Shedding Light on Day: ‘Unreported Crimes’ Code for ‘Cannabis Offences’

CANNABIS CULTURE – There is a perfectly logical – if disgraceful – reason why Canadian Treasury President Stockwell Day (a Conservative MP) cited “unreported crimes” as the reason for spending $9B on the building of more prisons. 

I submit that, with the phrase “unreported crimes”, Day is implicitly referring to cannabis offenses and other consensual drug-related offenses for which minimum prison sentences will be imposed if Bill S-10 becomes law.  The Conservative government’s announcement that it has expanded the range of things constituting “serious crimes” provides additional evidence to that effect.

After the media asked Day to justify that kind of spending while the federal government is claiming to be tackling the deficit, one might have expected Day simply to answer that the prisons were to cope with the effects of the government’s Truth in Sentencing Act. Parliamentary Budget officer Kevin Page has already estimated that the cost of implementing that Actalone will be in that range, and the Act passed into law months ago. Yet, with his expression of the government’s concern over “unreported crimes” Day implicitly foreshadowed an additional source of pressure on prison resources.

Most reasonable people no doubt share Liberal MP Mark Holland’s view that “unreported crimes” cannot be the reason for building prisons, because unreported crimes are crimes for which nobody is charged or imprisoned. However, that assumption overlooks a few things.

The number one reason for not reporting a crime is the belief that the crime in question is not one meriting police involvement or criminal penalties. Millions of Canadians actively cultivate, sell, and possess cannabis despite the threat of fines and imprisonment. Polls in recent years repeatedly indicate that the majority of Canadians want cannabis legalized even for recreational use. And as any fairly social adult will probably have witnessed, police are rarely called to arrest someone who is cultivating, selling, or possessing cannabis. There is, in point of fact, mass civil disobedience, and a benevolent conspiracy of silence, with respect to cannabis offences in Canada. For this reason, cannabis offenses are arguably one of the most frequently occurring – if not the most frequently occurring – “unreported crimes” in Canada.

Day is not necessarily making the absurd suggestion that those whose crimes are not reported will be imprisoned. He is saying that those who are charged with committing a cannabis offence – a widely “unreported crime” – will soon be sent to prison in much greater numbers. The actual purpose of the government’s prison expansion plans is to accommodate the anticipated impact of the Conservative government’s “National Anti-drug Strategy”, when one of its key components – Bill S-10 – passes into law.

As one source painfully acquainted with the effect of the Harper government’s Americanesque drug war agenda explains, the number of sexual assaults, homocides, and other violent offences is fairly constant, year after year, as is the number of people convicted of such offenses. Indeed, as the population ages, the number of such crimes will decrease. Even if incarceration durations for such crimes were doubled, that would hardly put a dent in the prison population. Billions of dollars in additional prison funding is not needed for those sorts of offences, but billions in additional funding will be needed to build prisons for the anticipated thousands of non-violent cannabis (and, to a lesser extent, other drug) offenders who Bill S-10 will soon subject to mandatory imprisonment.

To understand what is at stake politically for the Conservatives, a bit of history must be kept in mind. In late 2006, the Harper government attempted to fulfill an election pledge to repeal the recognition of gay marriages. A late 2006 motion to revisit the issue of gay marriage failed, leaving unsatisfied social Conservative yearnings for a war against Canada’s changing culture. However, gay marriage was only one of two major cultural changes in Canada that steamed social conservatives in recent years. The other was Canada’s changing laws on cannabis.

A 2000 decision in Ontario’s Court of Appeal made cannabis a legal medicine (it remains so to this day, though federal and provincial governments have failed to provide adequate safeguards for physicians – who face concerns of losing their licenses to practice should they prescribe cannabis – and to ensure that patients have the cannabis they are prescribed). In 2002, a Senate report recommended that recreational cannabis be legalized, and a House of Commons report released shortly thereafter recommended that imprisonment be replaced with a system of stiffer fines (a recommendation known as “decriminalization”). The Canadian Alliance, then led by Stephen Harper, condemned those proposals on the ground that they would further inflame Canada-US relations at a time when Canada’s Liberal government had refused Canadian involvement in America’s war against Iraq (Harper’s Alliance opposition had indicated that it wanted Canada to join in the war against Iraq). Elections in 2004 and 2006 scuttled the Liberal government’s decriminalization plans, and Harper’s Conservatives formed a government with the smallest minority in Canada’s history.

By October of 2007, the legalization of cannabis was supported by 51% of Canadians (a number that crept up to 53% a year later). However, the Conservative government having let down its social conservative base with respect to gay marriage, it announced it would be launching a “National Anti-drug Strategy”.

Conservative MP Tony Clement (the same Tony Clement who is now trying not to smirk as he passes himself off as a libertarian defending long-form census takers from the abuse of government coercion) at that time was Canada’s Health Minister. On September 29, 2007, the Canadian Press quoted Clement thusly:

“In the next few days, we’re going to be back in the business of an anti-drug strategy,” Clement told The Canadian Press. “In that sense, the party’s over.”

Clement, together with none other than Stockwell Day (who was then Public Safety Minister), attended Prime Minister Harper’s October 4, 2007 press conference, wherein his $63M anti-drug strategy was announced. Given that the anti-drug strategy was a significant bone thrown to the Conservative party’s religious, social conservative constituency, rather than to the relatively secular majority of Canadians, it should not surprise the reader that the press conference was held at a Salvation Army headquarters (in Winnipeg).

Of the funding there announced, two thirds was to be directed at the social aspect of drugs, including a counter-cultural campaign. Harper explained:

What we are up against, in trying to resolve this problem – what the police are up against, what the people who deal in treatment and prevention are up against – is a culture that, since the 1960s has, at the minimum not encouraged drug use and often romanticized it; romanticized it, or made it cool; made it acceptable. And look, as a father, I don’t say all these things blamelessly. My son is listening to my Beatles records and asking me what all these lyrics mean. And, you know, it’s just there, it’s just out there, I love these records, I’m not putting them away. But, that said, the reality is that there has been a culture that has not fought drug use! And that’s what we’re all up against! No easy solutions to that but we have seen, in the case of tobacco, a shift in the culture, in a way that has rendered tobacco use less and less socially or culturally acceptable. I think we need to do the same thing – I think we need to do it much more quickly and much more critically – in the area of narcotics.

(Almost two years to the day later – with pot culture icon Marc Emery imprisoned in British Columbia for his romanticizing of cannabis culture – Harper would attend a widely-reported arts gala to play piano and singthe pot-inspired Beatle’s tune “I get high, with a little help from my friends”.  Oh, the sickening hypocrisy.)

On November 20, 2007, the Harper government introduced Bill C-26. Titled An Act to amend the Controlled Drugs and Substances Act and to make consequential amendments to other Acts, the Bill proposed doubling the maximum term of imprisonment for cannabis-related crimes: from 7 years, to 14 years. It also proposed a minimum sentence of 6 months imprisonment for the cultivation of 1 to 200 cannabis plants where the purpose of growing the cannabis was to sell it. Higher mandatory minimums were proposed for greater numbers of plants, or for other aggravating factors. The bill passed second reading on April 18, 2008, but the dissolution of Parliament for the 2008 election killed the bill. Bill C-26 was re-introduced as bill C-15 and passed third reading on June 8, 2009. It was then sent to the Senate.

In late 2009, Liberal Senators outnumbered Conservatives in the upper chamber. On December 3, 2009, the Senate Committee on Legal and Constitutional Affairs adopted a motion by Liberal appointee Senator Serge Joyal wherein the 6-month minimum sentence for growing 5 to 200 cannabis plants (in the absence of aggravating factors) would be removed. Later that day, an infuriated Justice Minister Rob Nicholsonappeared on CBC’s “Power and Politics” program, and exclaimed:

They’ve taken the mandatory penalty out, and so we’re very unhappy with this…we take this very seriously, and we believe that people should have a mandatory jail time for people who are in the business, in the grow-op business.

Liberal members in the House of Commons having supported Bill C-15, Nicholson accused the Liberal Party of using Liberal Senators do their “dirty work” for them.

Show host Evan Solomon asked the Minister a question akin to that put to Stockwell Day in early August:

What about the notion that this is going to be very costly. I mean, the government said on one hand ‘we don’t want to have a huge deficit, we want to control spending costs’. On the other hand, building more prisons and taking more people in is an expensive cost. How do you mitigate that?

Nicholson’s answer:

I can tell you that we wanna get the message out to people under the National Anti-Drug Strategy. Many people will be seeing advertisements running right now across this country, discouraging people, educating them about the problems of taking drugs in this country. We want to help individuals to get them off of drugs in this country and not to experiment with them.

In other words: imposing mandatory minimums will cause people to stop breaking the law, so fewer people will get imprisoned and the costs of prisons and incarceration will thereby be mitigated. With so many millions of Canadians growing, selling, and possessing marijuana despite its criminality, we are supposed to believe that what is perhaps the most “unreported crime” of all in Canada – cannabis “crime” – will suddenly tail off so much as to offset the effect of mandatory sentences of imprisonment imposed upon people who normally would not be sentenced to any jail time. The Minister’s credulity on this issue is almost unbelievable.

The amended Bill C-15 passed third reading in the Senate on December 14, 2009. It then awaited the final step in making a bill a law: royal assent.

Section 2 of the Royal Assent Act, 2002 provides:

2. Royal assent to a bill passed by the Houses of Parliament may be signified, during the session in which both Houses pass the bill,

(a) in Parliament assembled; or

(b) by written declaration.

The key words in that section are “during the session”. The effect of “prorogation” – wherein the Prime Minister advises the Governor General to end a Parliamentary session – is that all bills that have not received royal assent before prorogation die. On December 30th, 2009, just 16 days following third reading of bill C-15 in the Senate, Parliament was prorogued, killing the bill before it received Royal Assent.

Was the prorogation motivated, at least in part, by government’s desire to have C-15 passed into law without the Senate’s amendments? In other words: just how much priority is the Harper government placing upon its war on Canada’s cannabis culture? Consider three things.

First, it should be noted that the Senate had debated C-15 far more than any other bill in the Senate: 62 hours, 3 minutes. At the time of prorogation, only 2 other bills had passed the stage of third reading in the Senate: C-6 (regulating dangerous consumer products) had been debated for 37 hours, 42 minutes; and Bill S-8 (which implemented a tax-evasion treaty with South American countries) had been debated for 1 hour, 49 minutes.

Second, soon after proroguing Parliament, Stephen Harper appointed five more Conservative Senators. This was enough to give Bill C-15 a good chance of passing third reading in the Senate without amendments.

Third, before the new session of Parliament began, Justice Minister Rob Nicholson was asked whether any of his crime bills would be re-introduced. He was not certain about any except one: Bill C-15, he said, was certain to be re-introduced.

Indeed, Bill C-15 has since been re-introduced in the Senate as Bill S-10, in its unamended form. Having already been debated on three days, Bill S-10 has yet to pass second reading in the Senate. With a greater number of Conservatives serving in the upper chamber, it now seems much more likely that mandatory minimum sentences for the tiny fraction of cannabis-using Canadians caught committing what are usually “unreported offenses” will soon be a reality.

Now, quite apart from the issue of prorogation, Nicholson announced in early August that the government had, on July 13, 2010, passed a new regulation that makes 11 less-serious offences “serious offences”.  Among them: “trafficking in any substance included in Schedule II in an amount that
does not exceed the amount set out for that substance in Schedule VII (subsection 5(4))”.  Cannabis and hashish are the two Schedule II substances referred to.  The new regulation makes trafficking in less than 3kg of either of those substances a “serious offense”.  The Canada Gazette summary for the regulation explains:

Expanding the availability of the criminal organization provisions creates the possibility that individuals may be subjected to longer periods of incarceration because it makes the use of the criminal organization offences possible. (emphasis added)

In addition to imposing longer periods of incarceration, the change essentially eliminates some of the pesky procedural hoops – also known as “due process in a free and democratic society” – through which police have to jump in order to arrest people for cannabis offenses.  Clearly, cannabis, and the Conservatives’ war on Canadian culture, continues to be top-of-mind for the Conservative government.

I submit that the evidence strongly supports the conclusion that Harper’s anti-cannabis culture war is actually the centrepiece of his entire government agenda for that large percentage of Conservative supporters who see cannabis users – and homosexuals – as plagues on Canadian culture.  The money be damned: this back-bone of the Conservative Party sees Canada’s popular embrace of legalization as a threat to the 1950’s style, clean-livin’ Canada of its spare-the-rod-spoil-the-child youth.  The so-cons see cannabis cultivators, sellers, and possessors as snakes from whom Godly government must deliver them.  If they cannot persuade Canadians to embrace their prohibitionist views, they will continue to demand of the Conservative Party that it lock-up cannabis-tolerant “liberals”, and leave them to rot.

I suspect strongly, and angrily, that we are going to need those prisons. However, I am reasonably sure that the majority of Canadians – given an alternative to seeing their children criminalized, marginalized, imprisoned, and otherwise having their lives destroyed so that religious conservatives will keep voting Conservative – would prefer an intervening election.

Paul McKeever is an attorney, leader of Freedom Party of Ontario, and producer of The Principle of Pot, a film about cannabis activist Marc Emery. Read his blog at