Criminal Justice System

Bill C45: Re-Criminalizing Cannabis

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

Court Cases

Locking Up the Poor for being Poor: CCLA at…

This week the Canadian Civil Liberties Association will be at the Supreme Court of Canada to argue that a mandatory victim surcharge, imposed on all “offenders,” is a cruel and unusual punishment that should be struck down by the Court.

The victim surcharge requires individuals to pay a financial sum — over and above any fines that are a part of their sentence — if they are found to be guilty of a criminal offence. Failure to pay the surcharge can be grounds for imprisonment. In 2013, the federal government removed judges’ discretion to waive the surcharge in certain circumstances. At issue in the cases before the Supreme Court this week (Tinker et al v Her Majesty the Queen and Boudreault v Her Majesty the Queen) is whether this removal of discretion was constitutional.

Imprisoning the poor for being poor is the populist resurrection of the barbaric debtor’s prison pilloried by Charles Dickens. Mr. Justice Binnie put it this way:

Debtors’ prison for impoverished people is a Dickensian concept that in civilized countries has largely been abolished.  Imprisonment for civil debt was abolished in Ontario by the end of the 19th century.  In its 1996 sentencing reforms, Parliament decreed that jail should be reserved for those whose conduct deserves to put them there.  Here, the trial judge thought a fit sentence would be a suspended sentence with probation, but this was not possible under the Act.  Yet debtors’ prison “in the community”, which is what a conditional sentence amounts to, is repugnant in the case of an individual who is undeserving of jail yet who simply cannot pay.  As will be seen, the purpose of imposing imprisonment in default of payment is to give serious encouragement to offenders with the means to pay a fine to make payment. Genuine inability to pay a fine is not a proper basis for imprisonment. (R. v. Wu, [2003] 3 SCR 530).

As Doherty JA wrote in that case on appeal:  “Economic imprisonment whether in jail or in the community is offensive to the present provisions of the Criminal Code relating to fines.” (R. v. Wu) at para. 40).

By removing judicial discretion to waive the surcharge for indigent offenders, the mandatory surcharge punishes and discriminates against the indigent. A person who is genuinely unable to pay the surcharge must face the the persistent spectre of incarceration. The stress associated with non-payment is compounded by a host of additional legal and personal consequences which an indigent individual will never realistically hope to escape. This includes the stigma of being indebted to society but being unable to repay the debt and take even the first step down the road to rehabilitation. It also includes an individual’s ineligibility to obtain a pardon and the associated effects of this ineligibility on one’s prospects for employment, rehabilitation, and reintegration into society.

A mandatory financial punishment that is imposed regardless of financial circumstance has no place in a fair and just criminal justice system. Criminal law must be flexible enough to allow the judiciary to fashion appropriate and individualized responses to criminal conduct and to avoid imposing unnecessarily cruel and harsh sentences on individuals living in poverty.

Counsel in this case is Christopher D. Bredt, Pierre N. Gemson and Alannah M. Fotheringham of Borden Ladner Gervais LLP.

For a webcast of the hearings, click here.

For CCLA’s intervenor factum in the case, click here.