THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON June 11, 2003

The decision to decriminalize
first time pot offences


The decision by the Chrétien government to decriminalize acts relating to the possession use of marijuana has as much to do with the adverse consequences attached to a criminal record as it has with the fact that our laws have had little effect in reducing cannabis use.

Alarming statistics

It is estimated that 600,000 Canadians have a criminal record as a result of a conviction for possession of small amounts of cannabis and every year the number is growing. Yet, despite such alarming statistics they represent only a small fraction of the estimated 1.5 million Canadians who smoke marijuana recreationally. According to the all-party Parliamentary Committee on the Non-medicinal Use of Drugs, out of a total of 63,851 drug offences under the Narcotic Control Act or Food and Drug Act in 1995, 31,299 were cannabis possession offences.

In 1999 21,000 Canadians were faced with criminal charges for simple possession of marijuana. In 2001 simple possession represented approximately three-quarters of all drug-related offences. Not only does the enforcement of our pot laws vary considerably among regions in Canada particularly with regard to urban and rural areas, the direct and indirect financial costs on the justice system are considerable.

More on sentencing practices

Last week I referred to the practice of granting an absolute or conditional discharge to adult pot offenders who have no criminal record in lieu of their sentence. As for those who don't meet the discharge conditions and who plead guilty or are found guilty of simple possession of small amounts, the fines are usually in the range of $100. As for first time pot offenders in Quebec under 18, they are subject to the Youth Criminal Justice Act, which came into force last April. The Act recognizes that while young persons should be treated differently than adults, they must still be responsible for what they do. Before pot charges are authorized however, police officers must consider other alternatives known as "extra judicial measures". They include taking no further action, warning them and finally, referring them to the Youth Protection service. As a result, many first time offenders under 18 end up doing a few hours of community work rather than being charged. In practice, the police will often consult the local prosecutor to determine how to best deal with a specific offender.

Drug bill is more severe

When comparing the current sentencing practices to the fines proposed in the bill, first time offenders who will be ticketed may end up being more severely punished. Under the proposed decriminalization legislation, those under 18 caught with up to 15 grams will be subject to a fine of $250 whereas for adults, the maximum fine will be $400. Because they are only maximum fines, it is too soon to know how the judges will exercise their discretion. Because the ticketing procedure makes no reference to "conditional or unconditional discharges," that sentencing option will no longer be available. As for those who are caught with possession of 15-30 grams of pot, the proposed legislation gives the police the discretion to give a ticket or lay a criminal charge.

The impact of a criminal record

Under our present system, a criminal record is entered into the police computer database for pot offenders who are found guilty and sentenced. As such, the information is accessible to public and private organizations, both inside and outside of Canada. Regardless of the quantity involved or the fine imposed, the social and legal consequences of a criminal record can create undue hardship long after a citizen has paid his or her dues. A record can do more than influence a police officer to lay a charge or a prosecutor to proceed by way of indictment rather than by summary conviction. A criminal record based on simple possession may be utilized to impeach a suspect's credibility as a witness, deny a person entry to a foreign country or even deny an applicant employment in certain professions.

Even a pardon doesn't solve everything

Even an official pardon cannot wipe out all of the consequences of a conviction. For example a pardoned offender cannot truthfully deny having been convicted as the pardon merely "vacates" a conviction or discharge. As I mentioned in a previous column, the Parole Board advises those who are asked if they were ever convicted to simply reply that they have been pardoned for an offence. Furthermore, most drug offenders are unaware of the pardon provisions, which explain why only a small percentage has taken advantage of them. While under the new drug bill the vast majority of Canadians will no longer receive a criminal record for acts relating to the personal use of marijuana, it nevertheless fails to address the problem of those hundreds of thousands of pot offenders who have already been convicted and who are saddled by a record. Once the bill becomes the law of the country, one solution would be to pardon them under a general amnesty.

Not the only country to "ticket" pot offenders

Canada will not be the only country to treat possession of small quantities of marijuana much like a traffic offence with a fine being levied. In the early 1990s, South Australia and the Australian Capital Territory converted the simple possession of less than 25 grams of cannabis into a civil offence. Except for the consumption of cannabis in public places there are no longer any criminal consequences, and the maximum fine is $150. As of the mid-1970s, Dutch prosecutors have been invested with a broad discretion not to prosecute cannabis possession offenders in circumstances where it is believed that it would have no positive effect in reducing the risks involved. As a result, the Dutch authorities tolerate the possession of small amounts of cannabis and concentrate on large-scale traffickers.

In recent years, the Dutch approach has been adapted by most German states - prosecutors withdraw the majority of charges against simple cannabis possession offenders. While there may be some dispute as to whether these measures have led to an increase in cannabis use, everyone agrees that the cost savings to their governments have been considerable.