Saturday, March 8, 2014

Marijuana Reform: Five Things You Want to Know About Possible Changes to the Law

New marijuana legislation in Canada could mean ticketed fines for small amounts of pot possession, potentially allowing some offenders to avoid criminal records. (Ed Andrieski/Associated Press)
Smoke a joint, get caught by police and then...get a ticket? The Conservative government has confirmed it is currently working on legislation to change Canada’s laws on possession of small amounts of marijuana, which could make it a ticketed offence rather than one resulting in a criminal charge.

This comes after Canada’s police chiefs voted in favour of a resolution outlining the same proposal at a meeting last August. This would not be decriminalization or legalization of marijuana, said Justice Minister Peter MacKay, but would provide police with an additional enforcement measure.
 The Canadian Association of Chiefs of Police said under the "current legislation, the only enforcement option for police when confronted with simple possession of cannabis is either to caution the offender or lay formal charges, resulting in a lengthy, difficult process which results, if the charge is proven, in a criminal conviction and criminal record." So what should Canadians know about about potential changes to marijuana legislation?
Here are five points to consider:

Simple possession

The ticketing system would likely apply only to simple possession of small amounts of marijuana – amounts under 30 grams. If caught, a person would get a ticket rather than getting arrested. The ticket would outline a fine or present a court option, in which the person could represent themselves or have legal counsel — much like a speeding ticket.

As the CACP resolution states, there “are instances when having an alternative to attending [criminal] court would be beneficial.” At the same time, it says "there are circumstances where a formal charge for simple possession is appropriate," such as getting caught with a joint while driving, or when individuals caught have existing criminal records. That means police officers still have the discretion to lay formal charges, especially when it involves possession of greater amounts of pot, trafficking and other offences.

In fact, the Conservative government toughened up laws on marijuana trafficking in 2012 with the Safe Streets and Communities Act. Among other things, the act legislated a mandatory minimum jail term of six months for growing as few as six pot plants, as well as a minimum of two years in prison for those caught trafficking near schools or areas frequented by those 18 and under.

Types of offences

The CACP has vocalized its support for a ticketing system, but University of Ottawa law professor Graham Mayeda said there are different ways the government could roll out new legislation without decriminalizing pot possession. He told CBC News the government could keep simple possession of marijuana as a criminal offence, under the Controlled Drugs and Substances Act, if they change the law only by reducing the penalty — a monetary fine rather than jail time, for instance.

Otherwise, the government could choose to make it a regulatory offence in a statute, such as a traffic violation under the Ontario Highway Traffic Act, which would not result in a criminal conviction.
Mayeda said to look at driving as an example.  Dangerous driving is a criminal offence under the Criminal Code, which could result in significant jail time if convicted. Careless driving, on the other hand, is a much less serious violation with a maximum of six months in jail.

At it stands, marijuana possession is indictable on the third offence under the Criminal Code. A guilty person can be jailed for up to five years. First- and second-timers are hit with summary conviction offences and could be fined up to $2,000, face up to a year in jail, or both.

A basic difference between indictable and summary conviction offences is that the former is serious, whereas the latter is considered minor. Under the Criminal Code, the maximum punishment for summary conviction offences is $5,000, six months in jail or both — unless the individual has had other charges before the law, in which case the punishment could be more severe.Examples of summary conviction offences are public nudity, traffic violations and disorderly conduct.

Criminal record — or not?

How the government chooses to carry out new legislation would affect whether or not Canadians caught with simple possession of marijuana would get a criminal record, said Mayeda.
If pot possession remains under the Criminal Code, then a person found guilty could still receive a criminal record. That means the person would be required to disclose it to employers and might have difficulty with going into and out of Canada, as well as other limitations that come part-and-parcel with having a criminal record.

If pot possession becomes a regulatory offence, then it may not appear on one's record and wouldn't necessarily require disclosure to employers. The persons or agencies who would be able to see one's offence record depends on a number of factors, including who charged the offender and what type of offence it is. One person's individual charges could be kept on a number of different government databases, depending on what they are.

There's also the question of whether or not one's record could be cleared of convictions.
Under Canada's Criminal Records Act, a person with an indictable offence has to wait 10 years before being able to apply for a "record suspension" (otherwise known as a pardon). A person with a summary conviction offence must wait five years.

It's also worth noting the RCMP shares criminal records information with other countries, whose authorities may register such information in their databanks.
According to the RCMP website, many foreign countries, including the U.S., "do not recognize a Canadian pardon" unless the person produces a copy for evaluation.

Think of open liquor

Along with the possibility that a ticketing system for marijuana possession could resemble the one currently in place for traffic violations, Justice Minister Peter MacKay mentioned it could be  “much like the treatment of open liquor” in public places, which is generally prohibited in Canada.
Liquor laws fall under provincial jurisdiction. In Ontario, for example, those caught drinking in public are given a ticket and slapped with a $125 fine. In British Columbia, it's a $230 fine.
A conviction for public drinking could appear on a person's provincial offence record. It will not necessarily restrict a person from travelling or seeking employment, but does remain in a provincial database for a number of years.

Where else?

Despite Canada's international reputation for progressive policies, the country is a few steps behind when it comes to marijuana reform.  In the United States, California changed their laws on simple possession of marijuana in 2010. It reduced the offence from a misdemeanour to an infraction, allowing offenders to avoid getting a criminal record. Those caught with amounts less than 28.5 grams would be given a fine of not more than $100.

Down under in the state of South Australia, possession of up to 100 grams of pot results in a penalty of $50 to $100. In the country's Northern Territory, adults caught with up to 50 grams of pot can be fined $200. Of course, the above examples are only of ticketing systems for marijuana.
America's Washington and Colorado states, as well as the entire country of Uruguay, have legalized cannabis use.

And to put it bluntly, that's something unlikely to happen in Canada any time soon.

Trinh Theresa | CBC

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