Pot bill’s sober second thought

March 27, 2018

Last week, the Liberal government’s half-hearted cannabis legislation passed second reading in the Senate. Normally, this would not be cause for celebration. After all, there is little downside in voting to study legislation and the marijuana bill is no exception. Opponents to the bill, if not persuaded by evidence heard at committee hearings, can still vote to kill the bill. But the Senate’s pot vote was no sure thing and the government was left scrambling to bring a number of independent senators back to Ottawa to avoid a defeat of the bill. So, perhaps it is a good thing that Trudeau’s “independent” senators are not really that independent as senators toed the party line and voted 44 to 29 to pass the bill.

Despite some massive flaws in the bill, the legalization of marijuana is unquestionably a good thing — 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. Illegal marijuana leads to violence and death as addiction and mental health issues are driven underground and distribution with their associated profits are ceded to the black market. As a criminal lawyer, I have seen the bloodshed brought about by illegal weed. The bottom line is that it is not pot that creates these problems but the criminalization of marijuana that kills.


But these are not all the evils that criminalization brings about. Illegal 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 stigmatizing criminal records.

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. Our drug laws are built on a foundation of racism and bias.

There is no question that marijuana should be legalized and any opponent who shakes their head at this idea while drinking their legal afternoon cocktail is a damn hypocrite.

But there are major issues with the current legislation that were ignored by the government in the House of Commons — despite Trudeau’s promise of policy based on evidence and a respect for the Charter rights.

The pot 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 is a criminal. And anyone who possesses non-government-approved marijuana is a criminal.

And the punishments for these offences are ridiculously high. An 18-year old who passes a joint to their 17-year old friend or an adult who possesses more than 30 grams of pot for the purpose of distribution can face a 14-year jail sentence. These absurdly high potential penalties will inevitably be found to constitute cruel and unusual punishment. This is especially true when one considers that, under the former Conservative government’s 2012 Faster Removal of Foreign Criminals Act, permanent residents convicted of these offences will face automatic deportation with no right of appeal — even if they are not actually sentenced to any jail time

And then there is the fact that Bill C-45 perpetuates the disproportionate criminalization of youth. Bizarrely, the legislation makes possession of marijuana that is perfectly legal for adults a criminal offence for youth. In no other area of criminal law is an activity magically legalized at the age of 18. The asymmetrical criminalization of marijuana will face an inevitable constitutional challenge.

And it gets worse for the kids. Although Bill C-45 leaves dozens of minor marijuana offences in the Criminal Code, under some circumstances, police officers can use their discretion to issue tickets instead of criminal charges. But not if the offender is under 18.

But the whole ticketing regime is also constitutionally flawed because it discriminates against the poor. If the pot ticket is paid within 30 days, then the resulting judicial record of the ticket will be sealed and cannot be disclosed to anybody.  

There is good reason for this protection as a drug record, even if it’s just a ticket, can negatively impact travel, employment, housing and full participation in many pro-social activities.  

But if you are poor and can’t pay the fine in 30 days, your record won’t be sealed. Forget travelling south of the border and get ready to fail any employment-related background checks.

It seems that government’s focus on the middle class has blinded it to the simple fact that the ticket regime discriminates against the poor and will inevitably be found to violate the Charter.

Although all of these issues were raised in the House of Commons, the government refused any amendments to fix them. Make no mistake, the Liberal’s marijuana legislation is a mess born out of an unprincipled political calculus. But some minor amendments would make it slightly less bad. 

This may be our one and best chance to move toward a rational drug policy. Sober second thought and courage is needed make sure that the government’s half-measures to legalize marijuana don’t continue the current harms of strict prohibition. 

Hopefully, the Senate can find the courage that Prime Minister Justin Trudeau seems to be lacking to make the necessary changes.

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