February 2014 NORML Canada Newsletter
Motion to Preserve Personal Growing in Canada Before April 1 Deadline
On March 18, 2014 a motion will be heard in the Federal Court of Canada seeking an interim constitutional exemption from the laws of possession, trafficking, and production for all persons medically approved to consume cannabis and an exemption, if applicable, for all designated care-givers. In effect, the motion seeks to preserve the personal medical growing rights which the Conservative government sought to abolish on April 1, 2014 through the new Marihuana for Medical Purposes Regulations (MMPR). The motion concerns only temporary relief pending a trial which could be over a year away. The motion is important, however, as this temporary relief would mean medical growers would not have to shut down their gardens and destroy their medicine on March 31 or face prosecution.
The case is being brought by NORML Canada President, John Conroy, on behalf of four representative plaintiffs, Neil Allard, Tanya Beemish, David Hebert, and Shawn Davey. Mr. Conroy argues that the MMPR at present restricts a patient’s right to reasonable access in so much as they limit a patient’s ability to ensure a safe, quality controlled supply at a reasonable cost that is within their means. The case also attacks the MMPR’s 150 gram monthly cap for patients, the prohibition on outdoor growing, and the arbitrary requirement that only dried marihuana be sold or possessed. The government, in response, claims that the old personal growing rules resulted in fire / mould hazards and permitted diversion to the black market. In addition to the concerns raised by the court challenge, there is the valid question as to whether the licensed producers are even capable of providing for the vast number of patients come April 1.
Mandatory Minimum Sentence Struck Down as Cruel and Unusual Punishment
In the case of R. v. Lloyd, Judge Galati of the BC Provincial Court has struck down one of the mandatory minimum sentences as cruel and unusual punishment. The decision is not binding on other courts and will surely be appealed by the government, but it is an important first strike on a sentencing regime both senseless and heartless.
Mr. Lloyd had been convicted of trafficking 2.39 grams of crack cocaine, 6.16 grams of methamphetamine, and 0.64 grams of heroin. Mr. Lloyd had 21 prior mostly non-drug convictions, however, he had been found guilty of possession for the purpose of trafficking methamphetamine about a year earlier. Under section 5(3)(a)(i)(d) of the Controlled Drugs and Substances Act (CDSA) a person convicted of trafficking in a Schedule I substance faces a mandatory one year in jail if that person had previously been convicted of a designated substance offence (i.e. all drug offences except for personal possession) in the last ten years. He received a sentence of 80 days in jail for that offence. Mr. Lloyd testified that he is addicted to all three drugs and was selling to support his habit.
Section 12 of the Charter of Rights and Freedoms provides that “everyone has the right not to be subjected to cruel and unusual treatment or punishment.” In order to establish a breach of s. 12 the punishment must be “grossly disproportionate.” It is a two stage analysis in which the court considers whether the sentence is grossly disproportionate to the individual offender and then the court considers whether the sentence is grossly disproportionate as applied to reasonable hypotheticals.
The court found that a one year sentence would not be grossly disproportionate for Mr. Lloyd. Defence counsel, Mr. Fai, suggested a hypothetical whereby an addict with a designated drug offence on his record has a small amount he intends to share with a spouse or friend. The court found that a one year sentence goes well beyond what is justified.
This case involved hard drugs listed in Schedule I of the CDSA. Cannabis is listed in schedule II. The only difference for cannabis offences is that the above mentioned mandatory minimum of one year in section 5(3)(a)(i)(d) of the CDSA is only triggered if the amount of cannabis is 3 kg or larger.
There are many different facets to the mandatory minimums, most if not all of which will be challenged over time. This was a great first step towards tearing down these cruel laws.
Proposed Bill to Legalize Cannabis in France
Although perhaps not the first European country to come to mind when discussing cannabis legalization, France may be readying to have a conversation at the national level. Legislation proposed by French Senator Esther Benbassa is the first ever attempt at legalization in France. The proposed legislation would allow for recreational cannabis to be sold at government controlled retail stores.
An estimated 13.4 million French citizens (roughly 20% of the population) have admitted to smoking cannabis at least once in their lives. A 2011 survey found that 24% of 16-year-olds smoke cannabis at least once per month, the highest percentage of any European nation. Despite the numbers, France has historically harbored relatively stringent legislation regarding cannabis. Possession in France is punishable by up to a $5,000 fine, and even a year in prison.
Given the growing disconnect between restrictive laws and a large (and increasing) number of cannabis users, the attitude towards cannabis legalization in France may be shifting. Although too soon to tell whether or not the proposed bill will succeed, the fact that such a bill has even been introduced is worth celebrating.
Washington D.C. Moves Towards Decriminalization
Washington, D.C., the capital of the global war on drugs, is set to make the penalty for pot possession $25, less than a parking ticket, as the district’s council moves uneasily toward decriminalization in the nation’s capital, adding a last-minute amendment that would ensure pot smoking in public continues to be illegal.
The final bill makes possession of an ounce or less of marijuana punishable by a civil fine of $25, yet preserves laws making the public smoking of marijuana a criminal offence. But the bill also reduces penalties for marijuana from up to a year in jail and a $1,000 fine to a maximum punishment of 60 days in jail and a $500 fine. The difference between the penalties in use and possession of marijuana make the District’s proposal quite distinct from other American states that have decriminalization statutes on the books:
“The vast majority of states treat public use the same as possession,” said Karen O’Keefe, director of state policies at the Marijuana Policy Project. While decriminalization statutes and fines vary from state to state — with some including graduated penalties for repeat offenders — only New York creates a similar distinction for the public view or consumption of marijuana, Ms. O’Keefe said.
“Some states, like California, don’t distinguish between possession and smoking,” said Bill Piper, director of national affairs at the Drug Policy Alliance. Marijuana laws diverge dramatically across the country, with Colorado and Washington having outright legalized recreational use of the drug that the federal government still considers illegal. The wide spectrum of laws on the subject has left lawmakers plenty of room to craft legislative solutions suited to their own jurisdictions.
Mayor Vincent C. Gray wrote in a letter submitted to the council on February 18 that it was necessary to keep public use a criminal offence so police officers would have the ability to keep drug use on city streets at bay. “The legislation as drafted will have the effect of removing any deterrents from persons smoking marijuana in parks, school grounds, sidewalks, and in front of their homes,” he wrote, comparing the previously proposed $100 fine for public marijuana use to a littering fine.
Colorado Sued over Advertising Rules
Denver-based newspaper, Westword, and national magazine High Times, recently launched a lawsuit against the state of Colorado over the current cannabis advertising rules. Colorado law holds that recreational cannabis businesses are permitted to advertise in publications, on radio, and on television, insofar as they can prove that no more than 30% of the readership, listenership, and viewership, is under the age of 21. Westword and High Times argue that the law is unconstitutional on the grounds that it restricts freedom of speech.
In regards to recreational substances, whether it is alcohol, tobacco, or cannabis, advertising is a touchy subject. The most common fear is the targeting of minors, many of whom hardly understand the nature of the substances being advertised to them.
However, too much restriction in advertising also proves to be problematic, as we are clearly seeing in Colorado. Whether or not this lawsuit will be successful is debatable; however, just last year these publications successfully sued to prevent a law, which if successful, would have restricted cannabis-themed publications to be kept behind the counter at newsstands and bookstores.
U.S. Banks Given Green Light
One of the largest concerns in Washington and Colorado is the inability of banks to provide services for cannabusinesses out of fear of Federal prosecution. A recent memo from the Obama administration provided a detailed list of guidelines, which, if followed, would allow banks to work with cannabusinesses while steering clear of Federal scrutiny.
At first glance, this may seem to be reason to celebrate, but the banks are yet to see it that way. Despite the guidelines, the fact remains that possession or distribution of cannabis is in direct violation of Federal law and any bank supporting illegal activities is susceptible to prosecution. Therefore, banks are still hesitant as criminal liability is not off the table. Given current laws, and without the rescheduling of cannabis in the U.S., it is unlikely that banks will feel comfortable doing business with recreational cannabis outlets. Without access to banking services, business owners will continue to be at risk of theft.
Congressmen Denny Heck (Washington) and Ed Perlmutter (Colorado) have introduced a bill, The Marijuana Business Access to Banking Act, which would prohibit federal banking regulators from penalizing financial institutions for working with cannabusinesses. With the introduction of this bill, hopefully legislatures will begin to reflect the needs of the cannabis industry in a more constructive way.
Cannabis gives Smiths Falls a New Lease on Life
Smiths Falls, Ontario, 70 kilometers south of Ottawa, is morphing from a milk chocolate manufacturer to medical marijuana producer. When the Hershey chocolate factory closed down in 2008, hundreds of jobs went with it. It was just one in a series of major plant closures.
“We’ve lost a grand total of probably 1,700 jobs,” Mayor Dennis Staples told Global News. “We’re nowhere close to recovering that number of jobs.”
“I quickly saw this would be an ideal location,” Tweed Inc. CEO Chuck Rifici said of his tour of the shuttered plant last June. “It’s something I’ve been looking at for several years, looking for an opportunity when the regulations may change,” he said. “I heard of Health Canada releasing regulations, or they were going to be released in late 2012. It was the right place at the right time.” He noted the factory was one of a few plants in the town of 9,000 people that hadn’t been repurposed and brought back to life.
The mayor is welcoming the change. He said he’s “thrilled” about it. Mayor Staples said the town had long been hopeful the plant would be repurposed. Although Tweed Inc. may not be bringing back all of the approximately 500 jobs that disappeared after the chocolate factory closed down, they are improving the employment situation significantly. Right now there are 20 people working at the facility, but Rifici expects that number to grow to 100 posts in the “next year or so.” And as for his community, he said the response has been overwhelmingly positive and that Tweed Inc. had only received two letters opposing the operation.