drug use driven underground. The Supreme Court of Canada has recognized that even the most informal interactions between police and marginalized communities is experienced as detention. So provisions respecting extensive, extensive data collection must be removed in their entirety. Though the record suspension provisions are well intentioned, they also won't protect most people who are criminalized for drug possession. Record suspensions are easily revoked, including where a person commits an indictable offense or they're considered not to be of good conduct.

An indictable offense can be something as minor as breaching a a probation condition that requires abstinence. So I would urge the Senate to consider a more effective approach to suspending and expunging records for drug possession offenses. Those are sort of my overarching concerns and of course my core recommendation with respect to the diversion measures is to decriminalize drug possession and necessity based trafficking. Short of that, there are amendments that can be made. I've included those in my brief, but it is with the earnest caveat that this framework, this current iteration of Bill c5, will not serve the bill's stated purposes and is not truly a public health or human rights approach to substance use.

DOUG MCVAY: (16:53)
That was Caitlin Shane's staff lawyer with the Pivot Legal Society testifying October 19th before the Canadian Senate's Standing Committee on Legal and Constitutional Affairs on Bill C five, an act to amend the criminal code and the Controlled Drugs and Substances Act. We'll have more in a moment. You're listening to Century of Lies. I'm your host Doug McVey. The committee met again on October 20th to discuss Bill C five. Among the witnesses they heard from that day was Sarah Neiman legal counsel and assistant manager of legal Services with the Native Women's Association of Canada.

Sarah Niman: (17:25)
Nwas head office is located on the traditional and seated territories of the Algonquin and E NABE people WeCh for inviting NWA to appear today, Canada's laws have told indigenous women disparaging stories about themselves and as Canada's national organization responsible for advancing indigenous women, girls two spirit trans and gender diverse people's equality rights and WAC hopes. Today's submissions help shift the narrative honorable senators as you study Bill C five N W C hopes you'll be alive to its possibilities to advance reconciliation throughout colonization. Canada imposed laws that have told indigenous women they're not equal. The Indian Act told indigenous women their identities were not as valuable as indigenous men's. When passing on lineage, Canada's laws told police that they could threaten and jail indigenous mothers who tried to protect their children from residential school. Canada's laws told indigenous women they were not good mothers and scooped their children up to be placed in non-indigenous homes.

Sarah Niman: (18:27)
Canada's laws told indigenous children that they were not as worthy as other children. When it underfunded indigenous child and family services. Canada's laws told the families of indigenous missing and murdered women and girls that their losses were not as important as other peoples. Today, Canada is learning to do better and is committed to reconciling with indigenous people. Canada's promised extends to the laws it enacts and its relationship to indigenous women. Canada said it would address the truth and reconciliation ca uh, commission of Canada's 94 calls to action Canada also said it is committed to responding to the final report of the National inquiry and to missing and murdered indigenous women and girls. 231 calls to justice. Indigenous women are working hard to reclaim their power in places today's laws must value and treat indigenous women with substantive, not formal equality. To make good on reconciliation's promises, Bill C5 is an opportunity to apply reconciliation principles to criminal sentencing reform.

Sarah Niman: (19:33)
Bill C5 seeks to repeal some mandatory minimum sentences. Honorable senators you have heard from many witnesses who have described a failed get tough on crime experiment that perpetuates great harm against indigenous women. The office of the correctional investigator tells us they now account for more than half the federally sentenced women in prisons. Bill C5 addresses one way the law can shift this narrative. Instead of treating indigenous women who commit crimes as bad guys, Bill C5 empowers trial judges to meaningfully engage gladue principles and recognize that most of the indigenous women who appear before them are at first victims before committing offenses. As you study Bill c5, the Supreme Court of Canada is preparing to issue its ruling on the Sharma case. This case addresses whether section 742.1 mandatory minimums are constitutional n w intervened in that case, both at the Ontario Court of Appeal and Supreme Court of Canada levels and as we submitted in Sharma, repealing mandatory minimums promises to restore a more balanced approach to sentencing.

Sarah Niman: (20:42)
Section 7 18 2 E or the Gladu principles advanced substantive equality for indigenous women. So breathing life back into Gladue principles at sentencing also aligns with Canada's promises to indigenous people contained within the UN declaration on the rights of indigenous peoples. The Domestic Act and the International Human Rights Treaty, NWA asks the Senate to be ambitious. We ask you to seek to repeal all mandatory minimum sentences, not just those addressed in Sharma and Bill c5 because a piecemeal approach to repealing mandatory minimums dilutes their legal harm but does not fix the situation. Alternately and wax supports amending criminal codes Section seven 18.3. So judges can first consider alternatives to incarceration on the remaining mandatory minimum penalties. This is in alignment with the Truth and Reconciliation Commission of Canada's call to action 32 n waxing mandatory minimums as creating two distinct harms. For one, they prevent trial judges from using their discretion to craft meaningful sentences that reflect an indigenous woman's full social context. This includes the criminal justice system's own role in perpetuating her suffering. Secondly, mandatory minimum penalties close the door on indigenous community based conditional sentences. This infringes indigenous people's right to exercise their own customs, traditions, rules and legal systems. In other words, sentences that engage gladu principles make legal space for indigenous communities to engage restorative healing practices.

Speaker 4: (22:17)
Excuse me, moment. I'm, uh, Nema, I'm sorry Miss, uh, Neman. Uh, could you, uh, uh, finish sums please?

Sarah Niman: (22:25)
In other words, many of the indigenous women coming out of federal prisons, they are not coming out full healed or stored. The criminal justice system is failing them and we ask you to do your part in remedying that harm.

DOUG MCVAY: (22:36)
That was Sarah Neiman legal counsel and Assistant Manager of Legal Services with the Native Women's Association of Canada. Now here's Pam Rick, executive director and general counsel with the Women's Legal Education and Action Fund.

Pam Hrick: (22:49)
I am grateful to appear before you today from Toronto or take Toronto, which is within the lands protected by the Dish with one Spoon WA Pump Belt. Covenant Leaf is a national charitable organization that advocates for the substantive equality of all women, girls, trans and non-binary people. We do this through litigation, law reform and public legal education that is feminist and intersectional. We applaud the government for putting forward Bill C five. We know mandatory minimums and restrictions on the availability of conditional sentences contribute to the mass incarceration of black and indigenous people. The amendments contained in Bill C five represent an important first step to combating systemic discrimination in Canada's criminal legal system. However, Bill C five does not go far enough. This is why Leaf collaborated with the Black Legal Action Center and the Canadian Association of Elizabeth Fry Societies. To prepare a brief for this committee in our brief, we urge you to adopt five recommendations.

Pam Hrick: (23:58)
I won't read those to you though I ask you to carefully consider them. I want to focus my opening remarks on two recommendations. First, we recommend the removal of all mandatory minimums from the criminal code. Evidence shows us that mandatory minimums do not deter crime. At the same time though they contribute to the significant incarceration and over-policing of marginalized communities, specifically black and indigenous communities. If this committee is not willing to go so far as to amend Bill C5 to remove all mandatory minimums or even just those that have been found unconstitutional, I urge you to at least grasp the low hanging fruit. I urge you to adopt a recommendation to implement the Truth and Reconciliation commissions. Call to action number 32. As you've heard, this would allow trial judges upon giving reasons to depart for mandatory minimum sentences and restrictions on the use of conditional sentences.

Pam Hrick: (25:01)
Call to action 32 recognizes and responds to the reality that where mandatory minimums and restrictions on conditional sentences remain injustice will inevitably result. Call to action 32 enables judges to pass sentences proportionate to the circumstances of the offense and the degree of moral blame worthiness of the person before them. Professor Deborah Parks provides the example of an 18 year old indigenous teenager who kills her abusive drug dealer. This teenager could be convicted of second degree murder and face a mandatory life sentence without the possibility of parole for at least 10 years. This would be so regardless of the constellation of gladue factors that might be present in her life, that could include trauma related to the atrocity of residential schools or the sixties scoop, as well as other experiences of racism, childhood abuse, violence, or addiction. With the implementation of call to action 32, however, a judge would be able to meaningfully consider the systemic factors bringing this teenage woman before the court and the type of sentence that might be appropriate given her indigenous heritage.

Pam Hrick: (26:15)
Part of the context for Bill C5 includes the fact, as you've heard, that indigenous women now constitute over half of all women in federal prisons despite making up less than 5% of the female population In Canada. The mass incarceration of indigenous women is a national injustice and we need more than incremental change to address it. At the same time, the proliferation of mandatory minimums has also not improved the of indigenous women who experienced nearly double the rate of violent victimization as indigenous men and close to triple that of non-indigenous women. It's important to note that call to action 32 is not limited to indigenous people, but is broadly worded to be applied to reduce all incarceration. This is particularly relevant for black men, women and gender diverse people. Sentencing judges. Considering the impact of race and racism on an individual may reasonably conclude that the only fit sentence is one that departs from a mandatory minimum or restriction on a conditional sentence. It has been now over seven years since the Truth and Reconciliation Commission released this 94 calls to action. The lack of progress on the 76 recommendations directed to the federal government is shameful with independent sources finding that only seven to eight have been implemented as of this year. It's within this committee's power to force the issue to insist that Parliament not defer and delay the implementation of yet another of the calls to action.

DOUG MCVAY: (27:47)
That was Pam Rick, Executive Director and General counsel with the Women's Legal Education and Action Fund testifying before the Canadian Senate's Standing Committee on Legal and Constitutional Affairs on Bill C five, an act to amend the criminal code and the Controlled Drugs and Substances Act. Uh, before we go, one last thing. I refer to the top of the show to the land of a yala. I've used that term before and people have asked, so I should explain. Roughly translated it means landing full maturity and refers to the land mass of the American Hemisphere, north and South. And on that note, that's it for this week. Thank you for joining us. This has been Century of Lies. I've been your host, Doug McVey. Find this edition of Century along with an archive of past shows at the Drug Truth Network website, drug truth.net. You'll find a link there to subscribe to the Century of Lies' podcast. You can follow me on Twitter. I'm at Doug McVey. We'll be back in a week with 30 more minutes of news and information about drug policy reform in the failed war on drugs. For now, this for the Drug Truth net work. This is Doug McVey asking you to examine our policy of drug prohibition, the century of lies. Drug truth network programs are archive at the James a Bacon III Institute for Public Policy.