If we pass this bill, if we do not have a serious reassessment of drug policy and
. . .before the Senate
by Dana Larsen
On March 6, the Hon. David Dingwall, Canada’s new Minister of Health, introduced
a motion that revived Bill C-7, the Controlled Drugs and Substances Act. The bill
was renamed Bill C-8, and deemed passed by the House of Commons. Apart from changing
the Bill’s number from C-7 to C-8, this version of the Controlled Drugs
and Substances Act is identical to the bill originally passed by the House of Commons on
October 30, 1995, the day of the Quebec referendum.
It used to be that it required the consent of all parties in the House for a bill which died
in this manner to be revived. This was changed by the Conservative government of Brian
Mulroney. At the time the Liberals complained about this “undemocratic” change
in process, but have now used the exact same procedure to get their legislation
through without debate.
The reinstated Bill has returned to the Senate, and the
Standing Senate Committee on Legal and Constitutional Affairs has continued to hold
the hearings that began in December, but were interrupted when the session of
Parliament ended on February 2.
FIVE THINGS ABOUT THE CONTROLLED DRUGS
AND SUBSTANCES ACT THAT EVERY CANADIAN
SHOULD KNOW. . .
In the previous issue we 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
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.
. . .YET ANOTHER FOUR MORE THINGS
After reading the testimony received by the Senate over December, and spending more time looking
at the bill, I 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 r
ecord, 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 using that.
“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 convicted?’
“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 the last issue of our magazine.
However, the government’s persistent refusal to admit that their claims are untrue is enough
to make one cynical, and maybe wonder just what else is in the bill that simply hasn?t been noticed yet.
SEARCH & SEIZURE
I explained in the last issue 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.
I have also explained 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 I didn’t mention 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 substances.
STREAMLINING THE JUSTICE SYSTEM
In the last issue I also 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 dangerous ways.
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 witnesses. 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.”
FOR MORE INFORMATION
To find out more about the dangers of the Controlled Drugs and Substances Act, you should contact the
Canadian Foundation for Drug Policy. Their mailing address is 70 MacDonald St, Ottawa, Ontario, K2P 1H6.
They can be reached by phone at (613) 238-5909, and by fax at (613) 238-2891.
They can also be reached by email at [email protected], and their home page is at