Parliament’s summer recess provides a good opportunity for the public and parliamentarians to consider the provisions of the government’s cannabis reform legislation (Bill C-17). That bill is so fundamentally flawed that it should never be passed in its present form.
The Prime Minister and the federal ministers of health, justice, and public safety have all said that criminal convictions for simple possession of cannabis are excessive. They’ve also said that under bill C-17 persons possessing or growing small amounts of cannabis would be ticketed and would not receive criminal records. That is untrue on both counts.
C-17 would create three new summary conviction (criminal) offences in the Controlled Drugs and Substances Act; two for possession of small quantities of marijuana or hashish and one for cultivation of one to three marijuana plants.
Under the Contraventions Act the federal cabinet can designate any crime (except those punishable on indictment only) as a ‘contravention’, or an offence that can be prosecuted by means of a ticket. But there’s nothing in bill C-17 that obliges the government to designate those three new cannabis offences as contraventions. That would require a separate Order in Council, one that cannot be taken for granted under the present government or under a new government if an election occurred before the bill came into force.
Even if bill C-17 is passed in its present form and those new offences are designated as contraventions, they could only be prosecuted by ticketing in the seven provinces that have entered into agreements with Ottawa under the Contraventions Act. In the remaining provinces (British Columbia, Alberta and Newfoundland) and the three Territories they would continue to be prosecuted in the criminal courts.
Regardless of how they’d be prosecuted, information about cannabis contraventions would continue to be stored in and widely disseminated from the RCMP’s national police information centre (CPIC), from provincial and municipal law enforcement information systems, and from private databanks with far-reaching consequences for those convicted.
In an attempt to blunt the effect of a criminal record on offender’s ability to travel outside the country, bill C-17 would make it an offence for any person who has access to information about cannabis contraventions stored in CPIC or other law enforcement information systems in Canada to disclose that information to a foreign government, an international organization, or their agents. But how effective would that prohibition be considering that, as now seems to be the case, law enforcement agencies in the U.S. already have direct access to CPIC’s records from their own computer terminals? Furthermore, as a legislative summary of bill C-17 prepared by the Library of Parliament states: ‘When a U.S. agency runs a query on a person while that person has a record on CPIC, the findings will create a permanent record in the databases controlled by the U.S. government.’ A conviction for a cannabis contravention, therefore, is likely to become a permanent barrier to travel to the U.S.
Bill C-17 would not restrict the disclosure of records of cannabis contraventions between law enforcement agencies and prosecutors in Canada. Those records could be an important factor in future dealings with the justice system. They could influence a police officer to lay a charge in cases where he or she might otherwise have used discretion not to lay a charge; or they could influence a crown prosecutor to proceed by indictment rather than by summary conviction in a given case.
C-17 does not restrict the disclosure of records of cannabis contraventions to the thousands of public and private organizations in Canada that routinely submit the names of employees, professional registrants, volunteers, and applicants for employment or college enrollment to the RCMP for criminal record checks. That kind of routine disclosure would curtail employment, educational and volunteer opportunities for thousands of otherwise law-abiding citizens.
One of the objectives of bill C-17 is to increase the number of persons convicted of cannabis possession. In a Health Canada news release on May 27, 2003 Anne McLellan, then Minister of Health, said that the bill is part of a new strategy ‘that the government of Canada believes will discourage the use of cannabis through higher rates of enforcement of cannabis possession offences. A more effective response will allow police to use a ticket where in the past they might have issued a warning.’
Police in Canada have reported over 890,000 persons charged with simple possession of cannabis since 1969.
Persons charged with cannabis possession in Canada, 1969-2003*
*Source: “Canadian Crime Statistics”, Statistics Canada
Under bill C-17 that figure would soon exceed 1,000,000.
On April 14, 1980 the fourth Trudeau government announced in its speech from the throne that, “It is time to eliminate imprisonment for simple possession of cannabis.” Canadians are still being imprisoned for cannabis possession every year. Under C-17, persons charged with possession of more than 30 grams of marijuana or 1 gram of hashish would still face up to five years imprisonment.
The government has not published the number of prison sentences for cannabis possession since the mid-1970s, and it no longer bothers to collect those data from the courts. However, statistics recently obtained from British Columbia’s Ministry of Public Safety show that large numbers of persons are still being admitted to prison for simple possession.
Between 1984 and 2003, 6,531 persons were incarcerated in B.C. for cannabis possession (2,463 in default of payment of fines). During that same period the number of police-reported charges for cannabis possession in B.C. (62,761) represented 13% of the total charges for the offence in Canada (492,511). One could extrapolate from the B.C. data, then, that as many as 50,000 Canadians were imprisoned for cannabis possession throughout the country during that period, almost 19,000 of them in default of paying a fine.
Bill C-17 is the fourth legislative initiative of a Liberal government in the past 33 years that they’ve said will avoid a criminal record for persons convicted of marijuana possession. Like its predecessors, today’s cabinet seems unwilling to accept that there is a limit to Parliament’s ability to abate punishment once it invokes the criminal law power and its panoply of laws and procedures. Bill C-17 clearly points to a subtle form of entrapment.
It’s time for the government to accept the Le Dain Commission’s 1972 recommendations to repeal the offence of cannabis possession, to redefine the offence of production to exclude the cultivation of marijuana for one’s own use, and to redefine trafficking to exclude the giving, without exchange of value, of a quantity of cannabis that can be consumed on a single occasion. Bill C-17 provides a vehicle for those changes.
It may be illogical to permit personal consumption of cannabis while prohibiting its commercial production and distribution ? but that’s exactly what we did with alcohol during its prohibition at the beginning of the last century, until that system proved no longer tenable. The criminal prosecution and incarceration of thousands of young Canadians each year for marijuana possession is a national tragedy that should stop now.
Mike Bryan is a freelance writer in Tahsis, B.C. Now retired, he was Special Assistant and Editor on the Le Dain Commission on the non-medical use of drugs and a drug policy advisor in the Health Protection Branch. He is a member of the International Advisory Board of the National Organization for Reform of Marijuana Laws (NORML) Canada.