The Power of Perspectives

The Canadian Bar Association

Kim Covert

Cannabis conundrum: If it’s legal, why treat it like the demon weed?

October 17 2017 17 October 2017


The CBA has been a vocal supporter of changing the way the law treats cannabis for nearly 40 years – in our first resolution on the subject, in 1978, the Association urged the government to stop criminalizing simple possession, and also advocated moving marijuana from the Narcotic Control Act to the Food and Drug Act.

While it applauds the intent behind Bill C-45, the Cannabis Act, the Criminal Justice Section notes that marijuana use would be far from normalized under the proposed law. In comments on a 2016 discussion paper, the Section noted that the government’s approach might be better described as a step toward “decriminalization” but could not be accurately referred to as “legalization” given its heavy reliance on criminal law.

“Certainly Bill C-45 is a step in the right direction, but its limited approach to ‘legalization’ would continue to rely heavily on the criminal law for conduct falling outside the ticketing scheme,” the Criminal Justice Section writes in its latest submission. The Section reiterates its call for a non-criminal, regulatory approach to the possession, distribution and production of cannabis.

“Bill C-45 would too often result in people moving from lawful activity to serious crimes with severe penalties with little factual difference between their respective situations.”

The government says that its rationale for legalizing cannabis includes reducing the burden on the criminal justice system, yet the maximum sentence for certain possession and distribution offences in Bill C-45 is 14 years. Considering that the maximum sentences for comparable offences involving alcohol or tobacco would be much lower, 14 years seems somewhat out of proportion and may invite Charter challenges.

“At present, sentences for cannabis offences are not near the length proposed in Bill C-45, as even large-scale operations do not generally attract 14-year sentences. While some criminal sanctions might be appropriate for an offender distributing a large quantity of illicit cannabis, that will be the exception in a legalization regime. If cannabis is to be treated like tobacco or alcohol, penalties available should reflect those regimes.”

Another rationale for legalizing cannabis is to shut down black market sales, but again the Section believes the proposed legislation comes up short. In order to extinguish the black market, the submission says, the product must be affordable and easily available. And the proposed legislation does not take into account the Canadians for whom it may be neither.

“A person who transports over 30 grams of cannabis to share with other consenting adults, over any period of time, is guilty of a serious offence. People living in rural or remote areas where they cannot easily acquire cannabis may be tempted to obtain larger amounts while visiting the city, planning to use it over an extended period. Similar limitations and offences do not exist for alcohol and tobacco, which can be purchased in whatever quantity and transported home or elsewhere.” (Emphasis added)

The Section also finds the plant limit and height restrictions for home-grown use contrary to the current laws regarding in-home alcohol and tobacco production.

“Home growing with a robust regulated industry able to produce cannabis in quantities to meet demand could eliminate the black market. It would also address any temptation for home growers to over-produce and for organized crime to become reinvolved.”

The submission makes three recommendations for amendments to Bill C-45:

1. That indictable offences be significantly reduced;

2. That, until cannabis is legalized, interim measures be taken to avoid incarceration for conduct that will soon be legal; and

3. That language in the section on ticketable offences be strengthened to require that a police officer must (rather than may) first consider ticketing before laying a charge.

Other considerations discussed in the submission include licences and permits for selling marijuana, the program for medical marijuana, and the need to create an inter-governmental regulatory regime.

“The CBA Section supports legislation to make cannabis and cannabis products widely available to adults, and to ensure that organized crime and other criminals do not continue to be involved with cannabis due to lack of profits. As with alcohol and tobacco, there should be no incentive for individuals to engage in home growing with intent to sell to an illicit market. More needs to be done in this complex area to ensure that the government’s goals are achieved, and the blunt instrument of the criminal law is removed from the regulation of cannabis.”

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