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De-Criminalization and the Law

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What Does De-Criminalization Mean?

A good question. It is not a legal term. It is a political phrase which is at best ambiguous, and perhaps dangerous in so far as it invites assumptions which are not accurate. We have all heard the term used in the context of a debate currently in vogue with the coming federal election. If something, say some kind of plant material is prohibited, then possessing it is illegal. Possessing it will attract Criminal Sanctions. In Canada, those consequences are spelled out under the Controlled Drug and Substances Act.

If it is no longer the case that possessing the plant substance is illegal, then the offence provision of the Controlled Drug and Substances Act will be repealed and the substance may be said to be legalized (though no doubt regulated like say, alcohol).

But what do they mean by de-criminalize? I have heard various ideas, most of which suggest reducing the consequences of contravening the law. This is the danger: What are the consequences now, and how will they change upon decriminalization?

From the point of view of sanctions, simple possession of cannabis carries minimal risk of jail, and very low risk of significant financial penalty. The real risks of being convicted of a cannabis related offence involve the recording of that conviction and the limitations one may experience as a result of that conviction being known. Those consequences may not change with de-criminalization. The fact that you received a “ticket-like” penalty for possession will not have any bearing on how foreign countries view you as a person they are willing to allow to enter their country. Nor will a prospective employer be compelled to view the conduct in question differently.

I will not offer a view with respect to what, if any, changes should be made to the laws regarding cannabis. But I will say discussions around de-criminalization are, in my view irresponsible. It is currently illegal to possess cannabis. If it is legalized, then there is no ambiguity, people will know where they stand. In the murky world of de-criminalization, there is room for ambiguity, misunderstanding and unexpected real consequences. In the law, particularly the criminal law, clarity is very much the desired approach.

EDITOR’S NOTE: This publication is the 46th installment of our firm’s Legal Matters series, which answers a reader’s question every week. If you have a general legal question that you would like to have addressed please send it via email to legalmatters@compellingcounsel.com

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