Prince of Pot: Canadian Decrim – One Step Forward, Two Steps Back!

Marc Emery discusses the new Canadian Cannabis Reform Bill. With the Liberal’s Federal Drug Strategy and fines for possession and increased penalties for growing and distribution, it seems the Canadian government is trying to take the law in two directions at once! One small step forward and two big steps backwards.
Cannabis Reform Bill
The proposed legislative reforms introduced today in the House of Commons would modernize the way Canada enforces the law, providing for alternative penalties against possession of small amounts of cannabis, and to create new, tougher penalties to target large marijuana grow operations.

Under the proposals included in the bill, cannabis possession and production will remain illegal in Canada under the Controlled Drugs and Substances Act. What will change is the approach to enforcement.

Rising rates of marijuana use and falling support for incarceration as a penalty for cannabis possession underscore the need to modernize current laws.

However, being prosecuted and convicted in a criminal court bears a stigma that can have far-reaching consequences in an individual’s life in such areas as job choices, travel and education. Participating in the criminal court process can also involve personal upheaval.

Further, in about half of all incidents in which law enforcement officers encounter individuals in possession of cannabis, no charge is laid. In large urban centres, police are much less likely to lay a charge for possession of small amounts of cannabis than in other parts of the country, and where a charge is laid, the accused is more likely to receive a discharge.

Heavy use of cannabis is linked to serious health problems like respiratory damage and impairment of physical co-ordination. The Government of Canada believes that, in the interest of health, cannabis use must remain illegal.

Two special parliamentary committees released reports in 2002 on the issue of illegal drugs. In September 2002, the Senate Special Committee on Illegal Drugs called on the Government of Canada to adopt an integrated policy addressing the harmful effects of drug use. In December 2002, the House of Commons Special Committee on the Non-medical Use of Drugs released its report calling for a renewed federal drug strategy and some form of decriminalization of possession and cultivation of small amounts of cannabis. In the September 30, 2002 Speech from the Throne, the Government of Canada committed to respond to the results of these parliamentary consultations.

There have been many polls on the issue of cannabis possession. It is clear that Canadians would prefer that possession of small amounts of cannabis become a ticketing offence and that criminal convictions for minor possession offences are considered to be excessive.

Proposed reforms to cannabis possession offences are part of Canada’s Renewed Drug Strategy and represent a new approach to the enforcement of these offences through alternative penalties.

What does the Cannabis Reform Bill propose?
The Cannabis Reform Bill includes measures that:

replace the current criminal court process and resulting criminal penalties with alternative penalties for possession of 15 grams or less of marijuana or one gram or less of cannabis resin (hashish);
provide law enforcement officers the discretion to give a ticket or issue a summons to appear in criminal court for possession of more than 15 grams and up to 30 grams of marijuana; and
provide for greater alternative penalties when aggravating factors are present, Including possession while committing an indictable offence, while operating a motor vehicle or while on or near school grounds;
create new offences providing tougher penalties for illegal growers. The larger the operation, the greater the penalty, with a maximum 14 years in prison for anyone found with more than 50 marijuana plants. This is double the current maximum penalty of seven years.
How will driving while impaired by cannabis be discouraged?
Driving while impaired by alcohol or drugs remains a criminal offence. A working group of federal, provincial and territorial officials is considering the issues surrounding the detection of drivers suspected of impairment by drugs. One approach involves the training of law enforcement officers to recognize the effects of drug impairment. Officers request suspected drug–impaired drivers to voluntarily perform physical tests and to provide a sample of urine. The renewal of Canada’s Drug Strategy provides additional funding of $910,000 to continue and intensify our work in this area.

How will the ticketing scheme work?
The Contraventions Act allows tickets to be issued for minor federal offences, using existing provincial systems to process the tickets. Under the proposals, several new possession offences would be added to the list of offences to which the Contravention Act applies:

Possession of 15 grams or less of marijuana, punishable by a fine of $150 for an adult, $100 for a youth.
Possession of one gram or less of cannabis resin, punishable by a fine of $300 for an adult and $200 for a youth.
In cases of possession of 15 grams or less of marijuana or one gram or less of cannabis resin where aggravating factors exist, the fines are $400 for an adult and $250 for a youth.
Possession of between 15 grams and 30 grams of marijuana. A police officer would decide if the person should receive a ticket or issue a summons for a summary conviction. The ticket fine would be $300 for an adult and $200 for a youth. The summary conviction penalty would be up to six months imprisonment and/or up to a $1,000 fine.
The parent or guardian of anyone under 18 would be notified that the youth has received a ticket or has been charged.

Current penalties for trafficking in cannabis will not change.

Six provinces have Contraventions Act agreements in place (Ontario, Québec, Manitoba, Prince Edward Island, New Brunswick and Nova Scotia), and could begin issuing tickets when the proposed legislation is enacted. The Government of Canada will continue to establish agreements with the remaining provinces and territories. In the interim, in those jurisdictions, the court system would continue to be used, but maximum fines for the various offences would be the same as those under the Contraventions Act. Persons found guilty, whether there is an agreement in place or not, would not be considered convicted of a criminal offence under the law. This ensures that the consequences of possession offences are the same in all jurisdictions.

How does the proposed legislation toughen the law against marijuana grow operations?
In recent years, marijuana cultivation has turned into serious business for organized crime in North America. Canadian law enforcement agencies report more frequent detection of marijuana grow operations across the country. Grow operations are moving indoors, often in residential areas. These operations create unacceptable public safety risks.

Currently, production of marijuana is a single offence punishable by up to seven years of imprisonment. The proposed legislation will create four separate offences with penalties that better fit the seriousness of the crime:

an individual found growing one to three plants would face a summary conviction offence with a fine up to $5,000 and/or 12 months in jail;
four to 25 plants would constitute an offence punishable by up to $25,000 and/or18 months in jail on summary conviction or, if pursued by indictment, five years less a day imprisonment;
growing 26 to 50 plants would result in a sentence of up to 10 years; and
the penalty for growing more than 50 plants would be up to 14 years, double the current maximum term of imprisonment.
In addition, in cases involving more than three plants, a judge would have to provide reasons why imprisonment was not imposed where any of the following aggravating factors was found:

a risk of danger for children in the building where the operation exists;
use of traps (set to protect the premises from intruders or police);
use of explosives (for example, as a booby trap or to destroy evidence);
use of land belonging to others (for example, farm land); and
operation creating a safety hazard in a residential area
What are Canada’s International Obligations?

Through the Cannabis Reform Bill, the Government of Canada respects its international obligations. Although the legal responses vary, all countries prohibit cannabis in one way or another. Canada is a party to three international conventions dealing with illegal drugs:

The Single Convention on Narcotic Drugs
The Convention on Psychotropic Substances
The Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
These treaties require member countries to prohibit certain activities, including the production, trafficking, import and export of drugs. Countries must provide adequate penalties, including imprisonment, for serious drug offences, but are free to determine appropriate penalties for minor offences.

The Government of Canada enjoys an excellent and longstanding relationship of cooperation with the U.S. and other countries aimed at our common objective of reducing drug consumption, production, trafficking and smuggling and more effectively enforcing the prohibition against cannabis. In 2002, the Canada Customs and Revenue Agency reported almost 8,000 drug seizures worth almost $370 million.

How do other countries respond to cannabis possession?
Over the last few decades, countries have adopted more diverse approaches to the problem of cannabis possession. In some countries, including Spain, Italy, Portugal, Belgium and Luxembourg, possession of small amounts of cannabis is not a crime. In the Netherlands, Germany, Switzerland and Denmark, it remains a criminal offence, but it is not prosecuted. The Swiss parliament is currently considering legalizing cannabis possession. In France, an official directive advises public prosecutors and judges to avoid criminal charges except as a last option when the only offence committed is the consumption of illegal drugs. Some countries, including the United States, see active prosecution as a key element of their policy response to possession of small amounts of cannabis. Although drug enforcement is a federal responsibility in the U.S., 12 states have laws decriminalizing possession of small amounts of cannabis.

In 2002, the Government of the United Kingdom announced a new comprehensive drug strategy focusing on prevention, treatment and harm minimalization. An order in council was put before Parliament that proposes to reclassify cannabis so that possession would be the equivalent of possession of steroids or growth hormones. Possession of cannabis would remain illegal, but it would not be grounds for arrest unless a danger to public order is perceived, or arrest is necessary for the protection of children. This order in council is expected to be passed in July 2003.

In 1987, the state of South Australia adopted fines for cannabis possession of up to 100 grams of marijuana or up to 20 grams of cannabis resin. The Australian Capital Territory followed suit in 1992, and the Northern Territory in 1996. The scheme is based on expiation, meaning that a summons is issued with an indicated fine that, if paid on time, ends the case with no criminal conviction. If the fine is not paid, the case is treated as a criminal charge with the possibility of conviction. Fines average between 50 and 150 Australian dollars, depending on the circumstances of the offence (exchange rates are usually similar to the Canadian dollar). The maximum fine for a possession offence in South Australia is 2,000 Australian dollars. Several evaluation studies in South Australia found no increase in cannabis use linked to adoption of its policy on cannabis possession. Since 1998, the states of Victoria and Western Australia have dealt with non-violent, first time cannabis possession offences with official warnings from prosecutors. The Government of Western Australia is also considering legislation to create an expiation scheme.

While there are some similarities with the Australian approach, the Government of Canada proposes a scheme with important differences. First, the Government decided to define small amounts of cannabis at a lower weight level. Second, a person who receives a ticket but does not pay it will not face a criminal conviction. Nor will a person who chooses to challenge a ticket in court, even if they are found guilty. Fines assessed in court will not be higher than those set out on the ticket, as can be the case in Australia. Fines not paid will be collected according to the same provincial rules governing parking or speeding tickets.