Based on recent news reports, it looks like the federal government is now giving serious consideration to some kind of hybrid decriminalization of marijuana possession laws. Justice Minister Peter MacKay denies he is considering decriminalization, but if the reports are true then that is in part what would happen.
The idea on that table flows from recommendations made by police chiefs from across Canada who are tired of enforcing the possession laws given the expense and time of prosecution versus the societal harm posed by minor marijuana use.
As described in the media, a new law could be enacted that gives police officers the discretion to either issue a non-criminal 'ticket' or to charge an individual under the Controlled Drugs and Substances Act. If given the ticket, the offender would pay a fine and not have a criminal record. If charged under the CDSA, however, an individual would potentially have a criminal record if convicted.
This is a small step forward in terms of at least providing a mechanism whereby possession of a small amount of marijuana might not lead to the disastrous and disproportionate consequence of being labelled a criminal. The government should be applauded for having an open mind on the subject.
It's an odd step in two respects, however.
The first is with providing the discretion to police officers at the time of the commission of the offence rather than to a Crown attorney.
In Canada, we have three categories of criminal offences: indictable offences (the very serious ones), summary conviction offences (the less serious) and what are known as hybrid offences in which the Crown will determine, based on a number of factors, whether the facts justify proceeding by indictment or by way of summary conviction.
Making this determination is a crucial step in the criminal-justice process because the consequences to alleged offenders are far more serious if they are convicted of an indictable form of the offence rather than in summary proceedings.
It's important the Crown makes this election and not the police, because it is in a more detached position to assess what is appropriate from a systemic perspective.
I worry that when police on the front line of duty are given the power to elect how to charge an individual, it will be the less likable folks who will naturally be more likely to face criminal charges. If two people have the same small amount of marijuana and one says "yes sir, no sir" to the police officer while the other is more caustic, the latter will likely be dealt with differently than the former even though the legal wrongdoing is the same.
But the second and perhaps more troubling aspect of the discussion is the whole idea the government is prepared to say possession of a small amount may not be serious enough to be criminal but is still illegal. By doing this, the government is relaxing the law of possession but also preserving the illegality of how users obtain the drug.
In other words, the happiest people in the world after hearing about how the government seems headed to deal with marijuana possession were the drug dealers. Possession will have less risk of being criminal and therefore less stigma. As the result, people might feel a bit less wary of using marijuana, but in order to do so they still have to support the illegal drug trade.
Had the government agreed to go further, to legalize and regulate marijuana, then the dealers would have lost most if not all of their business.
I know there is a political aspect to decriminalization and legalization of marijuana. The people of Colorado and Washington states finally took matters into their own hands and by referendum legalized it. Guess what? The world didn't end. Alaska is now also headed toward legalization and many other states are considering the option. Observers in Colorado predict the tax revenue will exceed expectations and the proceeds are being put toward education in the state.
It's estimated that in B.C. alone the marijuana crop is a billion-dollar untaxed business.
Canada has been down the prohibition path before and through the Canada Temperance Act along with other provincial measures managed to successfully address alcohol with limits.
Rather than trying to navigate the politics of minor marijuana possession with laws that attempt to serve too many interests, the federal government should remove the offence entirely and allow provinces to tax and regulate it as they see fit. It's cleaner law-making and my guess is governments could use the money. Maybe even one day the marijuana revenue could at least offset the revenue from cigarettes which, from a linear harm perspective, should be outlawed way ahead of marijuana.
-- David Asper is a Winnipeg lawyer and businessman.