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possession laws are no longer valid and cannabis is technically legal to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
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
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.
Cannabis in Kanada