Ottawa Lawyer Says Bill C-45 is Constitutionally Flawed

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An Ottawa defense attorney who testified at the Standing Committee on Health hearings this week has pointed out to MP’s some significant flaws in the legislation designed to legalize marijuana in Canada.

Michael Spratt from Abergel Goldstein & Partners LLP called out the government by saying their unwillingness to fully decriminalize pot will continue to exacerbate court costs and disproportionately harm youth and minorities.

He took the time to speak with Marijuana.com about his position.

(Marijuana.com) When you spoke in front of the Committee, what did you iterate to them?

There were four messages that I wanted to get across to the committee.

As a criminal lawyer, I have seen the incredible harms that marijuana criminalization inflicts upon our community. The stigmatization, the arrests, the imprisonment of individuals who are committing a relatively harmless activity, and that interference with personal choice.

We do know that the black market, criminal gangs, and violence follow prohibition. So I wanted to let the committee know that [the legislation]is a step in the right direction, but there are some serious flaws with this bill from a criminal law perspective.

What are those specific flaws in the bill?

The first flaw is that it leaves marijuana, in too many circumstances, under the control of the criminal code.

If you are an adult and possess [more than]30 grams in public, you are a criminal. If you are a youth who possesses 5 grams of marijuana or more anyplace, you are a criminal. If you are an 18-year-old who passes a joint to a 17-year-old, you’re a criminal, and if you have more than 4 plants [at home]or one of those plants is 101 instead of 100 centimeters, you’re a criminal.

These are quite arbitrary distinctions. It leaves an opportunity for the state to continue applications of a law that has echoes of racism and bias in it.

Would you also agree that it puts too much emphasis on our police to enforce these laws?

Of course.

One of the main focuses of this bill is to divert these matters from court so that we can have savings in court administration. [Also] to allow law enforcement to focus their resources on truly harmful activities.

We are not seeing that at all. We’re going to spend just as much on police enforcing this partial criminalization. We are going to see these cases in court [and]constitutional challenges.

We will see all of these negative effects that we have experienced over the last hundred years continue. Any positive effects of this bill are going to be substantially diminished because it doesn’t go far enough.

Do you believe that the solution is decriminalization?

The solution is complete legalization and then regulation. That’s what we have done with tobacco and alcohol and that is what we should do with marijuana.

I don’t think anyone with a mainstream view is of the opinion that 12 and 13-year-olds should be smoking pot. But we’ve been able to discourage 12 and 13-year-olds from drinking and smoking, not because we have made it a criminal offense for them to do so, but because we have focused our time and energy on education. That’s what works.

What was the second issue you pointed out to the Committee?

There are no provisions in this bill to offer pardons and amnesty to people who have been convicted of an offense that is soon going to be legal. The bill does not rollback or correct the constitutional problems with the current pardon laws and it doesn’t offer any automatic pardons to people who have simple possession on their record.

So the issue here is that someone who has been arrested for possession of marijuana, the day before this bill comes into force if they are convicted of an offense they will have to wait 5 years to apply for a pardon. This bill should take the opportunity to address that.

The third point is that this bill treats youths very differently from adults.

There is nowhere else in our criminal law where a youth is criminalized for something that would be legal if an adult did it. In fact, the opposite is true. Quite often we recognize that youths are very different in terms of maturity than adults, the laws in many cases are more lenient on young offenders.

This bill makes it criminal for a youth to have more than 5 grams of marijuana. It’s okay for an adult to have 5 grams but it’s criminal for youth. It’s very illogical, there is a clear discrimination based on age there, so there are constitutional problems.

An 18-year-old and a 17-year-old friend both possessing 5 grams of marijuana, one of them is committing a crime and the other is not.

The rationale for the continued criminalization of youth is that [the government]wants to discourage and deter youths from possessing cannabis. [That] is one of the most irrational arguments I’ve ever heard because we have had a hundred years of complete prohibition. If that hasn’t deterred a youth, then a partial criminalization isn’t going to do that job any better.

What was your final point to the committee to try and show them the “errors of their ways” so to speak?

There’s an option for police officers to give a ticket instead of lay a criminal charge. That’s a good thing because it can keep what would be criminal out of courts. There are some problems what that, though.

The first is there is no certainty. No one knows if a police officer is going to go the criminal route or the ticket route. And what we know is that police officers currently exercise their discretion to arrest in a way that disproportionately affects the poor, the marginalized, and the racialized. There’s nothing to give any assurances that the same won’t be true about this ticketing option.

What history, through studies on carding, through the application of current marijuana law [shows us]is that we will be back here in a number of years and we will have numbers before us, undoubtedly, that show that white people are given tickets more often and black people are charged criminally more often.

To further compound that problem, under the ticketing regime, if you are convicted and pay your fine within 30 days of conviction, your judicial record of getting that ticket is sealed. That means it’s not disclosable to employers or US border security.

It’s a good thing they thought about this disclosure issue, but of course, that’s cold comfort to someone who is poor and marginalized and can’t afford to pay their fine within 30 days.

Do you believe that the Standing Committee on Health listened with open ears or were you talking to the wall?

I think that they were engaged, I think they listened. Having said that, I don’t have very much confidence that the government, given the control of the committee process, is going to have much time for amendments.

They are hearing 90 witnesses in 5 days. This is a complex issue and given how quickly their promise about when this law is going to come into force, I don’t think they’ve given them much time to listen. I don’t think politically there is much motivation on their part to maybe moderate some of the provisions of this bill.


The Standing Committee hearings continue until Friday in Toronto. The Committee is expected to hear testimony from legal experts in the areas of international law, activists including Marc and Jodie Emery as well as a number of other officials.

About Author

Jonathan Hiltz has been a journalist, a TV producer and marijuana advocate for over sixteen years. He has a wife, two young children and lives in the Toronto area.

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