Could marijuana decriminalization present an opportunity for better policy?



December 8, 2017

smoke-1162281_960_720by John Sikkema

Parliament is well on its way to legalizing marijuana. Bill C-45, the “Cannabis Act”, has passed in the House of Commons and is now in the Senate. It will likely be law early next year.

Our government acknowledges marijuana is harmful, particularly for young people. So it proposes to severely punish selling to a young person, while legalizing a recreational marijuana market. But if pot becomes more pervasive and easily available than it is today – as current investment in massive marijuana grow-ops suggests it will – it isn’t likely to stay out of young people’s hands.

It’s easy to be apathetic about this. Walk around a Canadian city for a while and there’s a good chance you’ll smell pot smoke, even though it’s illegal to possess it without a medical license. People are doing it anyway, the thinking goes, so why not regulate and tax it instead of prohibiting it?

We’ve been inundated with this kind of rhetoric: Our laws have failed. Prohibition doesn’t work. People are doing it anyway. Criminalizing it just makes the profits go to criminals. And so on. For years, leading publications like The Economist and The New York Times have been calling for legalization.

This narrative leaves out some important facts. First, prohibition hasn’t really been tried and found wanting in recent years. It’s been found cumbersome and left largely untried. Halifax’s Police Chief said, “Small seizures [of marijuana] are higher maintenance than public drinking. The person with the bottle of booze is given a ticket; the person with the joint requires three to four hours of police work,” he said. “If the case goes to court, and it’s a first-time offence, the case may be withdrawn.” The Montreal Gazette reported that it could not find anyone in the city who had been in prison for basic possession (under 30 grams).

As the Vancouver Police Department reportedly stated, “the VPD does not place a high investigative or enforcement priority on people for cannabis possession only. In fact, where charges are recommended, in the vast majority of cases the cannabis possession charge is one of usually several more serious offences involved in the same incident.” So, police avoid enforcing the law. Obvious incidents of possession are typically overlooked – which is why it’s so common to see and smell people smoking pot. And while there are still thousands of possession-related arrests in Canada each year, charges are not laid in most of them.

Marijuana use is growing as the law is flaunted. There are even a few stores that sell pot directly to customers who walk in without medical use licenses.

Now we’re on the cusp of national legalization. Finally, “freedom” is coming to Canada, but the latest CBC headlines heralding its near arrival are somewhat surprising:

It’s a bit of a contrast with some stories CBC was running in 2015. Like a puff piece on a guy convicted for illegally selling marijuana – he claimed it was for people with medical needs – who is now calling on the government to pardon him and others convicted of marijuana-related offences and to offer a public apology for prohibition. Or a story about how “Saskatchewan is the place you’re most likely to get busted for simple possession,” with a picture of a middle-aged man in a batman shirt holding a big bag of weed (the photo makes the case against legalization). His Saskatoon store is called “Skunk Funk”. He’s not in jail.

In my view, the government is taking the wrong direction. It should be trying to find simpler ways to suppress marijuana use. Legalization and government distribution will achieve the opposite.

The former Conservative government may have missed an opportunity here. Instead of enacting mandatory minimum sentences for offences like marijuana possession (an offence which is hardly enforced), they could have moved to a system of fines, strictly enforced. Locking someone up for possessing marijuana (which is almost never done because police, prosecutors, and judges are opposed) is very expensive and, like pot smoking, liable to make them a worse citizen and less likely to get a job. Of course, a person is responsible for his choices. But there are better ways to punish non-violent offences than prison. Prisons are good for mainly one thing – separating dangerous persons from society.

Current laws are ineffective mainly because police, prosecutors, and judges don’t enforce the law. Obviously, much of that was outside the previous government’s control. But police did call for an alternative, as the CBC reports: “Two years ago, the Canadian Association of Chiefs of Police called for the option to write a ticket for simple possession, noting […] their only choice is to lay charges or turn a blind eye.” It just didn’t seem worth it to most police officers to lay charges and do the paperwork. It didn’t seem worth it to prosecutors to commence criminal proceedings. It didn’t seem worth it to judges to punish possessors. A fine was an option for first time offences, but this didn’t serve as much of a deterrent because it too was hardly used. It would require a criminal trial and result in a criminal record.

With marijuana use so common and complacency so ingrained in the criminal justice system, perhaps a simpler deterrent is needed. Perhaps federal legalization will create an opportunity for a wiser provincial government to suppress marijuana use by making it a provincial offense, like a traffic ticket. Simplify enforcement and generate revenue from fines. Don’t get provincial government involved in the sale and distribution of cannabis – which would give young people more than a whiff of societal approval.

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