Law Times

Law TiMes • March 17, 2014 Page 7 www.lawtimesnews.com COMMENT Conservatives do about-face on marijuana he Conservative government took a major step closer to de- criminalizing marijuana ear- lier this month. It reversed the stand it's taken for the past three months against Liberal Leader Justin Trudeau as it vilifi ed him for trying to hook our kids on drugs. Trudeau had announced that if he be- came prime minister, he'd pass a law legal- izing marijuana. e announcement met with sig- nifi cant approval from one end of the country to the other, particularly among younger Canadians. e Conservatives quickly did a few focus groups and some polling on the issue. To their surprise, they discovered an overwhelming degree of support for a more liberal approach in Canada, at least to the extent of easing up on mari- juana laws. But a few months later, the marijuana question came up when Trudeau was speaking to a group of young students. Unaware that there were also preteens in the audience, Trudeau gave his usual answer. at was it. Led by their designated hit man, Jus- tice Minister Peter MacKay, the Con- servatives threw everything they had at Trudeau as they repeatedly accused him of having tried to get the students to use marijuana. ey bought extensive ad time on radio and TV and even had the Health Department spend money on a youth campaign against marijuana. ey invested all of this eff ort and wasted public money in order to go a er Trudeau. He wants to get kids hooked on marijuana, MPs shouted as they feigned outrage. MacKay carried the can against Trudeau. Trudeau kept silent, knowing that with the police chiefs and most Canadians on his side, the Conservatives would eventually have to concede. ere must have been a chuckle in Liberal ranks when MacKay had to eat his words earlier this month when he announced, with as little fanfare as pos- sible and no mention of Trudeau, that the Conservative government was giving seri- ous consideration to allowing police to is- sue fi nes on the spot for possession or use of small amounts of marijuana. Police will still have the Criminal Code available to them for more serious drug matters such as having quantities large enough to sell or selling to minors. So-called pot tickets would bring mil- lions of dollars to the government trea- sury. It's money the federal government desperately needs. It would also eliminate criminal records for many Canadians, especially young people, that can cause diffi culties later in life. An estimated 683,000 Canadians have criminal records because of marijuana. Laying marijuana charges in court doesn't make money for the justice sys- tem. Courts, judges, lawyers, and police are expensive to fund, and the fi nes im- posed certainly don't cover the costs. Jail terms cost even more. e Conservative government's controversial victim sur- charge doesn't come close to covering the cost. e idea of writing out a pot fi ne appeals to most police on the beat. ey believe they have better things to do with their time than prepare paperwork to go to court over ridiculously small amounts of marijuana only to later fi nd out, as they so o en do, that the case gets tossed out of court or a judge imposes nothing more than a warning or a fi ne. e most accurate information we have is that charging people, hauling them into court, and then putting them in jail for use or possession of marijuana costs Canadian taxpayers several billion dollars a year. Last August, the Canadian Associa- tion of Chiefs of Police told the federal government it might very well be time to start thinking about having police write out fi nes for marijuana possession or use. Surprisingly, Prime Minister Stephen Harper replied that he would consider their recommendation. If there weren't a groundswell of support in Canada for changing the marijuana laws, Harper would never have said such a thing. A er all, when asked by a reporter at a news conference if he had ever smoked marijuana, Harper replied by asking whether he looks like he does. e implied answer was that he never has. One reporter at the back cracked: "You should have." e surprising recommendation from the police chiefs meant that what the rank-and-fi le offi cers had been saying in private at the police station had worked its way up to the police brass and from there to Harper and his ministers. Canada has already legalized the use of medical marijuana by patients with serious pain and a doctor's prescription. Harper has now taken the matter one step further. Ironically, it was MacKay that Harper told to do the government's backtracking on marijuana in the House of Commons. Talk about having to eat crow. e same guy who had been vilifying Trudeau over marijuana in recent months had to agree with him. MacKay used legal language: "Crimi- nal Code off ences would still be available to police, but we would look at options that would give police the ability, much like the treatment of open liquor, that would allow the police to ticket those type of off ences. We have not arrived on the exact mechanism in which that could be done. "We're examining it. It's not decrimi- nalization. It's not legalization." Who would have thought they'd hear a Conservative cabinet minister com- paring liquor and marijuana in the same breath? e new law might not be all fun and games. A cop who would have given kids a break so they wouldn't have a criminal record might not fl inch at handing out a fi ne. Regardless, it's clear the government has changed its tune. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e- mail address is richardcleroux@rogers. com. rime is always a hot topic as is criminal justice. But recently, the heat has intensifi ed as some members of the judiciary seem to be on a collision course with the federal government over its crime measures such as the victim fi ne surcharge and the impo- sition of mandatory minimum sentences. But a look at the history of Canada's crimi- nal justice policy may help put this current brouhaha into some kind of perspective. Anthony Doob, a professor emeritus at the University of Toronto's Centre for Criminology & Sociolegal Studies, took such a look recently when he delivered the annual John Edwards lecture last month. Doob is one of Canada's most eminent criminology scholars, and I'm grateful to him for letting me use his lecture as the basis for this column. Any errors are, of course, my own. Doob pointed to a long-standing con- sensus among all major parties at the fed- eral level with regard to the major features of criminal justice policy. First, the system should reserve imprisonment only for those convicted of the most serious crimes. Second, the criminal justice system isn't the only or the best way to deal with crime and has only a limited role in reducing it. And alternatives to imprisonment are less costly and much more eff ective in reintegrating off enders into society. From royal commis- sions to parliamentary committees (under both Liberal and Progressive Conservative governments) to expert and advisory bodies such as the Canadian sentenc- ing commission and the Law Reform Commission of Cana- da, all put out the same message throughout the 20th century. e consistency of this ap- proach is evident in the relative stability in the size of the Ca- nadian prison population. For nearly a century, the rate of im- prisonment has fl uctuated nar- rowly at around 100 inmates per 100,000 Canadians or about 1 in 1,000. ( at fi gure includes both federal and provincial pris- ons.) So far, the Conservative government's policies have had little discernible impact. e rate has increased to 114 per 100,000 in 2011 from 110 in 2006, but that's well within historic levels. Contrast this with the U.S. experience where incarceration rates reached 750 per 100,000 Americans in 2008 before drop- ping back to about 700 more recently. ( at fi gure includes federal and state prisons and local jails.) American and Ca- nadian rates were relatively similar until the mid-1970s when a yawning gap began to emerge. Despite this high incarceration rate, rates of violent crime remain much higher in the United States than in Can- ada, although rates of property crime may be higher in this country. Con- versely, despite a stable incar- ceration rate, crime rates have continued to drop in Canada to now-historic lows. Canadian views on the need for restraint in imprisonment have characterized even right- of-centre provincial govern- ments. When the government of Ralph Klein wanted to ad- dress the defi cit in the 1990s, it reduced the incarceration rate in provincial institutions to 69 inmates per 100,000 Alberta residents in 1997 from 102 in 1993. It has since crept back up to about 80, but the reduction in imprisonment since 1993 hasn't led to any notable increase in crime. Historically, Canadian policy saw the status of off ender as a temporary state rather than a defi ning characteristic ex- cept with regard to those convicted of the gravest crimes. "An inmate is always a citizen who will return to a normal life in our society and is basically entitled to have his human rights as a citizen re- spected by us to the largest possible ex- tent." us spoke a Liberal solicitor gen- eral in 1972, but the Conservative justice critic agreed with the statement. Would the federal minister of justice still subscribe to these views? Recently, the offi cial discourse seems to have shi ed. Government spokespeople now make a sharp distinction between "criminals" and "law-abiding citizens" as if the two cat- egories never intersect. In fact, as Doob pointed out, more than one-fi h of Ca- nadian men have a criminal record of some kind (although only four per cent of women do). Certainly, there are hardened criminals who reoff end frequently, but they form a relatively small part of the of- fending population. e lesson taught by both the Cana- dian and U.S. historical experience s is that the criminal justice system in general, and imprisonment in particular, have relatively little impact on crime rates as such. Current government policies and leg- islation aim to reverse a long-standing political and academic consensus about the roots of crime, the status of off enders, and the appropriate use of imprisonment. is consensus was never as strong within the population at large, and for some, the measures initiated by the current federal government are long overdue. But it's not surprising that these changes are running into stiff opposition from provincial gov- ernments and the courts. LT uPhilip Girard is a legal historian and pro- fessor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. Current policies run counter to long-standing consensus on crime That's History Philip Girard The Hill Richard Cleroux T C

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