The decriminalization that wasn’t

Lawyer John Conroy guides us past the smoke and mirrors.Lawyer John Conroy guides us past the smoke and mirrors.‘Decriminalization’ isn’t the right word for the government’s new pot legislation says renowned Canadian pot lawyer John Conroy.
He prefers to call it by its official parliamentary name, Bill C 38. ‘I see no reference in Bill C 38 that says you do not get a criminal record if convicted. So how is this decriminalization?’ he asked.

The bill would supposedly decriminalize possession of under 15 grams of marijuana or 1 gram of hash. However, while the bill is ominously silent on the matter of criminal records for small amounts, it is abundantly clear that possession of larger amounts will be punished exactly the same way it is today, with a criminal record and possible jail time. Anyone convicted of trafficking or growing will also continue to receive criminal records and possible jail time.

Conroy agreed to help Cannabis Culture magazine compare Canada’s current drug law, the Controlled Drugs and Substances Act (CDSA), to the proposed ‘decriminalization’, Bill C 38. We found that, in all cases, it provides for harsher or more widespread enforcement.

Below, we present a comparison of punishments under the old pot laws and the proposed new ones, with analysis and commentary following each section.

Possession of small amounts is ticketablePossession of small amounts is ticketablePossession

Under our current drug laws, the CDSA:

– Up to 30 grams: $1,000 fine, six months in jail or both.
– Over 30 grams (on summary conviction*) first offense: maximum $1,000 fine, six months in jail, or both.
– Over 30 grams (on summary conviction) second offense: maximum $2,000 fine, a year in jail, or both.
– Over 30 grams (on indictment*): 5 years less a day.

Under the proposed ‘decriminalization,’ Bill C 38:

– Marijuana under 15 grams: maximum $150 fine, $100 for minors
– Hash under 1 gram: maximum $300 fine, $200 for minors
– Marijuana under 15 grams or Hash under 1 gram (with aggravating circumstances): maximum $400 fine, $250 for minors.

(Aggravating circumstances include operating a vehicle, aircraft or boat; committing another indictable offense; or being near a school for people primarily under 18 years of age.)

– For possession of marijuana over 15 grams or hash over 1 gram: offenders will be prosecuted under the CDSA, get criminal records, and face fines and possible jail time.

Possession Analysis

Currently, most Canadian police will confiscate small personal amounts and let people go. Although Bill C 38 seems to go easier on people convicted of possessing small personal amounts, in reality it provides an easy way for police to nail cannabis users with ticket fines. In practice, this could mean a huge cash cow for police stations, who could operate the equivalent of pot ‘speed traps’ in well-known dealer areas, creating the potential for far more widespread enforcement and even special detachments – like our current traffic cops – dedicated to busting pot smokers with tickets.

Bill C 38 also provides for harsher enforcement against people who are caught with pot under a number of aggravating circumstances, including driving, even if they haven’t smoked for days ? much like catching a sober person driving home with a six-pack in the trunk and charging them with drunk driving.

Trafficking gets the same punishments as before.Trafficking gets the same punishments as before.Trafficking

Under our current drug laws, the CDSA:

– Trafficking under 3 kg: maximum 5 years less a day
– Trafficking over 3 kg: maximum life in prison

Under the proposed ‘decriminalization,’ Bill C 38:

– The same punishments as under the CDSA.

Trafficking Analysis

While the punishments for trafficking remain the same under Bill C 38 as under the CDSA, Bill C 38 provides harsher sentencing guidelines. Bill C 38 tells judges to give marijuana dealers more punishing sentences if they trafficked in or even near a school, or any public place frequented by persons under the age of 18. Selling pot in malls, markets, amusement parks, sidewalks or really anyplace outside of a bar or pub could merit stricter sentencing.

Maximum penalties for cultivation are to double!Maximum penalties for cultivation are to double!Cultivation

Under our current drug laws, the CDSA:

– Maximum 7 years

Under the proposed ‘decriminalization,’ Bill C 38:

– Under 3 plants: Maximum $5,000 fine, 1 year, or both.
– Between 4 and 25 plants, summary conviction: Maximum $25,000 fine, 18 months, or both.
– Between 4 and 25 plants, indictment: Maximum 5 years less a day.
– Between 26 and 50 plants: Maximum 10 years.
– More than 50 plants: Maximum 14 years.

(If cultivating in the presence of aggravating circumstances, the law recommends that the judge impose a sentence that includes jail time, or explain to the courts why jail time was not a part of the sentence.)

Cultivation Analysis

Bill C 38 recommends that growers be thrown in jail if they are convicted of growing in aggravating circumstances, including if they used someone else’s possessions to do it, conceivably put children at risk, created a public safety hazard or set booby traps. The wording is wide enough to include growers who use rental homes, or even someone who has a small closet grow in the family home where they raise their children.

While Bill C 38 seems to provide smaller sentences for anyone growing less than 25 plants, in reality Canadian courts rarely throw small-time growers in jail. Jailing every grower would cost the government millions. Bill C 38 gives judges the option of imposing disproportionately heavy fines instead. Strikingly, the bill also lets judges punish even mid-sized growers (more than 50 plants) with twice the jail time as under the CDSA.

The so-called decriminalization law, Bill C 38, reveals that the Canadian government measures drug war succes or failure in dollars instead of human lives. The CDSA cost the government millions to enforce. Bill C 38 would create cash incentives for charging, prosecuting and convicting the cannabis culture. Billed as a more lenient law, it is really designed to stimulate thousands more cannabis arrests, tear more money from the pockets of Canadians, and ensure decades of continued drug war persecution.Maximum penalties for cultivation are to double!


* Summary conviction versus on indictment:

Lawyer John Conroy explained the difference between a summary conviction and an indictment. Simply put, an indictment is considered a more serious offense – like a felony in the US – includes harsher punishments, and allows the accused to choose trial before the province’s supreme court and/or before a jury; a summary conviction is considered less serious – like a misdemeanor in the US – includes lesser punishments, and is tried in the lower provincial court. Most laws, like the CDSA and Bill C 38 (‘decriminalization,’) give the prosecutor total discretion to prosecute the accused ‘on indictment’ or ‘on summary conviction’ ? it’s the prosecutor’s choice if he wants to go after a harsher sentence, but then the accused can defend himself in a higher court with a jury.