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"Decrim" won't apply in all provinces, say law experts

By: Reverend Damuzi, Source: Cannabis Culture Magazine, 07/02/03

Many of Canada's provinces aren't eligible for so-called 'decriminalization' under the proposed Bill C-38 because of the way the proposed law is written.

The problem is that Canada's feds can only implement non-criminal offenses using a piece of law passed in 1992 called the Contraventions Act. Many of the provinces have never agreed to the Contraventions Act, including British Columbia, Alberta, Saskatchewan, and Newfoundland. Renowned cannabis activist and lawyer, John Conroy, helped Cannabis Culture unravel the Machiavellian fine points.

"The provinces that disagreed," said Conroy, "did so because non-criminal offenses are supposed to be their jurisdiction, not the federal government's."

Rather than risk patchwork enforcement under the Contraventions Act, the feds wrote Bill C-38 -- which can't properly be called decriminalization -- as a change to the current drug law, the Controlled Drugs and Substances Act (CDSA). Under Bill C-38, Canada's cabinet can enact decriminalization in provinces that have signed into the Contraventions Act if the cabinet wishes. However, until Canada's cabinet does create regulations, there will be no decriminalization in any province, even if Bill C-38 passes.

A Health Canada press release dated in May revealed that the Canadian government is fully aware of the problems with the proposed law. The press release states that in provinces where the Contraventions Act isn't law, "the court system will continue to be used.

Even if the Canadian government passes Bill C-38, all the provinces sign into the Contraventions Act, and the cabinet passes decrim regulations in every province, Canadians everywhere could still be arrested for possessing under 15 grams, taken down to the station and face a day in court so said top Canadian cannabis-law professor Alan Young in a letter to the Marijuana Policy Project that explained why he wouldn't back Canada's proposed "decrim."

"In other words, in enforcing the law relating to possession under 15 grams [via the Contraventions Act] the investigating officer has the discretion whether to informally ticket or whether to formally arrest," wrote Young. "Upon a formal arrest, the offender is subject to search [which can include a strip search] and detention pending release. The trappings of the criminal process are alive and well. If the police employ a formal arrest power then the prosecution [in court] is commenced by the laying of an information, not the issuance of a ticket."

Furthermore, Young elucidated, Bill C-38 is unclear about how courts will handle possession of between 15 and 30 grams of cannabis. It seems that the bill allows prosecutors to choose between going for a Contraventions Act violation or a summary conviction -- summary conviction being how most marijuana offenses are handled today. It lets the prosecutor decide whether