Kirk Tousaw's Blog

Re: 'Pot growers, sellers are breaking the law' (Daily News, Jan. 2)

Susan Schleppe's letter about jail sentences for growing marijuana was so ill informed and illogical that I hardly know where to start.

First, she's wrong about what the Senate did to Bill C-15 (mandatory jail for drug offences). The mandatory sentences remain in place for growing even one cannabis plant if the garden is in a rental or poses a potential safety risk to the public.

Knowing one's subject matter should be a prerequisite to opining on it.

Second, she says drug use is associated with crime, failed relationships and mental illness (citing the largest drug propagandist organization in the world).

But marijuana is safer than alcohol -- our most dangerous drug -- and the only reason "drug use" is associated with crime is because of our juvenile and harmful policy of prohibition.

Finally, she provides the trite observation that it is illegal, and therefore concludes that jailing fellow citizens is an appropriate option.

I suspect Schleppe is a hypocrite on this. Speeding is illegal, and it kills more Canadians in a year than marijuana has in history. Does she speed? Does she advocate mandatory jail for speeding? If not, why not?

The bottom line is that most Canadians want to end marijuana prohibition.
Despite this, the minority government is ramping up the drug war. It is time for the opposition parties to do what they are supposed to do: oppose this legislation when Parliament returns.

Published in the Nanaimo Daily News on January 5, 2010.

CBC News - British Columbia - Drug ingredients seized in B.C. bust

The RCMP said the year-long investigation culminated in the seizure of about 20 barrels of the chemicals needed to make the drugs, as well as 14,000 ecstasy pills, more than $250,000 in cash and seven guns.

Seven men and two women ranging in age from 32 to 53 from Richmond, Vancouver and Abbotsford could face a variety of charges including conspiracy to produce a controlled substance and possession for the purpose of trafficking.

So the RCMP spent more than a year on this investigation. More than a year. I’d love to see the price tag. I suspect it dwarfs the amount of cash recovered plus the value of the pills and precursors. And will this bust make any dent in the supply of MDMA or meth? Nope. Will this bust help one person struggling with problematic meth use get into treatment? Nope. Will this undo any of the damage caused by the prohibition markets? Nope.

In fact the most that this year-plus investigation will produce is one day of headlines and the opportunity for BC’s Solicitor General to call for precursor regulation (which by the way is code for forcing sellers of various chemicals to report their buyers to the police). As a taxpayer, I don’t think I’m getting value for my money here.

CBC News - British Columbia - RCMP tampered with incriminating videotape: family

Shields added that the Edmonton police department had been asked to re-examine both the tape and the RCMP investigation that followed Willie’s death.

Shields said that any family request for copies of the tape could meet with a legal challenge.

“There is legal advice that has been received that the privacy rights of the deceased extends for 20 years,” he said.

“For that reason, the video tape should not be released. However, the final decision does rest with the Commissioner of the RCMP.”

So are we really supposed to believe that the RCMP wants to mount a legal challenge to block disclosure of a videotape showing the circumstances around a man dying in their custody to protect the privacy rights of the deceased? Especially when its his family that might try to have the tape made public? Tim Shields is earning his money on this one. That he can actually make that claim with a straight face is testament to his skills.

My recent discussion of the possible impact of Bill C-15 stirred up some discussion about whether I'm overstating the risk to small producers in residential areas.

Specifically, at least one thoughtful commenter remarked that I went "much too far" in suggesting that the aggravating factor "the production constituted a potential public safety hazard in a residential area" would broadly apply to most, if not virtually all, production in residential areas. Because this issue is critical to understanding just how pernicious this legislation is, I wanted to make a detailed reply.

Disclaimer:

There is clearly a difference between fact and opinion. Just as there is between a fully-researched and formed legal opinion and a short summary of legislation that hasn't been ruled upon or interpreted by any court. Nobody can really say how this aggravating factor will be applied and, indeed, it will be applied differently in each case depending on the particular facts and what the Crown is able to prove. And taking anyone's opinions on this legislation (or probably any legal issue) as fact rather than opinion is a bad idea - there are far too many pronouncements about the law that are made as if they are inarguably correct.

But I don't think that differentiation detracts from these points: (1) the prohibitionists have waged a largely successful public relations battle that has the public, and many courts, believing that all cannabis production is or can be dangerous; and (2) people producing cannabis in residential areas are at risk (and I think real, tangible risk) of attracting the mandatory minimum.

Here is what the Minister of Justice says about this Bill in relation to production:

"Large grow operations imply both future trafficking activity and exporting. Because growers use insecticides, fungicides, fertilizers and other volatile material, and frequently obtain their electricity illegally, marijuana grow operations pose a threat to public health and safety."http://www.justice.gc.ca/eng/news-nouv/nr-cp/2007/doc_32175.html

"Large" is open to interpretation, of course, but the slew of recent media on C-15 suggests that, among others, the Minister of Justice thinks that anything over five plants is large. Certainly 50 plants is going to be considered "large" by many Crown and judges.

Defence counsel will be able to point to Mr. Saint-Denis' (senior Justice witness) testimony to the Senate to suggest that their client's small, residential production was not the intended target of the legislation. Of course, medical producers are not the intended targets either but if one is convicted of producing 501 plants for purposes of selling to a compassion club the penalty is going to apply to them. Intent behind the legislation is not dispositive. And so if a judge believes that your small "quiet" grow constituted a potential danger - not an actual danger, but a potential danger - you are going to jail.

I should also point out that Mr. Saint-Denis' example of what "danger" was being targeted was a production site that used insecticide. And the Ministry is worried about "insecticide, fungicides, fertilizers." The purported risk of these supposed dangerous chemicals appears in many of the cases as well (I'll say more about the caselaw below). It is claim that shouldn't be examined uncritically. Most producers use insecticide. All use fertilizer. Some use fungicide. So if that is the "potential danger" many, many producers have a real risk of being caught by this legislation. Yet the insecticides and fertilizers typically used by small producers is identical in chemical constituents to that used by all manner of home gardeners and is available off the shelf in every garden store and nursery in Canada. Not to mention that used on every farm. Why that product somehow runs the risk of blowing up a house when used on cannabis but apparently not when used on Grandma's petunias is never mentioned, by Mr. Saint-Denis or any other witness.

Mr. Saint-Denis' testimony aside, and despite my disclaimer above that this law hasn't been interpreted yet, the courts have had many opportunities to discuss the alleged dangers associated with cannabis production in residential areas. Doing so is already routinely used as an aggravating factor at sentencing even in the absence of specific facts relating that the individual site at issue. And that scares me. Judges are used to believing and finding, when pronouncing sentence, that residential cannabis production is dangerous and an aggravating factor. I am not optimistic that they will stop doing if it means that a mandatory sentence will be imposed.

R v. Pham and Vu 2008 BCPC 142 (http://www.canlii.org/en/bc/bcpc/doc/2008/2008bcpc142/2008bcpc142.html) is a good case to read to get a sense of how a sentencing analysis currently is conducted by a judge. Keep in mind that right now the standard of proof at sentencing is generally "balance of probabilities" but when dealing with aggravating factors the Crown must already prove them "beyond a reasonable doubt." Factually it is not a small production site (600 plants) but in reviewing the decisions on conviction (R v. Pham and Vu 2007 BCPC 355; (http://www.canlii.com/en/bc/bcpc/doc/2007/2007bcpc355/2007bcpc355.html)) and on sentence I saw nothing to indicate any actual danger specific to the site was alleged much less proven. There was a hydro bypass but the accused were not convicted of that charge.

The sentencing judge had this to say:

[31] I find that at all material times the grow operation in issue in this case was operated in a home being used as a residence for the two accused and their children and accordingly, the three children were exposed to certain of the often described dangers inherent in grow operations in this case. They are well described in the cases on point and include the risks of fire, electrical in origin, or caused by high intensity lights used in closed spaces, electrical faults and grow rip violence.
[32] The mitigating factors include that Mr. Vu does not have a criminal record, restitution has been made to B.C. Hydro for the power taken, Mr. Vu was a refugee for a period of time, he is married, works and I am told was never on welfare. These may be seen as mitigating factors. Some of them also apply to Ms. Pham. She is married and worked, at least when in Campbell River.
[33] The aggravating factors in my view are Ms. Pham's related record, the size and sophistication of the grow op, where it was located, and the probability it was run for profit. I consider it to be an aggravating factor that these two accused persons would expose their own children to the above risks.
Notice that none of the risks were said to be proven in this actual case. The judge is worried about risks "inherent in grow operations of this type". That includes "grow rips" (another wildly overstated risk alleged by police but one that by its very nature applies to any production site) and fire. Notice also that these "risks" are "well described in the cases on point."

The judge goes on to reflect on some of the cases in including R. v. Nguyen, 2002 BCCA 12, where the accused, a 46-year-old woman with an 18-year-old daughter and three minor children, and no criminal record and was convicted of keeping a grow operation of 263 plants. Not that many, frankly. The judge in that case said "In committing this offence, Ms. Nguyen exposed her eighteen year old daughter to prosecution and her younger children to the dangers of living with a marihuana grow operation, including harmful chemicals, risk of fire and risk of robbery." Ms. Nguyen got eight months in jail, upheld on appeal by the BCCA.

After canvassing many cases, the sentencing judge in Pham and Vu had this to say about dangers:

[150] Ms. Pham and Mr. Vu exposed their own children on and about February 7th, 2005 and for some considerable time in all likelihood, and the public, to all the risks referred to in the authorities that exist with respect to grow operations. It seems they were either indifferent to their safety or because the commercial and financial gains in their very sophisticated grow operation were so significant, they chose to overlook them.

and

[187] While there is no evidence any weapons or booby-traps were found on the search, nonetheless this grow operation was in a residential area and all the well-known risks including of fire and grow rip activities were therefore being run in the midst of other people close at hand who were also exposed to potential danger if any of these risks materialized.

Both accused were sentenced to one year in prison. They were parents to minor children who were, as a result, deprived of both parents for an extened period of time. The judge thought it was better for the kids than being exposed to the "risks" of cannabis production. As you can see, none of those potential risks were proven to actually exist in the case. Instead they are those "well known" risks "referred to in the authorities" that when the production is "run in the midst of other people close at hand" expose people "to potential danger if any of these risks materialized."

Note that the legislation imposing mandatory sentences does not require actual risk, just potential risk.

My fear, and I think it is very legitimate, is that because judges and caselaw already establish that producing cannabis in a residential area involves "potential risks" to the public that are "well known" this aggravating factor is going to be applied widely and often irrespective of whether the particular production site at issue was, in fact, risky at all.

Kirk Tousaw, Executive Director
Beyond Prohibition Foundation
142 - 757 West Hastings, Suite 211
Vancouver BC V6C 1A1
Cell: 604.836.1420
kirktousaw@gmail.com
www.whyprohibition.ca

Working to repeal cannabis prohibition and replace it with a regulated and controlled system of production and access.

Vancouver police say they stumbled on these ecstasy pills while investigating a report of a home invasion. (Vancouver Police Department)Re: Olympic rings ecstasy bust in Vancouver

Police answering a 911 call about a home invasion in East Vancouver Wednesday found no break-in suspects when they arrived but did find 107,000 ecstasy tablets, some imprinted with the Olympic rings.

The officers arrived to see the front door of the home kicked in and during a search for possible victims saw what appeared to be illicit drugs, Vancouver police Insp. Brad Desmarais said at a news conference Thursday.

"The officer saw large bags of multi-coloured pills in plain view, which the officer believed to be consistent with ecstasy," Desmarais said.

Some of the tablets were stamped with peace signs and some with the Olympic rings.

Vancouver's Olympic organizing committee has vigorously pursued unlicensed use of the Olympic rings symbol in the past and a spokesman said it was aware of the Vancouver police seizure.

"This illustrates that there are and will be unscrupulous uses of the Olympic marks," said Bill Cooper, VANOC's director of commercial rights management. "Like the Vancouver Police, we will continue to be diligent in our surveillance and rigorous followup."

The article goes on to say this was one of the top 5 busts in Vancouver - ever. Think about that for a second. One of the biggest busts ever was basically an accident. Police stumbled upon these pills. A million dollars worth. Makes you wonder just how many houses in Vancouver, let alone Canada, have those kinds of quantities of illicit substances in them right now. I bet it is a lot more than anyone could imagine.

And I have to admit that the idea of VANOC being diligent about unauthorized use of the Olympic rings on MDMA makes me chuckle.

Honourable Senators:

I write in advance of your anticipated vote on the Report of the Senate Committee on Legal and Constitutional Affairs regarding Bill C-15, an Act to Amend the Controlled Drugs and Substances Act. Please forgive the mass nature of this communication but the exigency of the circumstance necessitated direct, and swift, contact with you all.

I urge you, in the strongest possible terms, to reject the Committee Report as a prelude to rejecting the Bill entirely. I know this would be an unusual action for the Senate. Most legislation sent to you by your colleagues in the House of Commons is approved. But if there were ever a time for the Senate to fulfill its traditional role as the body of sober second thought, this is that occasion.

Bill C-15 purports to target organized criminals who produce, traffic and import large quantities of drugs into Canada. There is no evidence that it will do so. Indeed, all the evidence is to the contrary. This legislation will increase the power of organized crime in this country. It will increase the violence and danger associated with the prohibition-based black market. Bill C-15 will ensnare and jail primarily low-level offenders, many of whom are already marginalized and struggling with addiction and mental health issues. The testimony before your Committee was extensive and clear on these points.

Proponents of this legislation, including the Minister of Justice, did not even bother to attempt to provide empirical support for this legislation. This was unsurprising. Such evidence does not exist. Instead, these significant alterations of our historical sentencing practices was justified primarily because of the "message" it is believed it will send. But to whom?

Criminologists made clear that organized criminals will not hear this message. The caselaw is clear that high-level traffickers, producers and importers of drugs are regularly sentenced to jail terms well in excess of the mandatory penalties contained in Bill C-15. And the idea that a gangster who wears a bullet-proof vest and drives an armored SUV because of the risks associated with the prohibition markets will be deterred by the prospect of jail would be laughable if it weren't so tragic.

Is the message for the international community? The most vociferous historical supporter of mandatory terms for drug offences, the United States, is currently going the other direction, restoring judicial discretion in an effort to save a crumbling corrections system. The United States also, your Committee heard, has learned that even 20 year or longer mandatory sentences do not deter criminal activity, do not reduce the supply of drugs and do not reduce the violence associated with the prohibition markets.

Canadians deserve better than this legislation. We deserve a criminal justice policy that is both evidence-based and supportive of the critical goals of rehabilitation of offenders and their re-integration into the greater community. Bill C-15 will not help us achieve those goals. It will not make us safer. It will not reduce crime. Indeed, it will likely have the opposite effects.

Honourable Senators, you do have a choice. You can chose reason over fear, evidence over rhetoric and justice over vengeance. You can vote to reject this legislation and to send a clear message to Canadians, including most importantly young Canadians growing ever-more disaffected with the political process, that government can be about more than politics. It can be about leadership. It can be about doing what is right, not what is politically expedient. And that is a message actually worth sending.

Kirk Tousaw, Executive Director
Beyond Prohibition Foundation
www.whyprohibition.ca

I can't read tripe like this without being very aggravated.

US CA: OPED: The Dangerous Side of Marijuana

Marijuana is not a harmless drug.

The environment, the smoker and people suffer because of the seemingly accepted drug. Years ago in my hometown of Galt, a man and his two sons were hunting on their property and walked into a marijuana garden. The growers shot and killed the man and his almost teenage son. They let the young boy go.

A Lake County Fish and Wildlife Advisory Committee meeting addressed the effects of growing marijuana Nov. 19. Matt Knudsen, special agent for the Bureau of Land Management, told the crowd about what he finds when he cleans marijuana gardens after growers leave. "There's a weapon in every single marijuana grow I've been to," Knudsen said. "The public needs to be aware in the woods where they're at."

I've heard many people say "Nobody's ever died from weed." Yes, people have. Innocent people die over marijuana. People involved in growing and trading the drug also die and suffer. Three people allegedly broke into a Lakeport man's home behind the Record-Bee building in October and stole his 10 marijuana plants, officials reported. They then hogtied, tortured and shot him, leaving him for dead. He lived. I don't know whether those charged are guilty and why the intruders hurt the man. What I do know is that marijuana isn't safe for just about anyone.

Does this writer not realize that all of the dangers she lists are due to prohibition and none attributable to the plant itself? Do people torture and shoot each other over cotton, tobacco, grapes?

So it seems that it might be hard to train up the Afghan Army to maintain "order" in Afghanistan after the US leaves in 18 months. Or it might be hard for the US to leave.

EIGHT ARRESTED; TIES TO RED SCORPIONS

A two-day crackdown in Abbotsford's downtown core has resulted in the arrests of seven males and one female with ties to the Red Scorpions.

Abbotsford Police Const. Ian MacDonald said more arrests are expected in the coming days.

Beat and bike squads spent Wednesday and Thursday targeting drug lines and dealers - mainly involved in dial-a-dope operations - downtown and in the areas near Ravine Park and Abbotsford Collegiate.

Seized were quantities of crack cocaine, heroin and marijuana, as well as cash, cellphones and knives. MacDonald said the exact amounts were still being determined as of this morning.

Police are not yet releasing names of those arrested, but they were mainly in their late teens to early 20s. The oldest was 61.

MacDonald said the majority had links that clearly trace back to the Red Scorpions, dispelling the myth that street-level drugs are sold by "mom and pop" operations.

"If you're buying drugs, you're buying from organized crime," he said.

Some of the arrested were still in high school or of high school age, and many of the drug deals took place on or near school grounds.

"Drugs are being sold in high school, so who has to sell it to them?" MacDonald said. "There's a myth that there's a guy in a trench coat selling drugs outside of the high school, but that's not the case."

He said the fact that a female was among those arrested shows that gangs have stepped up their efforts in finding their "foot soldiers."

"It's not always easy to be a Red Scorpion or a United Gang member, so they have to actively work to recruit."

MacDonald said it's difficult to determine how much of an impact recent arrests of gang members are having on the groups' operations.

"What we ( police ) are hoping to do is be disruptive ... and, in essence, continue our messaging - that if you're going to be a gangster in Abbotsford, we're going to make your life miserable."

MacDonald said information garnered from these arrests is being used in future investigations and projects.

"The advantage for us is ... we can follow the food chain ( of the gangs )," he said.

I wonder if Officer MacDonald understands just how revealing his comments are? Let's review. Police arrest a lot of street level drug dealers in Abbotsford. Some apparently have ties to the Red Scorpions, an alleged criminal organization. Police crow about it in the news, but comments reveal:

1. Police operations rarely target high-level criminals, concentrating instead on the low-hanging-fruit of street dealers;
2. Gangs use the profits you can make from prohibition to recruit young people into a life of crime;
3. There are no shadowy pushermen stalking schoolyards and handing out drugs to kids - most school drug sellers are kids, in the school, selling to people they know;
4. Police don't really believe their arrests have an impact on the gangs. The point, instead, seems to be "sending messages" about how your life might be "miserable" if you get busted in Abbotsford;

So a two day operation involving the arrest of a bunch of primarily young people will result in essentially no progress in reducing drug demand, drug supply or the recruitment of young people into gangs. Indeed, it will probably increase such recruitment because now the gangs need new people to work the corners. And if any of the people busted go to jail, their links to the gangs will solidify and they will learn how to be better criminals when they are released. Since upon release they will be convicts, a life of continued crime is probably one of their only options.

How on earth is this anything but tragic? If you support drug prohibition, you support teenage drug dealing, teenage recruitment into gangs and the constant growth in the power and economic influence of organized crime. And in my book, you should be ashamed. We must end this madness for the sake of all Canadians but, primarily, to protect our youth from the dangers of prohibition.