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Verfassungswidrige Rekriminalisierung statt Entkriminalisierung in Kanada

In response to the statement "He went on to state, that a "majority of Parliament" is definitely on board, and he and CNBC expected decrim "by November."" Matt Elrod wrote:

Most Canadian reformers are less optimistic, or pessimistic depending on whether or not they like decrim.

Parliament granted themselves an early summer vacation. When they return they will have a long list of thorny issues to cope with, including gay marriage and anti-terrorism laws.

Bill C-38 (the decrim bill), as tabled this spring, is unconstitutional right off the bat because it contains no provisions for medicinal use.

It is because our current cannabis laws lack medicinal provisions that possession laws are no longer valid and cannabis is technically legal to possess across Canada.

C-38 is an unconstitutional REcrim bill, not a decrim bill.

In addition to adding medicinal provisions, which Parliament has said they will do as an afterthought in committee, they need to deal with the fact that a few provinces, including B.C., are not party to the Contraventions Act, the act under which cannabis possession would be subject to fines.

In a memo distributed to the provincial attorney generals, the Justice Department advised the provinces to use whatever mechanisms they already have in place for enforcing fines, such as community service, denial of sundry state services and potentially jail time. There are a *lot* of details that need to be worked out in the proposed ticket and fine system.

The above mentioned potential for jail time for failure to pay is quite significant, IMHO.

If the Supreme Court agrees with Clay, Caine and Malmo-Levine that when jail time is on the menu, sec. 7 of our Charter of Rights and Freedoms comes into play and the state must prove to the court's satisfaction that the *inherent* harm cannabis causes to society as a whole, not the individual user, exceeds J.S. Mill's harm threshold, then Bill C-38 will be doubly unconstitutional.

The SC is really a wild card. If they agree with Clay et al. that cannabis does not exceed the harm threshold, then Parliament will have to go back to the drawing board and make sure jail, or perhaps any criminal sanction, is not a possible outcome of failure to pay a cannabis possession fine.

Meanwhile, the current administration's days are numbered. They will have about three months to rewrite C-38 with medicinal provisions, and perhaps without jail provisions, when they get back to work this fall.

In the meantime, cannabis is essentially legal in Canada. I expect that over the summer some bars and restaurants will discover they can attract more customers by allowing cannabis use in their smoking areas.

Cannabis coffee shops will likely spring up, though trafficking remains illegal, shop owners will either sell under the counter or simply allow their customers to bring their own, as is the case in some establishments now.

It will be rather bizarre, if this fall, or more likely next year, Parliament tries to recriminalize cannabis after we have had so long a taste of freedom without the sky falling.

Matt Elrod

Cannabis in Kanada