Good morning. Thank you very much to the chair and to the committee for inviting the Criminal Lawyers' Association to speak this morning on this very important act.
I'm a former director of the Criminal Lawyers' Association, and I'm president of the Defence Counsel Association of Ottawa. I have been a practising criminal lawyer for almost 20 years, and am an adjunct professor at the University of Ottawa law school.
I'd like to say at the outset that the objectives and goals of this bill are laudable, those being the protection of public health and public safety by establishing strict product safety and product quality requirements and by reducing the burden that marijuana offences currently place on our criminal justice system. We know that Canada has high relative marijuana usage. We also know that there's a real likelihood that at some point young persons may experiment with marijuana. Given these two inescapable facts, it makes good sense to move toward removing the stigma associated with cannabis for Canadians.
Reading through this act, which is quite dense and detailed, one senses that while the act does eliminate many of the stigmatizing aspects of marijuana use, the drafters of the act still drew fairly heavily on the criminal law as a method to enforce regulation. In my view, it would be preferable to avoid reliance on the criminal law and criminal sanction as a method of ensuring compliance with what should be a largely regulatory piece of legislation for what should be a legal product.
We know from criminology experts like Professor Anthony Doob and Rosemary Gartner from the University of Toronto's centre for criminology and socio-legal studies that imprisonment does not deter crime any more effectively than less harsh sentences. What deters crime, we know definitively, is certainty of detection. We also know that persons who are sent to prison are not less likely to reoffend than similar people who manage to get a sentence not involving prison. Despite these findings, persons are sentenced to lengthy periods of incarceration because we are unable as a society to craft sentences that adequately reflect the seriousness of the behaviour.
We also know that children of parents who are imprisoned are more likely to end up running afoul of the law themselves. Other collateral effects of the imprisonment of a parent is the fact that children of these parents are more likely to become homeless and to live in poverty. Those are just a few of the collateral effects of the imposition of a criminal sentence and a jail sentence for possession or distribution of cannabis.
The use of the criminal law to enforce adherence to the regulations of the act also puts young persons at risk of a criminal charge. Even though it's under the YCJA, it can result in a period of closed custody. This has a serious and significant impact on a young person's life that we really need to think about seriously when we're talking about a product like marijuana, knowing that we want to discourage young people from experimenting with this drug, but knowing that in all likelihood some of them will. We want them to avoid the worst consequences of experimentation, that being drawn into the system.
As Mr. Levesque pointed out, there's an anomalous segment of the act in that an adult can actually be in possession of more dried marijuana than a child. This means that a child would actually be more vulnerable to a criminal sanction or to being caught up by the criminal law than an adult would. I suggest that this is somewhat anomalous, because an adult should be more morally culpable than a child. Even though it's clear that the act is trying to discourage children from possessing larger quantities of marijuana, making them more vulnerable to criminal sanction is not the way.
Another significant problem, in my view, exists in the structure of the ticketing provision of the act given that all discretion as to whether a person will be prosecuted under the Criminal Code or the Controlled Drugs and Substances Act, or merely given a ticket, is vested in the discretion of the police, with very few concrete guidelines in the act giving direction for how police should act, and similarly how prosecutors should exercise their discretion as to whether to proceed by indictment or whether to proceed summarily, which would result in a lesser consequence.
If the purpose of potential criminal sanction is to deter deviation from the act—in other words, to take away the black market, to eliminate organized crime, and to discourage people from acting outside of the act—a ticketing option where it's not known in advance to the public whether you'll be prosecuted under the Criminal Code criminally or whether you'll get a ticket means that the law will not be certain to people. The outcome will not be certain. That vagueness, or the uncertainty of the outcome, undermines the stated purpose of the ticketing provision and the use of the criminal law.
We want the law to be consistently known in order that it can be consistently followed. Vesting all of the discretion as to whether someone would get a ticket or a criminal prosecution with police, and without guidance, will result in an uneven exercise of discretion.
There's a great example in existing legislation under the YCJA today. That statute allows specific procedures relating to alternative measures for young persons. Subsection 6(1) of the YCJA directs police officers to consider whether alternative measures are appropriate. They can take no action, issue a warning or caution, or refer the young person to an appropriate program or agency. In my experience, however, reliance upon these pre-charge diversion programs varies from officer to officer. Some officers know of these provisions of the YCJA and offer them to young persons, but many do not, nor do they have any idea what criteria should be invoked to inform the decision whether to offer the diversion or not.
We can see, then, through a statute we already have, that leaving the discretion solely to the officer can result in an uneven application of the law. We also know that indigenous persons are traditionally overrepresented in the criminal justice system. An enforcement system that rests solely within the exercise of discretion, without guidance from the statute, will inevitably result in those who are traditionally overrepresented in the system continuing in that pattern.
There is also, and I believe Mr. Spratt touched on this yesterday, a potential scenario whereby an 18-year-old passing a joint to a younger teen could be exposed to a lengthy sentence as a result of providing marijuana to a young person. In relation to the factors relating to sentence, I would note that the sentencing provisions, which are set out in subclause 15(2), describe, as an aggravating factor, being “in or near any...public place usually frequented by young persons”. There's a similar term contained in the Controlled Drugs and Substances Act.
In my view, this is an overly broad term that is going to be subject to a potential section 7 challenge. In my dealings with prosecutors who deal with this under the CDSA, they are very reluctant to take it to court and defend a constitutional challenge. In my view it's going to be vulnerable to a challenge as being overly broad. A “public place where young persons might be” can constitute just about anywhere.
I would like to point out that subclause 15(4), however, is a provision allowing a judge to adjourn sentencing in order to allow an individual to seek rehabilitation prior to sentence. This is something our judges frequently do anyway, but having it codified in the act is an encouraging sign. It's a worthwhile provision, placing an emphasis in the act on rehabilitation.
In conclusion, I'd like to say that the act is a good step forward. It has many laudable objectives, not the least of which is the protection of public health, the protection of children, and the discouragement of organized crime in drug production and supply.
Resort to the criminal sanction for product that is subject to legislative regulation, however, is always going to present challenges in maintaining proportionality, especially when it exposes young persons to the threat of criminal proceedings.
It's also unclear what effect a conviction under the ticketing system will have on travel, particularly to the U.S., on police clearance sheets, and on employment, or whether it will be considered a prior drug offence for considering other offences. Canadians who choose to plead guilty by way of sending off a ticket in the mail should be aware of the potential collateral consequences that may arise.
Thank you very much.