Four more things about the Controlled Drugs and Substances Act that
every Canadian should know.
We have already outlined five main reasons why the Controlled Drugs &
Substances Act is a dangerous bill that must not be allowed to become law
in Canada. To recap, those five points were as follows:
- the Act does not reduce the penalties for possession of marijuana.
- the Act drastically increases police powers of search and seizure.
- the Act will “streamline” the justice system to allow for more trafficking charges to be laid.
- the Act prohibits all medical use of marijuana.
- the Act prohibits the industrial use of hemp.
After reading the testimony received by the Senate over December, and
spending more time looking at the bill, we have come up with another four
things that every Canadian should know about Bill C-8, the Controlled Drugs
and Substances Act.
- The government is lying about not giving criminal records for marijuana possession.
- Homes with a grow room will be considered “fortified drug houses” and will be seized.
- The “streamlining” of the justice system will allow police to testify by affidavit for some aspects of drug trials.
- The “comprehensive policy review” isn’t nearly as good as it sounds.
The government has continued to claim that those convicted of possession of
30 grams or less of marijuana will not have a “traceable criminal record”
and will therefore not have problems crossing the border or applying for a
job. This claim is not true.
Robert Kellerman of the Law Union of Ontario began his testimony before the
Senate Committee on the Controlled Drugs and Substances Act by stating that
“…this law will not in any way diminish the impact of the penalties on
young people who are arrested for marijuana offences. The only thing that
can be said is that, in some cases, they will not be fingerprinted. That
does not in any way help them when they try to cross the American border,
when they try to get jobs, or wherever having a criminal record will affect
them. This law still gives one a criminal record, even for simple
possession of marijuana.”
Later in his testimony, Mr Kellerman directly challenged Gerard Normand
from the Department of Justice, who was claiming that although possession
of marijuana remains a criminal offence that brings a criminal record, the
criminal record for marijuana possession will be somehow “untraceable”.
Kellerman responded “I have a problem that you are leaving the impression
that if people are convicted of strictly a summary offence, it will not
appear on their record. It does appear on their record. It will appear in
court, and the judge will know that they were convicted before. If the
person has already been convicted, no lawyer can stand up in court and say
‘My client does not have a record, so give him a discharge.'”
“Let me go one step further to tell you how bad it is. Even now, when
someone receives a discharge for a marijuana offence, say one little joint
of marijuana, there is nothing to prevent the provincial authorities from
“First, it is used in court if they are caught again. The judge is told
that they have already received a discharge. Second, it affects them at the
American border. Third, there is nothing in the law that prevents employers
from asking ‘Have you ever received a discharge?’
“The only people prevented from asking about a discharge are federal
authorities and federal employers. They only ask ‘Have you ever been
“Any provincial act, any private employer, at any border, they can ask
‘Have you ever been convicted and received a discharge?’ You are asked
that. I have been asked that at the American border numerous times. They
even ask if you have been arrested.”
Despite the fact that their claim is clearly incorrect, government
representatives continue to state that the criminal record for marijuana
possession will be “untraceable” under the Controlled Drugs and Substances
Act because no fingerprints will be taken. Customs officials, immigration
lawyers, and all of the independent groups which testified about the bill
have clearly explained how this is simply not true, and how fingerprints
are not a necessary part of a police database record.
This isn’t really a new concern, as this issue was addressed in other pages
of our website. However, the government’s persistent refusal to admit that
their claims are untrue is almost enough to make one cynical, and maybe
wonder what else is in the bill that just hasn’t been noticed yet.
Search & Seizure
We’ve already shown how the Controlled Drugs and Substances Act widens the
scope of police powers of search and seizure, so that a search warrant for
a house or building will automatically include all those who are present
when the police enter.
We have also shown how the bill allows police and police informers to
actively sell drugs. Mr Kellerman explained this idea to Senate, telling
them “it is extremely dangerous to authorize not only police officers to
sell drugs, but anyone working under them… What this really means in
practice is that in certain areas of the city, police will now be able to
sell drugs to people who might never, ever have bought drugs before in
their life, and entrap them because of that.”
Under present law the police have the power to seize proceeds of crime and
offence related property. To quote Mr Normand from the Department of
Justice, “If you buy a car with drug money, the car is proceeds. If you use
the car to go and do trafficking, the car is offence-related property. In
both instances, we can seize and forfeit.”
What we haven’t mentioned before was how the Controlled Drugs and
Substances Act will define a home grow operation as a “fortified drug
house”. Mr Normand described a “late amendment” to the bill which allowed
for seizure and confiscation of fortified drug houses.
He explained that the definition of a fortified drug house covers “real
estate that has been built or significantly modified for the purposes of
facilitating the commission of a designated drug offence.” Although this
issue was not dealt with by any of the groups that testified before the
Senate committee on the bill, it seems clear that most home grow operations
would fall under the definition of “significant modifications” and
therefore lead to the seizure of the home and property.
In the United States, police forces are usually given a cut of the proceeds
from these types of seizures. This same sort of incentive program will also
be available to Canadian police under the regulations which accompany the
Controlled Drugs and Substances Act. Canadian police should not be
encouraged to seize the homes and assets of Canadians in order to meet
their budgetary requirements.
It is completely vindictive to seize the property of those who grow
cannabis and other banned plants. This kind of special financial attack is
reserved almost uniquely for drug offenders. Our courts do not seize the
possessions of violent criminals, yet it is considered a routine punishment
for those who grow, or even possess cannabis and other restricted herbs and
Streamlining the Justice System
We have explained how the Controlled Drugs and Substances Act reduces the
sentence for trafficking in under three kilograms of marijuana, from
fourteen years to five years less a day. Mr Kellerman eloquently explained
to the Senate why this change was made.
“Why is the penalty five years less one day? The answer is simple. It is
because they wanted to deny people who are charged with this offence the
right to a trial by jury. This is the prosecution’s way of pretending that
they are treating marijuana use less seriously, when in fact it is just an
advantage for them…
“A jury trial is guaranteed in section 11(f) of the Charter of Rights, but
only if one is facing a penalty of five years. Therefore they have made it
five years less a day. The reason the prosecution does not want jury trials
is not just because it takes longer to get a conviction, but because it is
harder to get a conviction…
“We enshrined the right to a jury trial in our Constitution for a very good
reason. These clauses are basically removing the right to a jury
trial. That is all they are doing.
“Similarly, all the other reductions in the penalties for marijuana are
related to conveniencing the prosecution. They are not there because they
are taking marijuana less seriously.”
Aside from eliminating the requirement for jury trials in cases of
trafficking in under three kilos of marijuana, the Controlled Drugs and
Substances Act also “streamlines” the justice system in other, equally
Mr Kellerman explained how the bill allows the prosecution to prove
“continuity” by affidavit as opposed to the calling of live
witnesses. Continuity ensures that the substance that was seized is the
same as that which was analyzed.
Mr Kellerman further explained that “in drug cases, this is often the
essence of the case. Here is the danger. In the last several weeks in
Toronto alone, several police officers have been suspended from the police
force because they have been found to be planting drugs on people.
“Unfortunately, there is a great deal of corruption in drug
enforcement… This is not just a fiction in the minds of defence
counsel… The essence of our whole criminal justice system is that you
have a right to face your accuser; you have a right to cross examine
“They are taking that right away. In my view, that is another erosion of a
very important fundamental idea in our justice system.”
Comprehensive Policy Review
The Parliamentary committee which held hearings on the Controlled Drugs and
Substances Act recommended that there be a “comprehensive review” of
Canada’s drug policy, and that a task force be created to establish
“rational criteria” for the different schedules in the Act. These are
excellent recommendations, in that they acknowledge that the schedules are
presently irrational, and they open up the possibility for dramatic changes
to Canada’s drug policy.
However, the government is insisting that the Controlled Drugs and
Substances Act must be passed and made law before any review of drug policy
will take place. When Benedikt Fisher of the Canadian Foundation for Drug
Policy spoke before the Senate, he explained that “it would not make a lot
of sense to have a policy review after this bill is passed. Policy has been
confirmed if this bill is passed.”
Mr Fisher continued to explain that “if you want a reasonable and
comprehensive policy review, this bill should be put on hold until a policy
review has really reassessed the role of the criminal law in drug policy in
Canada. Then, based on the evidence from such a review, it would make sense
to go back to the bill and see what is right and wrong about it.
“If you pass this bill the way it stands right now, there is no need for a
drug policy review because drug policy is in place. This bill is Canadian
drug policy. The policy is prohibition.”
As for the prospects of the review itself, Eugene Oscapella, also of the
Canadian Foundation for Drug Policy, stated “if the review is done by the
same people who are driving Canada’s drug policy now, we will not change
the system for the better… if it is the same people who have devised our
drug policies to date, who have proved remarkably inflexible, then we are
just spinning our wheels.”
Please, write to the Senate Committee on Legal and Constitutional Affairs,
Minister of Health David Dingwall, your local MP, and local and national
media. Tell them all that you support the amendments made to the Act as
proposed by the Canadian Foundation for Drug Policy.
Only you can stop the Controlled Drugs and Substances Act.
“If we pass this bill, if we do not have a serious reassessment of drug
policy and social policy in this country, we will go the way of the United
States. We will go to hell in a handbasket in a very brutal and expensive
Diane Riley of the Canadian Foundation for Drug Policy.