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From Libby Davies MP
Federal NDP Social Policy Critic
Vancouver East

February 2004

Update on Bill C-38, Proposed Changes to the Marijuana Laws

Where is the Bill at?

During the previous session of Parliament, in October/November 2003, Bill C-38 was examined by the Special Committee on the Non-Medical Use of Drugs and was amended. Throughout the committee process, the NDP pushed for a number of changes. We did get some movement from the government on certain aspects of the Bill. Parliament then suspended in November and is now back in session. The Bill (now called C-10) has been reintroduced for debate; at the same stage it was when the House was suspended in November.

The September 30, 2002, Speech from the Throne indicated that the federal government would consider the possibility of the decriminalization of marijuana possession. However, since then the government has been clear that the changes found in Bill C-38 do not mean decriminalization of marijuana. A May 2003 government backgrounder on the Bill states:

"Under the proposals included in the Bill, cannabis possession and production will remain illegal in Canada under the Controlled Drugs and Substances Act. What will change is the approach to enforcement."

In November 2003, then Justice Minister Cauchon reiterated this position. When speaking to the Special Committee on the Non-Medical Use of Marijuana, he said:

"I'm saying it's not decriminalization. It has never been decriminalization." (November 4, 2003)

What has been introduced under the Bill is a fine regime for simple possession (under 15 grams). A $150 fine for adults and $100 for youth would be issued for possession, but no criminal charges could be laid. For possession of 15-30 grams, police would have the discretion either to issue a ticket of $300 for an adult and $200 for a youth, or to proceed by a summary conviction criminal charge with a penalty of up to 6 months in prison, up to a $1000 fine, or both (plus, of course, a criminal record if the police proceed by way of criminal charge).

Although the federal NDP was able to get improvements on two significant parts of the Bill, (sealing of records and personal cultivation), we remain concerned that Bill C-38 does not even goes so far as to decriminalize marijuana, let alone set up a much more sensible regulatory regime.

If enacted, the Bill may well lead to increased prosecutions and waste of resources. Dan Gardner, a critically acclaimed journalist on drug issues from the Ottawa Citizen, has pointed out that:

Criminologists have often found that lowering, but not eliminating, a punishment results in more punishment. It's called the "net-widening effect."

Replace charges with fines, and people the police would let off with a warming and a wave under the old system will instead be hit with a fine. In other words, decriminalization could lead to more people being punished, not fewer.

("A cutting-edge plan - if this was 1968: Replacing the criminal charge for possession with a fine will change little, or nothing at all", Ottawa Citizen, May 28, 2003)

What did the federal NDP push for?

At the Committee we pushed for key amendments. These included:

Amnesty Provisions:

Past charges or convictions for simple possession of marijuana would be erased; a pardon does not go far enough. It would be required to go back as far as records were kept.

Records for contraventions/receiving of fines:

Records for people who received a fine for simple possession and/or cultivation for personal use of marijuana would be sealed and not shared with Interpol or other foreign jurisdictions.

Non-commercial transfer of marijuana:

Currently, even simply giving marijuana for no money ("passing a joint") is considered trafficking. Bill C-38 should be amended so that non-commercial transfers of up to 30 grams of marijuana would not be considered trafficking.

Reasonable grounds required for searches:

Changes need to be made to the provisions required by police to obtain a search warrant to enter a person's home. Currently under the Controlled Drug and Substances Act suspicion that an illicit drug, of any amount, is in a home is enough for a warrant to be issued. The Bill should include new provisions that are more consistent with decriminalization. The Bill should be amended to require police to demonstrate reasonable grounds to believe that the amount of marijuana in the home exceeds 30 grams or that trafficking (which would not include simple non-commercial transfer) in marijuana is occurring, in order to obtain a search warrant.


Eliminate the proposed fine for possession of up to 30 grams of marijuana. Alternatively, the NDP proposed fines for possession of up to 30 grams of marijuana be changed to $25 for both adults and youth.

If a fine system is adopted, possession of any amount up to 30 grams should be ticket-able only. The discretion that the current Bill gives to the police to criminally charge someone who possesses between 15 and 30 grams should disappear.

Add a special provision to the Bill to guarantee no imprisonment on defaulting on the payment of fines.

Personal cultivation:

Non-punitive provisions for personal cultivation should be included in the Bill, allowing for the personal cultivation of up to 5 plants.

What we got changed

Throughout the committee stage the two primary issues the NDP pushed were ensuring that information on people who received fines for personal possession would be kept sealed and not shared, and that the laws be amended to allow for the cultivation of small amounts of marijuana for personal use.

We did get some improvements to the Bill in these two areas. The committee amended the Bill to prohibit the disclosure of information on people who may have received a fine for simple possession. This is a very important measure as it prevents law enforcement agencies in Canada from sharing information with other countries. The U.S., in particular, often prohibits people from crossing the border if they have marijuana-related charges or convictions. (However, U.S. authorities could still ask Canadians entering the U.S. if they have ever used marijuana or been fined (or ticketed) for possession, and could ban them from entering on that basis.)

Although the federal NDP pushed for amendments to allow the personal cultivation of up to 5 plants, the Liberal dominated committee choose to set the maximum at 3, and it still supported imposing a fine. Instead of the risk of jail time, those found with up to 3 marijuana plants would face a $500 fine.

The NDP believes strongly that the Bill needs to contain amnesty provisions for people who currently have criminal records for simple possession. If simple possession of marijuana no longer risks a criminal charge, those who now have a record for similar conduct should be entitled to amnesty.

Where do we go from here?

We had hoped Bill C-38 would be a first step in recognizing the harms associated with a prohibitionist policy towards marijuana. However, the new Minister of Justice has not given any indication that he supports further changes in this direction, leaving intact the myth that the criminal law can resolve problems relating to the use of drugs.

The federal NDP opposes this Bill because it falls short of the government's promises of decriminalization.

The federal NDP has long advocated for the full decriminalization of marijuana and for a drug policy that does not primarily rely only on the police and criminal justice system. There is a growing consensus across the country that our current marijuana laws are not working to reduce harmful levels of use and that the drugs laws themselves cause enormous harm. Decriminalization must be a first step to an open and honest dialogue about the failure of current practices.

Policy towards marijuana has too often approached the issue from the wrong perspective - focusing on the misguided belief that the illegal status of the drug is a primary factor in preventing use. The NDP believes we must have a national discussion that would approach the topic in a rational and thoughtful way. The NDP believes that through a national discussion, Canada would be able to build a workable policy on marijuana that recognises the failure of criminalizing people for drug use. These policies must be part of a broader drug strategy, which focuses on a health-based approach as recommended by the Special Committee on the Non-Medical Use of Drugs.

The introduction of Bill C-38 in June of 2003 was also accompanied by an announcement of a renewal of Canada's Drug Strategy providing $245 over 5 years. This commitment fall far short of that recommended by the Special Committee and is barely half of what was promised by the Liberals in 2000 Election. The 2001 Auditor General's report on illicit drugs sharply questioned the reliance on enforcement and pointed out that 95% of federal funds spent on illicit drug use in Canada are used towards enforcement and interdiction.

Canada should move marijuana out of the criminal legal framework and eliminate punitive measures for responsible adult marijuana use. We must move forward to a discussion on the best system of rules and public health education. For instance there should be rules about age, strong rules about impaired driving and rules to tackle disruptive illegal industrial grow-ups.

The federal NDP believes the federal government must move beyond decriminalization and examine and introduce a non-punitive, rule-based, approach to adult marijuana use with an emphasis on prevention, education and health promotion. Marijuana policy needs to eliminate the criminalization of users and focus on reducing harms and preventing crime. The federal government should be putting resources behind public education rather than criminal prosecution. Taking the example of tobacco, consistent and strong messaging on the health risks of tobacco has helped greatly reduce tobacco consumption. It is not necessary to use the criminal law to discourage harmful forms of drug use. In many cases it is counterproductive.

The federal NDP also believes that policy objectives need to pay special attention to keeping cannabis out of the hands of minors. Recent studies have shown that consumption amongst youth has risen. The reality is that kids are choosing to opt for marijuana over tobacco.

The issue of driving under the influence of marijuana also needs to be addressed. Driving while impaired by any substance is currently a criminal offence, and should continue to be banned.

Public policy must also recognise that prohibitionist laws continue to fuel organised crime and other violent organisations in our society. Prohibiting drugs creates a black market that greatly inflates the value of drugs -- and the profits to be made by selling them. Governments and police agencies claim that organized crime in Canada obtains most of its funds from the illegal trade in drugs - a trade that interests organized crime only because our laws prohibiting certain drugs have created an enormously lucrative black market. Yet those same governments and police bodies refuse to acknowledge the role that prohibition plays in creating the black market.

Furthermore, we must recognize that organized crime around the world finances violent activities at home and abroad through the profitable black market trade in drugs. The trade in these drugs is profitable because the blind reliance by governments on prohibition creates that black market. Even the extensive law enforcement resources devoted by countries like the United States to enforcing prohibition cannot make any appreciable dent in the drug trade as long as prohibition continues. The economic incentive created by prohibition to sell drugs is so powerful that law enforcement has no chance of stopping the trade.

Canada needs to look beyond our closest neighbour and come up with a comprehensive and safe marijuana policy. The U.S.-driven "War on Drugs" is not a Canadian made solution. Canada must not be intimidated by U.S. rhetoric. Canada should look instead to the United States as an example of a country with a disastrously failed drug policy - a failed policy because of its perennial reliance on prohibition.

Bill C-38 does not deal specifically with medical marijuana but the NDP wishes to draw attention to the serious flaws in the federal government's current medical marijuana program. The current regulations of the program are very restrictive, overly bureaucratic and severely limit access by Canadians who have a legitimate need for medical marijuana. These restrictions should be lifted immediately. The recommendations of the Senate Special Committee on Illegal Drugs present a reasonable, workable and non-bureaucratic means of ensuing access to marijuana for therapeutic purposes.

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