Decriminalization versus legalization: marijuana advocates scrutinize competing plans for reform

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      There are few people in Canada who have suffered a blow from prohibition like the one that hit Marc and Jodie Emery. On September 10, 2010, after deportation from Vancouver, Marc was sentenced to five years in a U.S. prison for trafficking marijuana seeds.

      Canada doesn’t actually send many people to prison for cannabis offences. And if a person is incarcerated for such a crime, it is seldom for as long as five years. But Marc’s transgression was trafficking. On top of his political activities (or because of them, many argue), that was reason enough for authorities to throw the book at him.

      Marc has held a grudge.

      “Canadian politicians are the most gutless group of people I have ever seen,” he said just hours after his release on August 12, 2014. “They don’t want to bring up marijuana. They are afraid of it. After 45 years, really, they’re still afraid of it?”

      Ahead of Canada’s federal election scheduled for October 19, candidates for prime minister are talking about cannabis reform. All three leading parties have staked out clear positions that differ significantly from one another.

      In 2012, Prime Minister Stephen Harper’s government implemented mandatory-minimum sentences for marijuana production and trafficking. Since then, the Conservative party has doubled down on its tough-on-crime stance. “We will not introduce misguided and reckless policies that would downplay, condone, or normalize the use of illegal drugs,” Harper said at an August 11 campaign stop in Ontario.

      That was a shot at the federal Liberals and party leader Justin Trudeau’s promise to legalize and regulate recreational cannabis.

      Speaking in Vancouver on August 19, Trudeau shot back: “Mr. Harper has failed in his drug policy,” he told the Georgia Straight. “It is time that Canada regulated and controlled marijuana to protect our kids, to protect our communities, and to prevent the funds from flowing into the coffers of drug runners and street gangs.”

      Speaking in Vancouver on August 19, Liberal party leader Justin Trudeau reiterated a promise to legalize and regulate marijuana if he's elected as prime minister this October.
      Travis Lupick

      A more detailed version of the Liberals’ plan for legalization appears in a 38-page draft policy document published in 2013. It states that recreational marijuana should come under a regulatory framework that covers not only the sale of cannabis but also its production, distribution, and taxation. (The end result would be a system like the one that governs cigarettes, Hedy Fry, the Liberals’ candidate for Vancouver Centre, recently told the Straight.)

      That document also addresses Canadians stuck with a criminal record of the sort that can turn up in a background check or in the databases of U.S. customs officials. A Liberal government would “extend amnesty to all Canadians previously convicted of simple and minimal marijuana possession, and ensure the elimination of all criminal records related thereto,” it states.

      At an August 20 stop in Vancouver, NDP leader Thomas Mulcair said amnesty for past offences was an “important question” and one an NDP government would “look at”.

      While the Liberals have promised legalization, the NDP has said it will decriminalize marijuana. “It is something that we can do immediately,” Mulcair told the Straight. “I am categorical that no person should ever face criminal charges or a criminal record for personal use of marijuana.”

      The NDP has emphasized that repealing criminal penalties for personal-use possession is only a first step in its plan to reform marijuana laws. Communications director Jen Holmwood readily admitted the party is still working out what would come next. She told the Straight another early move would be to “create an independent commission” that consults with provincial governments and studies the issue.

      At an August 20 campaign stop in Vancouver, New Democrat leader Thomas Muclair pledged to decriminalize marijuana the day an NDP government takes power.
      Travis Lupick

      At Cannabis Culture headquarters on West Hastings Street, Jodie Emery emphasized the Liberal and NDP positions sound similar but are actually very different.

      For starters, she said, under Mulcair’s reformed system that only abolishes penalties for small amounts of marijuana, her husband still could have gone to jail for trafficking.

      The NDP’s plan only addresses demand, Emery explained. Under decriminalization, the supply side of B.C.’s billion-dollar marijuana industry would largely remain as it exists today: illegal, with grow-ops and distribution networks kept in the shadows under the control of organized-crime syndicates and outside the reach of consumer safeguards such as health regulations.

      “Mulcair’s current position would maintain prohibition,” Emery concluded.

      The differences between decriminalization and legalization are relevant to more British Columbians than one might think.

      According to the B.C. Ministry of Justice, during the first six months of 2015, only 327 people were held in B.C. Corrections facilities for drug crimes.

      However, according to a Statistics Canada report, B.C. authorities recorded 15,773 cannabis offences during 2014. (An offence is defined as any criminal infraction regardless of its outcome. From there, police officers and prosecutors have discretion for how to proceed. An officer can record an individual’s name and transgression and let them go, for example, or they can recommend the Crown pursue charges that can land a person in prison.) That document suggests this issue is of greater concern to B.C. than any other province. It states that in 2014, B.C. recorded 341 cannabis-related offences per 100,000 people while neighbouring Alberta recorded 181 and Ontario just 145.

      John Conroy, a Vancouver-based lawyer and expert in marijuana law, told the Straight that those two groups—those charged and convicted for marijuana crimes versus people caught with cannabis but then let go—serve as one example of the tangible differences between decriminalization and legalization.

      He explained that the NDP’s plan to decriminalize would likely lower the penalty for any of those 327 convicted drug offenders who were imprisoned for marijuana crimes. At the same time, Conroy continued, decriminalization could escalate the punishment inflicted on those more than 15,000 people who were registered for a cannabis offence but let go without police recommending a charge.

      “If it is decriminalized, than it is simply not a criminal offence,” Conroy said. “So it would not form part of a criminal record and you would not be subject to arrest for a crime. But you would still be subject to potential police interference from whatever civil scheme that the politicians come up with.”

      That would most likely take the form of a legal framework for ticketing, Conroy guessed, similar to the treatment of traffic violations or fare evasions on public transit.

      “My expectation would be that with a ticketing system, the charges will go up, not down, and it will maybe become a cash grab,” he said. “So we will still see interference with people’s civil liberties, even more with a ticketing system than with the current approach under the current law.”

      Conroy also emphasized that under decriminalization, all of those more than 15,000 people would still see their names entered into police databases alongside the word marijuana. So if a prospective employer or U.S. customs agent runs a check on anyone ticketed for possessing cannabis, they could still lose that job or be barred from entering the United States.

      On the other hand, Conroy said, the Liberals’ plan to legalize would truly end prohibition of marijuana in Canada. “Just simple possession, if it is legalized, than it becomes like buying alcohol or tobacco,” he said.

      Conroy emphasized that an over-the-counter system would mean no tickets, no names recorded by police, and no problems with prospective employers or international travel.

      Emery noted all of that only concerns the demand side of the marijuana trade. On the supply side, the differences between decriminalization and legalization are even more pronounced. (Exactly how will be explored in depth in subsequent articles in this series.) “Some people say that marijuana is not an election issue,” she said. “Well, we’re seeing the NDP, the Liberals, and even the Conservatives speaking about it, which means that people are asking.”

      This article is part of a series.
      Part one: Liberals and NDP promise marijuana reform but pot crimes could still haunt Canadians for decades
      Part two: Decriminalization versus legalization: marijuana advocates scrutinize competing plans for reform
      Part three: Marijuana advocates warn NDP plans for decriminalization would leave organized crime in control


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      Mickey of Dismaland

      Sep 9, 2015 at 3:16pm

      Every time now that I see a politician with a political slogan that uses the meaningless term "change" I am assuming that they mean "spare change" for their pockets.

      Curtis Magyar

      Sep 10, 2015 at 5:18am

      In the 5 years since Marc was extradited we've seen thousands of stores pop up selling seeds, 20+ states legalize medicinal use, 4 states legalize its use completely, and more decriminalize it. Thanks Marc, overgrow the government was a tremendous success!

      Laurie MacEachern

      Sep 10, 2015 at 6:08am

      Our organization, the Medicinal Cannabis Patients Alliance of Canada Inc., feels it is critical at this point in time, with election platform differences, that Canadians have a real understanding of the actual differences between the Decriminalization, Legalization and, heaven forbid, Repeal of cannabis prohibition. A clear explanation of the differences can be found here:

      MCPAC has also joined with other NPOs in Canada in an effort to raise awareness about cannabis and the benefits of fact based policy. It is called the Dignified Access Initiative:

      Please vote this year.


      Sep 10, 2015 at 10:26am

      You just need to go into Washington State to see how outdated and foolish our marijuana laws are


      Sep 10, 2015 at 2:57pm

      Great article, but can you guys please get your "then" and "than" straight?

      Donna Morgan

      Sep 13, 2015 at 11:04am

      I wish every time you mentioned Marc or Jodie Emery, you would precede it with the terms 'millionaire' or 'one-percenters'. While I agree that marijuana use should be decriminalized, I think it would be great if we remember that these folks have an extreme financial self interest in marijuana, and none in mental health. They aren't your average pot users, and they don't have the interest of ordinary Canadians at heart.


      Sep 15, 2015 at 2:11am

      I think its long time coming,i hope and pray, for all canadians and for us on the u.s.side, let it be,let it be! l e g a l state and federal! been taking ovepriced meds.for
      10years now.and talk about all the bullshit you have tn go through to get them every month. some are 3x as much,than last year!for crying outloud, helps toke a bit relax.legalized and affordable buds. hope it happens before i am dead.