While court decisions have been steadily dismantling aspects of Canada’s pot prohibition, the federal Liberal government has been discussing a bill which would “decriminalize” marijuana possession across Canada. Yet since pot possession is already legal in Ontario, many cannabis activists are referring to the potential new law as “recriminalization.”
The government’s proposed new marijuana law, which cannot be passed until November at the soonest, is being promoted by the Liberals and most major media as a major step towards tolerance of cannabis use. Yet an analysis of the bill reveals that police could still arrest and jail people for simple possession, that criminal records for possession would still exist, and that the bill would increase the penalties for even small-scale growth and sale of marijuana.
Holes in the law
“Decriminalization isn’t the right word for the government’s new pot legislation,” said renowned Canadian lawyer John Conroy, who specializes in marijuana law and other issues of personal liberty.
Conroy prefers to call the proposed law 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,” Conroy told Cannabis Culture. “So how is this decriminalization?”
The bill would supposedly “decriminalize” possession of under 15 grams of marijuana or one gram of hash. However, there’s many problems with the details of how this would be done.
The main obstacle is that Canada’s feds can only implement non-criminal offenses with a little-used piece of law passed in 1992, called the Contraventions Act. Yet many Canadian provinces have never agreed to the Contraventions Act, including British Columbia, Alberta, Saskatchewan and Newfoundland.
“The provinces that disagreed,” said Conroy, “did so because non-criminal offenses are supposed to be their jurisdiction, not the federal government’s.”
Rather than risk patchwork enforcement under the Contraventions Act, the feds wrote Bill C-38 as a change to the current drug law, the Controlled Drugs and Substances Act (CDSA).
Under Bill C-38, Canada’s Cabinet can choose to enact their pseudo-decriminalization in provinces that have signed into the Contraventions Act. However, until Canada’s Cabinet creates further regulations, there will be no decriminalization in any province, even if Bill C-38 passes.
A Health Canada press release from May acknowledges this situation, and states that in provinces where the Contraventions Act isn’t law, “the court system will continue to be used.”
Criminal records continue
There’s further problems with the proposed new law, according to Alan Young, a legal professor at York University and the University of Toronto, who has led a number of major legal challenges to Canada’s marijuana laws over the last decade.
Even if the Canadian government passes Bill C-38, all the provinces sign into the Contraventions Act, and the Cabinet passes decrim regulations in every province, Canadians everywhere could still be arrested for possessing under 15 grams, be taken down to the police station and face a day in court.
“In enforcing the law relating to possession under 15 grams, the investigating officer has the discretion whether to informally ticket or whether to formally arrest,” said Young. “Upon a formal arrest, the offender is subject to search and detention pending release. The trappings of the criminal process are alive and well.”
Even worse, media reports have repeated the government’s claim that their “decriminalization” will mean an end to criminal records, when in fact it means no such thing.
“Nothing in the Contraventions Act, nor the Criminal Records Act, will prevent the creation of criminal records for marijuana possession,” explained Young. “Ironically, the Criminal Records Act is a short piece of legislation which only speaks to the removal of records for those who have received discharges or pardons. This protection is completely absent with respect to the proposal to decriminalize marijuana possession.
“The Criminal Records Act never defined a ?record’ nor does it govern the operation of the RCMP’s automated criminal convictions records retrieval system (known as CPIC).”
This means that you could get a criminal record under “decrim,” and it couldn’t be kept out of police information systems, nor be protected from American authorities. Further, unlike a regular criminal record, you can never apply to have it sealed or erased!
Canada’s governing Liberals have lied about eliminating such criminal records in the past. Canada’s current drug law, The Controlled Drugs and Substances Act passed in 1996, was supposed to make convictions for possession of under 30 grams “untraceable,” because there would be no fingerprinting or photographs taken of the accused (CC#04, What every Canadian should know about Bill C-7). Yet Young told Cannabis Culture that these small-time offenses often make it into CPIC anyway, and then are passed on by the RCMP to American Customs and Immigration officials.
Lawyer Brian McAllister, the man responsible for having possession laws in Ontario struck down as unconstitutional earlier this year, also agrees that the new law would not protect Canadians from being refused entry to the US.
“The Americans aren’t going to make any distinctions if pot in Canada is criminal or ticketable,” explained McAllister. “If you are found guilty, you will be kept out whether it is a criminal record or not.”
Even if marijuana possession convictions under 15 grams aren’t kept in CPIC, McAllister, Young, and Conroy all agreed that under the new law, pot possession convictions would almost certainly be recorded by police and kept in a database that is accessible to US authorities.
In terms of small-time trafficking, Bill C-38 instructs judges to give marijuana dealers more punishing sentences if they sold pot near a school, or any public place frequented by persons under the age of 18. So selling pot in malls, markets, parks, sidewalks or really anyplace outside of an adults-only club or bar could merit stricter sentencing.
For pot cultivation in any amount, Canada’s current law provides for a maximum penalty of seven years in prison. The new law would provide penalties based on how many plants are being grown, increasing the maximum penalties for anything over 25 plants. The new law would also eliminate jury trials for cultivation of less than 25 plants.
For under three plants, the maximum penalty would be a $5000 fine and/or one year in jail. For between four and 25 plants the maximum penalties would be a $25,000 fine, or five years in prison.
For 26 to 50 plants the maximum penalty would be 10 years. For over 50 plants the maximum sentence would be 14 years, twice the current maximum!
Further, 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.
Billed as a more lenient law, Bill C-38 is really designed to stimulate thousands more cannabis arrests and ensure decades of continued drug war persecution.
Interestingly, the new law makes no provisions for medical access to marijuana, and so it could probably be overturned by further court decisions such as the recent ones in Ontario.
Also, a major Supreme Court decision on Canada’s marijuana laws is expected to be delivered this fall (CC#44, Canada’s Supreme Court hears pot challenge,) and this ruling could force the government to make sweeping changes to the entirety of pot prohibition.
Canada is teetering at the edge of ending their nation’s war on pot. The people are ready for real change but their leaders are trying to slip them more drug war lies and deception. It appears that the courts are currently the best hope for a real end to the war on cannabis in Canada.