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37th PARLIAMENT, 2nd SESSION

Special Committee on the Non-medical Use of Drugs (Bill C-38)

EVIDENCE

CONTENTS

Wednesday, October 29, 2003

1535

The Chair (Ms. Paddy Torsney (Burlington, Lib.))

Mr. Paul Burstein (Director, Criminal Lawyers Association)

The Chair

Mr. Paul Burstein

1540

1545

1550

The Chair

Mr. Mark Lapowich (Member, Canadian Council of Criminal Defence Lawyers)

1555

The Chair

Mr. Kirk Tousaw (Policy Director, BC Civil Liberties Association)

1600

The Chair

Mr. Kirk Tousaw

1605

The Chair

Ms. Libby Davies (Vancouver East, NDP)

1610

Mr. Kirk Tousaw

Ms. Libby Davies

Mr. Paul Burstein

1615

Ms. Libby Davies

The Chair

Mr. Randy White (Langley—Abbotsford, Canadian Alliance)

Mr. Paul Burstein

Mr. Randy White

Mr. Paul Burstein

1620

Mr. Randy White

Mr. Paul Burstein

Mr. Randy White

Mr. Kirk Tousaw

Mr. Randy White

Mr. Kirk Tousaw

Mr. Randy White

Mr. Kirk Tousaw

1625

Mr. Randy White

Mr. Kirk Tousaw

Mr. Randy White

Mr. Kirk Tousaw

Mr. Paul Burstein

Mr. Randy White

Mr. Paul Burstein

Mr. Mark Lapowich

1630

Mr. Randy White

The Chair

Mr. Kirk Tousaw

The Chair

Mr. Dominic LeBlanc (Beauséjour—Petitcodiac, Lib.)

Mr. Paul Burstein

1635

The Chair

Mr. Mark Lapowich

Mr. Kirk Tousaw

Mr. Dominic LeBlanc

Mr. Kirk Tousaw

Mr. Dominic LeBlanc

1640

Mr. Paul Burstein

Mr. Dominic LeBlanc

Mr. Paul Burstein

The Chair

1645

Mr. Paul Burstein

The Chair

Mr. Paul Burstein

The Chair

Mr. Paul Burstein

The Chair

Mr. Mark Lapowich

1650

The Chair

Mr. Kirk Tousaw

The Chair

Mr. Paul Burstein

The Chair

Mr. Paul Burstein

1655

The Chair

Mr. Randy White

Mr. Kirk Tousaw

Mr. Randy White

Mr. Kirk Tousaw

Mr. Paul Burstein

Mr. Randy White

Mr. Paul Burstein

Mr. Randy White

Mr. Paul Burstein

Mr. Randy White

Mr. Paul Burstein

The Chair

Mr. Randy White

The Chair

Mr. Kirk Tousaw

The Chair

Mr. Mark Lapowich

The Chair

Mr. Paul Burstein

1700

Mr. Randy White

Mr. Kirk Tousaw

Mr. Paul Burstein

Mr. Mark Lapowich

Mr. Randy White

Mr. Paul Burstein

Mr. Randy White

The Chair

1705

Mr. Kirk Tousaw

The Chair

Mr. Kirk Tousaw

Mr. Paul Burstein

The Chair

Mr. Kirk Tousaw

The Chair

Mr. Kirk Tousaw

The Chair

Mr. Dominic LeBlanc

1710

Mr. Kirk Tousaw

The Chair

Mr. Paul Burstein

1715

Mr. Dominic LeBlanc

Mr. Paul Burstein

Mr. Mark Lapowich

Mr. Dominic LeBlanc

Mr. Mark Lapowich

Mr. Dominic LeBlanc

The Chair

Mr. Kirk Tousaw

Mr. Paul Burstein

The Chair

Mr. Paul Burstein

1720

Mr. Mark Lapowich

The Chair

CANADA

Special Committee on the Non-medical Use of Drugs (Bill C-38)

NUMBER 005

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, October 29, 2003

[Recorded by Electronic Apparatus]

¹ (1535)

[English]

The Chair (Ms. Paddy Torsney (Burlington, Lib.)): I call this meeting to order.

We are the Special Committee on the Non-medical Use of Drugs. We're studying Bill C-38.

We're very pleased to welcome as witnesses today, from the B.C. Civil Liberties Association, Kirk Tousaw; Mark Lapowic, from the Canadian Council of Criminal Defence Lawyers; and from the Criminal Lawyers Association, Paul Burstein, director.

Gentlemen, have you decided who will go first?

Mr. Paul Burstein (Director, Criminal Lawyers Association): I will.

The Chair: Okay. Mr. Burstein.

Mr. Paul Burstein: Good afternoon, Madam Chair, and members of the committee.

I'm here today to speak on behalf of the Criminal Lawyers' Association on Bill C-38, which is the government's most recent effort, in its 30-year history of efforts, to soften the impact of the criminal prohibition on marijuana use.

As some of you may know, the Criminal Lawyers' Association represents criminal defence lawyers across Ontario. Although members of our organization practise primarily criminal defence work, some of our members do prosecution work for the federal government, including the prosecution of drug offences. Many former members of the Criminal Lawyers' Association are now judges in the courts of Ontario.

The Criminal Lawyers' Association has often had the privilege and pleasure of appearing before parliamentary committees such as this. The Criminal Lawyers' Association also regularly publishes a periodical that is widely read by academics, lawyers, and judges, including Supreme Court of Canada judges, all across Canada.

The CLA has appeared as an intervenor in many important cases at different levels of courts across Canada, including most recently R. v. J.P., which as you know is the Windsor case that effectively decriminalized marijuana possession in the province of Ontario from May to October of this year. I appeared on behalf of the CLA at both the Ontario Superior Court and Court of Appeal.

I also appear here, however, as a veteran of the war on drugs. For the past ten-plus years I have been defending people whose lives have been devastated, not by their use of marijuana, but rather by the use of the criminal law to try to prevent them from doing so.

In the short time I have I don't propose to recount the many sad stories of the people I have encountered in my battles, but suffice it to say they are in the hundreds. It is because of those sad stories that I've also spent the better part of the past ten years asking Canadian courts to decriminalize the simple possession of marijuana.

I have been involved in virtually every one of the cases that's referred to in the paper that was prepared by Mr. Lafrenière, of the parliamentary research branch, on Bill C-38. My involvement started first about ten years ago when I first met an individual by the name of Christopher Clay. He was a young London entrepreneur, a university graduate, and a very bright, articulate man. He came from a good home. He had opened his own store, with the benefit of Government of Canada grant money.

He wanted to change the law because he saw the devastating impact criminalizing the possession of marijuana was having on his colleagues and fellow Canadians. He went out of his way to get himself charged with simple possession of marijuana so he could launch a constitutional challenge--quite a brave young man.

In the course of developing the evidentiary record to support the constitutional challenge, I discovered that almost everything I had learned--and I use that term loosely--about marijuana while I was growing up on the Prairies was mostly myth. The trial judge in that case, who I believe at the time was a gentleman in his seventies--he has since retired, and I have had the pleasure of seeing him at conferences--expressed to me that he too was shocked and surprised to learn the true facts about marijuana.

For example, it would be of interest to this committee that he found, based on the evidence that was presented, that contrary to a very common misconception, there is powerful if not overwhelming evidence that countries that have decriminalized marijuana use have not experienced an increase in the use of marijuana. In fact, most likely to the contrary, there has been a decrease in use, and certainly a decrease in the use of hard drugs by young persons.

Indeed, despite the decriminalization that existed in this province from May to October of this year as a result of the J.P. decision, you should note that no Ontario police chief has complained that their decision to not enforce the criminal law during that period of time has somehow wreaked havoc on our society. There has been no looting and pillaging on the streets. There has been no corresponding increase in drug use over that time.

¹ (1540)

I urge you to look very carefully at the findings of Justice McCart in the Clay case, as well as the other courts that have considered the issue of marijuana decriminalization. You will see that the evidence overwhelmingly shows that the vast majority of marijuana users cause no harm to themselves or others. That is the position supported by the government's own expert, whom they presented to those courts. Dr. Kalant, one of the leading authorities in Canada on the psychopharmacological harm of cannabis, testified there was no harm associated with occasional moderate use of marijuana.

This means that at present we are criminalizing 95% of marijuana users--the proportion who do not use it on a regular or daily basis, and who are causing no harm to themselves--simply because we want to protect against the potential harm to a very small minority, about 5%, who may suffer some harm.

It's in light of the findings of those courts, and the committees and commissions that have studied this issue, that the Criminal Lawyers' Association takes the position that it is wrong to use the criminal law--and I emphasize criminal law--to attempt to prevent the use of marijuana. It is unnecessary, it is unfair, it is ineffective, and I suppose to put it bluntly, it is in my view unCanadian.

I have also represented, I should note, many of the medical marijuana litigants in the cases that are referred to in Mr. Lafrenière's paper. While Canada may be leading the world in its legislative approach to medical marijuana, it is part of a shrinking community of nations that choose to maintain some form of criminal prohibition on marijuana use. A list of those is found in the paper; however, in the near future you should take note that you will have to add to that list both England and France. They are proposing to very shortly decriminalize the use of marijuana, either legislatively or administratively. Soon Canada will be left standing alone next to the United States. That is not where we should be standing on this issue.

Unfortunately, Bill C-38 does little to move us away from the disproportionate impact of relying upon the criminal law to deter marijuana use. All this bill really does is help prevent marijuana users from going to jail, but that is not the problem with the current criminal prohibition on marijuana. I know that because the Attorney General of Canada's lawyers have been telling me that for the past eight years I've been litigating this issue. They say to the courts, “No one goes to jail for marijuana possession, therefore you shouldn't worry about the infringement on the liberty interest, because it doesn't really occur”.

If it's not an issue of going to jail, Bill C-38 does nothing to rectify the problem. The real problems with the criminal prohibition on marijuana are the collateral consequences of using the criminal law to enforce the prohibition. First, the fact that a first-time occasional pot smoker can have his or her home invaded, and can be thrown to the ground, handcuffed, and dragged off to the police station is simply wrong. That can still happen under the Contraventions Act, make no mistake. All the powers of arrest and search are still available to the police.

The second problem is the fact that the official police record created as a result of the marijuana smoker being charged, let alone convicted, will adversely affect their future travel, employment, and education. While Bill C-38 purports to depenalize marijuana possession, it fails miserably. It fails to ignore the fact that the process is often the punishment, and it also fails to account for the fact that the most significant part of the punishment is the stigma of being labelled a cannabis criminal.

The most important defect in Bill C-38 is that it does not remove the stigma. There is almost universal agreement among critics of this bill that the criminal law causes a disproportionate impact on marijuana users. Indeed, there are 600,000 Canadians, if not more, who already have the stigma of being labelled criminals due to their previous use of marijuana. This bill does nothing to help them.

¹ (1545)

Moving marijuana possession to the Contraventions Act does nothing to remove the stigma of a criminal record, because the Contraventions Act itself does nothing in that regard. Let me just explain this briefly in the few minutes I have.

Section 63 of the Contraventions Act, which purports to address the problem of criminal records, falls short of the mark. It says two things: first, that a contravention conviction is not a criminal conviction; and second, that a contravention does not amount to an offence under the Criminal Records Act.

That's fine, but the problem is the Criminal Records Act does not define what a criminal record or a record is. More importantly, there's nothing in the Criminal Records Act that prevents employers from asking potential employees about convictions that do not amount to offences under the Criminal Records Act. Nor does the Criminal Records Act restrict the operation of the RCMP's CPIC system, the automated criminal conviction records retrieval system. Police keep records of all convictions, whether they're summary offences or indictable offences.

Most police share this information with the RCMP, which loads it into CPIC even though it has a very loosely applied policy to only download information on fingerprintable offences. But the fact is that I have many clients, as do my colleagues, who have summary convictions for marijuana on their CPIC records. That information is then shared with the U.S. immigration authorities, as well as essentially anyone who can get access to CPIC.

Sadly, there's nothing in this current bill that prevents the sharing of information. If the bill is going to have any teeth in removing the stigma, it has to make sure that the records for the contraventions are treated as the intent of the bill would have them. That is, the records have to be kept separate; there have to be specific provisions that prevent the dissemination of the information; and most certainly, that information should never be given to the U.S. immigration authorities or to the private sector in Canada. Of course, there's nothing in the law that can govern what the U.S. immigration authorities do, and arguably perhaps what the private sector employers do.

Let me just conclude by saying this legislation is a poor excuse for decriminalization. It is at best a modest relaxation of the criminal prohibition. It does not address the primary concerns of either of the two parliamentary committees, or of any of the many committees and commissions that have sharply criticized continuing to use the criminal law to try to deter people from smoking marijuana.

Bill C-38 has a real potential to worsen the problem by widening the net of social control, as Australia has seen with its very similar expiation scheme. It also risks exaggerating the discriminatory manner in which marijuana possessors are caught up in the law.

Thank you very much.

¹ (1550)

The Chair: Thank you, Mr. Burstein.

Mr. Lapowich.

Mr. Mark Lapowich (Member, Canadian Council of Criminal Defence Lawyers): Thank you.

Good afternoon, Madam Chair, and members of the committee.

I'd like to start by saying that the Canadian Council of Criminal Defence Lawyers is grateful today for the opportunity to assist this committee in any way we can with Bill C-38 and cannabis reform in Canada. We are also grateful for the work of this committee, and specifically acknowledge the work of the chair.

As you may know, the CCCDL is a nation-wide organization representing approximately 2,000 criminal defence lawyers from all regions of the country. I'm here today on behalf of William Trudel, who is chair of the CCCDL. He sends his apologies that he could not be here today because of a family emergency, so you are stuck with me in his place.

What is clear here is that there are too many simple possession charges across our country, with no consistency whatsoever in how they are dealt with from small towns to large urban centres. Being a national organization, the CCCDL is concerned with this discrepancy. Counsel in places such as Nunavut, Saskatchewan, and other places with small towns indicate that individuals there are routinely charged criminally for very small amounts of marijuana, and discharges in these regions are not readily available. On the contrary, in many large cities such as Toronto and Vancouver, charges are not being laid at all, or if they are being laid it's to a lesser degree, with discharges being readily available for those individuals.

While the CCCDL applauds the attempts under the new legislation to address reform in a principled manner, and unify the approach to enforcement, our concern is that under this bill cannabis possession will remain illegal. It does remain illegal in Canada under the Controlled Drugs and Substances Act, regardless of whether or not it is proceeded with by ticket. But there are too many people in our country whose lives and economic futures are being crushed by prosecution and disparate sentences for simple possession. No doubt somewhere right now in Canada there are future members of Parliament who will see their lives, futures, hopes, and dreams shattered by our approach to cannabis possession in this country.

We must be honest and start from there. From that point of view the bill, in principle, must go ahead; that is the principled approach. What is wrong is the attempt to please lobbyists, such as the police and Mothers Against Drunk Driving, with tougher penalties. The police who are against this bill would like to retain the discretion to either ticket an individual or charge them criminally. Even under the bill, for simple possession between 15 grams and 30 grams, an officer has the discretion to either proceed by ticket under the Contraventions Act, or lay a criminal charge. This discretion and disparity contain the seeds of unfairness, and destroy the spirit of the legislation.

Another concern we have is that the reform is tied up with other promises, such as increased funding for drug education. However, there is no way this money will be available, and there is no way the provinces--many of whom are against this bill itself--will cooperate. It is our fear that the bill will become mired in controversy.

I don't have a lot to add to many of the comments that my associate, Mr. Burstein, mentioned on behalf of the Criminal Lawyers' Association. I'll just mention that some members of the CCCDL have clients with 20-year-old convictions for simple possession on their records. These are preventing them access to jobs and to the United States, where they do not recognize Canadian pardons. There are also individuals who are now in the process of being removed from the United States because of one conviction in Canada for the simple possession of marijuana.

It is our position that it's important to stop trying to please all stakeholders with the legislation, because we will end up pleasing none. We should return to a principled approach to reform, rather than falling back on a pragmatic approach. The simple possession of marijuana in this country should be decriminalized, and we should honestly move forward with cannabis reform.

Thank you very much.

¹ (1555)

The Chair: Thank you very much, Mr. Lapowich.

Mr. Tousaw.

Mr. Kirk Tousaw (Policy Director, BC Civil Liberties Association): Madam Chair, members of the committee, thank you on behalf of the British Columbia Civil Liberties Association, which is the oldest and most active civil liberties association in Canada. I thank you for the opportunity to present our views today. I also thank you as a citizen who is impacted by this prohibition, and who faces the threat of criminal sanction for his private activity that harms no one else.

It is not without a small sense of irony that I sit here and make a presentation on behalf of the BCCLA today. It was 34 years ago less one day that the BCCLA first presented its views to Parliament on the decriminalization or legalization of cannabis before the LeDain commission. That is a span of time that exceeds my lifetime.

The results of the LeDain commission are known to all. They recommended the repeal of the prohibition against personal use and possession of marijuana. Obviously, we are sitting here today three decades later having the same discussion about decriminalization that we had then, and I find that to be unfortunate. I find it to be unfortunate because in that 30-year span every major inquiry into this issue has come to essentially the same conclusion that the current scheme of prohibition, criminal sanction, and the use of the criminal law to control a social issue is inappropriate.

The most comprehensive and recent study came out of the Senate, and it's worth quoting their findings directly. They found that the continued prohibition of cannabis jeopardized the health and well-being of Canadians much more than did the substance itself or the regulated marketing of the substance. In addition, they believed that the continued criminalization of cannabis undermined the fundamental values set out in the Canadian Charter of Rights and Freedoms and confirmed in the history of a country based on diversity and tolerance. Those values, of course, are the values of freedom and autonomy that are central principles in a free and democratic society such as ours.

I note that in that span of time not a single commission, inquiry, or government study has recommended that we keep the current system in place. So I'm disappointed that the debate we're having today is on whether or not to reform the law as it stands. The debate here should be with the prohibitionists, who seek to justify the continuation of an unjust system that has been proven time and time again to offend fundamental values and to be ineffective in achieving its goals.

Freedom and autonomy are central values in Canadian society. The criminal law ought to be restricted to preventing harm to others or to society. I note that the submission of my colleague, Mr.Burstein, is quite factually accurate. The vast majority of cannabis users--and some argue all cannabis users--do no harm to themselves or others. But even accepting that cannabis use may be harmful to some, in a society that values freedom and the autonomous ability of people to make decisions about their own bodies, the amount of harm they do to themselves is almost an irrelevant consideration. The criminal law should not be used to prevent harm to oneself. It is simply an inappropriate tool for that goal. No prohibition should cause more harm than the activity it prevents. It is very clear that the prohibition of cannabis causes significantly greater harm to society than the use of cannabis ever has or ever will.

When I woke up this morning in my hotel room I began to read the newspaper, and interestingly, on the front page of the National Post was an article describing an RCMP report into organized crime. The RCMP concluded that the profits associated with the cannabis trade were such that violence and even murder were on the increase as a result. Now I think you could easily take the word profit and more accurately substitute prohibition for it, because after all, without prohibition there is not enough profit to drive organized crime in this country.

º (1600)

If this committee and this Parliament want to end the ability of organized crime to fund itself in the marijuana trade, the answer is clear. Legalize the product, regulate the product, eliminate the black market, and eliminate the organized crime associated with the black market. It is shocking to me that we sit here today speaking about minor tweaks in the law that achieve nothing more than sentencing reform, when there is clearly a significant problem in Canadian society caused by prohibition itself.

I'd like to very briefly attempt to refute some of the typical objections to reform that are thrown out by prohibitionists. One of these is the myth that somehow the use of cannabis is a gateway to the use of harder drugs. That has been refuted over and over again in the scientific literature, yet it somehow manages to continue to have legs in the popular debate.

On this gateway myth, it's worth quoting from Professor Mitch Earleywine's book Understanding Marijuana, where he summarizes the results of literally hundreds of studies on cannabis, and I quote:

there is no evidence that cannabis creates physiological changes that increase the desire for drugs. The idea that marijuana causes subsequent drug use also appears unfounded...only a minority of marijuana smokers try cocaine, crack or heroin.

So the gateway myth is faulty, in terms of use of other drugs, but there is a true gateway effect. The gateway effect associated with cannabis is the fact that those who are forced by prohibition to go to the black market to obtain cannabis also more readily come into contact with other drugs. Holland recognized this many years ago by effectively legalizing the sale of cannabis in a coffee-shop system, and eliminating the mingling of the hard- and soft-drug markets. The result was a break between cannabis and hard-drug use. In 1999, the average age of a heroin addict in The Netherlands was 36, not younger as in other prohibitionist countries.

The Chair: May I just interrupt you? I understand that you submitted a proposal to us that we can't distribute because it's only in English, but you're already at seven minutes and we were asking for about ten. I think you have a lot of other things you probably want to get to, so the last three minutes and a bit are yours. You choose how to use them.

There will be time for questions and answers. You may want to highlight some.

Mr. Kirk Tousaw: Thank you very much.

Let's break the connection between the cannabis and hard-drug markets.

In addition, there's a concern about sending a message to youth when we reform the laws. I submit that the message we're currently sending to youth is already a bad one. It is a message of deception. It is a message of lies about the effects of cannabis. It is a message that says we are going to continue to persecute and prosecute people who do no harm to others, and that is an inappropriate message to be sending to Canadian youth.

The problem specific to Bill C-38, in the view of the BCCLA, is the net widening effect. It is clear from the experience in South Australia that one of the principal reasons that marijuana possession doesn't get prosecuted as heavily is because it's difficult for police to go through the arrest, the court--all the process associated with it. It's simply inconvenient. Writing a ticket is quite convenient, and in South Australia they had two and a half times more criminal justice contacts as a result of a ticketing scheme.

The bottom line is that no individual in Canadian society ought to be subjected to criminal sanctions as a result of the simple use and possession of cannabis.

Another significant flaw with Bill C-38 is the increased penalties at the upper end for cultivation, and the lack of an exception to the law for cultivation for personal use. People ought to be able to grow cannabis to use themselves or give to their friends for no profit.

The reality is that a 14-year maximum penalty for cultivating marijuana exceeds the penalty for financing terrorism, which is ten years. It exceeds the penalty for trafficking in illegal firearms, which is ten years. It exceeds the penalty for rape, which is ten years. This committee and this Parliament ought not to be sending the message to our youth that growing a plant is more morally repugnant than raping another human being. That is a significant problem with this piece of legislation.

At the end of the day, we need to focus on the reality that cannabis prohibition does more harm than good. The people who use cannabis are not criminals, and should not be treated as criminals and forced to come into contact with the criminal justice system. Bill C-38 is going to do more harm than good, because more people are going to end up in the criminal justice net than otherwise.

It is far past the time to talk about decriminalization. It is time for Canada to take the lead and move toward legalization. It is time for us to show particularly our neighbours to the south that their failed policies will not be emulated by us. It is time to show them that we're going to take a leadership role on this continent, as we did on the issue of slavery, as we did on the issue of women's right to vote, and as we have on social issues throughout our history. It is time for true reform. Unfortunately, this bill fails to achieve that.

Thank you.

º (1605)

The Chair: Thank you very much, Mr. Tousaw. I understand there has been some negotiating. Libby is going to take the first ten minutes, and then we'll go to Randy. That's very generous, Randy.

Ms. Libby Davies (Vancouver East, NDP): First of all, thank you to my colleague, Mr. White. As the official opposition member he would normally have the first set of questions, but I have to leave, so he's very kindly allowed me to go ahead. Thank you for that, Randy.

Thank you to the witnesses for coming here today. I think you made excellent presentations, and I generally agree with the analysis you've put forward. I certainly agree with you, Mr. Burstein, that the process is often the punishment. I think you've all illustrated that really well.

Last night we had a very interesting discussion in this room with the RCMP responsible for CPIC. We had the beginning of a discussion about how CPIC is used and how--as you have now pointed out as well--there are absolutely no assurances or provisions to ensure that information that's in CPIC, even if it's not on indictable or summary convictions, doesn't end up in U.S. hands and result in many Canadians being denied access to cross the border. So I think we have to do a lot of work on looking into that and trying to straighten out that mess.

There is a question I want to put to the three of you. Some may see this bill as a small step forward, and I think the government sort of advocates that position. Others, on both the prohibitionist side and the anti-prohibitionist side, see it as a step backwards. Some may even see it as a step sideways. Nevertheless, this is the bill we've got. It may not even get through Parliament, but let's assume for a moment that it does. We need to look at amendments to this bill, so I've got a couple of questions.

On the fines, I'm very skeptical about their purpose. Are they a deterrent? Are they simply a way for local police departments to make money? Is their purpose to give the illusion that we're enforcing the law? It's really not clear to me. But it seems to me we have to look at either eliminating fines in some respects or making them more relative to other aspects of the Criminal Code.

Second, on the criminal records, one thing the bill doesn't contain is any sort of amnesty provision for the 600,000 people who already have records. I've been questioning the department officials on this, so I wonder if you have any suggestions on how it could work.

Third, if we try to mitigate this bill in the area of personal cultivation, should it be done by the number of plants, the space you take up, or the end product? Anything you have to offer in that regard would be helpful.

º (1610)

Mr. Kirk Tousaw: I'll be happy to answer that question, and thank you for your support of reform throughout this process.

On the fines process, it's very unclear to me as well what the point is. It certainly can't be deterrence. We've seen that the current prohibition doesn't achieve deterrence, so a minor amount of sentencing reform isn't going to act as any further deterrence. It is conceivable that it's an ease-of-use process for police officers. It makes it very easy to write tickets, therefore it makes it easier to enforce criminal or quasi-criminal sanctions. My proposition for an amendment would be to eliminate any type of criminal sanction associated with possession of cannabis for personal use.

On an amnesty provision, that's a fundamental flaw in the bill. It ought to exist. Anyone who has been convicted of a cannabis offence ought to have that wiped off the record. We should very clearly tell the United States, “These people are not, in our view, criminals; and they should not, in your view, be considered criminals and denied the ability to travel.”

Third, on personal cultivation and the number of plants, that is incredibly problematic just based on the way cannabis grows. You don't know if you have a usable female plant until some time into the flowering process, so a cap on the number of plants isn't really going to achieve anything. This should be treated like investigations of other crimes. If you can assemble enough evidence that the cultivation, beyond a reasonable doubt, is for the purposes of profiting or trafficking, then it's a profiting or trafficking cultivation. If you can't achieve that evidentiary basis, then it's for personal use.

Certainly you can visualize a scheme where there'll be inferences drawn from the number of plants. If there are 2,000 or 3,000 plants, it's a safe bet to infer they're not for personal use. But under the present bill it is not a safe assumption to say that 28 or 30 plants are not for personal use. They could be seedlings. They could be 80% male. You could be growing them in a small space and attempting to only cultivate an ounce from each plant. So basing this on the number of plants is simply unworkable, in practical terms.

Ms. Libby Davies: Thank you.

Are there any other comments?

Mr. Paul Burstein: On the number of offenders who have records, I alluded to it briefly in my comments, and then realized that in the interest of time I probably shouldn't get into it.

I'm going to answer your question if I can, Ms. Davies, on the premise that this bill will go ahead. In other words, despite the fact that the CLA's position may be that it needs some wholesale amendments, I'm going to be practical and pragmatic and assume this is close to as good as it's going to get.

Assuming that in the process there will be some discretion vested in prosecutors to decide when something should be prosecuted by way of a contravention, as opposed to using the criminal law, I can see Parliament having some reservations about simply saying anybody who had a criminal record for possession of marijuana should automatically get a pardon. Presumably, someone's going to say, “How do we know it wasn't his 20th offence, or it wasn't 20 lbs.?” or whatever the case may be.

It seems to me there has to be an application process, but it shouldn't be set up under the pardons part of the act. A pardon is an anemic cure for a criminal conviction for marijuana possession. It does nothing with respect to travel to the U.S., and it's often almost as bad as the conviction itself, because the pardon just gets sort of slapped on top of the criminal record. So even though the person who gets the information can't see what's under the Liquid Paper, so to speak, they know there's something there. They're left to surmise how serious it is. In essence, you almost want them to know that it's only marijuana possession, as opposed to something more serious.

There should be an application process set up with some kind of commission, where a person can essentially bring the circumstances of the prior conviction to a crown prosecutor, or something like that, and they can make a decision whether to convert it to a contraventions offence, a contraventions conviction, or something like that.

On the fines process, I would echo Mr. Tousaw's comments and just bring to your attention some of the excellent research done by senior research scientist Patricia Erickson, from the Centre for Addiction and Mental Health--then it was called the Addiction Research Foundation. This evidence was presented in the Clay case, and it was quite remarkable. Her in-court studies of people charged with cannabis offences in the early 1980s showed that 92% of people who were facing criminal charges at the time admitted to continuing to use cannabis, marijuana. If that's not proof positive that the criminal law does nothing to deter use, I don't know what does.

On the fact that we want to blunt the impact and still have a fine, I don't know if that will accomplish anything, but it will have a disproportionate impact on the lower socio-economic classes. We're going to have debtors prisons. If you want to do something constructive, you should impose some kind of community service and make that some kind of presumption, especially for young offenders. That's been shown to be a much more useful form of punishment.

Last, on personal cultivation, I only ask the committee to remember the Supreme Court of Canada decision in R. v. Oakes in 1986. It was one of the very early charter cases. There used to be a presumption that if a person was found in possession of any narcotic, or a certain amount of narcotic, it was for the purpose of trafficking. It was struck down by the Supreme Court of Canada as a violation of the presumption of innocence in paragraph 11(d) of the charter, the reverse onus.

So for the reasons Mr. Tousaw very articulately pointed out, you're going to have a lot of problems when lawyers like me get their hands on this legislation and start challenging it in court.

º (1615)

Ms. Libby Davies: Thank you.

The Chair: Mr. White.

Mr. Randy White (Langley—Abbotsford, Canadian Alliance): There is no doubt that Canada faces a difficult situation, like most countries in the world today, with marijuana. I don't believe this legislation resolves much, to tell you the truth. From the conservative point of view in this country, many people like myself are wondering how to resolve this. It's not going to be legalized, at least not this time around, so is this bill satisfactory? Is it a change for the better, or does it actually make things worse? I happen to think it's going to make things worse, to tell you the truth.

I want to ask you some practical questions, Paul. Are all three of you lawyers? Okay, Mr. Tousaw isn't. I've had my days with lawyers too, I'm sure you know.

I asked this question yesterday, and I didn't feel I got a good answer. Let's just suggest that somebody gets picked up by a policeman on the street for having 18 joints on them. What penalty does that policeman apply?

Mr. Paul Burstein: Do you mean currently?

Mr. Randy White: No, I mean under this new law. What penalty does he apply? What does he do?

Mr. Paul Burstein: I agree with you in the sense that one of the problems with this legislation is that it vests the front-line police officers with too much discretion. That can create different problems. Let's assume full good faith on the part of the police officer--in other words, he wants to do the right thing. I don't know what there is in this legislation that would help him or her decide what to do.

Presumably, for the reasons Mr. Tousaw pointed out, the officer will have a very high suspicion that this is for the purpose of trafficking, or at least that there's reason to believe there's something wrong, because no user would carry around 18 joints. They might carry around a small baggy and then essentially prepare a marijuana cigarette, if and when the time came.

So that might, at a minimum, get them to proceed using the criminal process. That's why I was complaining about the process. That officer will have to arrest the person, bring them back to the station, and weigh the 18 marijuana cigarettes, because obviously they're going to say this is pretty close to the line.

This legislation doesn't do anything to get rid of the process as punishment. The person will still be handcuffed in the back of the police car, not because the police officer is meanspirited, but because it's standard procedure for anybody who's in the back of a police car to be handcuffed. It's for security reasons. It's very exceptional for someone riding in a cruiser to not be handcuffed. Not that I've experienced it before, but it's a fairly devastating thing. If you've never been confronted....

º (1620)

Mr. Randy White: So he issues a fine of $300 because he thinks that's over 15 grams. The person fined goes to a lawyer like yourself who says, “That wasn't over 15 grams, that was less than 15 grams. You've been charged too much.” So the discretion the police officer used on the street is likely to turn into a legal battle, is it not?

Mr. Paul Burstein: If it were my case, I would go to the prosecutor and make that point. They would ultimately have the discretion to turn it into a contravention.

For that particular point, the bill actually does quite well. It always reserves to the prosecution almost an ultimate appeal about whether it should proceed by way of a fine or criminal law.

Mr. Randy White: One notable marijuana advocate in Vancouver I had lunch with not too long ago said, “Well listen, just issue the fines. We're not going to pay the fines. We'll flood your courtrooms. You'll have to charge us all with criminal offences, and we'll tie everything up worse than it was before.” Would you suggest that is an idle threat, or is that a possibility?

Mr. Kirk Tousaw: I suggest that it's a real possibility. It's another difficulty with Bill C-38.

I want to touch on your initial point about the 18 joints, because I think there's a principled response to that as well as a practical response. The principled response is if we don't consider an individual possessing two joints to be posing a harm, how does that harm get magnified when that individual, for personal use, possesses 18, 25, or 50 joints? The reality is that the harm doesn't change, and this law punishes the user, it doesn't punish the substance.

In terms of a principled point, we don't think there is any difference between two joints, 18 joints, or 80 joints with respect to what the sanction ought, or more poignantly, ought not to be.

Mr. Randy White: Okay, I'm looking at the graduated punishment scale for growing. Bill C-38 provides for a graduated punishment based on the number of plants produced.The production of cannabis/marijuana from not more than three plants equals a summary conviction offence of $5,000, one year of imprisonment, or both.

Can you tell me if that refers to somebody with six plants that are three inches high; six plants that are three feet high--or six feet high? When we go into a courtroom on this one, what will the battle likely be?

Mr. Kirk Tousaw: I think the bill says that if you have three plants or less, x penalty applies; from three to 25, another penalty applies; from 25 to 50 another penalty applies; and for 50 and up, the penalty exceeds those for serious crimes that harm other people directly. So if you have three one-inch plants, conceivably under this bill that's three plants. If you have eight one-inch plant seedlings, that's eight plants. That's one of the problems with the bill; it frankly ignores the practical realities associated with growing cannabis.

Mr. Randy White: I suggest to you that whoever drafted it hasn't thought very much about the final implications of the bill itself in the real world.

I don't agree with your statement, Kirk, that if you legalize marijuana you would eliminate organized crime related to marijuana. Perhaps you would just for marijuana, but I think it would be kind of naive to think that organized crime would pack up their bags and say, “Let's leave town because they just legalized marijuana.” They'd say, “Let's sell something else and make more money.” Would you not agree with that?

Mr. Kirk Tousaw: I don't think they'd say that, because organized crime is already involved in the sale of anything they think they can make a profit from. My comment was that if you want to eliminate marijuana as a funding source for organized crime; if you want to eliminate the problems the RCMP highlights with increased violence associated with marijuana; if you want to eliminate the theft of electricity from hydro companies; if you want to eliminate the risk of fire and damage to homes, and mould in marijuana, then legalizing and regulating the product is the only answer. There is no other policy alternative that is going to achieve that goal--none.

Mandatory minimum sentencing will not achieve that goal. It didn't in the United States, and it never will. The demand for the product will remain. The people who supply the product for profit will remain in the business. There is not a single policy alternative, other than legalization and regulation, that will eliminate the black market and organized crime from the marijuana industry.

º (1625)

Mr. Randy White: From the marijuana industry--

Mr. Kirk Tousaw: Of course, that's what we're here talking about.

Mr. Randy White: But my comment to you is that it won't go away just because of the marijuana.

Mr. Kirk Tousaw: I agree. Organized crime won't go away if you eliminate it from the marijuana industry, but that is not a reason not to reform cannabis law. That is simply an inapt comparison.

Mr. Paul Burstein: The only thing I hear from clients that is a deterrent to marijuana use is that they have to get it from the black market. So to some extent I suppose decriminalizing cultivation may be the only thing the law will do to remove a deterrent. The law isn't the deterrent; it's the fact that they have to go to the black market.

Most people who are charged with cannabis offences are not part of organized crime. My practice specializes in cannabis offences, and I've had very few organized criminals charged with growing. Most cannabis offenders are very disorganized.

Mr. Randy White: I talked to you fellows earlier, and I'll make the suggestion here about the inconsistencies in the courtroom. Regardless of whether someone has a long history of selling, buying, or using drugs or not, any individual is inconsistently treated in courtrooms. They can get anywhere from a year the first time, and the next time around, for the same kind of thing, they might get a month, or a fine, and so forth. I'm concerned about the consistency or lack thereof in courtrooms.

I think two things are likely to happen here. With the grow-op business, where you've got 10 plants three inches high, and 20 plants two feet high, judges are going to start applying things differently. I also think that the inconsistency of judges will create yet another fervour in this whole debate about marijuana. In fact, I believe if somebody comes into a courtroom who has just been caught with 32 grams, we'll start another round of judges who say that for a two-gram difference they're not going to take this step over here; they're going to take a lighter step in their decision.

Am I accurate in that presumption?

Mr. Paul Burstein: It won't be up to the judge. If it's 32 grams and that's the evidence presented, the judge will have to act accordingly to the law. The discretion will rest with the prosecutor. There are good and bad things about the prosecutors having that kind of discretion. In some cases some prosecutors will look the other way, those two grams will magically disappear, and it will become 30 grams.

You're quite right, Mr. White. Whenever you have discretion, especially when it's applied to drug offences, you will always get discriminatory enforcement across the country between rural and urban, and between provinces. I think Mr. Tousaw and Mr. Lapowich also dealt with this point and may want to comment.

Mr. Mark Lapowich: As I said in my comments earlier, when there is discretion built into the bill, from both the officer's point of view and the crown's point of view, you have the potential for disparity across regions and across socio-economic factors. That is something we have to be concerned about. Somebody in a small town in Nunavut is going to be treated differently from a businessman in downtown Toronto when they're caught with the same amount of marijuana. That is a problem.

º (1630)

Mr. Randy White: My time is up. I'll just make this statement. I believe we're going to make you lawyers richer out of this whole exercise. This is going to be a field day for lawyers in the courtrooms, and it's going to tie up our courts.

The Chair: Mr. Tousaw, do you want to comment, not about tying up our courts, but on the other one--

Mr. Kirk Tousaw: You mean on the inconsistency. Judicial discretion in sentencing is a cornerstone of our legal system, and I think it's a good thing. The inconsistency I'm concerned about occurs much earlier in the process. It occurs with inconsistent enforcement of the law by police officers, either because of where you are; what's going on; the perceived danger of the activity; or the status of the defendant as either poor, marginalized, or of an ethnic minority. We know that these drug laws disproportionately impact the poor and visible minorities. That's one of the significant problems with a prohibitionary regime.

The Chair: Thank you.

Mr. LeBlanc.

Mr. Dominic LeBlanc (Beauséjour—Petitcodiac, Lib.): Thank you, Madam Chairman. Thank you, gentlemen, for your presentations. I'm sensitive and sympathetic to a lot of what you're advocating. One of the real difficulties with this whole question is public opinion. One of the challenges I have is to get re-elected. That's not a luxury you have, but I worry about that every day. I say that a bit facetiously. I went to law school in an urban area, and represent rural New Brunswick.

But there's a great deal of public confusion around terms. There are people who watch American television shows. People in my constituency and others still think there are grand juries in Canada. There's a massive amount of confusion brought on by interchangeable terms, by different jurisdictions using different terms. This is a televised session this afternoon. I think it would be useful for people to have some basic understanding in the public about the difference between the terms legalized and decriminalized. People use those terms interchangeably.

Mr. Burstein, in your work as a criminal defence lawyer, I thought you talked quite nicely about the criminal sanction, as did Mr. Tousaw. You referred to people not being subject to criminal sanctions and not being treated as criminals. But am I correct in understanding that under the Contraventions Act you would not be treated as a criminal? It would be the same as somebody who gets stopped for speeding and pays a ticket. We've all been stopped for speeding and we've all paid the fine. We don't think of ourselves as criminals. We broke the law, but there was no criminal sanction.

Can you try to explain to people, in layman's terms, the difference between decriminalized and getting a ticket, versus either a summary conviction or an indictable offence proceeding?

Mr. Paul Burstein: I'd like to read what the parliamentary research branch says, because I think their definition is clear, coherent, and very effective. I echo your comments about the confusion the public may have about the term decriminalization, which is actually addressed in this paper.

Of course, we should encourage members of the public to go to the parliamentary website to look at this paper. I strongly recommend it to the committee, but also to the public, because it does a fine job of analyzing the issues. It says:

Decriminalization concerns only criminal legislation, and does not mean that the legal system has no further jurisdiction of any kind in this regard;

So it's not as though the government can't do something to outlaw that behaviour. It goes on to say:

other non-criminal laws may regulate the behaviour or activity that has been decriminalized (civil or regulatory offences, etc.)

Examples are speeding tickets, careless driving, or some kind of occupational health and safety legislation. By contrast, legalization is a regulatory system that allows for the activities to be conducted--whether it's growing, possessing, or whatever the case may be--and simply regulates the circumstances in which those lawful activities can be conducted. In other words, you can't drink in public on the street, and you can't drink and drive. So that would be a legalized form of activity.

I suppose the public needs to bear in mind that's the difference between the two parliamentary committee reports. The Senate committee, of course, advocated for legalization--I guess I'm telling this committee what it already knows--while this committee essentially advocated for decriminalization in its pure form.

While philosophically I might support legalization for all the reasons Mr. Tousaw gave, at a practical level I don't think that can be sold to the Canadian public. But that's okay, because the first major step is just to get rid of the criminal sanction. That will be a marked improvement.

º (1635)

The Chair: Mr. Lapowich.

Mr. Mark Lapowich: I don't think I can add anything to that. I was looking at the notes I have on that, and Mr. Burstein covered the difference quite nicely.

Mr. Kirk Tousaw: I want to add a couple of things. I have to first disagree with Mr. Burstein and say that I think the Canadian public can support legalization and regulation of this industry if given the correct and truthful information instead of disinformation, which is unfortunately what gets propagated far too often on this issue,.

Indeed, a recent Decima Research poll suggested that 40% of the Canadian public supported legalization. They posed the question of decriminalization and legalization, and about 60% supported decriminalization, but 40% supported outright legalization. So I would say go back to your constituents and explain to them the harms that are being caused by prohibition, so they can get on a legalization bandwagon.

Mr. Dominic LeBlanc: I may be in the 40% that don't support either of those.

Mr. Kirk Tousaw: In that case I suspect they are unfortunately looking at information that is untrue, inaccurate, and inapt.

The problem with Bill C-38, the Contraventions Act, and the ticketing scheme is that not all provinces are parties to the Contraventions Act. My home province, British Columbia, isn't part of the Contraventions Act scheme, so for people in British Columbia, Bill C-38 doesn't decriminalize anything. It remains a summary conviction offence.

Quite frankly, this committee itself, in its conclusions, said we ought to focus on harm reduction as a core of our drug policy issues. Drugs are not criminal issues. They ought not be criminal issues; they should be health issues. The provinces ought to be allowed more latitude to deal with this themselves.

Mr. Dominic LeBlanc: I think you're right. It's a big country, and your home province is many thousands of kilometres and four time zones from where I live. Part of the challenge is to find a balance that the majority of Canadians will feel comfortable with.

I agree with Mr. Burstein that it's not a perfect bill; it's far from it. In a perfect world we'd have perhaps a whole different legislative structure governing many of these issues. I happen to think we may have a moment in history to make an important first step--modest but positive. That's my personal view, and that's how I've talked about it to skeptical audiences in my home province.

I think you're right there's a great deal of misinformation. Another area where there's a lot of misinformation--we talked about it last night--is with respect to criminal records. Everybody has horror stories about people trying to get across the border. They get turned back. As MPs we all get frantic calls from people trying to leave Toronto airport with their in-laws to get on some cruise. I had one call at Christmas time. It's humiliating to get kicked out at the border when you're with your mother-in-law and father-in-law who've invited you to go on a cruise.

There is a great deal of confusion surrounding that. Frankly, after the senior RCMP officers were here last night, I'm not sure I had any better understanding. They do what they do very well, and describe a whole series of different, complementary, and contradictory systems, but in the end nobody understands what any of it means.

From your experience, can you describe in layman's terms what a criminal record is? How does one get a criminal record? There are all kinds of nice questions you get asked. “Have you ever been found guilty of a criminal offence?” They don't even use the word “convicted”, so if you get a discharge you still have to answer yes. I'm perhaps getting technical, and that's part of the problem.

They talked about the CPIC system last night. At one point we were told that the CPIC system contained not only information that on this date you were convicted, but they have basically investigators' notes on the system. At one point they seemed to share that with other jurisdictions, and the other jurisdictions can turn people back and don't have to explain why. So I'm wondering if you can go through that process simply for us

On a final question, what is difficult and confusing is this business about all these Canadians who have criminal records, whatever that means, for simple possession. We were told in the previous life of this committee that many people have criminal convictions for possession of cannabis, but they're also accompanied by more serious charges. That may be a myth, but if you happen to be conducting an armed robbery and they find in your jean jacket some marijuana cigarettes, they may throw that in as part of the list of charges.

We were led to believe by some people that they never charge a person with just that offence. We were told last night they're charged with possession for the purposes of trafficking, and they plead guilty to a simply possession charge.

From your practical experience, how accurate is that?

º (1640)

Mr. Paul Burstein: Let me just say this. As I alluded to in my comments, one of the problems is there is no legislation or regulation that governs what the RCMP does with CPIC. They have policies that guide them, but it's not as though it's regulated in any way.

Typically, when there is disclosure of a criminal record in a criminal court, be it for a witness or an accused, you get a sheet that looks like a computer printout. Very often there's what we call above the line and below the line. There's essentially a line of asterisks, and below the line are things like acquittals and withdrawals. Here's how you get the disclosure. The prosecutor who has this page printed out will rip it in two and give you the part above the line. It's hardly reassuring that there aren't other people who are getting the part below the line, which is full of acquittals and withdrawals. Those are charges that should never be on CPIC. We're talking about historical withdrawals, historical acquittals.

So if there's no system or law that says those have to be deleted, where's the comfort in believing that a summary conviction offence that shouldn't have been entered, an absolute discharge that is supposed to be deleted after a year, or a conditional discharge that is supposed to be deleted after three years has being deleted?

The problem is there's nothing in Bill C-38 that beefs up the record-keeping requirements or restrictions with respect to CPIC, the Criminal Records Act, the Contraventions Act, and things like that. There's really nothing that prevents the RCMP from supplying that information to U.S. customs and immigration.

My understanding of how it works is based in part on discussions with U.S. immigration lawyers on behalf of clients. If a Canadian gets to the U.S. border and they have had a charge, which often finds its way into CPIC, or even a summary conviction offence, if that information is in the CPIC computer and the Americans upload it into their computer, that's it. Forget it. It doesn't matter if you get a pardon and have it deleted from the Canadian computer. The Americans have that information forever and there is nothing.... As parliamentarians you have quite a bit of power, but unfortunately it ends at the 49th parallel.

Mr. Dominic LeBlanc: That guy missed his cruise.

Mr. Paul Burstein: My concern, and certainly the concern of criminal defence lawyers, is this. I want to make it clear my primary position is that this legislation is very faulty. But being practical and pragmatic only, if we're going to get stuck with this it needs to be improved to make sure the collateral consequences are decriminalized. That means making sure convictions under the Contraventions Act aren't treated by the Americans and private sector employers as though they were criminal convictions.

Mr. LeBlanc, there are many people out there, as in your constituency, who won't care if we label it a contravention, a criminal offence, or whatever. The fact is they will treat it as a criminal offence.

The Chair: Thank you.

If it's okay with you, I have a couple of questions.

I live in the real world too, and frankly, these guys caught with 32 grams and 25 joints are subject to more serious consequences, in the eyes of my constituents. But I'm concerned about the kid 20 years old who has one or two joints, is going to a party, and gets stopped by a police officer on the street. I'm concerned for two reasons. In some jurisdictions that kid will have it taken away and will think it's legal; but in the next jurisdiction that kid will get a criminal record. That's too harsh a punishment.

This committee went across the country. We talked to police officers in our own constituencies. We found out what was going on. They're frustrated that the courts don't punish, so they're not laying charges in some cases, or they're wasting time, or the punishment isn't enough, or whatever--they've got more serious fish to fry. But if we're going to have a law on the books, the same message must be going out.

I was at a high school graduation on Friday night. The parents didn't know that it was illegal to possess marijuana in Canada, and the kids certainly don't know that. So that 20-year-old walking down the street going to a party is now going to get a fine. There isn't going to be a debate about whether it was 30 grams or 16 grams. It's not going to be about being handcuffed in the back of the car. It's going to be a ticket; it's going to be administratively easy for the cop. That kid's going to get the message that marijuana is illegal in this country and you have to pay up, the same as if you drink in the street or do other things.

So with your 18 or 20 joints and your 32 grams, there's something else going on there. But like Dominic, I am sick of having to deal with kids who can't go to the States for a job, or to university for a scholarship. It's unnecessary. On the other hand, all these kids are saying that the law's a joke. So we have to pick. It's not perfect, perhaps, but I think we need to get it straight now on that side.

On the other side, deal with the grow ops. My cops tell me there are 60 they could bust in my region alone right now. They're risks to my community. Randy was telling us last night there was one in his neighbourhood. It's a risk to his community, his neighbourhood, if that goes up in flames. So we should get serious on the grow ops.

Those are the two things this bill is trying to do. I hope you guys will tell us how to make it better. If you have specific amendments, we're all ears. As Dominic says, this is our opportunity.

It's nice, Mr. Tousaw, that you think we could move and convince that 40% of Canadians that legalization is the way to go. But it's not the world I live in. You can keep pushing water uphill. Maybe at some point Canadians will change their minds, but in the interim we have this opportunity where enough Canadians believe that the current laws are either too strong or not being applied properly, so let's move forward.

How do we fix the bill?

º (1645)

Mr. Paul Burstein: I again remind you that the 18- to 20-year-olds may get tickets, but that doesn't mean they're not going to suffer the consequences of not being able to go to the U.S., of being excluded from the University of Waterloo, or of Domtar not hiring them.

The Chair: How do we fix that part?

Mr. Paul Burstein: That's why I say you have to deal with the record-keeping. There have to be amendments to this that beef up the Criminal Records Act. You essentially have to tell the RCMP that the information they're keeping is public property. I don't mean it's for public dissemination; I mean that information is owned by the people of Canada, so the RCMP can't decide on their own what should be done with it. You have to make sure you regulate that.

For much the same pragmatic reasons that you're suggesting, I feel it's a bit of a sell-out on that score. I've made my pitch to the Supreme Court of Canada, and perhaps that's where we'll see major reform, although some of us may be skeptical. We have an opportunity to make it better. I recognize that, but this doesn't do it for the reasons I said. You have to focus on the record-keeping.

Quite frankly, the paper by--

The Chair: Do you mean the one on www.parl.gc.ca?

Mr. Paul Burstein: That's right. The paper prepared by Mr. Lafrenière deals with this quite well. We don't have the time for me to walk you through it and connect all the dots, but you just need someone to sit down and pull out the Criminal Records Act, the Contraventions Act, and Bill C-38, and make sure you tighten them up so someone who gets a ticket isn't going to show up at the border and have the U.S. officials say, “We have it on our computer here, so....”

The Chair: Okay.

Mr. Mark Lapowich: On the problem with the ticketing offence, quite often we have a client ask, “Am I going to end up with a criminal record if I plead guilty and get a discharge?” You're going to add one more layer. You have discharges, peace bonds, and now you have tickets. The hardest question for counsel to answer is whether someone will have a criminal record. You have to be very careful to tell them there are distinctions now between a conviction and a finding of guilt, and neither of these distinctions is recognized, as I understand it, by the U.S.

So the kid who was caught with one joint at 18 years of age, went to university, now has a lucrative career, and has a wonderful job offer in U.S. dollars in the U.S. will be prevented from entering the U.S. because it isn't clear. You can't tell him that if he had a ticketed offence for one joint he's not going to get to the U.S. border, or even once inside the U.S. border, if they find out about it, they'll remove him as an unwanted person. That's the problem. It has to be fixed, because we can't tell our clients what it means to have a criminal record any more.

Our fear is that employers are becoming smarter. They're not asking whether you've been convicted of a criminal offence or found guilty; they're asking if you have ever been charged. You're going to have to disclose all of that and let them know what happened--whether you were acquitted, whether you got a ticket, whether it was peace bonded, whether the crown withdrew it for whatever reason--on compassionate grounds sometimes. So that's a real concern.

º (1650)

The Chair: Mr. Tousaw.

Mr. Kirk Tousaw: I will do my best to take off my principled hat and put on a practical hat, as you suggest, although I'm comfortable in the role of pushing the boulder up the hill.

This bill does not remove possession of marijuana from the Criminal Code, so practical point one is this bill should remove entirely the prohibition of possession of marijuana from the Criminal Code. In provinces that are not party to the Contraventions Act, such as British Columbia, this bill does not decriminalize the possession of marijuana in any way, shape, or form.

So the bill ought to say that possession of under 30 grams--or whatever the number--of marijuana is not a crime. It is being removed entirely from the Criminal Code. Then you need to craft a piece of legislation akin to the Contraventions Act that governs the system. The bill needs to say very clearly that if you're ticketed for the possession of marijuana, that will not be captured in the CPIC database--or the PROS database for that matter, because there's another RCMP database out there that we haven't even talked about. Those are two practical suggestions to deal with the one problem you've raised.

The other problem you talked about was cultivation. I have to put my principled hat back on right now, because raising the penalties for cultivating marijuana is not going to stop grow ops from happening, period. I cannot believe anyone sitting in this room actually believes that if we increase the enforcement or the penalty for cultivating marijuana, people are going to stop growing it. That is ludicrous. It's belied by the experience across the world.

The only way you're going to protect your neighbourhood from dangerous grow operations is to engage in true reform, which is the legalization of the industry. Punishing harder doesn't work. It's never worked in Canada; it doesn't work in the United States; and it doesn't work in countries where they kill you for growing marijuana. People still grow marijuana. So if you want to protect your neighbourhoods, this committee and Parliament in general need to show true leadership on this issue, and go ahead and suggest some real reform. That's the principled hat talking--and the boulder will then roll down upon me.

The Chair: Mr. Burstein.

Mr. Paul Burstein: Mr. White made the point that this bill is just going to create lots of work for lawyers. I just want to make one thing clear. I would like nothing more than to get out of the business of defending people charged with cannabis offences. My dream is to never have another person come into my office and say, “I need your help because I've been charged with a cannabis offence.”

So maybe as a guideline, ask yourselves when you get the end product whether there is still going to be a reason for someone charged with marijuana possession as a ticketable offence--leave aside the cultivation; that's not what I'm speaking to--to feel compelled to go to a lawyer's office and hire a lawyer. If there is, you haven't finished your work; you've got some more work to do. If you can say they're not going to need a lawyer, and they're going to deal with it like a speeding ticket, or whatever, then you've come pretty close to getting to the end of that first step.

The Chair: If they're caught drinking beer on the street and given tickets, are those loaded into the CPIC system?

Mr. Paul Burstein: That's a provincial offence. Any federal regulatory offence generally...but it really depends. In other words, there's nothing preventing it from getting there. It's a question of whether, practically speaking, it would ever get there. Very few police officers are going to bother taking the time to make sure the information gets there. I think that's the reality.

º (1655)

The Chair: Okay, thank you.

Mr. White.

Mr. Randy White: I give Kirk credit; at least he's consistent. He's not going to budge off that legalization decision.

Mr. Kirk Tousaw: It's the right way to go.

Mr. Randy White: It may be the right way to go in your mind, but it's not going to happen. You may not like that, but that's just the way it's going to be.

What is minor possession? Is it zero to 30 grams? Is that something any one of you would accept as minor possession?

Mr. Kirk Tousaw: If I put the practical hat back on, under 30 grams strikes me as an appropriate place to draw a dividing line, if a dividing line needs to be drawn.

Mr. Paul Burstein: I agree with Mr. Tousaw, if a dividing line needs to be drawn at all. Typically right now the prosecution has no problem proving if something is for the purpose of trafficking, based on the circumstantial evidence. But for ease of enforcement there has to be something to divide the ticketable offences from those with which you're going to use a difference regime.

That has worked in California for the last several decades. We've always called it the magic ounce. For a long time in California they hadn't decriminalized cultivation, even though they had decriminalized possession. They called it the magic ounce because there was the question of where the person got it from. It just materialized out of nowhere. An ounce is 28 grams, so 30 grams seems to be close to a reasonable mark.

Mr. Randy White: I keep hearing stories about somebody having two joints on them--two or five grams--getting a criminal conviction. Is that actually a fact? How many people get criminal convictions in a year in Canada for possession of zero to 30 grams? Do you know?

Mr. Paul Burstein: Lots.

Mr. Randy White: Do you have the facts?

Mr. Paul Burstein: I'm being dead serious. I can tell you that outside the city of Toronto and maybe places like Brampton, which is also where I practice, in smaller jurisdictions like Oshawa, Barrie, and certainly anywhere east or west of that, I have lots of clients who are faced with fines or probation, which of course results in criminal conviction. But even an absolute discharge or a conditional discharge is still problematic, because it gets loaded into CPIC.

I have to tell clients, especially for conditional discharges, they should know that any penalized offence will exclude them from the U.S. An absolute discharge will allow them into the United States, but a conditional discharge will not, because they treat the probation part of the conditional discharge as a penalty, which then becomes a crime of moral turpitude, or whatever their terminology is. So there are lots of people who suffer serious consequences as a result.

Mr. Randy White: Do you know how many there are? Is there some kind of database?

Mr. Paul Burstein: Mr. White, there isn't one because in 1985 Heath Canada, in conjunction with the Department of Justice, made the deliberate choice to stop keeping that information, because in years previous they apparently were embarrassed by the statistics that until about 1985, about 2,000 people a year were still being incarcerated for simple possession of marijuana. So the fault of there being no data unfortunately rests with the government and those two departments, not with the people who are complaining about the effects of criminalization.

The Chair: Maybe that's the data we're getting.

Mr. Randy White: Okay.

I'm wondering if you three could make a judgment call. Is this bill worse than the status quo today, or is it better?

The Chair: Mr. Tousaw.

Mr. Kirk Tousaw: It's worse. The net widening effect itself entangles more people in the criminal justice system pointlessly and needlessly.

The Chair: Mr. Lapowich.

Mr. Mark Lapowich: I have to say it's worse.

The Chair: Mr. Burstein.

Mr. Paul Burstein: Right now it's sideways, and it has the very serious potential of being worse for all the reasons we've identified. With some effort it could be made a little bit better than the current situation, because it would at least reduce some of the criminal convictions.

But to be honest with you, my fear is that for the reason Mr. Tousaw has identified--the net widening effect--it will result in a net increase in the number of criminal convictions out there, but it will still alleviate the very serious consequences for a lot of people. So I can't ignore the benefit to those people in saying whether I think it's better, but you have a lot more work to do before it gets there.

» (1700)

Mr. Randy White: I want to summarize what I've understood you to say about exactly what you want to see changed here. Tell me if I've missed something, and if there is something else let us know.

I think there are three things you want to see. First is deal with the record-keeping--wrecking-keeping is probably the same thing. If ticketed, don't go to CPIC and that sort of thing. So we'll say the records are one of your concerns.

Second is to remove possession of marijuana from the Criminal Code.

Third is don't raise the penalties for the grow ops.

Have I summarized your three biggest concerns? Are there any more?

Mr. Kirk Tousaw: I would add that there needs to be an exception for personal cultivation, so you're not forcing users, whose use and possession have been decriminalized, to seek out the black market in order to obtain the cannabis they want to use.

Mr. Paul Burstein: You also need to come up with some kind of dividing line that makes it presumptively improper for a police officer to use the powers of arrest when a person is found in possession of a small enough amount. That is, it can't be left to the discretion of the peace officer whether or not to arrest someone for possession of a joint or two. It has to be presumptively improper. In other words, you have to essentially deter the powers of arrest in those circumstances. That's very important.

Mr. Mark Lapowich: Perhaps this comes under the records heading, but there's the issue of addressing an amnesty to deal with the people in Canada who have convictions on their records, whether they are two years old, five years old, or in some cases with our clients, 20 and 30 years old.

Mr. Randy White: Is there anything in this draft legislation that adversely affects the issue of medicinal marijuana?

Mr. Paul Burstein: Do we have a couple of days?

I don't think so. While I've lodged my constitutional complaints about the current regime in other forums, the fact of the matter is the Government of Canada has had to legislate and regulate in the area of medical marijuana because we still have a criminal prohibition on marijuana. There is medical marijuana in Holland and many of the other countries. They don't have to worry about it because decriminalization automatically accounts for the need for some people to use marijuana medically.

There is some discussion in the parliamentary research branch paper about the potential consequences. Really the only potential consequences are in terms of getting access to the product, what Mr. Tousaw has alluded to, the effects on growers, and the fact that it will only perpetuate the black market by increasing the penalties.

I hope this committee has the recent Ontario Court of Appeal decision in Hitzig v. Canada. One of the things that the Court of Appeal said in that case was that the government's marijuana medical access regulations were constitutionally deficient because they didn't allow for private individuals to be contracted to grow for medical users.

While I don't know whether this legislation will cause a problem, you might get a bit of inconsistency in terms of the messages that the government is sending out. The Court of Appeal suggests it's going to be permissible for me, as an authorized medical user, to hire somebody to grow a small amount of cannabis for my use. If you're concerned about messages or the potential risks of grow operations, it's going to be sort of confusing to the public, for the reasons Mr. LeBlanc gave. How are they going to know whether someone is growing cannabis in their house for medical reasons or not? You just may want to have regard for what they said in that case, but other than that I don't think it's an issue.

Mr. Randy White: Thank you.

The Chair: Thanks, Mr. White.

On that point, this committee recommended that you be allowed to have one to three plants. Your earlier point, Mr. Tousaw, about 18 to 20 plants doesn't work for my constituency. The suggestion that it be one to three plants was actually given to me by a police officer in a conversation. He said that for the guy who on Saturday night has one joint and doesn't drink beer, or whatever, one to three plants would solve his problem, keep him away from organized crime, and really not affect anybody else.

Would anybody recommend that we amend the bill to allow for one to three plants?

» (1705)

Mr. Kirk Tousaw: I would say yes. I think you'd need to be cautious though and make it clear that it's one to three usable plants, because you could plant three seeds and get three male plants that were absolutely worthless for use. I'm not sure if you're familiar with cannabis botany, but it's a male/female species. The male doesn't grow the usable--

The Chair: Is it sort of like holly?

Mr. Kirk Tousaw: Yes. It doesn't grow the usable material, so you need female plants. But there probably ought to be some consideration for allowing one to three developed plants, post vegetative-stage plants. That way you could grow six seedlings and trim them down to the two or three females that result, once you've gone into the vegetative stage where the actual usable material begins to form on a plant.

Mr. Paul Burstein: I think Australia has that very provision in its legislation, so I echo Mr. Tousaw's comments. You may find some help by looking at the expiation scheme of the Australian states.

The Chair: In terms of liaison with organized crime, would that solve part of the problem?

Mr. Kirk Tousaw: If you give people the resource to grow it on their own, it's going to solve part of the problem with organized crime. Of course, it's not always easy to grow cannabis. It grows like a weed, but to grow good cannabis takes some careful gardening skills that some people just simply don't possess, or don't have the time to possess.

But it would be a step forward. If that provision were in this draft legislation, I would be much less reluctant to give some form of slight approval to the legislation.

The Chair: Lots of skating there.

Mr. Kirk Tousaw: Dodging the boulder.

The Chair: Yes, that's right. There's a little bit of a flood coming down that hill.

Mr. LeBlanc.

Mr. Dominic LeBlanc: It's not dodging the bolder, it's dodging the electorate.

I think Mr. Burstein talked about using the criminal power--maybe it was Mr. Lapowich--as a means to prevent or dissuade people from doing harm to themselves; that the criminal power is about our relationship with others and doing harm to others in society. I'm very sensitive to that argument. I think it's accurate.

The one difficulty I have in explaining this to a retired school teacher in rural New Brunswick is the message this sends to young people. That becomes the knee-jerk comment. As I said earlier, decriminalizing means legalizing. In my view, it didn't help the case that our colleagues in the Senate talked about selling cannabis in liquor stores. In terms of building some public understanding and support, that perhaps added some blue smoke to the issue, as opposed to clarity.

I'd be curious to hear your reaction to this. I think we all accept that an informed adult can decide to do things that may be harmful to his or her body--smoking, drinking, overeating, suntanning--and these things aren't illegal. So the criminal sanction, by your own examples, certainly hasn't stopped people from using cannabis.

But I'm sensitive to the young person in high school in his or her early teens. The young people I know say that before they even get to high school there's pressure to try marijuana. I worry that the discussion about decriminalizing, legalizing, and so on allows people to say we're sending the wrong message to youth.

I'm wondering if this is not a valid argument. It may have been Mr. Tousaw who talked about expanding the net. To use your argument--perhaps in a way you didn't want to--expanding the net may tell that retired school teacher in my constituency that the 16-year-old person who is picked up with a joint in his or her jean jacket is probably not going to get charged now, period. However, if there were some kind of a ticketing system--and maybe we're into the whole question of age, and so on--would it not allow police officers to apply the law more uniformly, more consistently? Is not the argument we can give to people who think we're sending the wrong message that we're allowing young people to understand that it is illegal; it's not criminal, but it's not a legal substance to possess or to consume?

Last night the RCMP talked about police discretion in the common law. They kept talking about the common-law right or the privilege of police discretion. I may have been away that day at law school, but I don't remember what that is. Maybe I didn't do the reading or it wasn't in the head notes. I wonder if somebody can tell me what is the common-law right of police discretion. They kept using that as something that was well established, and I'm not sure I understood what they meant.

Those are my two questions.

Thank you, Madam Chair.

» (1710)

Mr. Kirk Tousaw: I'd like to speak to the first question on sending the wrong message. What happens now is youth are told about these grievous harms associated with cannabis use. Those harms are exaggerated and untrue. So the message we're sending to youth--who are going to try cannabis irrespective of the message they're getting--is that it's okay to lie to them and deceive them about the true harms. When we incarcerate people for activity that harms no one but themselves, we send a message that freedom and personal autonomy are of secondary importance to waging a pointless and ineffective war against a plant. So we're already sending the wrong message.

If we go ahead and tell people we're going to engage in some reform here, we're going to go ahead and respect the decisions made by adults about their own bodies, it tells our youth that we value decision-making and autonomy. We're telling them that we're unafraid to risk our neighbours' displeasure when we disagree with their failed and counterproductive policies; that unjust laws can be changed with true leadership; and persecution of a group of people as a result of a private activity that causes no harm is unacceptable in a society that values freedom. So I think true reform sends a very positive message to our youth.

I was talking about this with one of our audience members here earlier today and he said, “Hate the sin, love the sinner.” So we tell our youth we don't want them to try cannabis until they're adults, and maybe not even then because there are potentially some health-associated facts. In the meantime, we're not going to label them criminals if they go ahead and cross over that line. We're not going to ruin their lives and stigmatize them.

There's a segment of our youth that's going to try cannabis because it's illegal, because it's the forbidden fruit. It's a pretty large segment when you consider that right now, when we look at our youth statistics, somewhere between 60% and 80% of teenagers have tried cannabis. Let's send the message that these aren't bad people; they're just people who we would prefer waited until they were adults to make those kinds of important decisions about their own lives.

The Chair: Thank you.

Mr. Paul Burstein: You say criminalizing cannabis won't help get the message to youth, but if anything it deters it for two reasons. If I'm a school teacher and I want to connect with my adolescent students, 13- or 14-year-olds, because it's a criminal offence do you really think I'm going to tell my students I tried smoking marijuana when I was a teenager? I would lose my job the next day. If all of a sudden it became a contraventions offence, it would be a lot less stigmatizing for people to talk about their past. That's the kind of message youths will listen to.

The other problem about the message of deception that Mr. Tousaw spoke of is it has a collateral consequence for hard drugs. Youths will experiment with cannabis no matter where you put this. You could make it life imprisonment and they would still try it. The fact of the matter is that adults tell them it's so harmful it should be criminalized, but when kids try it they may not like it but they don't keel over dead. In fact, they sort of find out what the experts are saying--that it's not that harmful. So if the same adult says they shouldn't try hard drugs because they're also very harmful, all of a sudden the young person, who has a very difficult time sorting through all this confusing data, says, “If they lied to me about that drug, they're probably lying to me about this drug too.” That's very dangerous.

You're talking about fines, but rather than getting them to pay fines--which in many cases mom and dad are going to pay, or in many cases mom and dad can't pay and therefore the young offender might risk going to jail--wouldn't it make more sense to send young people to education seminars where they could find out a bit more about cannabis and the fact that there are some consequences, like smoking is going to cause bronchial pulmonary dysfunction later on in life?

If it's a matter of cost, we do it right now for impaired drivers. I believe it's mandatory in this province, if you are a first-time offender, to go to the Missing You program, where they show gory footage of fatalities on the highways, and serious car accidents. Why not do it constructively with young people? I don't know the forum, but that would be a much better sanction for a young person.

So tell the retired school teacher that we can actually promote a better message and promote more trust between youth and adults by approaching it this way.

» (1715)

Mr. Dominic LeBlanc: On police discretion, very quickly....

Mr. Paul Burstein: I may have missed that lesson in law school too. I think all they're saying is that the courts have repeatedly held that it's okay to invest the police with the discretion of whether or not to lay a charge. Quite frankly, I don't know of any common-law rights that are possessed by the police. The police don't possess rights; they're state agents. They have obligations and powers. Certainly it is okay to empower the police to have discretion, but if the government decides that the police should not have discretion, it's not as though the police could launch a charter of action against the government for taking away their right.

So it's well settled in common law that the police should have the discretion, but it's not a question of something Parliament can't remove by legislation.

Mr. Mark Lapowich: I'm glad Mr. Burstein took that first. He turned to me and asked if I wanted to speak to it. I also missed that lesson about common-law discretion.

Mr. Dominic LeBlanc: If all three of us missed it perhaps it's not that simple, as they said last night.

Mr. Mark Lapowich Exactly. Perhaps they're just referring to their inherent discretion--especially in a case like this when they come across a youth with one joint--to decide not to lay a charge. The officer can decide to just seize that joint and give the kid a warning because there aren't other aggravating factors involved that may make that officer decide the charge is necessary. He can let the kid off with a warning so he doesn't have to go through the physical process: the handcuffs, the courts, the hiring of us, and being taken before the criminal process.

Mr. Dominic LeBlanc: Thank you.

The Chair: On that point, the police initially seemed to support concepts of the bill that the committee had recommended in December. Now they are saying they must have the ability to charge criminally for possession of from zero to 15 grams. Should we reinstitute the potential for them to do that, or should we keep it as it is?

Mr. Kirk Tousaw: You should absolutely not reinstitute that. I see no reason why the police need to have the discretion to charge people criminally for possession of under 15 grams of cannabis. It makes no sense at all to me to vest that discretion in them. If we're making a decision that this is not going to be criminal activity, then it's not criminal activity, period.

Mr. Paul Burstein: Their concerns, I anticipate, are for people who are repeat offenders, or who are close to the 15-gram mark and might be worthy of more serious sanction. That can all be addressed under the penalty provisions of the Contraventions Act.

In other words, if you want to give a judicial officer the discretion of what to do, I'm not advocating for this, but I'm simply saying you don't have to move it back into the Controlled Drugs and Substances Act. You can address that within the confines of sentencing under the Contraventions Act. It need not be any other way.

The Chair: I'm quite concerned that if you put it back you're going to have all these people being fingerprinted and dealt with, and you're not going to get the effect of decriminalizing possession of from zero to 15 grams. So can you give us some of your experience or guidance on that front?

Mr. Paul Burstein: Let me just say this. When this government changed Bill C-7 to Bill C-8 in May 1997 and created the Controlled Drugs and Substances Act, there was a provision that said a first offence should be treated summarily all the time. But people were still getting fingerprinted, because when the police have a power they will use it.

I don't mean to ascribe bad faith to them. I know lots of police officers and they're good friends of mine. But the fact is that as an institution they like gathering information about people because it helps them protect society. You can't blame them. As a citizen I'm glad they do that. On the other hand, for cannabis offenders they shouldn't be allowed to do it.

» (1720)

Mr. Mark Lapowich: That's true. When we move away from judicial discretion and crown discretion and put it at the level of the police, we move away from some of the laudable goals, such as uniformity of enforcement across the country. I hate to keep going back to this issue, but we will see the disparity in how the exact same offence for the exact same individuals will be treated differently, based on the discretion that will be vested in police officers.

The Chair: Thank you all very much.

As you know, this committee will be hearing witnesses over the next couple of weeks. If there are specific amendments that you want to suggest to us, other bits of testimony you want to react to, or you want to send us some more information, we will be very happy to receive that. If you send it to the clerk it will be distributed to everybody.

We certainly appreciate your coming here and giving us the benefit of your experience and ideas on very short notice.

We hope Mr. Trudel's child is better.

Take care.

The meeting is adjourned.