Submissions to the Senate of Canada on the Hashish Act


Thanks, Mr./Madam Chair and Members of the Committee, for permitting me to talk to you this afternoon.

As a few of you could know, I’m a working towards lawyer with accredited specialization in legal justice from the LSO, holding my legislation diploma from Queen’s College, in addition to my LL.M. from Osgoode in legal legislation and process. I’ve practiced solely in legal legislation for almost 15 years in a variety of circumstances, a lot of which encompass CDSA issues, and extra particularly, marijuana possession, cultivation, and distribution.

I hope that my expertise and experience provide some perception into the sensible issues and critical reservations this laws brings for a lot of legal professionals and authorized organizations who’ve submissions right here, and earlier than and the Parliament of Canada.

Regardless of the huge and profound results this laws could have upon the legal justice system, I’m focusing my contributions to 3 issues within the curiosity of time

Particularly,

  • The overbreadth of sure definitions and criminalization of youth and minor deviances;
  • The futility and danger of overly harsh punishments proportionate to the offences dedicated.
  • The numerous extra prices and strain C45 may have upon an already strained judicial system.

However this focus, I ask the committee to understand there are numerous different components of the laws from a legal justice perspective which are of equal significance and concern together with, however not restricted to:

  • Potential for disproportionate enforcement in the direction of black, indigenous, and different racialized Canadians;
  • The shortage of clear and obligatory management measures to safe marijuana in dwellings, significantly within the properties of younger folks; which, in flip makes marijuana simply obtainable to younger folks; and
  • Collateral results upon Canadian immigration and emigration;

If these ancillary points are of any curiosity to Committee, I’m fairly keen to return to them in questioning.

Transferring then to my three main issues and criticisms of C45:  

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

The deviations referring to possession, regardless of how minor, are punishable by legal prosecution by both abstract conviction, or by indictment every carrying the potential for incarceration of 6 months and 5 years respectively.

In circumstances of possession for the aim of distribution, distributing, importing, cultivation, and manufacturing, one could face both a abstract election, or an indictable offence with a possible of as much as 14 years in custody.

I level this out to remind the Committee that violating this Act (even in a comparatively small method like an 18-year-old sharing a joint with a 17-year-old) or rising an additional plant is a really critical legal matter, regardless of the characterization of C45’s “decriminalization” impact.

In nearly all cases, excluding small quantities of possession (that have been in apply already not prosecuted) the sanctions are rising from the place they presently sit below the CDSA.

As a comparability, offences presently aligned with 5-year maximums embody sexual offences together with sure offences in opposition to kids, firearms,[1]home violence (assault), infanticide, and taking part in a legal group.

After we transfer to the 14-year max, we at the moment are aligned with way more critical crimes like sure terrorism offences, menace to commit a nuclear gadget, assault on a UN premise, incest, way more critical sexual offences together with these in opposition to kids, arson, and so on.  I ought to add this now opens up way more pricey judicial procedures and the fitting to a jury trial.

I’m fearful that as most Canadian’s hear the laws as “decriminalization” marijuana, they’re having harmful misunderstandings of what this implies and the way intently they could be strolling a tightrope between lawful use and critical criminality.

Addressing the precise issues:

“Possession”

Like others who’ve testified earlier than you, I’m involved with the edge of 30 grams and the way illegal possession is outlined. There are numerous examples of this the place lawful customers very abruptly transfer from lawful leisure use, to critical criminality due to frequent and trivial occurrences.

When utilized, these cases typically attain absurd outcomes.

One (of many) instance pertains to non-public vs. public possession:

Though the Act makes it clear that one shouldn’t be permitted to own greater than 30g of marijuana in a public place, there isn’t a restrict to how a lot non-illicit marijuana could possess in a personal place.  Maybe that is the intent, however it leaves us with a slightly absurd outcome when contrasted with different facets of the laws that severely criminalizes extra limits how a lot one could have in public or could develop.

Assuming the provincial rules don’t prohibit how a lot one should purchase, an individual might make 10 journeys in a day and have 300g. Inside 10 days, they might have 3kg and so forth.

In apply, one might possess lots of of kilos of marijuana of their metropolis residence, however one other can’t develop greater than 4 crops amongst 3 adults sharing the identical farmhouse.

There are numerous possible unintended, but foreseeable hypotheticals as that derive from the overbreadth of laws.

“Distribute”

With the very broad definition of “distribute” there are numerous issues that come up, and much too many to cowl right now.  Suffice to say that this overly broad definition captures exercise that Canadians won’t moderately count on.

Distributeconsists of administering, giving, transferring, transporting, sending, delivering, offering or in any other case making obtainable in any method, whether or not immediately or in- immediately, and providing to distribute.

For example, using “in any other case making obtainable in any method”is clearly very broad.  Whereas it clearly captures exercise like sharing a joint, does it, for instance, seize two mother and father who go away marijuana (i.e., ‘make obtainable in any method’) of their dresser for his or her 17-year-old son to search out? Does it embody not correctly securing the rising room of their 4 crops?

These are usually not far-fetched issues.

Given the harshness of penalties for youth distribution (which I’ll return to), what occurs when a 16-year-old is caught at college with marijuana and promoting it to associates and says he stole it from his mother and father? I consider that “making obtainable” will turn into a dwell concern in courts and one which shall be exhausting fought when these hypothetical mother and father are dealing with legal offences carrying as much as 14 years in jail.

I ought to add, that is aggravated additional by the dearth of clear tips (maybe to come back from the Rules) on safe cultivation, storage, and dealing with akin to what we see in firearms laws.

Youth

The final instance, maybe probably the most essential, of C45’s overbreadth is outlined threshold of criminalization for youth.  Below part 8(1)(c), the Act makes it a legal offence for youth to own greater than 5 grams, in comparison with the grownup threshold of 30g.

There isn’t a proof that this can act as an efficient deterrent for youth. Certainly, all youth possession is criminalized below the current regime, but marijuana utilization between the ages of 15 and 24 are among the many highest customers of hashish in all developed international locations. If a coverage of full legal prohibition for youth has failed, then clearly a partial decriminalization will too. [2]

Consequently, this low threshold achieves nothing of worth in the direction of the acknowledged targets of C45 in defending youth; whereas on the similar time criminalizing habits what is going to undoubtedly stigmatize them and expose them to criminalization when they’re at very susceptible factors of their lives in forming their identification. I see this having vital results on their capacity to get jobs, cross the border to the US, and fall prey to figuring out with a legal component to their personalities.

Put one other method, a baby who performs hockey sees themselves as a hockey participant for the remainder of their lives; being labelled as a legal is not any totally different.

2)  The futility and danger of overly harsh punishments for minor deviances of the laws.

My view primarily based upon my first-hand data inside the justice system is that harsh sentences do little or no to discourage crime. That is view is broadly held amongst legal legislation students and is backed strongly by empirical information.

Any deterrent impact harsh sentences could have, won’t be upon these it seeks to focus on (i.e., organized crime). Certainly, research a really small fraction of people who commit crimes — about 2 to five p.c — are liable for 50 p.c or extra of crimes.

Because of the profitability of illicit medication for prohibited markets, this 2 to five p.c of organized crime or decided hardened criminals won’t be deterred from elevated sentences. The mere existence of the Fentanyl disaster is a transparent working example of this impact the place sentences are already nicely into the double digits, and in some cases Crown prosecutors in search of life imprisonment. However, this strategy appears to have little impact upon the black market and people’ entry to it.

The priority, subsequently, is that youth who’re unable to entry marijuana, could flip to these most brazen and most harmful legal components to acquire it, thus exposing these below 18 to dangers far higher  and insupportable dangers.

Put one other method: extraordinarily harsh penalties for distributing to minors could have a deterrent impact upon the older brother or “18-year-old pal” who needs their 17-year-old sibling or pal to attempt it out; however organized crime, and hardened criminals (the 2-5%) by very definition of their exercise, don’t abide to social norms and the identical rules of rationality than law-abiding Canadians do.

In impact, it might additionally create a thriving underground market upon the very viewers C45 seeks to guard, i.e. youth.

Whereas showing harsh upon the distribution to minors could have political worth by showing protecting of youth and hard of those that present it to them, the sensible actuality will really put youths at higher danger for my part that I base upon my expertise inside the legal justice system and people those that function inside it.

As well as, this harshness will do nothing to truly deter these most certainly to interact in critical criminality.

Whereas on the similar time, (particularly when combining the broad definition of distribution as famous earlier) it exposes those that may interact in minor (if not completely technical) deviations from the laws – like an 18-year-old passing a joint to a 17 yr previous pal turning 18 in two weeks – to extraordinarily critical criminality of indictable offences, and sentences upwards of 14 years.

With that, comes vital prices. Which leads me to my subsequent level.

It’s my view that C45 will put nice strain on an already strained judicial system, however the expressed intent of the laws to opposite.

This extra pressure and prices I’m referring to has nothing to do with enforcement or investigation. Police forces and different witnesses have already spoken on that concern and I might defer to them.

The prices I’m referring to is the elevated prices immediately upon judicial sources by means of the type of lengthier trials, fewer resolutions by the use of responsible pleas, and fewer discretion of Crowns and Courts to handle circumstances proportionate to their factual seriousness.

All of this pressure is made worse by the strain just lately positioned upon the Court docket system by the strict closing dates set just lately by the Supreme Court docket of Canada in R. v. Jordan.[1]

The explanation for this pressure shall be for a lot of causes:

  1. Decision shouldn’t be possible when an individual feels they shouldn’t be criminalized for marijuana possession and plenty of will struggle the costs out of precept;
  2. Conditional sentences are usually not obtainable for many offences;
  3. The road between legislation abiding citizen and legal is severely abrupt and exhausting for an individual to reconcile that what they did is legal and settle for duty as such;[2]
  4. For something continuing by the use of indictment carrying 14 yr doable sentences, jury trials can be found as a mode of election, and one which I count on many to hunt even dealing with overwhelming proof in hopes of nullification;
  5. Extreme immigration penalties for travelling to the US;
  6. Extreme immigration penalties for non-citizens of Canada;
  7. File suspensions (5 years for abstract and 10 years for indictable)
  8. The inherent prices of legal course of (Courts, clerks, probation officers, incarceration), and so on.
  9. Higher prevalence of substance exposes extra folks to legal exercise;
  10. And so forth.

Thanks.

SR



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