THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON June 4, 2003

Pot offences in Canada are
already decriminalized!

Part 1: The Criminal Code discharge provisions

Those who are concerned that the drug bill is too soft might want to take a close look at how routine pot offenders are being dealt with under our present drug law. In more ways than one the proposed legislation is actually much tougher. In fact it is safe to say that for many years possession cases have been decriminalized thanks to the Criminal Code discharge provisions.

As far back as 1981, it was estimated that 25% of all cannabis possession offenders were discharged while 64.8% received a fine and 5.2% received a jail sentence. Although I am not aware of more recent data, I would venture to say that the current percentage of those who are discharged is much higher.

The current law on possession

Under our current drug law, the Controlled Drugs and Substance Act, Crown prosecutors have the option of proceeding by way of summary conviction or by indictment against all those who are found in possession of less than 30 grams of Marijuana. For small amounts, prosecutors almost always choose the summary conviction procedure, which provides a maximum sentence of 6 months and/or $1000 fine for a first offence.

While the Controlled Drugs and Substance Act replaced the Narcotic Control Act on May 14, 1997, it did not change the manner in which prosecutors exercised their discretion.

Current sentences

It would be only normal to assume that in every sentence there is some element of punishment. After all, in the words of the Criminal Code, the purpose of a sentence " is to contribute, along with crime prevention initiatives, to the respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions " In actual fact, when it comes to sentencing first time pot offenders, judges throughout Canada have resorted to a little known article in the Criminal code that implies anything but that.

In legal jargon, it is referred to as an unconditional discharge. A discharge is granted whenever a judge rules that an accused deserves a second chance and that having to go to court and being found guilty is enough of a penalty. As a result, for decades, countless adults who have pleaded guilty to simple possession of small quantities of marijuana have neither been fined nor jailed.

The discharge provisions

The current controversy is all the more surprising seeing that absolute and conditional discharges came into force as far back as 1972.At the time they were drafted as a specific sentencing alternative with respect to cases of simple possession of cannabis, the plant that produces marijuana and hashish. Despite the specific origin, by law this "sentence" can apply to any federal offence which doesn't carry a minimum punishment and which is punishable by less than for 14 years.

There is more. The sentencing judge must find that it is the best "interests" of the accused and not contrary to the public interest. If he does, instead of convicting the accused, he then directs that the accused be discharged absolutely or on specific conditions.

Resolving the "interest" condition

How does he resolve the "interest" condition? If the judge believes that the accused is of good character, has no previous conviction and that a conviction is not needed to deter him or rehabilitate him, he is then entitled to conclude that the discharge in his best interests. As for the question of public interest, the judge must ask himself whether not warning the public at large about the accused through the medium of a criminal record goes against the public interest.

Legal consequences

Any offender who receives an absolute discharge is deemed not to have been convicted of the offence which, in one aspect, is considerably more lenient than fining him under the proposed bill. As for an accused who is subject to specific conditions, he is deemed not to have been convicted from the moment he complies with the conditions. In the event the conditions are not respected, the discharge can be revoked and replaced by a conviction.

Sentence takes a few seconds

Such sentences have received the full support of prosecutors and provincial Ministers of Justice who are responsible for the administration of justice. They have become so common with regards to pot offenders that judges rarely make individual inquiries regarding the question of public interest .All it takes is a charge of possession involving a small amount and the lack of a criminal record. When both attorneys make a common recommendation it can take seconds to dispose of a guilty plea. This is particularly true when an accused proves that he made a donation to some reputable charity organization in anticipation of his or her sentence.

Problem with discharge provisions

The main problem with the discharge provisions of the Criminal Code is that they don't completely revert the accused back to the pre-charge status. Despite the lack of a criminal record, the mere guilty plea to a summary conviction charge before being discharged can still be the source of complications for an accused. While a discharged offender can honestly state that he or she was never convicted this is not be the case when the question is put differently, such as, "Have you ever been found guilty of a criminal offence? ", "Have you ever pleaded guilty to a criminal offence?" or " Have you ever been sentenced for a criminal offence?"

Furthermore, while an accused who receives a discharge does not acquire a criminal record, information regarding the charge can still be found in the court file and sometimes in the police file.

Next week Part 2: Why decriminalize pot cases?