National Post (National Edition)
HARSH JUSTICE THE 18-YEAR-OLD PERMANENT RESIDENT WHO PASSES A JOINT TO HIS 17- OR 16-YEAR-OLD FRIEND COULD BE DETAINED, HE COULD BE INCARCERATED
FOURTEEN YEARS FOR SELLING POT TO YOUTH? LAWYERS SAY PUNISHMENTS UNDER LIBERAL POT BILL LUDICROUS
Under the Trudeau government’s pot bill, anyone who shares a joint with a kid brother could end up sharing a prison cell with a terrorist.
Bill C-45 would make the giving or selling of cannabis to any person under the age of 18 a new criminal offence punishable by up to 14 years in jail, a sentence in line with facilitating a terrorist activity, threatening to commit a nuclear offence, bribing a judge, child luring, recklessly discharging a firearm, aggravated assault, torture and human trafficking.
It’s one of several proposed punishments legal and social policy experts say are ludicrously harsh and disproportionately target youth—the very people Justin Trudeau says his marijuana legislation was designed to protect.
“Everything is going to be good once cannabis is legal? No, it’s not,” the University of Toronto’s Akwasi Owusu-bempah said at a recent conference at Mcgill University on the legalization of recreational weed. “The penalties for providing or trafficking cannabis to youth are going to be very strict,” he said, and where do most kids get their pot? Not from “dealers” lurking in school playgrounds or other scary images some Liberals have conjured. “They’re probably buying off their peers.”
Even former Ottawa Police Service chief and Conservative Sen. Vernon White implied the punishments around the youthful use of pot are weirdly jarring. White comes from Cape Breton. When he was 17 years old and wanted a six-pack of beer, his 21-year-old brother would buy it for him. The fine if caught was $54.
“But in this legislation, if my 21-year-old brother buys a 17-year-old 10 grams of cannabis, it’s up to 14 years in jail — a dramatic shift in this policy which I don’t think has been thought out,” White told the Mcgill crowd. “We’re trying to stop trafficking to youth, I understand that. But I think there’s a reality test that has to be put to this, too.”
The reality, many say, is that there is virtually no evidence harsh penalties de- crease the use or availability of pot to young people, and that what’s really behind it is the moralistic rhetoric of saving the kids.
“How did we justify the war on drugs for many decades? It’s to protect the kids. ‘Got to protect the kids, protect the kids!’ ” Ethan Nadelmann, founder of the Drug Policy Alliance and once described by Rolling Stone magazine as the most influential man behind the legalization of marijuana in America, said in Montreal.
“I understand why Trudeau needs to say that. But let’s not delude ourselves that somehow, by emphasizing the sort of criminal or hyper-regulatory elements of a cannabis legalization system that somehow we’re going to dramatically reduce the availability of marijuana to young people,” Nadelmann said. It hasn’t happened in the 40-year war on drugs in the U.S., and “I just don’t see it happening here.”
He and others also say the perils of pot are also being exaggerated and that most youth who smoke marijuana are nonetheless okay. “The vast majority of people who started using cannabis young — I was 18, but others who did it when they were 17, 16, 14 — you know what? They’re fine today!” Nadelmann said. “I mean, many of them I know are fellow professors and business people and successful adults.
“Let’s keep this stuff in perspective.”
In Ontario, for example, if someone sells or procures alcohol for a minor the maximum punishment is one year in jail. It’s also completely removed from the Criminal Code, meaning it doesn’t result in a criminal record “and some of the collateral conse- quences that can come with that,” said Ottawa criminal lawyer Michael Spratt.
In California, which legalized recreational marijuana this year, delivery of weed to a minor aged 14 to 17 remains a felony, punishable by three to five years in federal prison (if the person who delivered the pot was 18 or older). When procured for a youth under 14, the penalty rises to a maximum seven years.
Spratt said it’s wildly unlikely a court in Canada would impose anything close to the maximum 14-year prison term for selling marijuana to a minor. (Nadelmann isn’t so convinced, and worries some judges might “throw the book at somebody” depending on his or her own moral views.) However, the severe penalty not only has no foundation in case law, according to Spratt, it could also have serious immigration consequences for people who aren’t Canadian citizens.
Under the Harper government’s Faster Removal of Foreign Criminals Act, those charged with an offence punishable by 10 years or more in jail are subject to an automaticremoval order, even if they’re only fined or receive a suspended sentence.
Visible minorities in Canada are already disproportionately arrested, charged and prosecuted for pot, and Spratt said there’s no reason we should expect that to change with legalization. (Nowhere is the white privilege more apparent than in the war on drugs, the Mcgill conference heard repeatedly.)
What it comes down to is, “the 18-year-old permanent resident who passes a joint to his 17- or 16-year-old friend could be detained, he could be incarcerated,” under the Liberal cannabis bill, Spratt said. “Most likely he’ll be released with a condition, and then embark on a multi-year process of appealing that decision and fighting to stay in the only country he’s ever known, Canada.”
Under C-45 it is a crime for youth to possess more than five grams of pot or to traffic it to anyone. Full stop, Spratt said. there are no options for tickets (unlike adults, where police can use their discretion to issue tickets). Adults will be able to possess up to 30 grams.
Nowhere else in the Criminal Code is a youth criminalized for an act that is legal for an adult, Spratt said.
Driving or drinking underage are provincial, and not criminal code offences “because we’ve come to understand how important it is not to ensnare youth in the criminal justice system,” Spratt said.
The justification the government has offered is that criminal sanctions are needed to stop youth from possessing marijuana, which Spratt said discounts “the last 100 years of learned experience that complete criminalization hasn’t discouraged youth. It’s blind fancy to think partial criminalization will.”
The Senate’s social affairs committee passed an amendment in late May that could make its way into the final law. It adds to exceptions to the law against giving pot to minors. The changes would exempt someone who is 18 years of age or older “and less than two years older than the individual to whom they distribute the cannabis.” It would also protect a parent or guardian who gives pot to a chid who is at least 16 but only in their home.
The amendments, if passed, don’t completely eliminate Spratt’s concerns. There could still be situations where the proposed criminalization of pot “could lead to unjust outcomes," he said. “But it does make a very poorly drafted section of the bill better.”
He insisted that the best way to protect young people is through education and harm reduction, not onerous laws and arbitrary prison sentences that can have “monumental” lifelong consequences. For example, anyone travelling to the U.S. with a drug conviction would likely be turned away at the border. “On the other hand, I’ve got clients who have manslaughter convictions that make it through, no problem,” Spratt said.
Nadelmann said that as a parent, “I’m aware and care deeply around the issue of kids. When we hear the stuff about the dangers to the adolescent brain, I’m paying attention, I’m looking at that research.” The Canadian Paediatric Society, among others, has warned the human brain continues to develop into a person’s 20s and that the developing brain “is especially sensitive to the negative consequences of cannabis use.” Some studies have documented structural changes in the brains of youth who use marijuana regularly, and the heavier the use, the greater appear the risks.
But more than 100 million people in North America have reported using cannabis, Nadelmann noted. In U.S. jurisdictions with now open recreational pot markets, there appears little, if any increase in adolescent use. In Colorado, the first state to legalize recreational weed in 2014, pot use among teens aged 12 to 17 fell to its lowest level last year in a decade.
“We need to make sure that as this industry emerges that we’re being thoughtful about it,” Nadelmann said. “It means not being driven by the rhetoric.”
UNDER C-45 IT IS A CRIME FOR YOUTH TO POSSESS MORE THAN FIVE GRAMS OF POT OR TO TRAFFIC IT TO ANYONE. FULL STOP. THERE ARE NO OPTIONS FOR TICKETS — MICHAEL SPRATT, CRIMINAL LAWYER