justice canada

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Cannabis Law Reform Proposals

Punishment to better fit the crime

by Nicole Baer

OTTAWA—Ever since former U.S. president Bill Clinton claimed to have smoked marijuana without inhaling it, journalists have made a sport out of questioning politicians on their cannabis use.

Never touched it, said Prime Minister Jean Chrétien. Never exhaled, joked NDP leader Jack Layton.

And somewhere in the middle, along with Alberta Premier Ralph Klein and hundreds of thousands of other Canadians, is Justice Minister Martin Cauchon, who admits to trying the drug in his youth.

“But of course,” Cauchon told reporters on a slow news day last July. “I’m 39 years old…and yes, of course I tried it before.”

Despite his youthful dalliance with the drug, the Minister has a serious message as he leads the federal government’s proposed modernization of Canada’s cannabis laws.

Aimed at better reflecting contemporary Canadian reality, the proposals would lighten the punishment for possessing small amounts of the drug, while retaining the overall criminal prohibition on its possession and production.

Cannabis possession, illegal since the 1920s, would be neither legalized nor decriminalized under the reforms, introduced in Parliament in late May. Because of international conventions to which Canada is a party and continued concerns about the harmful effects associated with its use, cannabis possession would remain a criminal offence under the Controlled Drugs and Substances Act.

What’s new in the reforms is that the possession of small amounts typically associated with personal use would be “de-penalized,” says Richard Mosley, Assistant Deputy Minister, Criminal Law Policy and Community Justice.

“Clearly, the Government wants to continue to send a message that cannabis is harmful to your health, and you shouldn’t use it,” Mosley says. “But the control mechanism that we’ve been using, the criminal law, is a disproportionate response to the harm, particularly for the 25,000 or so people a year who end up getting charged with possession.”

Under the proposed law, fines would become an alternative to the traditional court process for the possession of small amounts of marijuana or hashish. Factors such as the possession of cannabis on or near school property or in a vehicle would lead to tougher penalties.

Under the proposed law, fines would become an alternative to the traditional court process for the possession of small amounts of marijuana or hashish.

Similarly, cultivating cannabis plants would be punished on an increasing scale of severity, depending on the number of plants in production. In fact, for the biggest production facilities, the maximum penalty would actually double from the seven years currently on the books.

“What we’re trying to achieve is a more consistent and effective enforcement of the prohibition against the possession of cannabis,” notes Mosley, “and, on the production side, to draw a clear distinction between small-scale and large-scale commercial grow operations.”

Broad strategy

The cannabis reform proposals are part of a wholesale renewal of Canada’s Drug Strategy. Actively funded between 1987 and 1997, the Strategy was re-energized with the injection of $245 million in May.

Led by Health Canada, the Strategy supports measures to reduce the abuse of alcohol, illegal drugs of all kinds and pharmaceuticals. Those measures include improving public education and awareness, discouraging and preventing substance abuse, and expanding treatment, rehabilitation and enforcement programs. (For details, please see sidebar at the end of this page.)

While marijuana and hashish remain outlawed, an estimated 100,000 Canadians use them regularly. Many more are believed to be occasional users. Indeed, a recent Ontario survey by the Centre for Addiction and Mental Health revealed that 11 percent of adults in that province had used the drugs at least once a year. The proportion doubled among 18- to 34-year-olds.

Not surprisingly, polls reveal that nearly four in five Canadians support a more contemporary legislative regime to govern cannabis products, a view that has been growing in acceptance over the past decade.

This was borne out late last year when two separate investigations by committees of the House of Commons and the Senate concluded the current cannabis laws, in place since 1927, were unworkable.

“The conclusion that was reached was that the existing law was really not achieving any of the goals that had led to its adoption,” says Mosley.

Serious flaws

One of the main shortcomings of the existing law is that ordinary, otherwise law-abiding citizens caught smoking small amounts of cannabis can be jailed and saddled with criminal records for the rest of their lives. (While a summary conviction is not recorded on the nationwide criminal offence databank of the Canadian Police Information Centre—or CPIC— the offender is nevertheless found guilty of a crime and a “record” is kept. This record is publicly accessible through the courts and is also retained by local police and prosecution authorities.)

If the criminal process is widely perceived to be a heavy-handed response to the possession of small amounts of marijuana, then a second major problem in the existing law comes to light: It’s ineffective.

About half of the 50,000 incidents of cannabis possession reported in 2001 did not result in charges, and many more cases are believed to go unreported.

Mosley says the growing reluctance by police to lay charges should not be perceived as improper. Rather, it merely suggests that law enforcement officers have other priorities, or believe that the penalties ultimately handed out by the courts will be too low to justify the time, effort and expense of laying charges.

Government officials argue that a viable alternative to the court system would encourage police to take action against marijuana smokers.

A third problem arising from the current legislative regime relates to inequity, says Mosley.

For one thing, big cities are more likely than smaller communities to turn a blind eye to casual users of the drug. Indeed, one survey showed that 25 cannabis charges were laid for every 100,000 residents of Vancouver, compared to 200 per 100,000 residents of Thunder Bay, Ontario.

What’s more, the consequences of being charged are not the same across the country. While big-city folks can generally shrug and get on with their lives, news of an arrest on drug-possession charges burns quickly through small towns and rural communities.

“The stigma of having to appear in a criminal court to answer to the charge would be that much greater than in the anonymity of the city,” Mosley notes. He adds that Minister Cauchon, who hails from a small town himself, was very conscious of the added burden suffered by rural residents charged with marijuana possession.

Possession proposals

Under the proposed cannabis reform bill, the possession of marijuana would remain illegal. Through amendments to the Controlled Drugs and Substances Act and the Contraventions Act, however, the enforcement of the law would more accurately reflect the severity of the crime.

The lowest rung would deal with possession of up to 15 grams of marijuana (enough for 15 to 30 cigarettes). Police would not lay charges for such small amounts. Instead, adults would be fined $150, while youth aged 12 to 18 would be fined $100. For a single gram of cannabis resin, more commonly known as hashish, fines would be set at $300 for adults and $200 for youth.

The difference between youth and adult sentences reflects recent reforms to the young offenders law that presume that young people lack the judgment they will develop at maturity. On the other hand, when youngsters are ticketed, their parents must also be informed, which adds another punitive layer to the sanction.

The fines for the possession of these small amounts of cannabis would rise to $400 for adults and $250 for youth if aggravating factors are present. These include possessing cannabis while operating a motor vehicle, at or near schools or while committing an indictable offence.

The next tier in the legislation would deal with intermediate amounts: 15 to 30 grams of marijuana. In those cases, fines would increase to $300 for adults and $200 for youth. Police could also arrest the suspect, or issue a summons for his or her appearance in court for a summary hearing. If the case is dealt with in court, conviction would continue to carry the current maximum sentence of up to six months in jail and/or a fine of up to $1,000.

People caught with more than 30 grams would be processed under the existing provisions of the law.

Grow operations

The production of cannabis products in what are known as “grow operations” is another key focus of the proposals. Although there is currently just one related offence, the legislation would create four separate offences for marijuana cultivation, with a sliding scale of penalties.

Such activity is becoming big business for organized crime. Experts believe there are several thousand of these installations in the Toronto area alone, as well as in and around Vancouver. Many are moving indoors, often in residential areas, putting the public at risk.

As with the new possession measures, the penalties for raising marijuana plants depend on the number involved.

From one to three plants, the penalties are relatively light: summary conviction with fines up to $5,000 and/or 12 months in jail. From 4 to 25 plants, the maximum penalty is $25,000 and/or up to five years imprisonment if the Crown opts to proceed by indictment.

For more than 50, the penalty jumps to 14 years in prison—double the current maximum sentence.

“Currently, it’s rare that you’ll see sentences of more than one or 1H years; two at the most,” Mosley notes. By proposing to dramatically increase the available punishment, the Government hopes the courts will heed the message.

Moreover, in cases where there are more than three plants and any other aggravating factors, the judge would have to explain why jail time was not imposed. Such factors include a risk of danger for children in the building where the growing operation exists, using traps or explosives to protect the installation, or growing the plants on land belonging to others.

Ticketing scheme

The cannabis reform proposals depend on the use of a mechanism to issue tickets or fines. This would be done through the Contraventions Act, which uses existing provincial administrative systems to process tickets issued for minor federal offences. The Act already applies to more than 2,200 offences, many of them dealing with environmental infractions or practices deemed to be threats to public safety on land, sea or air.

Six provinces from Manitoba to the East Coast (except for Newfoundland) already have agreements with the federal government to issue fines through the Contraventions Act. They could begin issuing tickets for cannabis possession as soon as the proposed legislation is enacted and proclaimed in force. The Department of Justice is in the process of negotiating agreements with the remaining provinces and territories.

International view

Canada is party to three international conventions dealing with illegal narcotics, psychotropic substances and trafficking. Within this framework, the Canadian proposals for the contemporary management of cannabis fit neatly with the approaches adopted in many other industrialized nations.

Although there are differences, all countries find ways to prohibit cannabis possession at certain amounts, Mosley says.

There are, of course, substantially more liberal regimes. Countries including Spain, Italy, Portugal, Belgium and Luxembourg don’t make the possession of small amounts of cannabis a crime at all.

In the Netherlands, Germany, Denmark and Switzerland, cannabis possession remains a criminal offence, but it is not prosecuted. In France, criminal charges are avoided, except as a last choice.

By contrast, the U.S. federal government sees active prosecution, even of small amounts of cannabis, to be key to its war on drugs. Despite this, 12 states have laws decriminalizing possession of small amounts of marijuana, although federal law still takes precedence.

Canada’s proposed law shares elements in common with regimes in the United Kingdom and Australia.

In the UK, under pending changes to its law, possession of cannabis will remain illegal, but will not constitute grounds for arrest unless there is a danger to children or the public order. Various states of Australia have a fine system that generally does not lead to criminal conviction if the fine is paid on time.

Public awareness

In Canada, the House of Commons is expected to continue consideration of the proposed cannabis reform legislation, Bill C-38, when it returns from summer recess in mid-September.

Mosley notes that the timing was “simply right” for the Government to introduce Bill C-38.

Last fall, marijuana possession was on the public agenda after the release of a Senate committee report. With another report, this one by a House of Commons committee, due by the end of the year, the Department of Justice was prepared to move.

“Last summer, the Minister announced his intention to consider changes to the law in this area. Then, in the Speech from the Throne, the Government said it was prepared ‘to explore’ this subject,” says Mosley.

“That made it clear there was a window of opportunity, if the House committee indicated support for the idea, to initiate a reform. Once the Committee reported favourably, the Government had 150 days to state its response to the Committee’s recommendations. Bill C-38 is that response.”

Asked if he has ever smoked marijuana, Mosley replies with a pause and a chuckle: “I’m not a politician; I don’t have to answer that.”

Canada’s Drug Strategy

Renewed federal initiative fights drug abuse in the courts and the community

The proposed reforms to the cannabis possession laws are a central element of Canada’s Drug Strategy, recently reinvigorated with a $245-million injection of funds over five years.

The Strategy, first launched in 1987, is a comprehensive approach to substance abuse that encompasses prevention, education, enforcement, treatment and public safety. It casts an equally broad net over the definition of “drugs,” using the term for legal alcohol and prescription medications as well as for illicit drugs from marijuana to narcotics.

The Strategy is led by Health Canada, in concert with other federal departments including Justice, Foreign Affairs and International Trade, Solicitor General, and the Canada Customs and Revenue Agency. Other key partners include the provinces, territories and municipalities; addiction and community service agencies; professional organizations; law enforcement agencies; and advocacy groups.

The aim of the Strategy is to reduce both the demand for drugs and their supply. It has four pillars:

• education about the dangers of substance abuse and how to adopt healthy lifestyles;
• enforcement measures to stop the production, possession and trafficking of controlled substances;
• treatment for drug dependency; and
• measures to limit the harm resulting from substance abuse, such as the spread of HIV and hepatitis C through the sharing of syringes.

While the Strategy was not formally renewed after 1997, activity in the field did not cease. Over the past decade, for instance, border officials have seized more than 189 tonnes of cocaine, opiates and cannabis products, valued on the street at $5.8 billion.

Similarly, cost-sharing agreements with the provinces and territories for drug and alcohol treatment and rehabilitation programs carry on with some $14 million a year.

In last September’s Speech from the Throne, the Government pledged to renew the Strategy and inject additional funds.

The new money, announced in May, will expand many existing initiatives including community-based prevention, treatment and harm-reduction activities, and a variety of enforcement efforts.

It will also pay for new initiatives such as research and statistical analysis of drug trends and the proposals to reform the cannabis possession law.

Legal alternative

Under the renewed strategy, the Drug Treatment Court Program was also awarded additional funds: $23 million over five years.

These innovative courts, which opened as pilot projects in Toronto in 1998 and Vancouver in 2001, offer a treatment-based alternative to jail for convicted drug abusers.

The courts are geared toward non-violent offenders who are addicted to hard drugs such as cocaine and heroin. Participants follow structured and supervised outpatient treatment programs to deal with their dependencies. Working through a network of social workers and other sources of community support, the courts help offenders overcome their addiction, find housing, learn skills and generally gain social stability.

The goal is to reduce the criminal behaviour so often associated with substance abuse. Suitable candidates are typically people charged with minor drug possession, trafficking or prostitution-related offences committed chiefly to sustain chronic drug addictions.

The program is voluntary and usually runs for a year. If the offender has gained control over the addiction and found a job and a home, the criminal charges may be stayed. If the program fails, the offender is sentenced within the regular court process.

For a full description of the drug courts, please see
http://canada.justice.gc.ca/.

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