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Submissions to the Senate of Canada, Social Affairs, Science, and Technology Standing Committee.

Monday, April 30, 2018, 2:00 p.m. to 6:00 p.m.

Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts

Read our prepared statement below.

Opening Statement:

Thank you, Mr./Madam Chair and Members of the Committee, for allowing me to speak to you this afternoon.

As some of you may know, I am a practicing lawyer with accredited specialization in criminal justice from the LSO, holding my law degree from Queen’s University, as well as my LL.M. from Osgoode in criminal law and procedure. I have practiced exclusively in criminal law for nearly 15 years in a wide range of cases, many of which surround CDSA matters, and more specifically, marijuana possession, cultivation, and distribution.

I hope that my experience and expertise offer some insight into the practical concerns and serious reservations this legislation brings for many lawyers and legal organizations who have submissions here, and before and the Parliament of Canada.

Despite the vast and profound effects this legislation may have upon the criminal justice system, I am focusing my contributions to three concerns in the interest of time

Namely,

  • The overbreadth of certain definitions and criminalization of youth and minor deviances;
  • The futility and risk of overly harsh punishments proportionate to the offences committed.
  • The significant additional costs and pressure C45 will have upon an already strained judicial system.

Notwithstanding this focus, I ask the committee to appreciate there are many other elements of the legislation from a criminal justice point of view that are of equal importance and concern including, but not limited to:

  • Potential for disproportionate enforcement towards black, indigenous, and other racialized Canadians;
  • The lack of clear and mandatory control measures to secure marijuana in dwellings, particularly in the homes of young people; which, in turn makes marijuana easily available to young people; and
  • Collateral effects upon Canadian immigration and emigration;

If these ancillary issues are of any interest to Committee, I am quite willing to return to them in questioning.

Moving then to my three major concerns and criticisms of C45:  

1)  The overbreadth of certain definitions and criminalization of youth and minor deviances;

The deviations relating to possession, no matter how minor, are punishable by criminal prosecution by either summary conviction, or by indictment each carrying the potential for incarceration of 6 months and 5 years respectively.

In cases of possession for the purpose of distribution, distributing, importing, cultivation, and production, one may face either a summary election, or an indictable offence with a potential of up to 14 years in custody.

I point this out to remind the Committee that violating this Act (even in a relatively small way like an 18-year-old sharing a joint with a 17-year-old) or growing an extra plant is a very serious criminal matter, despite the characterization of C45’s “decriminalization” effect.

In almost all instances, with the exception of small amounts of possession (that were in practice already not prosecuted) the sanctions are increasing from where they presently sit under the CDSA.

As a comparison, offences presently aligned with 5-year maximums include sexual offences including certain offences against children, firearms,[1]domestic violence (assault), infanticide, and participating in a criminal organization.

When we move to the 14-year max, we are now aligned with far more serious crimes like certain terrorism offences, threat to commit a nuclear device, attack on a UN premise, incest, far more serious sexual offences including those against children, arson, etc.  I should add this now opens up far more costly judicial procedures and the right to a jury trial.

I am fearful that as most Canadian’s hear the legislation as “decriminalization” marijuana, they are having dangerous misunderstandings of what this means and how closely they may be walking a tightrope between lawful use and serious criminality.

Addressing the specific concerns:

“Possession”

Like others who have testified before you, I am concerned with the threshold of 30 grams and how unlawful possession is defined. There are many examples of this where lawful users very abruptly move from lawful recreational use, to serious criminality because of common and trivial occurrences.

When applied, these instances often reach absurd results.

One (of many) example relates to private vs. public possession:

Although the Act makes it clear that one is not permitted to possess more than 30g of marijuana in a public place, there is no limit to how much non-illicit marijuana may possess in a non-public place.  Perhaps this is the intent, but it leaves us with a rather absurd result when contrasted with other aspects of the legislation that severely criminalizes excess limits how much one may have in public or may grow.

Assuming the provincial regulations do not prohibit how much one can purchase, a person could make 10 trips in a day and have 300g. Within 10 days, they could have 3kg and so on.

In practice, one could possess hundreds of pounds of marijuana in their city apartment, but another cannot grow more than 4 plants among 3 adults sharing the same farmhouse.

There are many likely unintended, yet foreseeable hypotheticals as that derive from the overbreadth of legislation.

“Distribute”

With the very broad definition of “distribute” there are many problems that arise, and far too many to cover today.  Suffice to say that this overly broad definition captures activity that Canadians will not reasonably expect.

Distributeincludes administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or in- directly, and offering to distribute.

As an example, the use of “otherwise making available in any manner”is obviously very broad.  While it clearly captures activity like sharing a joint, does it, for example, capture two parents who leave marijuana (i.e., ‘make available in any manner’) in their dresser for their 17-year-old son to find? Does it include not properly securing the growing room of their 4 plants?

These are not far-fetched problems.

Given the harshness of penalties for youth distribution (which I will return to), what happens when a 16-year-old is caught at school with marijuana and selling it to friends and says he stole it from his parents? I believe that “making available” will become a live issue in courts and one that will be hard fought when these hypothetical parents are facing criminal offences carrying up to 14 years in prison.

I should add, this is aggravated further by the lack of clear guidelines (perhaps to come from the Regulations) on secure cultivation, storage, and handling akin to what we see in firearms legislation.

Youth

The last example, perhaps the most critical, of C45’s overbreadth is defined threshold of criminalization for youth.  Under section 8(1)(c), the Act makes it a criminal offence for youth to possess more than 5 grams, compared to the adult threshold of 30g.

There is no evidence that this will act as an effective deterrent for youth. Indeed, all youth possession is criminalized under the present regime, yet marijuana usage between the ages of 15 and 24 are among the highest users of cannabis in all developed countries. If a policy of complete criminal prohibition for youth has failed, then clearly a partial decriminalization will too. [2]

As a result, this low threshold achieves nothing of value towards the stated objectives of C45 in protecting youth; while at the same time criminalizing behavior what will undoubtedly stigmatize them and expose them to criminalization when they are at very vulnerable points in their lives in forming their identity. I see this having significant effects on their ability to get jobs, cross the border to the US, and fall prey to identifying with a criminal element to their personalities.

Put another way, a child who plays hockey sees themselves as a hockey player for the rest of their lives; being labelled as a criminal is no different.

2)  The futility and risk of overly harsh punishments for minor deviances of the legislation.

My view based upon my first-hand knowledge within the justice system is that harsh sentences do very little to deter crime. This is view is widely held among criminal law scholars and is backed strongly by empirical data.

Any deterrent effect harsh sentences may have, will not be upon those it seeks to target (i.e., organized crime). Indeed, studies a very small fraction of individuals who commit crimes — about 2 to 5 percent — are responsible for 50 percent or more of crimes.

Due to the profitability of illicit drugs for prohibited markets, this 2 to 5 percent of organized crime or determined hardened criminals will not be deterred from increased sentences. The mere existence of the Fentanyl crisis is a clear case in point of this effect where sentences are already well into the double digits, and in some instances Crown prosecutors seeking life imprisonment. Notwithstanding, this approach seems to have little effect upon the black market and individuals’ access to it.

The concern, therefore, is that youth who are unable to access marijuana, may turn to those most brazen and most dangerous criminal elements to obtain it, thus exposing those under 18 to risks far greater  and intolerable risks.

Put another way: extremely harsh penalties for distributing to minors may have a deterrent effect upon the older brother or “18-year-old friend” who wants their 17-year-old sibling or friend to try it out; but organized crime, and hardened criminals (the 2-5%) by very definition of their activity, do not abide to social norms and the same principles of rationality than law-abiding Canadians do.

In effect, it may also create a thriving underground market upon the very audience C45 seeks to protect, i.e. youth.

While appearing harsh upon the distribution to minors may have political value by appearing protective of youth and tough of those who provide it to them, the practical reality will actually put youths at greater risk in my view that I base upon my experience within the criminal justice system and those people that operate within it.

In addition, this harshness will do nothing to actually deter those most likely to engage in serious criminality.

While at the same time, (especially when combining the broad definition of distribution as noted earlier) it exposes those who might engage in minor (if not utterly technical) deviations from the legislation – like an 18-year-old passing a joint to a 17 year old friend turning 18 in two weeks – to extremely serious criminality of indictable offences, and sentences upwards of 14 years.

With that, comes significant costs. Which leads me to my next point.

3)  Increased costs and strain on the judicial system

It is my view that C45 will put great pressure on an already strained judicial system, notwithstanding the expressed intent of the legislation to contrary.

This additional strain and costs I am referring to has nothing to do with enforcement or investigation. Police forces and other witnesses have already spoken on that issue and I would defer to them.

The costs I am referring to is the increased costs directly upon judicial resources through the form of lengthier trials, fewer resolutions by way of guilty pleas, and less discretion of Crowns and Courts to manage cases proportionate to their factual seriousness.

All of this strain is made worse by the pressure recently placed upon the Court system by the strict time limits set recently by the Supreme Court of Canada in R. v. Jordan.[1]

The reason for this strain will be for many reasons:

  1. Resolution is not likely when a person feels they should not be criminalized for marijuana possession and many will fight the charges out of principle;
  2. Conditional sentences are not available for most offences;
  3. The line between law abiding citizen and criminal is severely abrupt and hard for a person to reconcile that what they did is criminal and accept responsibility as such;[2]
  4. For anything proceeding by way of indictment carrying 14 year possible sentences, jury trials are available as a mode of election, and one that I expect many to seek even facing overwhelming evidence in hopes of nullification;
  5. Severe immigration consequences for travelling to the United States;
  6. Severe immigration consequences for non-citizens of Canada;
  7. Record suspensions (5 years for summary and 10 years for indictable)
  8. The inherent costs of criminal process (Courts, clerks, probation officers, incarceration), etc.
  9. Greater prevalence of substance exposes more people to criminal activity;
  10. And so on.

Thank you.

SR

By |2018-05-02T09:23:20+00:00May 2nd, 2018|

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