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Thanks, Mr./Madam Chair and Members of the Committee, for permitting me to talk to you this afternoon.
As a few of you might know, I’m a working towards lawyer with accredited specialization in prison justice from the LSO, holding my regulation diploma from Queen’s College, in addition to my LL.M. from Osgoode in prison regulation and process. I’ve practiced completely in prison regulation for almost 15 years in a variety of instances, 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 severe 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 might have upon the prison 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 threat of overly harsh punishments proportionate to the offences dedicated.
- The numerous further prices and strain C45 can have upon an already strained judicial system.
However this focus, I ask the committee to understand there are a lot of different parts of the laws from a prison justice standpoint which can be of equal significance and concern together with, however not restricted to:
- Potential for disproportionate enforcement in direction of black, indigenous, and different racialized Canadians;
- The dearth of clear and obligatory management measures to safe marijuana in dwellings, significantly within the houses of younger individuals; which, in flip makes marijuana simply accessible to younger individuals; 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.
Shifting then to my three main issues and criticisms of C45:
1) The overbreadth of certain definitions and criminalization of youth and minor deviances;
The deviations relating to possession, no matter how minor, are punishable by criminal prosecution by either summary conviction, or by indictment each carrying the potential for incarceration of 6 months and 5 years respectively.
In cases of possession for the purpose of distribution, distributing, importing, cultivation, and production, one may face either a summary election, or an indictable offence with a potential of up to 14 years in custody.
I point this out to remind the Committee that violating this Act (even in a relatively small way like an 18-year-old sharing a joint with a 17-year-old) or growing an extra plant is a very serious criminal matter, despite the characterization of C45’s “decriminalization” effect.
In almost all instances, with the exception of small amounts of possession (that were in practice already not prosecuted) the sanctions are increasing from where they presently sit under the CDSA.
As a comparison, offences presently aligned with 5-year maximums include sexual offences including certain offences against children, firearms,[1]home violence (assault), infanticide, and taking part in a prison group.
Once we transfer to the 14-year max, we at the moment are aligned with much more severe crimes like sure terrorism offences, menace to commit a nuclear machine, assault on a UN premise, incest, much more severe sexual offences together with these towards youngsters, arson, and so on. I ought to add this now opens up much more pricey judicial procedures and the best 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 severe criminality.
Addressing the precise issues:
“Possession”
Like others who’ve testified earlier than you, I’m involved with the brink of 30 grams and the way illegal possession is outlined. There are lots of examples of this the place lawful customers very abruptly transfer from lawful leisure use, to severe criminality due to widespread and trivial occurrences.
When utilized, these situations typically attain absurd outcomes.
One (of many) instance pertains to personal vs. public possession:
Though the Act makes it clear that one will not be permitted to own greater than 30g of marijuana in a public place, there isn’t any restrict to how a lot non-illicit marijuana might possess in a personal place. Maybe that is the intent, but it surely leaves us with a quite absurd end result when contrasted with different facets of the laws that severely criminalizes extra limits how a lot one might have in public or might develop.
Assuming the provincial laws don’t prohibit how a lot one should purchase, an individual may make 10 journeys in a day and have 300g. Inside 10 days, they might have 3kg and so forth.
In apply, one may possess lots of of kilos of marijuana of their metropolis residence, however one other can’t develop greater than 4 vegetation amongst 3 adults sharing the identical farmhouse.
There are lots of seemingly unintended, but foreseeable hypotheticals as that derive from the overbreadth of laws.
“Distribute”
With the very broad definition of “distribute” there are a lot of issues that come up, and much too many to cowl in the present day. Suffice to say that this overly broad definition captures exercise that Canadians won’t moderately anticipate.
Distributecontains administering, giving, transferring, transporting, sending, delivering, offering or in any other case making accessible in any method, whether or not immediately or in- immediately, and providing to distribute.
For instance, using “in any other case making accessible in any method”is clearly very broad. Whereas it clearly captures exercise like sharing a joint, does it, for instance, seize two dad and mom who go away marijuana (i.e., ‘make accessible in any method’) of their dresser for his or her 17-year-old son to seek out? Does it embody not correctly securing the rising room of their 4 vegetation?
These aren’t 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 dad and mom? I consider that “making accessible” will turn into a dwell problem in courts and one which can be laborious fought when these hypothetical dad and mom are going through prison offences carrying as much as 14 years in jail.
I ought to add, that is aggravated additional by the shortage of clear pointers (maybe to return from the Rules) on safe cultivation, storage, and dealing with akin to what we see in firearms laws.
Youth
The final instance, maybe essentially the most important, of C45’s overbreadth is outlined threshold of criminalization for youth. Below part 8(1)(c), the Act makes it a prison offence for youth to own greater than 5 grams, in comparison with the grownup threshold of 30g.
There isn’t a proof that this may 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 prison prohibition for youth has failed, then clearly a partial decriminalization will too. [2]
Consequently, this low threshold achieves nothing of worth in direction of the acknowledged goals 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 weak factors of their lives in forming their id. I see this having vital results on their means to get jobs, cross the border to the US, and fall prey to figuring out with a prison factor to their personalities.
Put one other means, a baby who performs hockey sees themselves as a hockey participant for the remainder of their lives; being labelled as a prison isn’t any completely different.
2) The futility and risk of overly harsh punishments for minor deviances of the legislation.
My view based upon my first-hand knowledge within the justice system is that harsh sentences do very little to deter crime. This is view is widely held among criminal law scholars and is backed strongly by empirical data.
Any deterrent effect harsh sentences may have, will not be upon those it seeks to target (i.e., organized crime). Indeed, studies a very small fraction of individuals who commit crimes — about 2 to 5 percent — are responsible for 50 percent or more of crimes.
Due to the profitability of illicit drugs for prohibited markets, this 2 to 5 percent of organized crime or determined hardened criminals will not be deterred from increased sentences. The mere existence of the Fentanyl crisis is a clear case in point of this effect where sentences are already well into the double digits, and in some instances Crown prosecutors seeking life imprisonment. Notwithstanding, this approach seems to have little effect upon the black market and individuals’ access to it.
The concern, therefore, is that youth who are unable to access marijuana, may turn to those most brazen and most dangerous criminal elements to obtain it, thus exposing those under 18 to risks far greater and intolerable risks.
Put another way: extremely harsh penalties for distributing to minors may have a deterrent effect upon the older brother or “18-year-old friend” who wants their 17-year-old sibling or friend to try it out; but organized crime, and hardened criminals (the 2-5%) by very definition of their activity, do not abide to social norms and the same principles of rationality than law-abiding Canadians do.
In effect, it may also create a thriving underground market upon the very audience C45 seeks to protect, i.e. youth.
While appearing harsh upon the distribution to minors may have political value by appearing protective of youth and tough of those who provide it to them, the practical reality will actually put youths at greater risk in my view that I base upon my experience within the criminal justice system and those people that operate within it.
In addition, this harshness will do nothing to actually deter those most likely to engage in serious criminality.
While at the same time, (especially when combining the broad definition of distribution as noted earlier) it exposes those who might engage in minor (if not utterly technical) deviations from the legislation – like an 18-year-old passing a joint to a 17 year old friend turning 18 in two weeks – to extremely serious criminality of indictable offences, and sentences upwards of 14 years.
With that, comes significant costs. Which leads me to my next point.
It is my view that C45 will put great pressure on an already strained judicial system, notwithstanding the expressed intent of the legislation to contrary.
This additional strain and costs I am referring to has nothing to do with enforcement or investigation. Police forces and other witnesses have already spoken on that issue and I would defer to them.
The costs I am referring to is the increased costs directly upon judicial resources through the form of lengthier trials, fewer resolutions by way of guilty pleas, and less discretion of Crowns and Courts to manage cases proportionate to their factual seriousness.
All of this strain is made worse by the pressure recently placed upon the Court system by the strict time limits set recently by the Supreme Court of Canada in R. v. Jordan.[1]
The rationale for this pressure can be for a lot of causes:
- Decision will not be seemingly when an individual feels they shouldn’t be criminalized for marijuana possession and plenty of will battle the fees out of precept;
- Conditional sentences aren’t accessible for many offences;
- The road between regulation abiding citizen and prison is severely abrupt and laborious for an individual to reconcile that what they did is prison and settle for duty as such;[2]
- For something continuing by means of indictment carrying 14 yr attainable sentences, jury trials can be found as a mode of election, and one which I anticipate many to hunt even going through overwhelming proof in hopes of nullification;
- Extreme immigration penalties for travelling to the US;
- Extreme immigration penalties for non-citizens of Canada;
- Document suspensions (5 years for abstract and 10 years for indictable)
- The inherent prices of prison course of (Courts, clerks, probation officers, incarceration), and so on.
- Higher prevalence of substance exposes extra individuals to prison exercise;
- And so forth.
Thanks.
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