Bill C-45: A half measure on marijuana

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The irrationality of the Liberal government’s legislation to legalize marijuana was brought into sharp focus last week as bill C-45 made its way through the health committee (check out my testimony here).

The problem is obvious — the war on drugs has been an abject failure.

Criminalization of marijuana abdicates control over the production, distribution and regulation of cannabis to criminal organizations. Yes, your dealer may be a middle-class, suburban stay-at-home dad, but as a criminal lawyer, I have seen the bloodshed brought about by illegal weed. The bottom line is that the criminalization of marijuana kills.

But this is not all it does. The criminalization of marijuana is a drain on court resources and diverts law enforcement resources away from truly harmful activities. The prosecution of marijuana offences unduly stigmatizes otherwise law-abiding citizens through the imposition of a criminal record.

But it gets worse. The criminalization of marijuana disproportionally impacts individuals who are young, marginalized, members of over-policed communities or are racialized. It is these groups that are more likely to be targeted and arrested by the police and prosecuted by the federal government’s lawyers. Most of the clients I have represented over the past decade charged with simple possession of marijuana have been poor, from a minority group or lived in an area with a heavy police presence. 

In our drug laws are echoes of racism and bias.

Bill C-45 may be a grudging step in the right direction, but it is no cure to the ills inflicted through marijuana criminalization.

The bill is an unnecessarily complex piece of legislation that leaves intact the criminalization of marijuana in many circumstances.

An adult who possesses more than 30 grams of marijuana in public is a criminal. A youth who possesses more than five grams of marijuana is a criminal. An 18-year-old who passes a joint to his 17-year-old friend is a criminal. An adult who grows five marijuana plants or possesses a plant 101 centimetres tall is a criminal. And anyone who possesses non-government-approved marijuana is a criminal.

The reason put forward to justify the 100-cm plant height? It is ridiculous. Last week, the House of Commons committee studying the bill was told that plant height has nothing to do with yield or potency but with the fact that most fences are more than one meter high — the inference being that the legislation is designed to keep marijuana plants hidden behind fences. It almost make sense — let’s keep pot plants out of the view of kids — but the bill does not even require that people who grow marijuana plants have fences. So it all really makes no sense at all.

Oh, and edibles — one of the most popular and healthiest ways to consume cannabis — are still illegal.

So, even under the new law, marijuana will still be criminalized — only now the government’s vice squad will need to carry rulers and learn to divine the difference between identical-looking legal and elicit marijuana.

There will be little saving of policing or justice system resources — resources that could be better used on education, harm reduction, rehabilitation and treatment.

The government spins bill C-45 as being all about protecting the children. The best way to protect kids is through education — cigarette-smoking rates are not at all time low because of the Criminal Code.

But back to the illegal gummies. The advice from Colorado was that edibles must be strictly regulated, not driven into the black market. Kids like to eat gummies, but criminalization means that the government can’t insist on child-proof containers, re-sealable packaging and other measures to protect our children. 

Why won’t someone think of the children?!?

Bill C-45 also continues to criminalize anyone under 18 who possess more than five grams of marijuana — an activity that will be perfectly legal for adults. Nowhere else in the Criminal Code is a youth criminalized for an act that is legal for an adult. The disproportionate criminalization of youth is simply counter-productive and an irrational criminal justice policy 

But the government says that this asymmetrical criminalization is necessary to deter kids from sparking a joint and thinking that they were the first to discover Pink Floyd. 

The drafters of the bill must have been high. 

A century of failed drug policy has demonstrated that criminalization is a flawed and ineffective mechanism to discourage drug use. Simply put, there is no reason to believe that making it a criminal offence for youth to possess more than five grams of marijuana will deter anyone from possessing marijuana.

Oh, and don’t forget the racism. The distinction between legal and illicit marijuana and the asymmetrical criminalization of marijuana will only serve to perpetuate disproportionate enforcement of the law on the young, marginalized and racialized members of our society.

Nor does the new legislation take any steps to remove the stigma of past criminal records for possession of marijuana through automatic or expedited pardons. An 18-year-old first-time offender who is convicted of simple possession of marijuana the day before Bill C-45 comes into force will be required to wait five years before being eligible to apply for a record suspension.

Bill C-45 does not only fail to protect youth from the harms of marijuana and the effects of criminalization but it takes no steps to correct past harms.

This is what happens when the government is dragged kicking and screaming to follow through on political promises.

And make no mistake — the Liberals' plan to legalize marijuana was a promise made for political not principled reasons. Remember, in 2009, Liberal MPs (including Justin Trudeau) voted for the then-Conservative government’s bill C-15, which would have imposed a minimum sentence for growing six pot plants. Bill C-15 passed the House, passed the Senate and was waiting for Royal assent when Parliament was prorogued in 2009 — in case anyone ever asks you to name one good thing about prorogation.

But, during the 2015 election, the Liberals were stuck in third place in the run-up to the election. A bold 360 on marijuana reform appealed to young progressive voters and was a convenient wedge to distinguish them from the front-running NDP’s proposed policy of immediate decriminalization and gradual legalization.

And then the Liberals won the election. And then they broke their promise to run only modest deficits, they broke a few tax promises and abandoned a clear pledge on electoral reform.

They had to keep their promise of legalizing marijuana. They did it grudgingly. To mute partisan attacks, they said it was all about protecting children.

Except it does not even do it that well.

And we got a mess.

Harshing the buzz on Bill C-45

Today I appeared before the House of Commons Standing Committee on Health to testify on Bill C-45 - the government's new legislation that will sort of, kind of, legalize marijuana.

When the bill was introduce in April I had some major concerns - and I still do.

There is some promise in Bill C-45 but there are also serious flaws and room for improvement.

Bill C-45 does not go far enough in removing marijuana from the Criminal Code and this failing diminishes the bill’s potentially positive results.

Bill C-45 is an unnecessary complex piece of legislation that leaves intact the criminalization of marijuana in many circumstances.

Under Bill C-45 an adult who possesses over 30 grams of marijuana in public is a criminal. A youth who possesses more than five grams of marijuana is a criminal. An 18-year old who passes a joint to his 17-year old friend is a criminal. An adult who grows five marijuana plants or possesses a plant 101 cm tall is a criminal.

This continued criminalization is inconsistent with a rational and evidence-based criminal justice policy and will only serve to reduce some of the positive effects of Bill C-45.

The disproportionate effect of continued youth criminalization is an anathema to criminal justice policy. Nowhere else in the Criminal Code is a youth criminalized for an act that is legal for an adult.

Further, Bill C-45 contains no measures to address the tens-of-thousands of Canadians who have been stigmatized through the war on drug’s counter productive imposition of criminal records. Nor does Bill C-45 take the opportunity apply evidence-based policy or Charter values to Canada’s criminal pardon rules.

Currently, an 18-year old, first time offender, who is convicted of simple possession of marijuana the day before Bill C-45 comes into force will be required to wait five years before they are even eligible to apply for a record suspension. That needs to change.

Canadian drug policy and legislation is in need of reform. The war on drugs has been a complete and abject failure. The social and financial cost of drug criminalization outweighs any illusory benefit. Every year, scores of young men and women are killed over relatively small amounts of marijuana — killed because marijuana is illegal, making it the focus of a vastly profitable and violent black market.

Bill C-45 may limit, but it does not end this problem.

Continued marijuana criminalization imposes unreasonable penalties on a relatively low-risk vice. In the real world, a drug record means limited employment opportunities, travel difficulties, and many other devastating collateral consequences.

These costs, more often than not, are borne by the most vulnerable members of our communities

Only full legalization, decriminalization, and regulation of marijuana will truly protect society and remove the unfairness, racism, and over-intrusion by state into an activity that - in the context of existing criminal laws - is relatively harmless.

You can watch my submission - but fair warning I was up late working on my written submission (and it shows)!

Even better on the eye - you can read my full submissions below or download them - here.

Justice by popular opinion

Canadians were told that reforming the justice system was a priority for Jody Wilson-Raybould and the Trudeau government.

We were told evidence-based policy is the new order of business when it comes to crime and punishment. 

Both Trudeau and Wilson-Raybould identified the use of mandatory minimum sentences and constraints on judicial discretion as priority areas for reform.

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And then there was no action. 

But last year at the Criminal Lawyers’ Associations annual conference, Wilson-Raybould was crystal clear in saying that restoring judicial discretion was an issue of upmost importance — she told the crowd that justice couldn’t be a one-size-fits-all proposition. Specifically, she said that mandatory minimum sentences were a priority for change and promised that reforms were coming.

And then, again, there was no action on minimum sentences. Heck, Wilson-Raybold even introduced legislation to repeal laws that the Supreme Court of Canada has ruled are unconstitutional — except for the minimum sentences.

So what can possibly explain the government’s lack of action on minimum sentences?

Well, it seems that the government’s resolve on evidence-based decision-making and progressive justice policy may begin and end with public opinion.

Last week Jessica Prince, senior policy advisor to the minister of Justice, tweeted a link out to an EKOS survey commissioned by the Department of Justice. The survey seeks the public’s feedback on the use and effectiveness of mandatory minimum sentences. Forget the EKOS questions. The question we should be asking is why?

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Let’s be frank. The public’s opinion on minimum sentences is irrelevant if the goal is genuinely to enact policy based on evidence. Just like the public’s opinion on whether global warming is real is irrelevant. Facts are facts and Wilson-Raybould’s survey is purely an exercise in delay and political cover.

Setting criminal justice policy based on the compass of public opinion is a dangerous game that risks undermining fairness and the rule of law. Interpreting constitutional rights on the whims of the majority fundamentally misunderstands one of the purposes of Canada’s Charter of Rights and Freedoms: to protect the weak from the powerful and minorities from the whims of the majority.

But let’s take a step back and review minimum sentences so we can fully understand Wilson-Raybould’s lack of principled leadership.

Minimum sentences remove the usual judicial discretion to impose a sentence that takes into account the particular circumstances of the offender and of the offence. The result in many cases — grossly disproportionate sentences that are “so excessive as to outrage standards of decency” and are “abhorrent or intolerable” to society. Those are the Supreme Court's words.

Mandatory minimum sentences also result in the insidious transfer of discretion from judges to the Crown prosecutors — who have the discretion to drop a minimum sentence in exchange for a plea to a lesser charge. This sort of deal, dangled before an incarcerated accused, can result in a perverse inducement for the innocent to plead guilty. 

The costs of minimum sentences — both financial and social — come with little benefit. Evidence shows that minimum sentences don't deter crime, reduce recidivism rates or make our communities any safer. 

These are not matters up for debate. These are facts confirmed by decades of research. These are facts outlined in hours of evidence presented at parliamentary committee hearings. 

In 2007, one of Canada’s most respected criminologists, Anthony Doob, testified before the House Justice committee and summed up the state of affairs, saying, “The evidence of [mandatory sentences'] ineffectiveness is clear. Numerous studies have been carried out in various countries demonstrating that mandatory minimum penalties of this kind do not deter crime.”

And Wilson-Raybould knows this. In 2016, the Department of Justice commissioned a meta-study of the evidence on the impacts of minimum sentences.

The government’s own review found that “harsh penalties — like MMPs — are ineffective at deterring crime” and detailed that “experienced practitioners and social science researchers have long agreed, for practical and policy reasons [. . .], that mandatory penalties are a bad idea.”

The 2016 report went on to find that most of the recent academic discussions found that increased reliance on minimum sentences as evidence have “come not from an empirically or evidence-based need for more punitive policy, but from political maneuvering.” 

The 2016 review found that when minimum sentences are evaluated in terms of their stated substantive objectives, they do not work. 

But even in 2016 this information was not a revelation. In 2007, the Library of Parliament clearly set out the potential constitutional difficulties, the lack of utility and the negative impacts of mandatory minimum sentences. The Library of Parliament even quoted a Canadian meta-analysis that found there was “little difference in general recidivism rates, regardless of length of incarceration or whether the offender was given a prison or community sanction. In fact, prison produced slight increases in recidivism.”

But this should come as no surprise for those truly motivated by evidence-based policy. After all, a 2005 Justice Department Report found, after a review of the evidence, that “minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits.”

So why is the Department of Justice now conducting a public opinion poll that includes questions asking for the subjective opinions on the empirical question of whether mandatory minimum sentences deter crime?

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The evidence on the lack of effectiveness and costs of minimum sentence is clear. In 2016, Wilson-Raybould said that minimum sentences were a priority. After almost a year of inaction, that priority is manifest in a concern about public opinion? 

But perhaps this should not be a surprise given that in 2016 The Canadian Press reported that the Liberals were eyeing a “politically viable strategy” to bring changes to minimum sentences.

After a decade of ideological criminal justice policy at the hands of the Harper government, swift and principled action is imperative. Inaction means unjust court results, less safe streets, increased court delays and ballooning costs.

Minimum sentences represent the lowest-hanging fruit for meaningful justice reform. Their counterproductive and negative impacts are well documented. 

This is not a matter for debate. The solutions are known and uncomplicated.

All we need now is a justice minister with the principle and conviction to take action. Unfortunately, it seems that piece is still missing.

Dislike of Khadr settlement does not entitle critics to disregard law or facts

Omar Khadr is a polarizing figure. To some, Khadr is a child soldier who was brainwashed by his parents and then abandoned by the Canadian government in the notorious and illegal Guantanamo Bay detention camp in Cuba. To others, Khadr is a terrorist deserving of no sympathy.

So, it should come as no surprise that the Canadian government’s apology and payment of $10.5 million to Khadr as compensation for his ill treatment was seized upon by many as a convenient political wedge.
 
But first, some history.
 
Khadr is a Canadian citizen. His father, Ahmed, was a card-carrying terrorist who was affiliated with al-Qaida. This is how a 15-year-old Khadr ended up on a battlefield in Afghanistan following the Sept. 11, 2001 terrorist attacks in New York City. Khadr was taken prisoner by the United States on July 27, 2002 following an intense firefight. He was seriously injured in the battle. The United States alleged he had thrown a grenade that killed an American soldier.
 
Khadr was detained at Guantanamo Bay for the next decade. It was during this time that Canadian officials interrogated Khadr and passed on the fruits of their interrogation to U.S. officials.
 
In two separate decisions, the Supreme Court of Canada found that the Canadian interrogations violated Khadr’s Charter rights and that the information derived from that illegal interrogation contributed to Khadr’s then seemingly indefinite detention at Guantanamo Bay.
 
Despite the final damning judgment by Canada’s highest court in 2010, it took Stephen Harper’s Conservative government almost two years to repatriate Khadr.
 
Khadr then sued the government for $20 million in compensation for the wilful violation of his Charter rights, negligent investigation, conspiracy with the United States in his arbitrary detention, torture, cruel, inhumane and degrading treatment, false imprisonment, intentional infliction of mental distress and failure to comply with domestic and international human rights obligations.
 
After a decade of losses in various legal forums, the government recently settled Khadr’s lawsuit and issued an apology.
 
And then the Conservative pundits and members of Parliament sprang into action attacking Trudeau’s payout to a “convicted terrorist.” It would have been naive to expect anything different — after all, there are votes to be had and fundraising to be done.
 
The anti-Khadr talking points have been remarkably consistent: The Charter does not apply outside Canada and if it does there were only limited Charter violations, critics of the settlement claim. And in any event, the pundits claim, Khadr is morally guilty and the author of his own misfortune — he is an admitted terrorist. Besides, the Supreme Court never ordered a secret compensation deal, they claim.
 
So let’s take these talking points apart, piece by piece.
 
It is clear that in Khadr’s case the Charter does indeed apply.

Critics of the settlement have pointed to the 2007 Supreme Court ruling in R. v. Hape where the court found that the Charter did not apply to the search and seizure of evidence by the Royal Canadian Mounted Police in the Turks and Caicos.  
 
But Khadr’s critics must not have read past the first paragraph of the Hape decision because the court went on to carve out an exception to the principle of comity. 
 
The court was clear that the Charter does apply if Canadian officials operating in a foreign territory participate in activities that are contrary to Canada’s international human rights obligations.
 
In 2008, the Supreme Court found that that was exactly what Canada had done. This should have come as no surprise as the United States Supreme Court had already found that the procedures in place at Guantanamo Bay violated the Geneva Conventions. Consequently, Khadr was detained in violation of his fundamental human rights protected by international law and Canada’s actions contributed to his ongoing detention.
 
So it is clear that the Charter does indeed apply. Khadr’s critics say, however, that any violations were minimal — Canadian officials did not set up and run Guantanamo Bay, they only travelled to Cuba to ask Khadr some questions.
 
Except that is not what the Supreme Court found in 2010.
Canada interrogated Khadr with the full knowledge that he was being detained in a prison camp that violated international law and that Khadr had been subjected to a program of sleep deprivation designed to make him less resistant to interrogation.
 
The United States military commission described Guantanamo’s sleep deprivation programas “a measure designed to disorient selected detainee [. . . ] disrupt their sleep cycles and biorhythms, make them more compliant and break down their resistance to interrogation.” The commission went on to find that the program “was intended to create a feeling of hopelessness and despair in the detainee.”
 
Canada’s Federal Court of Appeal found the program of sleep deprivation to be cruel and abusive treatment contrary to the principles of fundamental justice.
 
Canada knew that this is what had been done to Khadr prior to their interrogation. In other words, Canada was complicit in torture.
 
But it gets worse: Canada then provided the fruits of Khadr’s interrogation to U.S. authorities. The Supreme Court found that Khadr’s statements — obtained in violation of international human rights law — contributed to his continued detention, thereby impacting his liberty and security interest.
 
Only the cruelest and most disingenuous partisan could claim that the violations of Khadr’s Charter rights by Canadian officials were limited.
 
And so the Khadr critics fall back to the moral high ground: “Khadr is a terrorist, this is why he was detained and questioned in Guantanamo. His actions contributed to the situation, so there should not be any compensation.”
 
Let’s leave aside the fact that the precise level of Khadr’s moral culpability is very much in doubt. The evidence that Khadr threw the grenade that killed the U.S. soldier is conflicting. Khadr’s admission of guilt was extracted in oppressive and torturous conditions. This confession would never be admissible in a Canadian court.
   
But none of that actually matters. 
 
Khadr is being compensated for Charter breaches that occurred after the events on the battlefield. Khadr’s acts may have contributed to his detention, but he did nothing to bring about his own torture.
 
Conflating the events on the battlefield and the violations of international law that occurred afterwards may be self-serving, but it misses the point.
 
Charter protections do not evaporate after a finding of guilt. We do not and should not detain the guilty in illegal and inhumane conditions. We do not abuse or torture the guilty and then claim they were the cause of their own misfortune.
 
The Charter protects the innocent and guilty equally. 
 
And then the critics have one last argument to fall back on — the government arrived at the compensation number by some kind of voodoo. The Supreme Court held that Khadr’s rights were violated, but it did not say he should receive millions of dollars.
 
That is true. But then again, the Supreme Court was never asked to rule on monetary compensation. This issue was not before the Supreme Court.
 
Experienced counsel through court-guided mediation arrived at the compensation amount.
 
Could the amount of compensation have been different after a trial? Of course it could have been. Damages would have likely been higher and costs would have been ordered against the government. According to legal experts, the estimated bill to fight a losing court battle would have been between $30 million and $40 million.
 
It is perfectly acceptable to be uncomfortable with the Khadr settlement. It is fine to say the government should have litigated the issue to the bitter end. But a dislike of Khadr and distaste for the settlement does not entitle critics to disregard the law or the facts.
 
The simple fact is that the Khadr critics’ ideology is irreconcilable with the law and the facts. The repetition of ill-informed and disingenuous talking points by the Conservative pundits and members of Parliament is nothing but a dishonest attempt at political gain that will only serve to undermine respect for human rights and the rule of law — and no settlement can compensate Canada for that crime.

Is it time to re-evaluate the jury system

Criminal trials are high stakes affairs. Unlike civil disputes criminal trials are not merely monetary. In criminal trials the defendants’ liberty and freedom hang in the balance. To lose a serious criminal trial means jail — confinement in a dirty, violent, and punitive Dickensian hellhole.

Monetary damages can be reversed, property losses can be compensated but a wrongful incarceration is a scar that never heals. So when it comes to criminal trials — especially involving serious allegations — we'd better get it right.

So, for the most serious criminal matters who does our justice system trust to get it right? They are largely anonymous. They lack any legal background or formal training. They deliberate in secret and they are not required to give any reasons for their decision.

Welcome to the venerable jury system.

The jury system is one of the historic pillars of the common law system. Criticizing the jury system is also a pillar of the common law system. Mark Twain wrote in an 1873 letter to the New York Tribune, “The humorist who invented trial by jury played a colossal practical joke upon the world, but since we have the system we ought to try and respect it. A thing which is not thoroughly easy to do, when we reflect that by command of the law a criminal juror must be an intellectual vacuum, attached to a melting heart and perfectly macaronian bowels of compassion.”

Twain may have been right. It may be time to re-evaluate the jury system.

Let’s start with how juries are selected. In a typical first-degree murder trial — which must be tried before a jury — the Crown and defence each receive 20 pre-emptory challenges. Either side can, without explanation, excuse up to 20 jurors. In Canada our knowledge about individual jurors is limited to their name, postal code and a general description of their occupation. So how are decisions made about whom to exclude? I will let you in on a secret — it is a mixture of superstition, voodoo and prejudice.

A juror does not look my client in the eye — challenge. A juror has an air of pretension — challenge. The juror walks into court with a right-wing newspaper — challenge.

But there can be more insidious examples of the use of pre-emptory challenges. In one of the murder trials I conducted the Crown was content with one middle-aged, female schoolteacher but challenged the next middle-aged, female schoolteacher. The only difference between the two was race — it was the black teacher who was challenged. This fact did not escape the notice of my client, who as it turns out, was black.

In some cases jurors can be asked if they are racist. This is not an oversimplification of the question — literally each juror is asked if they are racist. The answer is yes or no. This is the sophisticated system courts have developed to weed out racial bias.

What we do know about the composition of our juries is that they are usually middle class, white and old.

Half of any jury pool will be excused for financial hardship. Single parents, the self-employed, or the working poor cannot afford to be on a jury. In Ontario, jurors are usually paid $40 starting only on the 11th day of trial, which increases to $100 a day if the trial goes longer than 50 days. The only people who can afford the privilege to sit on a jury are government workers, retirees or the wealthy.

Our jury pools are also not representative of Indigenous Canadians and other minority groups. Being judge by a jury of your peers may be an aspirational standard but has little foundation in reality.

So, we know almost nothing about individual jurors and we know that the typical jury pool is not representative of most accused persons (unless they are middle-aged government employees).

What we do know is that jurors don’t have formal legal training. And that is bonkers.

Juries are the judges of the facts of a case. They apply those facts in the context of complicated legal principles to arrive at a verdict. How does a jury know what the law is then? They receive instructions from the judge — a few pages read to them at the end of an exhausting trial. What takes law students years to learn in school and lawyers decades to master in court is absorbed by a lay jury in a few paragraphs.

This is the fiction that our system is built on.

There can no question that, from time to time, juries get it wrong and misapply the law. It is common sense that occasionally juries base decision on prejudice and stereotypes. After all, even highly trained judges make mistakes. The difference between juries and judges is that judges provide detailed reasons that can be reviewed. Juries on the other hand deliberate in secret and provide a binary answer — guilty or not guilty. Juries don’t provide reasons for their decision.

Who knows what juries talk about in their deliberation room — it is a crime to ask them. But maybe we don’t really want to know how that sausage is made.

Twain was right to question the quality and efficacy of the jury system.

History and tradition is a lazy justification of the status quote. Twain knew this and commented: “It is a shame that we must continue to use a worthless [jury] system because it was good a thousand years ago ...”

Twain was right — perhaps it is time for trial by jury to join trial by ordeal as a criminal justice relic.