Bill C-45 enacts the Cannibis Act (the “Act”)which provides legal access to marijuana while controlling and regulating the production, distribution, and sale of the same.  The overarching goal, as packaged and distributed by the Canadian Government, is to protect public health and public safety, specifically that of children.  In practice, the Act is designed to reduce the criminality associated with marijuana and thereby lessen the unnecessary burden on the criminal justice system created by marijuana possession, production, and distribution.

Put lightly, Bill C-45 has ample room for improvement.  Falling far short of the promise to decriminalize marijuana, the contents of Bill C-45 simply create a number of new criminal offences in relation to possession, production, and distribution, largely leaving the criminalization of marijuana intact, all while confusing the masses and simultaneously harshing the buzz of those who have long awaited the legalization of recreational marijuana use.   

Unfortunately, Bill C-45 disproportionately criminalizes youth.  Clause 8 of Bill C-45 speaks to possession of marijuana and outlines that while an adult can legally possess up to 30 grams of marijuana in public, it is criminal for youth to possess more than 5 grams of marijuana in public.  Nowhere else in the Criminal Code is a youth criminalized for an act that is legal when carried out by an adult.  Bill C-45’s approach to marijuana possession hearkens Reagan’s dismally unsuccessful and ineffective “War on Drugs” aimed to deter youth from partaking in drug use while insidiously skyrocketing youth drug crime rates.  Criminalizing marijuana possession is fundamentally ineffective in discouraging and deterring drug use, as evidenced by decades of failed drug policies.  Bill C-45’s disproportionate criminalization of youth is both counter-productive and irrational.

The absurd parameters regarding marijuana outlined in Bill C-45 permeate production as well.  Among other restrictions, production of marijuana is permitted so long as the plant does not exceed 100 cm in height.  Notably, 1 cm can result in the difference between a legal marijuana plant and a criminal offence punishable by up to 14 years behind bars.  Unfortunately, the reasoning which underpins the 100 cm height limit is abundant in absurdity and lacks all rationality; fences.  While the height of the plant does not impact its potency or yield, the House of Commons committee assigned to study Bill C-45 was informed that most fences are more than 1 metre tall.  Accordingly, the inference is that the provision which restricts the height of the plant is intended to keep marijuana plants safely out of sight behind fences, wholly undetected by the prying eyes of passers-by (this discussion can be read in the Minutes of the HESA Committee meeting held Monday, September 11, 2017).  But what about chain-link fencing?  These see-through fences don’t appear to have been considered by the drafters of the provision.  Further, Bill C-45 fails to require those who grow marijuana plants to have a fence at all, rendering the height constraint, and the reasoning for imposing the constraint, of no use whatsoever other than to criminally sanction the green thumbs who have nurtured their plants to soar at heights of 101 cm and beyond.   

Bill C-45 is deceptively cloaked as legislation that will permit recreational marijuana use while protecting youth from the harms of the same.  Unfortunately, Bill C-45 has turned a blind eye to years of failed drug policy and will, in practice, criminalize more youth than it protects.  Further, with the imposition of various new restrictions alongside reworked current provisions, the impending legislation fails relieve the unnecessary burden that the criminalization of marijuana places on policing and justice system resources, which significantly undercuts one of the rationales for legalization in the first place. 

Canadian legislation and associated policies regarding marijuana are in dire need of reform.  The cost of marijuana criminalization, both social and economic, drastically outweighs any imagined benefit derived from the criminal penalties placed on the relatively low-risk vice.  Due to its illegality, marijuana is pushed into a black market which is both profitable and violent; this is a serious problem which is certainly not terminated or sufficiently addressed by Bill C-45.  While Bill C-45 is a sluggish and imperfect step in the right direction, it lacks the thoughtfulness, application of evidence-based policy, and foresight necessary to remove marijuana from the Criminal Code in a logical or meaningful manner.     

For more on this, or other criminal matters, please contact Brooke Johnson.

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