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Sunday, October 2, 2011

Canada: Penalties for Organized Drug Crime Act - former Bill S-10

Tories expensive plan to imprison gardeners a troubling piece of legislation

Including marijuana growers in a section on prohibitions against manufacturing drugs is illogical and a non-starter from the get-go, however that is what we are dealing with so let's examine some of the weirdness and anti-pot extremism contained in this bill.

Clause 2 New section 5(3)(a.1) of the CDSA reenacts the current section 5(4) of the CDSA and imposes a maximum punishment of imprisonment for five years less a day if the trafficking offence is for a small amount of cannabis or its derivatives, as listed in Schedule II.

Why would we want to reenact a provision that gives a five year prison sentence to someone who sells a couple grams or a few joints of marijuana? This is an epic waste of taxpayers money, and a tragic miscarriage of justice. C'mon Canadians, this is backward and not representative of us!!!

The legislation proposes mandatory minimum sentences for pot growers of six to twelve months or more, then goes on to detail why mandatory minimum sentances are really a bad idea:

Some opponents of the mandatory sentencing that is a feature of the drug bills have noted that the increase in costs to operate prisons will draw funds away from social programs, like those addressing improved education, health care and child poverty, which reduce crime. Incarceration is seen as poor stewardship of both money and human resources.

Other opponents of mandatory minimum sentencing have taken note of the fact that the United States, which has championed the use of such sentences for many years, is, in some cases, moving away from them. The thinking is that by depriving judges of discretion and forcing them to apply rigid and arbitrary sentencing rules, the United States built irrationality into its justice system. Yet, even though American courts mete out sentences that are double that of British and three times that of Canadian courts, the US violent crime rate is higher than in those two countries. In addition, while crime rates in both Canada and the United States have fallen by almost the same amount in recent years, the incarceration rates in the two countries have followed different patterns: in Canada, unlike in the US, there has been no substantial increase in the size of the prison population. One editorial has noted that, despite 25 years of harsh mandatory minimums, disproportionate numbers of the poor, the young, minorities and the drug addicted have been thrown in US jails with no impact on the drug business itself, which has flourished. Opponents of mandatory minimum sentences point to two Department of Justice studies that conclude that such laws are not effective and are increasingly unpopular as crime-fighting measures in other countries. A 2005 study concluded: “There is some indication that minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits.”

A 2002 study, meanwhile, found that mandatory minimum sentences do not appear to deter crime. The reasons for this lack of deterrence include the fact that they bar judges from using their discretion to sentence individuals. As a result, prosecutors and police take up the discretionary role, often choosing not to charge people with offences that would automatically lead to a prison term. Mandatory minimum sentences also sometimes lower conviction rates, as juries refuse to convict accused people facing automatic but seemingly unfair prison terms. Furthermore, while these types of sentences show success in deterring firearms or drunk driving crimes, they appear to have no impact on drug crime.

Can anyone comment on what the term "certain offences" means in 2.5 Clause 11 below?

2.5 Clause 11: Related Amendment

A reverse onus is placed on an accused person to show cause why he or she should be released on bail under subsection 515(6)(d) of the Criminal Code if charged with certain offences under the CDSA. Clause 11 of Bill S-10 will expand this subsection so that all of the newly amended sections 5 to 7 of the CDSA will be considered when eligibility for release on bail is being considered.

Six plants gets you six months; Only in Canada, you say...

Clause 4 Section 7(2)(a.1)

If the subject matter of the production offence is cannabis (marihuana), subsection 7(2)(b) will double the maximum possible term of imprisonment from 7 to 14 years.

(Why? Canadian crime rates have been falling for four decades and judges have ruled the existing laws are unconstitutional. This proposal would flood our courts and jails with gardeners, forcing violent criminals onto the street).

Mandatory minimum punishments will also be introduced for the production of cannabis (marihuana), with their length depending upon the number of marihuana plants produced. The minimum penalty is six months where the number of plants produced is fewer than 201 and more than five and the production is for the purpose of trafficking, while the minimum penalty is nine months where the number of plants produced is fewer than 201, the production is for the purpose of trafficking, and any of the health and safety factors also apply. If the number of plants produced is more than 200 and fewer than 501, the minimum term of imprisonment is one year, which increases to 18 months if any of the health and safety factors apply. The minimum term of imprisonment will be two years if the number of plants produced is more than 500, which will increase to three years if any of the health and safety factors apply. There is no mention of the production being for the purposes of trafficking when the number of plants is more than 200.

Anybody with six or seven plants in their backyard could face six months or more in jail, and if you happen to have a bigger operation, they'd like to keep you in prison for 14 years rather than the current maximum of 7 years.

Canadians may still have their homes and may not be in the same mood as Americans when it comes to challenging big business and banks, but this issue touches every family and the PCs have started a fight that makes them appear out of touch with reality on the ground. People would like to see penalties increased for white collar crime, financial violence so to speak, and would certainly agree with moving date rape drugs from Schedule II to Schedule I.

The indefensible anachronism is including marijuana growing as equivalent to hard drug production, when it clearly is not the same thing. Rather than jail growers, why not tax and regulate them, and jail only the tax evaders and unsafe operators?

Or does that make too much sense?

We'll be looking at this proposed new law in much more detail in coming weeks, and encourage everyone to post sections they find offensive.

Canadian Penalties for Organized Drug Crime Act, former Bill S-10 Canada full online text

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