My Comments To The Canadian Senate on Bill C-15

Honourable Senators, thank you for the invitation to testify.

I have read the transcripts of past proceedings and appreciate the hard work this Committee is doing on this vital issue. All Canadians deserve the kind of rigourous analysis that this body has conducted. I urge you to continue to apply that kind of rigour to your deliberations and to fulfill this House’s traditional role as the sober second body of our government and reject this radical and dangerous escalation of the war on drugs.

I am here on behalf of the Beyond Prohibition Foundation, a fledgling non-profit organization dedicated to the repeal of cannabis prohibition and its replacement with a system of regulated and taxed production and distribution of cannabis to adult consumers. I am also here as a criminal defence lawyer, with Conroy and Company, that has practiced on both sides of the US/Canada border and has experienced the mandatory minimum regime in the United States at both the federal and state level. You will not be surprised to learn that despite 30 years of experience locking people up for 10, 20 and even 50 year stretches, drugs are readily available, violence is a daily feature of the prohibition markets and for every so-called drug dealer put into prison there are five ready to take over the now vacant marketplace.

I’m also here, most importantly, as a father. My wife Debbie and I are parents to three young children: Kaya, age 9, Caiden, age 5 and Oaklen, age 3. As parents, we share the same hopes and dreams for our children as any others: to keep them safe, to enable them to make good choices and to build a society that maximizes their opportunities and minimizes the dangers they face as they grow into their full potential. I know, with every fiber of my being, that this legislation will not help us achieve these goals and will, instead, do precisely the opposite.

I do not propose to restate in detail what has already been said to you on this issue. There is a laundry list of the social harms that this legislation will undoubtedly cause: the increased violence and death in the drug markets both of participants and innocent bystanders, the massive inflation of our prison populations with attendant increases in violence, death, disease, rape and recruitment into gangs, the massive overburdening of a criminal justice system that is already creaking under the weight of drug prohibition, the disproportionate impacts on youth and visible minorities and persons living in areas not served by drug courts or with prosecutors unwilling to utilize the overarching discretion vested in them by this legislation.

There is also a laundry list of things that will absolutely not be achieved by this legislation: there will be no decline in drug demand, no decline in drug availability, no decline in drug purity, no increase in drug prices, no reduction in the scope and power of organized crime and indeed a likely increase in that power, no deterrent effect, no increase in the length of sentences handed out to high-level drug traffickers and importers – the purported targets of this legislation – and no increase in public safety.

But you have undoubtedly listened carefully to the testimony of the witnesses who have gone before me and you already know these things. You’ve heard the police say that this Bill will not affect how they prioritize limited resources and do their difficult jobs. You’ve heard senior Crown counsel talk about their retention problems and how this law will cause havoc with their ability to do their jobs. You’ve heard Americans discuss the failures and harms of their system which we now propose to create a pale imitation of. I can’t add to that testimony.

And so I want to tell two stories about two people. Because ultimately this law is going to affect people; sons, daughters, mothers, fathers, Canadians. It is far too easy, when discussing crime, to forget that we are talking about human beings. It is far too easy for politicians pushing fear to justify a so-called “tough on crime” agenda to demonize drug users and sellers, to paint them as some type of Other outside the bounds of society, calling them pushers or junkies, using language to objectify and dehumanize these mothers, fathers, sisters, brothers, sons and daughters.

The reality is much more complex. Yes, some of the highest-level organized criminals are violent, dangerous and wedded to criminality. But they will not be affected by this legislation in the slightest. Except perhaps if this legislation, as it very well might, has the effect of clearing out their competition in which case they will be emboldened and empowered.

In Michigan I was involved in a case of cocaine trafficking. The defendants, a brother and sister, lived in California and were alleged to have mailed just over five kilograms of cocaine from there to Michigan. The brother was alleged to be the mastermind and the sister essentially a mule who, on one occasion, dropped off the cocaine at a post office in California. There was significant evidence against the sister but little against the brother. They were extradited to Michigan because in California the crime would carry perhaps a five-year term. The police and prosecutors decided that facing Michigan’s 20-year no-parole mandatory minimum might loosen the sister’s tounge and implicate the brother or, best case, that both would roll over on their supplier. That didn’t happen, primarily because doing so would have led to retaliation against the family members of the accused. The sister was convicted, the brother acquitted. She, a mother, was sentenced to 20 years. It has now been 10. She has 10 more to go. Her child, deprived of a mother with all the pitfalls that carries. And for what? The amount of cocaine she was incarcerated for is literally a drop in a proverbial ocean that flows around the US, around Michigan, around Canada and around the world almost wholly unabated.

More recently, here in Canada, I represented Mat Beren. Mr. Beren was found, in 2005, growing 1000 cannabis plants for distribution to the then-400 members of the Vancouver Island Compassion Society and for research ongoing at that Society. The production was occurring in an outbuilding on rural rented property with the full knowledge of the property owner. Mr. Beren was paid a nominal annual salary for his labor – far less than he could have earned working in the non-medical cannabis industry. All of the VICS members have physician support for their medical cannabis use. Very few, then and now, were able to navigate the federal government’s tortured and restrictive exemption scheme. Mr. Beren challenged the validity of the MMAR/CDSA scheme as it relates to medical marijuana. After a lengthy trial he was partially successful in having portions of the MMAR ruled invalid but, because his conduct was illegal, he was convicted of production and PPT marijuana. That decision is currently before a panel of the Supreme Court of Canada on cross-applications for leave to appeal.

The trial judge, Madame Justice Koenigsberg, a 16 year veteran of the high court bench, having heard literally weeks of evidence about Mr. Beren, the VICS and the motivation for his conduct – in other words the circumstances of the offense and the offender – granted Mr. Beren an absolute discharge. She called it one of the clearest cases for that sentence she had ever seen.

Under this legislation Mr. Beren would be in prison today. He would have been sentenced to a mandatory term of three years for providing organic medicine to critically and chronically ill Canadians. That is reprehensible. That is wrong. And so when I hear the Minister of Justice tell this Committee that this law isn’t going to affect medical marijuana users or caregivers, I know he is wrong.

When he says that this legislation is crafted to target high level sellers and importers, he is wrong.

This legislation is a massive step in the wrong direction. It will produce tragic consequences. It, like the war on drugs it represents and escalates, is scientifically invalid, empirically ineffective and morally bankrupt. Those that support it, that vote for it, that allow it to become the law of this great land will have blood on their hands and should feel shame in their hearts.

I look forward to your questions.