Canada is legalizing possession of small amounts of marijuana, but it’s also introducing 45 new criminal offences. How will police and the courts react?
Canada’s plan to legalize cannabis could bring with it an increase in law enforcement activity, arrests and jail time — and here’s why. Cannabis is currently controlled by the country’s federal Controlled Drugs and Substances Act (CDSA). Canadians can be charged with any of about eight offences related to cannabis, including possession, trafficking, importing and exporting. The proposed Cannabis Actremoves the cannabis plant from the purview of the CDSA, and with that change it removes criminalization of possession of small amounts of cannabis, including up to 30 grams in public. However, in its place the Cannabis Act proposes approximately 45 new criminal offences, ranging from public possession of more than 30 grams to unauthorized promotion.
At least one prominent cannabis lawyer believes enforcement activity will go down come legalization. “Anyone that thinks cannabis enforcement will go up post-legalization isn’t paying attention to (a) it going down now; and (b) WA/CO/OR,” BC lawyer Kirk Tousaw tweeted in early June 2017, referencing Washington, Colorado and Oregon, three states that have legalized the plant and seen arrests decrease.
But there is a big difference between the path these states followed and the Canadian approach. These jurisdictions did not enact a bevy of new criminal offences with their legalization regimes; instead, they merely opted to remove criminal penalties for possession of small amounts and to introduce legal sales channels.
One group of new offences found in Canada’s Cannabis Act but not in the three states arises from the Act’s criminalization of conduct related to “illicit cannabis,” marijuana that is not bought from a provincially regulated store or grown legally. In Colorado, for example, it is not an offence to purchase and possess three grams of cannabis from an illegal source, but under the proposed Cannabis Act the same activity could theoretically land a Canadian in prison for up to five years. It’s open to question whether police will enforce the prohibition of such small amounts in the first place, especially since Canadians will be allowed to grow up to four plants of their own. But the provision could open up the possibility of arrest and prosecution for people carrying cannabis in an ordinary plastic bag instead of a licensed sales container.
Not only may enforcement activity ramp up across Canada, but the length of a sentence for jail or house arrest could also increase. Although the Cannabis Act does remove the Harper-era mandatory minimums for cannabis production, which were found unconstitutional by courts across the country, half of the new offences in the Cannabis Act — such as distribution of illicit cannabis or distribution to those under 18 — carry a term of up to 14 years in prison. And because the Criminal Code does not let judges give discharges or conditional sentences on any offences that carry a maximum punishment of 14 years, judges will have fewer non-prison options when they sentence offenders.