The Hill Times, July 25th, 2005
By Kady O'Malley
Marijuana bill up in the fall
The controversial Marijuana Decriminalization Bill has already died twice on the Order Paper. It's up before the House Justice Committee this fall, but lobbyists say there's little support for the bill, on either side of the decriminalization debate.
The highly-controversial Marijuana Decriminalization Bill C-17 has remained in suspended animation since its reintroduction last fall, despite meriting a specific mention in Prime Minister Paul Martin's most recent Speech from the Throne, but lobbyists on either side of the debate say the bill is seriously flawed, is a "half-baked measure" and should be killed.
Bill C-17, which is the latest incarnation of legislation that has already died on the Order Paper on two previous occasions, was referred to the House Justice Committee last November, but has yet to make it onto the meeting schedule.
Although activist groups have criticized the government for failing to throw its political weight behind its commitment to reforming existing cannabis legislation, Justice Minister Irwin Cotler's (Mount Royal, Que.) bill, which would deal with simple possession through fines rather than criminal charges, but would increase penalties for marijuana growers, has virtually no political support on either side of the debate over decriminalization.
"This bill has the distinction of being disliked both on the right and the left," noted Philippe Lucas, director of Canadians for Safe Access, an association that supports users of medicinal marijuana, who appeared before the committee that studied C-17's predecessor, C-38, in 2003.
"I spoke on behalf of Canada's medical marijuana population, and out of close to 100 witnesses, there was only one group that supported the bill--the Canadian Centre for Substance Abuse. Every other activist and researcher that spoke on the bill spoke against it not going far enough, or going too far," said Mr. Lucas.
That might be one reason why the current legislation has been allowed to fade into the woodwork, he said.
"From the perspective of the activist community, we're not fans, and we'd rather see the bill die. The status quo may be better than anything proposed in this bill," said Mr. Lucas.
For example, he pointed out that the individuals most likely to be targeted by the bill are young men between the ages of 17 and 25.
"These people will be the least able to pay fines, and we also fear that visible minorities will be targeted. We plan on enforcing these fines by using the Contraventions Act, which means that non-payment of fines could lead to jail time or criminal records," said Mr. Lucas.
Mr. Lucas said he also sees flaws in the provisions of the bill dealing with cultivation.
"The idea of doubling penalties for personal cultivation seems to fly in the face of reason. It does nothing but re-entrench the black market," said Mr. Lucas, adding that he believes that the only policy that makes sense, and will keep marijuana out of the hands of children, is to tax and regulate it.
"People forget that after alcohol prohibition, we put in place liquor distribution service and bars not to open up access, but because too many people were getting access. We control it through age restrictions, level of intoxication, and social parameters around drinking. With cannabis, we'd see the exact same thing," said Mr. Lucas, adding that he blames lobbying by-law enforcement groups for preventing the government from proposing genuine legislative reforms.
"It's pretty clear that most police groups, despite having policies that speak of harm reduction, and moving towards alternate measures, seem to be opposed to the idea of lessening penalties, and losing income if cannabis gets de-prioritized. The testimony of the police chiefs and enforcement agencies may have influenced the government, combined with the knowledge that the left isn't any more pleased than the right," said Mr. Lucas.
Mr. Lucas said that regardless of the fate of the bill, his group is working with MPs who are trying to put forward an 'alternate vision' for policy reform.
"There are moves in the backrooms to put forward something that might be more pragmatic, and approaches the policy of harm reduction while moving away from the prohibition-only mentality," said Mr. Lucas.
Mr. Lucas pointed to NDP MP Libby Davies (Vancouver East, B.C.) and Vancouver mayor Larry Campbell as high-profile supporters of a more aggressive move towards legalization.
"The City of Vancouver recommends taxing and regulating all drugs, and when you have major cities considering alternate measures, but being handcuffed by the federal policy, it shows a real discontent. The federal policy sets the tone, but the provinces are on the hook to pay for that through arrests," said Mr. Lucas.
For Ottawa lawyer and Canadian Foundation for Drug Policy executive director Eugene Oscapella, the battle to update Canada's cannabis law has been a labour of love for years. He said he agreed the proposed legislation has few supporters on either side of the issue.
"The police don't like it, and people like me don't like it, and the big fear is that the government is eventually going to push this through, and then say, 'Look, we've dealt with it.' It's a half-baked measure that won't solve any problems," said Mr. Oscapella.
Mr. Oscapella said he's not sure if the bill could be salvaged if it goes before the House Justice Committee this fall.
"It would take substantial amendments, and since it's been referred after second reading, it would have to be reintroduced," Mr. Oscapella said, adding that at this point, he believes that the best hope for supporters of decriminalization might be for the current bill to die.
"It has some good features, but fundamental flaws, and if it goes ahead, we won't have the chance to deal with those flaws, and the government will say that it's not going back. In a minority government, there's a chance that the NDP and the Bloc Québécois could help push the Liberals into introducing a more sensible bill if this one dies," said Mr. Oscapella.
Mr. Oscapella acknowledged, though, that the failure of this bill may not necessarily lead to the introduction of legislation that he could support.
"There's always the risk that the government would do nothing," said Mr. Oscapella.
Although decriminalization is rarely touted as a possible election issue, Mr. Oscapella pointed out that this doesn't necessarily mean it won't be a factor when Canadians next go to the polls.
"It may not be one of the great hot-button issues, but in some ridings, you only need a few percentage points to win, and if you offend the wrong people, it has the potential to become a political issue. It's hard to tell what issue will become the flavour of the moment--it has a lot to do with media attention, and the events at the time. If someone was involved in a serious accident where four people were killed, and the driver had cannabis in his system, it will suddenly become a major issue," said Mr. Oscapella.
CDFP co-founder Neil Boyd, who teaches criminology at Simon Fraser University in British Columbia, seems slightly more optimistic than his colleague.
"The government now has a decision to make in the fall as to whether it wants to move forward with C-17, recognizing that the Conservatives and some Liberal backbenchers will oppose it. There's no doubt that groups such as NORML and Educators for a Sensible Drug Policy and many other advocacy groups are almost as disenchanted with the bill as conservatives, but on the other hand, I think it's time to move somewhere on this issue," said Prof. Boyd.
He agreed that the bill as drafted has "important flaws" that need to be addressed.
"But I would hope that some of the criticisms on both sides could be dealt with, and the government could move forward. This will have to be a compromise bill--it won't satisfy those who want legalization, or those who want tougher penalties. As it stands, this bill is a clumsy attempt to find a compromise, and I'm not sure why it wasn't more carefully crafted."
Bill C-17 could present an opportunity for the government to simultaneously address what seem to be two contradictory points of view that are both legitimate, Prof. Boyd said.
"On the one hand, we have the argument that adult Canadians should be able to use marijuana without being treated as criminals. This is a point of view that has majority support through the country, and it's quite courageous of the government to be proposing the cultivation of up to three plants as part of the bill, and saying that the issue is with the problems that large scale grow-ops produce," said Prof. Boyd.
Research conducted earlier this year in British Columbia revealed that 25 per cent of grow-ops involve theft of electricity, and a lot of environmental damage, he noted.
"It's a highly-unregulated industry that has many of the hallmarks of such--violence, theft, and threats to health and public security. Unfortunately what government has done in the bill is change the maximum from seven to 14 years. Currently, for large-scale grow-ops, the sentence is between four and six months. If the government was really serious about tough penalties for grow-ops, it would have put in minimum penalties. The fact that it instead went to 14-year maximum, when nobody is getting the current seven-year maximum, suggests that they're playing politics," said Prof. Boyd.
To alleviate some of the major concerns of the pro-decriminalization lobby, he said there should be amendments made to the bill to make it clear that persons charged with possession will not go before a criminal court, and will not have a criminal record.
"The government might also want to consider eliminating existing criminal records retroactively, and they should make it clear that they're not going to take people to court for small amounts, and not going to collect criminal records. Make it clear that marijuana use is still going to be discouraged, but is not going to be treated as a criminal offence," said Prof. Boyd.
Armed with these and other recommendations for fine-tuning the bill, Prof. Boyd said he believes that there is plenty of room for movement within the existing legislation.
"I'm hoping to go before the committee and tell them that," Prof. Boyd said.
Canadian Professional Police Association president Tony Cannavino counted himself as a foe of the bill, although for very different reasons than those espoused by decriminalization supporters, and is delighted that the progress of the bill through the House seems to have stalled.
"We're absolutely pleased that it didn't get anywhere, and we hope it is never reintroduced again in the House of Commons," said Mr. Cannavino, who pointed out that his organization would rather see a strong national drug policy that sends the right message to Canadians.
"This bill is not sending the right message--there's no strong deterrent to growers, and when you really look at the legislation, where it talks about growers, and the different sanctions or penalties, it's not that big a change," said Mr. Cannavino.
"The bill is inconsistent in how it deals with police discretion," he said, and he worries that the provisions related to cultivation penalties will also encourage large-scale dealers to recruit small-street dealers. "It's incoherent with the quantity of someone stopped by a police officer. It talks about under 15 grams, which is between 30 and 50 joints. That's a lot of joints," said Mr. Cannavino.
Many politicians don't realize how much 15 grams of marijuana represents, said Mr. Cannavino.
"I've talked to a lot of MPs and Senators, and asked, them, what do you think 15 grams represents? Ninety to 95 per cent of them don't know, and when they realize it's between 30 and 50 joints, they're shocked. And when we're talking about a plant of marijuana, and what it produces in a year, it's not like a tomato plant, it's like a tree. One plant can give a lot of marijuana over a year," said Mr. Cannavino.
Although he'd rather see the bill die before hitting committee, Mr. Cannavino said he's been reaching out to potential allies over the summer, in preparation for possible hearings this fall.
"We've been talking to justice and public safety ministers, and to a lot of teachers and school boards. They're very concerned also, and we want to hear them talk to the public and the media."
Another law enforcement association that has been deeply involved in the debate over drug policy reform is the Canadian Association of Chiefs of Police.
Halifax Deputy Police Chief Chris McNeil, who chairs the association's committee on drug abuse, said that with minor improvements, the bill could be improved to the point where CACP could support it.
"We support the notion that there is a need for cannabis reform legislation, but we think that within that legislation, there must be room to deal with the problem, and leave discretion for a criminal charge to be laid in some circumstances," he said.
It isn't just a question of the amount of marijuana that someone might have, he pointed out.
"It's the fact that someone could bring 15 joints to school, and there would be no means of doing anything. We agree that there does need to be a continuum of options for the police to deal with marijuana, using discretion--from diverting people, and not charging at all for very small amounts, to charges in the appropriate circumstances," he said.
The amounts specified by the bill are not inconsistent with what a typical street dealer might carry, he said.
"We also have a problem with the classification of cultivation, from one to 25 plants, to 25 to 50 plants. All of a sudden, you're basically providing an opportunity for organized crime to divide it up between three houses, and have 18-year-olds watching. The idea that cultivation can be better or worse is inconsistent with the notion of being tough on traffickers," he said.
In general, he said he worries that the bill sends the wrong message to Canadian youth.
"The government gave a clear message that this wasn't a good thing, and now we're seeing mixed messages. Kids tell you that it's bad to drink and drive, and are more likely to toke and drive. This is nothing more than the nostalgic view of the joint you smoked in college--it's not benign, and it's not harmless," he said.
Like Mr. Cannavino, he said he's prepared to come before the committee to present his concerns.
"We've been talking to parents about the potential impact on kids and communities. With minor changes, we could support this bill, but I can't abandon my schools. If certain amendments could be made around cultivation, and discretion, we could back it," he said.
One of the bill's few supporters is the Canadian Centre on Substance Abuse. Policy director Patricia Begin pointed out that the CCSA issued a policy statement in 1998 that called for converting the penalties for the possession of small amounts of marijuana to one that would involve fines under the Contraventions Act, as proposed by C-17.
"The issues that we raised at that time still prevail, and it's imperative that the government move forward on the bill. Some of the appeal court decisions at the provincial level on cannabis possession have created an environment that is best described as incredibly confusing."
Some young people, she said, believe that cannabis is legal, or will be when the reforms go through.
"The messaging is going to be very important in terms of what the bill means, and doesn't mean, and we have to make sure that this does not sanction the use of cannabis, which is not a benign substance. There are harms associated with it," said Ms. Begin.
The proposed legislation would strike a balance, she said.
"We don't support legalizing cannabis, and there are reasons why the board has adopted this particular policy position, such as that the law continues to be unevenly applied, and the harm created by a criminal record outweighs the harm of marijuana use," said Ms. Begin.
To that end, the CCSA meets regularly with members of the all-party drug caucus, as well as the House Justice Committee, to provide information to MPs. The association also holds an annual government relations day on the Hill, to put CCSA "on the radar," according to Ms. Begin, as well as to articulate its views on legislation and policy.
"If the bill comes back to committee in the fall, particularly if there are new MPs as members, I would anticipate that the CCSA would want to make an appearance, and reiterate our policy position, as well as any other issues that might come up," said Ms. Begin.
Osgoode Hall law professor and long-time proponent of cannabis reform Alan Young said he believes that there is no future for the current bill.
"From the outset, when it was introduced two years ago, I never believed that it would pass. It's one of those fence-straddling bills, where the government is trying to please both sides of the debate, and ends up pleasing neither," said Prof. Young.
The proposed legislation doesn't go far enough for activists, and too far for prohibitionists, Prof. Young said.
"The government is going to have to make up its mind, and come up with a principled position. It can't play politics on this issue. Part of the strategy has been to say, 'Look, we're trying to help you, but we can't get this done.' The bill has already died twice, so to die a third time is consistent, and you'd think that if a bill died twice, the government would take the opportunity to push it through the third time, but instead, they put it on the back-burner," said Prof. Young.
To push a bill like this through a minority Parliament requires political will, he said, and a movement of individuals willing to stand up for their beliefs, like the one that lobbied for same-sex marriage.
"The gay community has become a fairly effective and powerful lobby community, but the marijuana community is completely inept when it comes to lobbying. The people who are vocal and willing to take a stand are fairly young, and have no influence, and the people who are older, and have influence, choose to remain silent. What we need is for the Pierre Bertons of the world to come forward, and explain how they were able to receive the Order of Canada while using marijuana, but few people are willing to do so," said Prof. Young.
The marijuana movement is in desperate need of spokespeople from 'the establishment,' he said.
"We need politicians and Canadians to realize that this isn't a hippie issue, or young people going through their first identity crisis. This is a product that has been used for thousands of years, and many people over 30 consume it regularly. You don't get things done based on principal, and what's right. Politics is about interest groups and satisfaction, and that's why this issue ends up on the back burner."
Prof. Young also points to fractures within the marijuana community itself as part of the problem.
"Every year, there are a number of associations formed, but for reasons I can't explain, there's never been a unified approach. It's almost like the hip-hop situation, where there is a divide between the east and west coasts. More of my time now is spent mediating and trying to placate various groups, because when you come very close to achieving your goal, it creates optimism and enthusiasm. When you fail, there is a tendency for the movement -- all movements -- to turn against themselves, and A is pointing at B saying 'You took the wrong strategy,' and B is pointing at A and saying, 'You're an embarrassment.'"
Meanwhile, Mr. Oscapella admitted to being discouraged by what he sees as apathy on the part of many marijuana users.
"I've been working on this for years, and I get progressively less patient with pot smokers who sit back and do nothing. I'm more interested in working with people who are doing something themselves to push for reform, or are in a position where they need to be helped, like medical marijuana users. It bothers me that I have to waste so much time on an issue when the thousands of Canadians who use cannabis are sitting back and saying, 'It doesn't bother me.' I'm not interested in fighting the marijuana issue for them," said Mr. Oscapella.
But although Mr. Oscapella's openly frustrated with the current state of the decriminalization lobby, he's still prepared to take his best shot at persuading politicians to rethink the bill if invited to appear before committee this fall--and he's already working on his speaking notes.
"Why do we never ask politicians to justify the status quo, and assume that just because something has always been that way, that it's the right thing to do," he asked.
"I'll challenge them to show me that the current prohibitionist model works, before you start interfering with the liberty of Canadians, and fostering grow-ops. No one can do it, and if I go before the committee, that's the tack I'll take."
The Hill Times
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