Bill C45: Re-Criminalizing Cannabis

April 18, 2018

The Prime Minister and Cabinet fully intended to legalize cannabis in 2018.  No doubt about it.  But the truth is that his Justice Minister has re-criminalized pot, to the point where I expect more, not less, cannabis criminal charges, post-“legalization.”  As I submitted to a Senate Committee this week,  the bill lays a minefield of criminality best avoided without a platoon of lawyers. Parliament is legalizing the cannabis industry, but not the substance or its usage.

The Department of Justice are experts in criminal law. Codes, prosecutions, process, penalties, criminal courts, constitutional boundaries. I got a good sense of them, provincially and federally, as Ontario’s Attorney General, for four years, and Opposition Justice Critic for another four. These fine professionals are less able on project management, technology, or anything that doesn’t belong in courtroom.

You wouldn’t want them to organize a Secret Santa/Chanukah exchange. There would be lots and lots and lots of rules, disqualifications, unworkable sanctions, and a byzantine process for resolving everything. Ask the Department of Justice to manage pot legalization, and you get BillC45.

Meanwhile, Canadians imagine that cannabis will be legal soon.  Legal like coffee or vodka or orchids. Leeeegal.  However, under this DOJ doozie, the front door of your humble abode can be separated from its hinges, by a federal-provincial vice squad (Project Leaf Blower!!), without a warrant, if they think a warrantless search is urgent.

Urgent? Search and seizure powers for police?  This isn’t sounding like a legal substance. Worse still, your home, farm, and all the agri equipment shall be forfeited to the state, just like the old illegal grow ops or a contemporary meth lab — as proceeds of crime, if convicted. And there are new, more punitive and wholly disproportionate maximum sentences for running afoul of BillC45.  I know of no 14 year prison sentence arising from distribution of Smirnoff, let alone orchids.

Be that as it may, legalization has launched a beautiful friendship between cannabis capitalism, retired police captains, and government treasuries. The bill’s ugly underbelly, however, is the firm thumb under which the state keeps ‘em down on the farm, as they say. Ex-cons and addicts find no relief in this bill, which rewards heretofore opponents of legalization with riches piled upon their taxpayer pensions, but nothing, nothing, nothing by way of new legal or economic opportunities for those punished by cannabis prohibition to date.

Those previously punished for trafficking and possessing cannabis are not filling the boardrooms of the cannabis industry.  They cannot even get a job at the companies, because people with criminal records are all but sentenced to a life of unemployment outside the low wage labour market (and even there it’s a mighty struggle to find employers open to convicted applicants). We know that thanks to the great work done by the John Howard Society Ontario’s 2018 report, Invisible Burden.

So unless you’ve got a criminal law firm on speed-dial, you should wait.  Wait before even thinking about growing your own, or setting up a little cottage cannabis soap and souvenir shop.  Wait many moons after the bill becomes the law of Canada, after much legal advice has proliferated publicly, after your province has legislated, and the federal regulations finally promulgated. Caveat cannabis emptor ad infinitum.

Michael Bryant is the Executive Director of the Canadian Civil Liberties Association.

CCLA at the Senate:

Wednesday, April 18, 2018 at 4:15pm
Room 257, East Block
The subject matter of those elements contained in Parts 1, 2, 8, 9 and 14 of Bill C-45, the Cannabis Act
More information here.
Video webcast here.

CCLA in the News:

The Lawyer’s Daily: Ottawa’s planned cannabis legalization law will expose Canadians to ‘new minefield’ of criminalization: CCLA