SC38 Committee Meeting

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37th PARLIAMENT, 2nd SESSION

Special Committee on the Non-medical Use of Drugs (Bill C-38)

EVIDENCE

CONTENTS

Tuesday, November 4, 2003

0915

The Chair (Ms. Paddy Torsney (Burlington, Lib.))

Mr. Paul Harold Macklin (Northumberland, Lib.)

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Clerk of the Committee (Mr. Jean-Michel Roy)

Mr. Richard Marceau

The Clerk

Mr. Randy White (Langley—Abbotsford, Canadian Alliance)

The Chair

Mr. Randy White

The Chair

Mr. John Conroy (As Individual)

The Chair

Mr. John Conroy

The Chair

Professor Neil Boyd (Professor of Criminology, Simon Fraser University)

0920

0925

The Chair

Mr. John Conroy

0940

Mr. John Conroy

The Chair

0945

Mr. Randy White

Mr. John Conroy

Mr. Randy White

Mr. John Conroy

Mr. Randy White

Mr. John Conroy

Mr. Randy White

Mr. John Conroy

0950

Mr. Randy White

Mr. John Conroy

Prof. Neil Boyd

Mr. Randy White

Prof. Neil Boyd

Mr. Randy White

Mr. John Conroy

Prof. Neil Boyd

Mr. Randy White

Prof. Neil Boyd

Mr. John Conroy

Mr. Randy White

Prof. Neil Boyd

Mr. John Conroy

Mr. Randy White

Mr. John Conroy

Prof. Neil Boyd

Mr. John Conroy

Mr. Randy White

Prof. Neil Boyd

Mr. Randy White

0955

Mr. John Conroy

Mr. Randy White

Mr. John Conroy

Mr. Randy White

Mr. John Conroy

Mr. Randy White

Mr. John Conroy

Prof. Neil Boyd

Mr. John Conroy

1000

The Chair

Mr. Paul Harold Macklin

Prof. Neil Boyd

Mr. John Conroy

1005

Mr. Paul Harold Macklin

Prof. Neil Boyd

Mr. Paul Harold Macklin

Prof. Neil Boyd

Mr. Paul Harold Macklin

Prof. Neil Boyd

Mr. John Conroy

Prof. Neil Boyd

Mr. John Conroy

Prof. Neil Boyd

Mr. John Conroy

Mr. Paul Harold Macklin

1010

Mr. John Conroy

Prof. Neil Boyd

Mr. John Conroy

Prof. Neil Boyd

Mr. John Conroy

Mr. Paul Harold Macklin

Mr. John Conroy

Prof. Neil Boyd

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

Mr. John Conroy

Mrs. Marlene Jennings

Mr. John Conroy

Mrs. Marlene Jennings

Mr. John Conroy

Mrs. Marlene Jennings

Prof. Neil Boyd

Mrs. Marlene Jennings

Prof. Neil Boyd

Mrs. Marlene Jennings

1015

Prof. Neil Boyd

Mrs. Marlene Jennings

Prof. Neil Boyd

Mrs. Marlene Jennings

Prof. Neil Boyd

Mr. John Conroy

Prof. Neil Boyd

Mrs. Marlene Jennings

Mr. John Conroy

Prof. Neil Boyd

Mr. John Conroy

Mrs. Marlene Jennings

The Chair

Mr. Randy White

Mr. John Conroy

Mr. Randy White

Mr. John Conroy

Mr. Randy White

1020

Mr. John Conroy

Mr. Randy White

Mr. John Conroy

Mr. Randy White

Prof. Neil Boyd

Mr. Randy White

Prof. Neil Boyd

Mr. Randy White

Prof. Neil Boyd

Mr. John Conroy

1025

Mr. Randy White

Mr. John Conroy

Prof. Neil Boyd

Mr. Randy White

Mr. John Conroy

Prof. Neil Boyd

Mr. John Conroy

Prof. Neil Boyd

Mr. John Conroy

The Chair

Ms. Carole-Marie Allard (Laval East, Lib.)

1030

Prof. Neil Boyd

Mr. John Conroy

Prof. Neil Boyd

Ms. Carole-Marie Allard

1035

Mr. John Conroy

Prof. Neil Boyd

Ms. Carole-Marie Allard

The Chair

Mr. Paul Harold Macklin

Mr. John Conroy

1040

Mr. John Conroy

Mr. Paul Harold Macklin

Prof. Neil Boyd

Mr. John Conroy

1045

The Chair

Mrs. Marlene Jennings

Mr. John Conroy

Mrs. Marlene Jennings

Prof. Neil Boyd

Mrs. Marlene Jennings

Prof. Neil Boyd

Mrs. Marlene Jennings

The Chair

Ms. Carole-Marie Allard

Prof. Neil Boyd

1050

Mr. John Conroy

The Chair

Mr. John Conroy

The Chair

Mr. John Conroy

The Chair

Mr. John Conroy

The Chair

Mr. John Conroy

The Chair

1055

Mr. John Conroy

The Chair

Prof. Neil Boyd

The Chair

Prof. Neil Boyd

The Chair

Prof. Neil Boyd

The Chair

Mr. John Conroy

Prof. Neil Boyd

The Chair

Mr. John Conroy

The Chair

Prof. Neil Boyd

Mr. John Conroy

The Chair

Prof. Neil Boyd

Mr. John Conroy

The Chair

Prof. Neil Boyd

The Chair

Mr. John Conroy

The Chair

Mr. John Conroy

The Chair

Mr. John Conroy

The Chair

CANADA

Special Committee on the Non-medical Use of Drugs (Bill C-38)

NUMBER 008

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, November 4, 2003

[Recorded by Electronic Apparatus]

¿ (0915)

[English]

The Chair (Ms. Paddy Torsney (Burlington, Lib.)): I'll call this meeting to order.

Just before we hear our two witnesses, we have to deal with a budget that you all have in front of you.

I understood it was distributed. Sorry, perhaps the Liberals didn't get a copy of the budget.

You'll see that video conferencing was removed from the earlier budget but the funds were allocated toward the witness expenses. It's obviously more than we are going to need, but we put it in anyway.

Perhaps I can have a motion from someone.

Mr. Paul Harold Macklin (Northumberland, Lib.): I so move.

(Motion agreed to) [See Minutes of Proceedings]

The Chair: Monsieur Marceau.

[Translation]

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Madam Chair, I would like an update of the list of potential witnesses we had at the outset. If memory serves, I believe there were 39. How many of these witnesses will be appearing before our committee?

[English]

The Chair: We'll get you that list. The clerk can inform you that everybody was contacted who was on the list and they were offered various time slots this week. Anybody who hasn't appeared before us was not available this week or did not have a position, like the FCM and CREA.

[Translation]

Mr. Richard Marceau: Did some witnesses say they would not be available this week, but would be next week? Is that why we will not be hearing from those people?

[English]

The Chair: The clerk can inform you. Some did not have a position and were not able to come before us.

[Translation]

Mr. Richard Marceau: I understand, but that wasn't my question.

The Clerk of the Committee (Mr. Jean-Michel Roy): Some could perhaps have come at another time. For example, the Quebec Bar is on your list. I was told that the Quebec Bar had no position to express on this bill.

Mr. Richard Marceau: I understand that, and I would like to have a word with them, because I pay a hefty amount in annual dues.

I would like to ask the clerk if he can tell us, among those with whom he has been in touch, if anyone has expressed a willingness to appear and has asked whether or not it might be possible to come at some other time?

The Clerk: I can provide that this evening, at the next committee meeting.

[English]

Mr. Randy White (Langley—Abbotsford, Canadian Alliance): Further to that, Madam Chair, as I understand it, you're saying that the B.C Real Estate Association, the Canadian Real Estate Association, representatives of all of the American agencies, the Solicitor General to the provinces, the municipalities, and the Quebec Bar had either no position or could not make it next week.

The Chair: That's right. Chantal took care of the Americans. You can ask Chantal.

Mr. Randy White: We'll have confirmation, then, of who could have made it later. Will you give us that list?

The Chair: Right.

We now have before us two witnesses, both from British Columbia. We have Mr. John Conroy as an individual, and from Simon Fraser University we have Neil Boyd, who's a professor of criminology.

I don't know if in the intervening time you've decided on who is going first.

Mr. John Conroy (As Individual): I'm here to answer your questions, basically. I had a call on Friday saying some of you wanted to hear from me, so I haven't had time to prepare anything. I'm in the middle of a preliminary hearing involving conspirators trying to export lots of B.C bud to the United States, so I quickly asked for time off from the judge to come here and give you the benefit of my views.

The Chair: Okay. Why don't we start with Professor Boyd? We have perhaps ten minutes for opening remarks.

And I would hope, Mr. Conroy, that you have a copy of the bill that is before us.

Mr. John Conroy: I do.

The Chair: Mr. Boyd.

Professor Neil Boyd (Professor of Criminology, Simon Fraser University): Thank you.

I can start by saying that there are strengths and weaknesses to the bill, but mostly weaknesses.

I do think it's reasonable, as a matter of public health, to discourage the use of a substance that cannot be fairly viewed as entirely benign. Within the realm of the power in relation to public health, that seems a fair exercise.

There is the elimination of the sanction of imprisonment for those in possession of not more than 15 grams of cannabis. I take that to be a positive step in an appropriate direction.

There is certainly at least a cataloguing of some of the harms that grow operations may impose in particular communities. These include using real property belonging to a third party without consent; creating a security, health, or safety hazard to children; creating a public safety hazard in a residential area; and placing a trap or device that is likely to cause death or bodily harm in order to protect the operation.

I don't think that any of those harms are part and parcel of grow operations, but they certainly are a reality of some percentage, a relatively small percentage, I think, of grow operations.

I want to talk a little about some of the weaknesses that I see in Bill C-38. I think it fails to address the reality that the harms of marijuana are relatively trivial for most users, particularly in contrast to the harms of tobacco or alcohol, the excessive consumption of fats or sugars, or the failure to exercise regularly. This is about public health. This is a strange place to start. I think it really is a continuation of a focus on the morality of a specific kind of drug use. It doesn't really dwell on the public health consequences of use.

I'm also puzzled by the distinction in the bill between cannabis and hashish, by the apparent equivalence of one gram of hashish to fifteen grams of cannabis. This doesn't reflect the market realities, and I don't think it reflects in any way the health consequences of these different forms of the drug.

I think there's a lack of clarity with respect to whether Bill C-38 actually decriminalizes small amounts of possession. I think it's fairly clear now that it does not, that it is really, I suppose, consistent with the throne speech of 1980, in which the Liberals promised to reduce penalties associated with marijuana possession. Given the criminal-record-keeping positions, given the possibility of powers of arrest, and given the language of the bill, I think it's fair to say that it's not really decriminalization. Decriminalization would be essentially vacating the overseer of the criminal law in relation to possession and allowing the provinces to regulate in the realm of public health.

If the offence remains as criminal, I think one of the dangers of Bill C-38 is that rights are reduced. More criminal convictions for possession of small amounts of cannabis may appear, given that there's potentially, and this is unclear, less work entailed in police enforcement.

The imposition of a maximum term of 14 years for the production of cannabis is inconsistent with existing case law and inconsistent with the harms resulting from the distribution of this drug. Perhaps you can look, for example, at R. v. Whyte, a unanimous verdict of the B.C. Court of Appeal, ordering a conditional sentence for a large-scale marijuana grow operation, one involving several hundred plants and reputed to be in the half-a-million-dollar range.

One of the great dangers of more severe sentences for production offences is that they will only increase the potential for violence in the trade. With more at stake and more to lose, the cannabis market in Canada may begin to resemble more closely the cocaine and heroin markets.

I think there's a clear and obvious disconnect in logic in urging the possibility of imprisonment for any form of production, even for personal use, but then urging the elimination of imprisonment for the personal possession of small amounts of the drug. As many critics have noted, it may not be a crime to possess a small amount, but you cannot produce this small amount for yourself without risking imprisonment. It necessarily involves travel into the illicit market.

I think it's fairly clear from the evidence in the Netherlands, in the United States, and in a range of jurisdictions globally that rates of use of cannabis are not affected by decriminalization. Even with the coffee-shop model employed in the Netherlands now for more than 25 years, we have lower rates of use among youth in the Netherlands than we do in Canada and the United States.

¿ (0920)

I think the apparent threat that Canadian cannabis production poses to American markets is relatively trivial, as both RCMP and United Nations reports attest. The U.S. seizes approximately three tonnes of Canadian cannabis each year, in contrast to several thousand tonnes of Mexican cannabis. This is to say nothing of American domestic production, particularly in what we might call the heartland of America.

I'm really more interested in responding to questions and engaging in dialogue, but I suppose our options are to stay with the status quo. The positives of it are that it sends a clear message discouraging the use of a potentially harmful substance. But the negatives are discretionary enforcement, with some police officers laying a charge, some confiscating, and some not; lack of respect for the law among young people, a problem that began with my generation and continues to this day, because it's not a law that makes sense to us; large profits by criminal organizations, as this is a law that will continue to line the pockets of criminal organizations; and little reason to expect changes in rates of consumption.

Another alternative, I suppose, is controlled regulation for consenting adults. The positives are that you can eliminate profit by criminal organizations; you can increase tax revenues for government, by putting cannabis alongside liquor in the liquor store; and you can improve control of product potency and preventive education. The negatives are strong resistance and opposition; possible sanctions from the United States; and the possible encouragement of use by sending a message of social acceptability. If we look at the promotion of alcohol and tobacco historically, we can certainly see that there are some potential difficulties with a laissez-faire approach to those substances. And, of course, there are potential UN sanctions, as that would be different from even the Dutch approach.

What I would favour is the decriminalization of possession and cultivation for personal use.

Recommendation 41 of the report of the special committee of the House of Commons came quite close to this—at least in its spirt. There were many problems in terms of how you would actually do that, including how you would limits plants to 30 grams—dry and wet—and other some logistical difficulties. But the spirit of that, the idea that you would not permit large-scale, commercial production, but that you would basically say “If you want to use it, you're not going to be treated as a criminal, and if you want to grow it for your own use, you're not going to be treated as a criminal”, seems to me to be a step in the right direction.

The positives are that you eliminate discretionary enforcement; you reduce the costly liabilities of criminal records in terms of travel and employment; it would be more politically acceptable, certainly to the United States and the United Nations constituencies, than outright legalization would be; and it would not encourage more use, as commerce would continue to be restricted and advertising and so forth would continue to be restricted.

The negatives are that the black market may continue to exist, though the right of the individual user to cultivate should tend to dramatically decrease both the price of the drug and the viability of a commercial enterprise of distribution. So I think it has the potential of making a substantial inroad into criminal networks.

I'll stop there. Those are essentially my points. I would be happy to answer any questions.

¿ (0925)

The Chair: Thank you, Professor Boyd.

Mr. Conroy.

Mr. John Conroy: My perspective on this is as a criminal lawyer.

I was counsel in the Caine case, heard by the Supreme Court of Canada on May 6. You may know that we were originally scheduled to be heard on December 12, but because of the announcements by the minister, we got to court and were essentially told that we were being adjourned, even though everybody opposed the adjournment and wanted to proceed. It was because of the announcements about this bill. The court wanted to hear what the government was going to do before it embarked on hearing the arguments.

A month passed, and we heard nothing from the minister. So I wrote a letter on January 13 to the minister, basically asking what the position was, and setting out what the position of the appellants was. I never got an acknowledgement to that letter; nor did we ever get a response in the court to the letter, nor did the minister ever tell the court what the government's position was.

So we went ahead on May 6 and argued.... Judgment is reserved. I think--and this morning's paper indicates to me that this is going to happen anyway--you should turf this bill and forget about it. You should wait to hear what the court has to say about the constitutional parameters of the situation, and then decide whether you're going to bring any bill up at all. Why pass this bill and then have the court come down, hopefully in a few months, and then what are we going to do--start all over again with another constitutional challenge to your bill?

This bill is on very shaky constitutional grounds, at least when you start saying “decriminalization”, because health is traditionally a provincial responsibility, not a federal responsibility. The only power that you get federally to legislate in relation to health is peace, order, and good government, or criminal law. So if you decriminalize, then you're vacating the field, by definition, and not using the criminal law power, theoretically. In my view, having provinces involved in legislating in this area would be a better thing than having a national law.

It should be like alcohol. And as far as I'm concerned, we should have coffee shops lining the border, so that Americans can come to Canada to spend U.S. dollars in coffee shops in Canada. We won't have to breach the borders any more. The Americans can come here and consume cannabis in Canada—and we'll make up for softwood lumber, from the perspective of those of us out west.

A voice: Oh, oh!

¿ (0940)

Mr. John Conroy: The WTO won't be able to regulate it because it's not listed, and we could have a proper legal market. We'd have lots of people coming here in order to consume cannabis.

What would the effect be? It's been legal in Ontario for this whole period of time. Where was the fallout? What happened? Did you have a big problem here as a result of it being legal? Was there widespread additional crime or were there problems from that whole period of time?

I grew up in Africa, where the Africans smoked the stuff all the time. My father was a consultant in the growing of tobacco, and as he walked through the tobacco fields, if he saw a pot plant, he'd pick it up and throw it on the ground. So I'm still waiting to see where the problem is from the consumption of marijuana. Where's the fallout? Everybody says “Oh, there will be all these problems”.

Anyway, it was to get rid of the “my-study-versus-your-study” debate that we took these cases to the court. We said “Let's go to a court, and you can call your experts and we'll call our experts, and we'll have examination and cross-examination, and we'll have an independent judge listen to the evidence and make findings of fact”. So that's what we did. The government got its chance to call Dr. Kalant, and he was called in every one of the cases to give the government position or current information on this topic.

Ultimately, at the end of the day, the findings were that 95% of the marijuana users were moderate, occasional users, and that it didn't pose any risk to their health whatsoever—as long as they were adults, and didn't have some pre-existing health problem. Five percent were chronic users, and would ultimately get chronic bronchitis if they kept doing it.

There were three vulnerable groups: pregnant women; the mentally ill, particularly paranoid schizophrenics; and most importantly, immature youth. Immature youth have always been the big problem, because we don't have any set way of determining maturity, so we draw this arbitrary line of 17 years, in terms of youth, versus 19 years as the age of majority.

So bearing in mind those vulnerable groups and that sort of evidence, and the court echoing some of what Professor Boyd just said--the findings of fact in relation to the impact of the law itself and how the law itself was causing more harm than good--the B.C. Court of Appeal listened to and accepted all of these facts from the trial court. The question then was whether the harm principle was a principle of fundamental justice in Canada. The split in the B.C. Court of Appeal was where do we set the threshold constitutional level? Is it any old risk of harm, and you can pass laws that threaten citizens' liberty? Is that your definition of a free and democratic society? Or must there be some significant serious or substantial risk of harm before you threaten people's liberty? That's the issue in my submission.

The possession and use of marijuana, as Professor Boyd said, and I agree with, is really a very trivial matter. It's trivial in the sense of where is the risk of harm to others from that conduct? Where is the risk of harm to society from that conduct? Traditionally, we use criminal law to prevent harm to others, not to prevent harm to oneself. So where is that risk of harm? And can you threaten people's liberty? Can you create offences that threaten imprisonment for this type of conduct? Our argument is that you can't, that the criminal law is the big stick, and you save it for serious substantial or significant matters, not for trivial matters.

So that's why we say section 7 of the charter is engaged here. When you threaten people's liberty by creating an offence, section 7 is engaged. When you tell people what they can or cannot do with their own bodies, in terms of a choice that they make, whether it's harmful to them or not, section 7 of the charter is engaged. So the question then is what are the principles of fundamental justice? And if the harm principle is that principle, then you get into this question of levels of harm.

So that's the way I analyze it. I say also, and I touched on this briefly in my submission, there is a division-of-powers question you have to concern yourselves with. It's not clear-cut. This Contraventions Act, as I recall, originally came in because there was a concern about who was going to collect the money for parking tickets at airports across the country--the thinking that there was a federal enclave or something like that.

I should tell you, too, I'm a regular criminal lawyer, so I make money out of prohibition. The more things you prohibit, the more money I make. If you jack up the penalties for growing, I'll make more money. More people will say, “Well, now it's worth my while hiring Conroy to defend me if I get busted for growing”. The growers and dealers don't come to me saying, “Way to go, Conroy, try to legalize the stuff”. They don't want the stuff legalized at all. They think they'll make less money if it's legal. The only people who support legalization are the consumers, and maybe some mom and pop operations, in terms of grow operations.

So while I think going to a traffic-ticket type of scheme is in the right direction, you will remember that some 30 years ago, we started with the absolute and conditional discharges. Mr. Trudeau introduced those as a way of decriminalizing marijuana. That was the basis for the absolute and conditional discharges. Then in the last go around you came up with the non-traceable record, summary conviction only up to 30 grams. So if you got to the border and the man at the border asked you if you had a record, you'd say try to find it; it's not traceable.

Now your next effort moving in that direction is this Contraventions Act. Why don't you just scrap it? Repeal prohibition on possession, and let's get on with it. We're in 2003 now. They did it in Belgium. They've done it in numerous other countries. And as I said, you've had it in Ontario for several years and it didn't seem to cause any problems.

The problem, of course, is increasing the penalties for growing. It's totally inconsistent with what is actually going on in the criminal justice system and what Parliament has told the judges to do.

I chaired a bar committee for some 15 years on imprisonment and release, and throughout that whole period I appeared many times before the justice committee responding to the Sentencing Commission work, the Archambault report. You will recall that as a result of that commission for the first time we had purposes and principles of sentencing set out in the Criminal Code. We directed judges to look at all other alternatives to imprisonment and said that imprisonment should be used as a last resort and we should look at all other sanctions. We said the fundamental principle of sentencing is proportionality. Judges have to look at the gravity of the offence and the degree of responsibility of the offender.

So if you're a provincial court judge and you're sitting in court every day and seeing the normal case load of criminal offences that come before you, you see lots of crimes of violence, lots of crimes involving property offences and things of this kind, and then you're going to see marijuana grow operations, or now rarely, at least in British Columbia, simple possession of marijuana. So as a sitting judge you're going to weigh the gravity of these types of offences, and it's difficult to put any seriousness, in terms of gravity of offences, on the grow operation cases compared to the crimes of violence and the property crimes. And to send people to prison for doing that, particularly in the absence of some indication of harm to others or to society as a whole, flies in the face of what we're telling the judges to do on one hand.

So there's a massive inconsistency in jacking up the penalties in these circumstances absent some harm to others.

I should tell you as well it's not just growers and dealers who come to me and say they don't want it legalized and so on, but drug squad officers often come up to me and say, “Conroy, what are you doing? Are you trying to ruin a good thing?” Fellow defence lawyers say that to me as well, because they've all gotten used to this being part of business. Defending people in marijuana grow operations is now big business for us criminal defence lawyers. It used to be impaired driving, now it's marijuana grow operations, at least in British Columbia

It's low stress. Most police would much rather investigate marijuana grow operations than murder, robbery, and rape, and so would most criminal defence lawyers rather defend marijuana grow operations than be involved in those other cases. So you have to get real about this topic and this situation.

My view, as I've said, is you should legalize. You would solve the medical issue with one stroke if you did that, because then presumably people could use it in consultation with their doctors or not. Sales could be governed by the natural health care products regulations that you have. If you're going to call something medicine and sell it as medicine, I certainly agree you should have to meet certain standards and so on. And there's a need, of course, for consumer protection even in the recreational market.

Again, we talk about the United States. I get invited to go down to something called Hempfest every year in Seattle. Some 200,000 young Americans come streaming through this park in Seattle, and it's all to do with marijuana. The last time I was down there the newspapers complained about the quality of the B.C. marijuana. They said all of these people were pouring chemicals into the stuff and shipping it into the States just to make money, and that they had to do something about improving the quality.

My colleagues in Seattle, of course, tell me that their clients are upset because the Washington State growers don't like the British Columbia growers importing marijuana into the United States because it affects their market. Seattle, I understand, has recently passed a resolution making it their lowest priority in terms of prosecution.

So I think a lot of what you're hearing from people like Walters and Ashcroft is posturing. They're probably quite happy with this bill. After all, they had 11 or 12 states back in the 1970s that came up with a traffic-ticket scheme for simple possession, and they jacked up the penalties for growing and dealing. Notwithstanding that, the facts still are that most marijuana in the States is grown in the States by Americans for Americans, in the corn belt. As Professor Boyd said, the next largest amount of marijuana going into the States comes from Mexico, and not from Canada. Canada supplies perhaps 2% of the American market.

So it is my submission that the Americans are doing a lot of posturing. They want people to think that they're really uptight about it, but what are they doing about the Mexican border? What are they doing about the cocaine coming into Canada, which is a much more significant problem than marijuana?

Crack cocaine use is a significant drug problem, and I have police officers who send me e-mails and write to me from time to time saying they hope we succeed in getting marijuana made legal so they can then concentrate on significant drug problems instead of the marijuana issue. So I think there's a dispute even within the police community in terms of perpetuating this prohibition in relation to marijuana.

I think that is basically what I would like to say. The gateway issue is of course one that you commonly hear from people, and I submit that the evidence just doesn't support that. If marijuana were a gateway, you'd have an awful lot of people from the sixties who would now be heroin and cocaine addicts, and you simply don't have that.

Is that enough to say it may cause somebody to use another drug? I submit that if you have a black market, the milieu makes it more likely that somebody will come into contact with other drugs than if you take it out of the black market. So really you have to overcome this xenophobia, this fear of what's going to happen if you simply legalize the drugs and get on with it so that we can make a dollar out of the Americans as soon as possible.

Thank you.

The Chair: Thank you, Mr. Conroy.

I always worry about the guys who say they have no prepared comments and not much to say.

It's okay. You did quite well.

I'll turn to Mr. White for the first ten-minute question period.

¿ (0945)

Mr. Randy White: It's nice to see you again, John.

Mr. John Conroy: I'm fairly delighted.

Mr. Randy White: We've had opposite opinions for many years on various issues, including the present one.

John, it's always good to see that you don't have any comments, as usual.

Mr. John Conroy: I don't have to prepare them any more, I've made them so many times.

Mr. Randy White: You are right, this whole issue is a lucrative job for lawyers, seemingly the police, and just about everybody else, and one wonders where it is ultimately going to end up. Even the refugee boards today seem to be getting clogged up with those who are claiming refugee status based on persecution in the United States with marijuana laws, rather than prosecution--and you can get involved in that one, too.

I'm an advocate of the view that politicians make laws, not judges, and your desire to wait for judges to decide on what is right and what is wrong...I guess we could cut a line there.

Mr. John Conroy: The line was cut in 1982. It's called the Canadian Charter of Rights and Freedoms.

Mr. Randy White: Well, perhaps so, but it's still up for debate, in this House of Commons, anyway.

I had dinner with a wise Vancouver legalization advocate at the Sheraton Inn, I recall, in Surrey, and he said that regardless of the fines, we won't pay and we'll clog up the courts until the courts give up, basically. I haven't forgotten that comment--and probably, I guess, that may be true. We'll start fining now, and people will say, “We're not going to pay the fine, so we'll clog up your courts” And ultimately the judges will say get out of here, and on and on that battle will go.

I do want you to comment on that. In addition, we heard last night from a gentleman from the Marijuana Party that regardless of the law, they'll continue to break it. So one wonders whether Bill C-38 will really do anything at all, other than clutter up the courts even more.

Mr. John Conroy: It will increase the disrespect for the law. That's what it will do.

¿ (0950)

Mr. Randy White: I wonder if you could both comment on that briefly. This whole thing bothers me.

Mr. John Conroy: The Supreme Court of Canada in the Cuerrier case said that you have to draw a line between criminal and non-criminal conduct and it has to be clear. If you don't draw that line, you will increase disrespect for the law. We know this, and the findings in fact in relation to marijuana use over all these years show that there's widespread disrespect for the law. What you're doing is you're passing a law that doesn't have the support of people, that people will violate. And they lose respect for you and they lose respect for our institutions if you try to do something that simply doesn't have the support of all of the people in this respect. You make it into a traffic-ticket scheme that makes it easier for the police to issue tickets rather than to charge somebody criminally. You may end up putting more and more people into courts or quasi-courts as a result of the scheme that you devise. Sure, the judges will be saying “Why are you clogging up my courtroom with this stuff that doesn't cause harm to others or to society as a whole?”

The line that you draw is, in my submission, this question of risk of harm to others. If there is a serious risk, put it into the courts, have an offence; but if there isn't.... Because if you're going to continue to criminalize conduct that doesn't pose a risk of harm, you'll have disrespect for the law.

Prof. Neil Boyd: When I started to teach at Simon Fraser University in 1978 I used to have debates in this seminar about marijuana, about whether it should be decriminalized, and I could get a spirited debate going about decriminalization of cannabis or about legalization. I remember going on the radio and having RCMP officers phoning in and saying that I should be shot for advocating the decriminalization of cannabis, and worse.

Mr. Randy White: You're still alive.

Prof. Neil Boyd: I am still alive.

The interesting point is that today I can't get a debate going. The police officers I talk to share my view, for the most part. They don't have any enthusiasm for this any more.

Don Keith, former head of the Vancouver city police drug squad, who believes in criminalization, nonetheless asked recruits in the eighties whether they had ever used cannabis. He didn't ask it to exclude them; he asked it as an integrity issue because he believed that most of them had and he wanted to see how they'd handle the issue of truthfulness.

We have a whole generation of people who have grown up with this. They may see it as a nuisance, but they no longer see it as something that's deserving of the criminal sanction. As I say, it's a non-starter in my class. The more interesting issue now is, how do we regulate it, how do we control it? I accept that there are some harms and that a small percentage of people--and John listed some of the categories--can get into difficulty. So let's think about public health regulation; let's get out of this criminal sphere and start thinking about this in terms of public health. I think that's the agenda we need to advance.

Mr. Randy White: Would you say that Bill C-38 is better than the status quo? Should we leave it at the status quo? Should we implement it?

Mr. John Conroy: I don't think you should implement it. I think you should, as I say, wait for the court, see what the court says. If there's room for you to do something after the court speaks, well, you can do it then. Why do it now and then invite further...? You're going to complain when you pass a bill and then the court comes down with words that suggest it's unconstitutional without it ever having gone to court. You're going to complain and say that they're being judicially activist as opposed to simply doing what their jobs are under the Constitution.

If you're going to pass it, the possession concern is heading in the right direction, but jacking up the penalties for production is heading in the wrong direction.

Prof. Neil Boyd: My comments are somewhat similar. If you are going to eliminate the possibility of imprisonment for possession, that would be a step in the right direction. The idea that you're going to increase the penalty seems to me to increase the potential for violence in the trade, and it has a number of negative consequences.

Mr. Randy White: So are you saying it's better than the status quo, or should we not implement the bill?

Prof. Neil Boyd: I would tend to agree with what John has just said. In terms of the possession issue, it is better than the status quo because you're eliminating the possibility of imprisonment for small amounts of cannabis. On the other hand, the message is inconsistent with case law. It reminds me of the Mulroney government's Bill C-54 and Bill C-114 in relation to pornography, when there was an attempt to legislate in relation to explicit sexuality that was completely inconsistent with existing practice. I think there's some similarity here. We have the B.C. Court of Appeal unanimously saying that a twelve-month conditional sentence for a very large-scale grow operation is appropriate, and the government is saying fourteen years. Nobody gives even seven years.

Mr. John Conroy: In British Columbia, it's an absolute or conditional discharge.

Mr. Randy White: I'm trying to get in a bunch of questions here.

Prof. Neil Boyd: Okay, I'll give short, sloppy responses.

Mr. John Conroy: Better than the status quo? The status quo in B.C. is a $100 fine or an absolute or conditional discharge. So the penalties under your bill are tougher than what goes on in reality.

Mr. Randy White: But the penalties for growing, for instance, are maximums. You know full well that in Vancouver, at least, or British Columbia, the maximum penalties won't be issued.

So what is the point? When the government says it's toughening up on grow operations, where is the toughening? Can you explain that in a courtroom?

Mr. John Conroy: Well, you can try to pass a bill that says you've got bigger penalties for so many plants, and so on, but I wouldn't expect the judges to impose those maximums either—and again, it's because they're going to weigh the nature of the offence against other types of offences. You're asking judges to send people to prison for conduct that doesn't pose a risk of harm to others, and that's ridiculous.

Prof. Neil Boyd: Nor with manslaughter. It's six years.

Mr. John Conroy: It's ridiculous.

Mr. Randy White: Okay.

Neil, I think you said you can't produce, but you can possess. But that's not true, is it? Under this bill, you can't possess either. It's still illegal.

Prof. Neil Boyd: Yes, you're right; it's still a criminal offence, the way I read Bill C-38.

I think what it does is that it makes one simple step to eliminate imprisonment. You might say that's just a codification of existing practice. There are, I think, still some people going to jail in some parts of the country for simple possession, but it's very rare. It certainly doesn't happen in British Columbia or in the lower mainland—not that I'm aware of.

Still, I do see that as a positive: yes, let's eliminate imprisonment as a sanction for simple possession.

Mr. Randy White: We're talking about one to 30 grams here.

I keep asking this question of witnesses, and I'm not sure if I get a consistent answer to it. Say there is a policeman on the street who intercepts somebody and says “Well, you have 18 joints on you”. What does he do? What are his options? Does he look at it and say, “Gee, 18 joints, I think that's 14 grams, or I think it's 30, or I think it's 35”? How do you deal with the options on the street?

¿ (0955)

Mr. John Conroy: It shows how ludicrous the bill is to start putting those numbers on it, because you're going to have to have police officers walking around with measuring scales of some sort in order to figure it out. It's just like your being allowed to grow up to 30 grams; so the plant gets up to a certain height, and you have to quickly cut it down or pull it up and weigh it.

So reality has to sink in here.

Mr. Randy White: I just have one other question. I know I'm rushing here, but I have so many questions.

John, I think you can answer this better than most. Let's say Bill C-38 goes into effect, and somebody goes into a courtroom charged with 32 or 33 grams. Is it crystal clear what the judge will do because of Bill C-38? Or will a judge say, “Well, wait a minute here; you've taken from zero to 30 grams and you've basically said it's not a criminal offence. So why would I, for two more grams, make it a criminal offence?”

In other words, isn't it going to be a case where the judges just start backing off further? Some countries have higher limits. Won't we be into a situation where the judge will say, “Well, no, no, I could have leniency from 30 to 40 grams, or 30 to 50 grams”? Where does this stop, in the judge's mind?

Mr. John Conroy: It won't stop. It won't be the judges, but it will be the defence counsels who first of all will raise questions about the weight and will challenge whether it's over, and so on, on a matter of conviction, to start off with.

And just like when you have the death penalty you have fewer convictions for murder, you'll have people being reluctant to convict for 31 grams, or if it's close to the line, and we'll have all kinds of judicial time wasted.

Mr. Randy White: Could you form a strong argument for 32, 33, 35 grams, if you surpass that?

Mr. John Conroy: Well, I say you shouldn't put any limits on the number of grams, as far as I'm concerned.

Mr. Randy White: But there is a limit.

Mr. John Conroy But there is, and it will cause issues in the court.

Certainly if a person is convicted of possessing 32 grams, compared with 29, the courts are going to say, “Well, Parliament has made this distinction, so I have to treat this more significantly”. But at the end of the day, I wouldn't expect the penalty to be that much more significant, because you've also said that up to 30 grams is a lesser penalty.

So where is the justification to impose any more significant penalty just because it's just over the line?

Prof. Neil Boyd: I think prior to the passage of the Controlled Drugs and Substances Act, we didn't talk about gram limitations. There's some mention of 30 grams now, in the current act, and this will of course push it even more in that direction.

We relied on the fundamental distinction between possession and then trafficking or possession for the purpose of trafficking or cultivation. I think now the spirit of recommendation 41 is in relation to whether it's commercial or non-commercial. That's a tricky distinction to make as well, but I like the spirit of the recommendation coming out of the House in December 2002, and I would like to see some enlargement of that.

The specifics are difficult, but if the government wants to draw a line between growing for personal use and using personally and prohibiting large-scale commercial operations, that may have legitimacy and it may be possible to do that. It was possible to do that under the Narcotic Control Act.

Mr. John Conroy: Right now you have life imprisonment as the maximum for possession for the purpose of trafficking over three kilograms, and five years less a day if it's under three kilograms. That's so that you don't get a jury trial for a pot case but you can get one for heroin or cocaine. You have that distinction now, and the effect of that--and I'm actually in the court of appeal next week on this--is that the absolute or conditional discharge section says you can't get an absolute or conditional discharge if the maximum penalty is life or 14 years.

So you can get a grower growing for a compassion club who happens to have more than three kilograms, and he's facing a life sentence; he can't get an absolute or conditional discharge. If he has under three kilograms, he can. So there are other effects and consequences whenever you put these amounts in as a threshold level.

À (1000)

The Chair: Mr. Macklin, and then Ms. Jennings.

Mr. Paul Harold Macklin: Thank you, and thank you to the witnesses.

Obviously you've carved a very broad road here for us to look at, saying we should be going further, substantially further than where we are. But let's go back to the question that was just briefly debated--that is, the recommendation that was made in the report of the Commons committee--and give us some guidance as to what you think we ought to do in terms of modifying Bill C-38 to bring it in line with recommendation 41. Obviously we're dealing now with growing for personal use. What sorts of suggestions would you be able to bring to the table that would be helpful in us crafting or modifying the existing legislation to meet that goal?

Prof. Neil Boyd: I think if one looks at the Alaska experience, there are some lessons there. Alaska had legislation very similar to recommendation 41 for many years, until the U.S. government made a considerable effort to recriminalize, and there didn't seem to be any significant problems resulting from that kind of approach.

I think politics is the art of the possible, as has been said many times, so I'm looking at compromises that are workable.

In recommendation 41, I thought it was interesting that the House of Commons.... And we have the Senate come in recommending full legalization, which I'm sympathetic to, but I am also not sure that's workable in the current political reality. So I think recommendation 41 is workable insofar as it basically draws a line between personal use and personal growing, or perhaps even a small cooperative among people, and large-scale commercial, somebody who has 700 plants and it's a completely different kind of operation.

You might accomplish a number of important objectives. I think it's really important to stop lining the pockets of organized crime, and Bill C-38 will continue to line the pockets of organized crime. I think recommendation 41, with some modifications, not being too inflexible around the 30-gram limit for growing in terms of wet or dry....

It's obvious. I live in a small community, with a police officer who says to me, “If I go to somebody's house and they have three or four plants, I'm not concerned, but we took down a house where the entire 2,000 square footage was devoted essentially to a plantation.” That's a different issue for me, and I think police officers are capable of making those judgment calls.

So I think it's difficult to imagine how you're going to word it specifically, but I think you need to work on recommendation 41, and five plants, or ten plants.... I don't know. You could limit it by number of plants, and that might well work.

Mr. John Conroy: That seems to me what you'd have to do, at least to the production part of that recommendation, but you still have other problems that you're going to face, because right now the concern of the courts in looking at different grow operations is that if it's in a commercial area or out in the country, that's one thing, but if it's in a residential neighbourhood, it's another.

The concern about the residential neighbourhood is, in some cases, the fire hazard, the rip-offs that can occur, those types of things. So they focus on these problems that are created by the black market.

Municipalities have passed bylaws--I don't think they're constitutional, but they call them “controlled drug bylaws”--so that the minute the police find a grow operation, they now charge you with all kinds of things, to reconnect up this and that, as an additional sort of penalty to try to take it out of the residential neighbourhoods.

Insurance companies are refusing to insure people who grow marijuana. Insurance companies are refusing to insure people with medical exemptions or designated production licences. So if you're going to allow people to grow five or ten plants, you have to think about that consequence as well.

Ideally, it shouldn't be in residential neighbourhoods; it should be in agricultural communities. It's an agricultural product that should be grown the same way as other products are grown. But if you're not prepared to go that far and have a legal market, and you're going to make that compromise with the small number of plants, then I think you have to address also those other consequences of it being in the residential communities.

À (1005)

Mr. Paul Harold Macklin: In effect, as I understand the Netherlands' experience, they still maintain, on the books at least, an illegality, but it has become a matter of practice that in fact there is no enforcement. In a sense, is that sort of what you would see as the doable model for us as well?

Prof. Neil Boyd: I think it's desirable, but I'm not sure it's politically doable. I'm looking more at the Alaskan model as one that might work here--

Mr. Paul Harold Macklin: The Alaskan model being...?

Prof. Neil Boyd: --basically keeping it out of the public sphere.

As John has indicated, that raises some other problems, but if you have a more open regulation, perhaps those can be addressed. But allowing people to grow for their own needs and allowing private possession, but not allowing....

I don't know that we need to go the Amsterdam route to basically try to resolve the problem, which I see as addressing the public health concern, but most important, addressing the organized crime concern.

There's no doubt that Bill C-38, in its present form, would only allow the continuation of large-scale profits by organized crime. You can take people out of the black market and say, look, if you want to use this drug, that's okay, and if you want to grow for your own personal use, that's okay, but we don't want to have it in coffee shops or in liquor stores, for reasons that I think relate more to political pragmatism than to what might be best in the interest of public health. If one wants to go that route, I think it is possible, and I think you could really make a dent in the black market.

Mr. Paul Harold Macklin: So it's primarily taking the imprisonment out of that section of illegality, I suppose.

Prof. Neil Boyd: Taking it out of possession and cultivation for personal use.... Philosophically, that's what I would argue.

Mr. John Conroy: Wouldn't you say to go further and not just take out the imprisonment, but you'd actually allow that to happen?

Prof. Neil Boyd: All the criminal status connected with it.

Mr. John Conroy: So you would allow people to possess and allow them to grow up to a certain amount, and it wouldn't even be a ticketable offence, and then see what happens in the rest of the market.

I don't think you want to do sort of a “Well, it's against the law, but nudge, nudge, wink, wink, we're not going to do anything about it.” That's what happened with the medical regulations, and people were still forced to go to the black market to get seeds or to get product. Even though you allow people to possess or to grow, you're still going to get people who couldn't do that.

You had this man here last week who blew himself up in a fire, or whatever, trying to get stuff because he couldn't afford to grow it or go to somebody else to grow it for him. It seems to me that it's one thing to allow people to grow a few plants or to possess it, but the reality is that there still has to be some market and you want to have some sort of regulatory control or something in relation to that other market.

Prof. Neil Boyd: I do think, too, the comments of the current mayor of Vancouver are somewhat instructive. He's a former drug officer, a former coroner, and he thinks it should be put in the liquor store and taxed alongside the liquor. Ultimately, that makes the most sense.

Philosophically, I agree with that position, but politically, I think that's very difficult for you to enact. Great, if it's possible, but more likely, it seems to me, there's a legitimate desire not to have it in public. Okay, fine. So you could even have civil fines for public use, but be aware of the hypocrisy of not having civil fines for tobacco use.

Mr. John Conroy: One of the fundamental flaws, in my submission, in the act is section 60. It allows the cabinet to put any drug in the schedule, if they deem it to be in the public interest. The minute they put the drug in the schedule, it's an offence, and liberty is threatened.

There's a major question about the vagueness of the public interest: there are no criteria. It seems to me that you should be putting criteria into section 60 that are harm-based, so you can make distinctions among the different types of drugs. Then you could see this one's way down at the bottom, and ask yourself whether cabinet should simply take it out of the schedule, and that would be the end of the matter.

Mr. Paul Harold Macklin: That sounds like what's going on with the debate in England, where they've just shifted from a class C to a class B.

À (1010)

Mr. John Conroy: The cabinet could do that. Just take it out of the schedule, or shift it into its own schedule—which I think is what was proposed back in 1981.

Prof. Neil Boyd: In a sense, it was proposed by the Le Dain commission—

Mr. John Conroy: Le Dain, that's right.

Prof. Neil Boyd: It proposed the decriminalization of the offence of possession. That meant individuals who use should not be treated in any way as criminals. I think Bill C-38 does continue the criminal status of users.

Mr. John Conroy: The difference then was that you had a Food and Drugs Act with different schedules, and that's changed somewhat with the Controlled Drugs and Substances Act. But you still could do that.

Mr. Paul Harold Macklin: Again it's a progression, I guess, not only within this country but also a question of progression internationally. The question is, how do you deal with the UN conventions in a way that keeps you onside while you're in the progression, as you're working your way through this?

Mr. John Conroy: The conventions were raised at the trial level in all of the cases, and then not dealt with by the courts, because they're all subject to our Constitution. Secondly, we can withdraw from them--and we should, in my submission.

Prof. Neil Boyd: The Netherlands has established for 26 years that you can take the kind of position that they have, as you indicated, of simply not enforcing the law, and not be censored by the United Nations.

The Chair: Thank you very much, Mr. Macklin.

Ms. Jennings, for five minutes.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you.

Thank you very much for your presentations.

If we were to take marijuana out of the schedule--ergo, it's no longer criminalized--do you think the provinces are prepared to in fact regulate the production and sale of marijuana? Are they in a position to and are they prepared to?

Mr. John Conroy: I think their mindset is such that they can't believe that maybe they've got jurisdiction in this area, because when we went to the Supreme Court of Canada, they could all have intervened, and none of them did—or I think Ontario did—to try to uphold the federal law. They've always thought of this as the international control of narcotics, as a federal criminal matter, instead of looking at it and saying, “Well, is this really a narcotic within this framework, or is this something else?”

So I think that if you take it out of the schedule.... If they don't, I suppose the feds could stay involved, and you're presumably going to tax the stuff, and all the rest of it, and have some sort of regulation to the market. Then you'd see whether the provinces would say, “Well, wait a minute, this is really a provincial responsibility”, and they may jump in, and you'll have a division-of-powers argument. But they don't seem to be saying “Hey, we want it”. I haven't seen evidence of that.

Mrs. Marlene Jennings: That may be political.

Mr. John Conroy: It may be.

Mrs. Marlene Jennings: Because they may not want the political headache.

Mr. John Conroy: Perhaps.

In British Columbia, they're usually very good about wanting to raise money, and tax and stuff, so you'd think this would be one way of them raising a lot of money, given what the media says is the size of the industry.

I have clients who made it into Forbes magazine last week. You should pick up a copy of Forbes magazine to see what it's saying about the size of this industry, particularly in British Columbia. I sat next to a member of Parliament from up in the Okanagan, and it turned out that there were the names of at least three people from his riding in this article, because many of the towns in that part of British Columbia survive on the marijuana industry. It's not just some stereotypical dope addict on the street, who you may remember from a picture back in the 1950s or something, but there's this huge culture that's now grown up, and there's a need for some sort of regulation of this market.

Mrs. Marlene Jennings: Did you have anything you wanted to add to that, Professor Boyd?

Prof. Neil Boyd: I think if you were to follow Le Dain and to follow the spirit of recommendation 41, you're going to maintain criminal penalties in relation to distribution. So you're not going to entirely vacate the federal sphere in relation to criminal law and procedure.

In that formulation, the power to prosecute in relation to possession and cultivation for personal use simply disappears, but there remains a penalty in relation to large-scale commercial distribution.

Mrs. Marlene Jennings: Well, no. If you actually move to legalization, it's no longer--

Prof. Neil Boyd: I'm not talking about that as a--

Mrs. Marlene Jennings: I'm talking about this. It's no longer a controlled substance. It's no different from going and buying some oregano, in which case it's a provincial jurisdiction to determine if the actual production and sale require regulation, and they may in fact decide that it requires regulation, as with alcohol.

À (1015)

Prof. Neil Boyd: Sure, but I think we're talking in the realm of wild speculation and improbable events.

Mrs. Marlene Jennings: There is a definite movement calling on the government to simply legalize.

Prof. Neil Boyd: Well, I agree with that. I think the Senate's right.

Mrs. Marlene Jennings: You're talking about more step-wise.

Prof. Neil Boyd: Yes, I'm talking about being politically pragmatic. I think it should be alongside the liquor in the liquor store and regulated with age and place restrictions in much the same way that liquor is.

Mr. John Conroy: Yes. That's the starting position.

Prof. Neil Boyd: That would be my philosophical conviction.

Mrs. Marlene Jennings: Right, but if it's in the liquor store and it's being regulated in terms of sale, etc., it's also being regulated in terms of the commercial production.

Mr. John Conroy: Yes. You'd have to have licensed dealers, licensed growers. There's provision for that now in the legislation. The narcotic control regulations have for ages provided for licensed dealers and growers. They just don't issue licences, that's all.

Prof. Neil Boyd: I think that makes the most sense.

Mr. John Conroy: There's another massive impact of this in terms of the hemp industry. I know you're talking about the non-medical use, but in the Vancouver Sun just last week it showed how they're using it in cars. I was in Amsterdam not long ago, and all Mercedes-Benz, BMW, and Opel manufacturers use the fibre now in the door panels and so on.

Yet it's this illegality of the recreational use that has prevented this entire industry from growing. This article in the Vancouver Sun talks about 25,000 different uses for the seeds and fibres of this plant.

There's a theory out there that it was the Hearst newspaper chain that owned all sorts of pulp and paper tracts at the turn of the century. A machine had been developed to harvest hemp competitively with pulp and paper. This led to a lot of the yellow journalism and so on that went on in order to demonize this substance.

I have a 1920 Nor'-west Farmer magazine somebody sent me with a picture of a couple of Saskatchewan farmers standing next to these huge hemp plants. It says “...the future of this industry”--that is, the hemp industry--“is assured”. Well, it went down the tube the minute this issue became, in those days, based on racism, primarily. It became a prohibited substance.

The other impacts or other consequences of legalizing, in my submission, are beneficial to Canada, not detrimental.

Mrs. Marlene Jennings: Thank you.

The Chair: Mr. White.

Mr. Randy White: I guess we can look forward to smoking car doors.

Mr. John Conroy: When you get to the border they'll say “Does this car have hemp in it?”

Mr. Randy White: That's right. They can't stop it.

I want to get back to this legal battle that keeps bothering me about this whole issue in Bill C-38 or any of the issues that we have with marijuana or drugs today.

I want to read one of the decisions in a recent court case from an article that I picked up by Janice Tibbetts and CanWest News Service. It says:

Two pot-smoking, nudist reverends--who called marijuana the “tree of life”--have a genuine legal argument based on freedom of religion that they should be allowed to toke, says a federal judge.

Justice Frederick Gibson is his name. Further excerpts from the article say, and I quote:

Brothers Michael Baldasaro and Walter Tucker, the bishop and abbot of the Church of the Universe in Hamilton, Ont., say they feel closer to God when they smoke “the holy plant”.

“I am satisfied that there is evidence before the court that the plaintiffs sincerely believe that marijuana, or as they prefer, “the tree of life”, is a sacrament to them and in their church”, wrote Gibson.

“It facilitates their communication with God, their peacefulness and their openness to God and to other persons.”

Mr. John Conroy: Gibson's a former Solicitor General and a former chair of the National Parole Board.

Mr. Randy White: Yes, I don't know what he's formerly of, but we're trying to get through some legal decisions to try to level these things off and make them more practical. When I read that article I wonder what kinds of decisions we're going to get in the future.

Now, having said that, I see some legal battles coming as a result of Bill C-38, as if we don't have enough of them, like the one I just read and others. Correct me if I'm wrong here, but the issue of what is 30 grams and what is a little over 30 grams, as we talked about earlier, and should one be a higher penalty than the other, if it's 32 grams, 33 grams, and so on.... Whether the amount is in fact one gram to 15 grams, or 15 grams to 30 grams, it seems to me it is going to be another battle.

À (1020)

Mr. John Conroy: No matter what you do, we're going to have legal battles, unless you legalize it.

Mr. Randy White: What about in the growing aspect of Bill C-38, where you have plants that are three inches high versus three feet high, and of course they're all maximum penalties? What kinds of legal arguments will there be for that? And what about the people who can't or won't pay the fines? What's going to happen?

Mr. John Conroy: Well, ultimately, in your Contraventions Act it says that you can't get imprisonment for default of payment of your fines. Hidden down in the bottom of it there's still a provision for a warrant of committal to send somebody to prison. So that's been the traditional way. The provinces have used distress. So you can go and seize people's property and so on as if you were enforcing a civil judgment or something. It's cumbersome--

Mr. Randy White: Given what I've said, though, I'd like to ask both of you whether or not this has simplified anything, whether or not we're about to enter into a new realm of court cases based on the introduction of more complexities of the marijuana issue. That's what I want to know.

Prof. Neil Boyd: Well, I think so, but I'm hopeful that the Supreme Court will give some sense of direction.

And you indicated earlier that you believed that the legislators and the Supreme Court ought not to be involved in legislation. I see it as Peter Hogg would suggest, as a dialogue between the courts and the legislature. They're going to come back with something, and that might make your task a little easier; it might not, it's hard to say.

I tend to agree with what John was saying earlier. Let's wait and see what the court has to say.

My guess is that it's not going to be so definitive as to end all further litigation. This issue is going to take some time to resolve. My hope is that in 50 or 100 years from now, we'll look back on this as a rather bizarre time of our history in which we treated a drug that was relatively trivial as if it was more harmful than alcohol and tobacco, which people were dying from at record rates.

Our hypocrisy is quite astounding, really.

Mr. Randy White: Well, it is in terms of how you can openly sell the seeds and all this packaging. Everybody knows what it's used for but--

Prof. Neil Boyd: We call people who sell tobacco outstanding corporate citizens, and in fact it would be more accurate, it seems to me, to describe them as the pushers, because they have the right to sell a drug that kills one out of every two consumers, to push it on the public. They pay for placement. In contrast, people who sell marijuana generally tend to sell it in clandestine settings to willing consumers. Or perhaps they advertise through magazines and the like, but it has nothing of the danger of tobacco.

Mr. Randy White: Well, I disagree with that comment.

Prof. Neil Boyd: There are 35,000 deaths a year in Canada from tobacco. It's difficult to come up with any from cannabis. According to the Canadian Centre on Substance Abuse, according to any reputable health statistic that you want, it's trivial in contrast to tobacco.

Mr. John Conroy: Eating fatty foods is a more significant health problem. So are you going to threaten people's liberty because they choose to eat fatty foods that are not good for their health? Is that the next thing you're going to do? This is a free society.

In a free society I thought that people were entitled to go about their business and to do whatever they wanted so long as they didn't cause harm to others, so long as they didn't present a risk of harm to others.

There has to be a significant serious or substantial risk before you threaten liberty. So doesn't it always come back to that issue?

Why should somebody who chooses to smoke marijuana as opposed to smoking tobacco or to drinking alcohol be subject to being stopped by a policeman and even given a traffic ticket simply because they choose to use that substance as opposed to alcohol or tobacco? And if you know that alcohol and tobacco create more social problems, in fact substantial toxicity and other problems from those drugs compared to marijuana, where's the justification for the interference with liberty in the “non-risk of harm” type of situation, to the one where there is that risk of harm?

We know there's evidence of the second-hand smoke problem from tobacco smokers. We know there are harms to others from that type of conduct, but there isn't any from this marijuana type of conduct. So where do you rationalize this position in terms of interfering with liberty?

À (1025)

Mr. Randy White: Do you use the same argument for Ecstasy?

Mr. John Conroy: Yes. Idon't know a lot about Ecstasy, but the information I do have is, again, there's far more hype about how serious a risk of harm it presents than the reality of it--from the people I've talked to.

Prof. Neil Boyd: I would put it in a different category. It's a stimulant. It's a variation on an amphetamine molecule. I don't see it as similar to cannabis. I think if you look at rates of use of Ecstasy and compare them to the rates of use of cannabis over time, there are some reasons to be concerned about Ecstasy. There are things that people can do at these raves to reduce their risk of harm, but there's a risk of harm with Ecstasy that does not exist with cannabis.

Mr. Randy White: But John just said he'd use the same argument with Ecstasy.

Would you use the same argument with heroin or cocaine?

Mr. John Conroy: Well, my own personal view is that the criminal law should get out of the drug thing completely. We should eliminate drug prohibition. It's a health problem. All the criminal law does is cause addicts to look over their shoulders instead of going and seeking help from health care professionals.

So I think if people get addicted or if they get sick from using drugs, they should be able to talk to health care professionals about it and not worry about being busted and going to prison. Unfortunately, that's what's happened in the past.

As a criminal lawyer, again, I can say there's a big difference in appearing in a criminal court involving somebody charged with an offence that involves harm to others or to society as a whole compared to something that affects just them as individuals or starts to affect others because of the nature of their addiction and the lack of treatment programs. Treating it as a criminal justice thing, sending people to prison or threatening their liberty because they're addicted or sick, is in my view ridiculous.

Prof. Neil Boyd: I have a somewhat different view.

I agree with John that the criminal law is wholly inappropriate for dealing with public health problems, but I think each drug has to have its own policy. And we can see that with tobacco and alcohol. We have very different regulatory policies for the control of those drugs.

We talk so much about the failure of the war on drugs. Perhaps we should talk about the success. It's not a war on tobacco. We haven't used the criminal law to control tobacco. We've used aggressive public health education and non-smokers' rights initiatives and we've cut the rate of tobacco consumption in Canada from 55% per capita in 1966 to 22% in 2003. We've done that without the use of the criminal law, partly because the evidence against tobacco is so overwhelming in terms of its harm that people have recognized that one out of two of them will die if they continue to use this drug.

Mr. John Conroy: Without the hysteria that surrounds marijuana.... We know that if you can get accurate information to people, they'll make good decisions about what to do or not do. Unfortunately, this is one of the problems in relation to marijuana, which the court has focused on.

One of the findings in the cases I did was that young people in particular have been lied to so much about the marijuana thing that they don't believe people when they talk about the more serious drugs. You have to stop thinking that young people are stupid; they're not. They can figure these things out, and if you're going to lie to them about it, you're asking for trouble down the road.

Prof. Neil Boyd: I think that's one of the problems with drug education. Most of it, historically, has been a thinly veiled attempt to scare kids away from the drugs we don't like, the so-called bad drugs like marijuana, while not even acknowledging the dangers of the drugs that are much more likely to kill them, even when you take rates of use into account.

I think that's changing a little. I've had police officers talk about how they want to have a range of perspectives in public schools, not just their own. They recognize they have a certain amount of information to offer.

I do see the ideal as people using fewer drugs, less often. I think that's a laudable goal.

Mr. John Conroy: Large numbers of the young people I've come across who are interested in marijuana do not drink and do not smoke tobacco. Marijuana is their drug of choice.

The Chair: Thank you, Mr. White.

Ms. Allard.

[Translation]

Ms. Carole-Marie Allard (Laval East, Lib.): Good morning, gentlemen, and thank you for being here.

I would like to thank you for appearing before us today. I missed part of your presentation. There were traffic delays this morning because of the weather.

I would like to discuss the clause that prohibits the growing of marijuana. If I understand what you have said, you think that people should be allowed to grow a few plants because this would close the door to organized crime.

The regulation allowing terminal patients to use marijuana states that they can grow their own or can ask someone to growth it for them and they will be granted an exemption. I took part in some telephone interviews where people told me it was too complicated for them to grow their own marijuana and that even if they were given an exemption, they preferred to buy it instead.

Also, when one has a long-standing relationship with a supplier, one can expect to have access to marijuana containing the same percentage of THC. Marijuana provides relief to these people, and it is obvious that some suppliers provide marijuana with a higher THC content than others. Do you think it is really possible to fight organized crime by including a provision in the act that would allow people to grow a few marijuana plants in their own home?

À (1030)

[English]

Prof. Neil Boyd: I accept what you are saying as legitimate enough. Most of us, for example, don't want to make our own wine or beer. We buy it from the store. So it's a kind of political compromise, a half measure of sorts.

I do think if one is tolerant about the nature of distribution one could have a number of people who grow collectively. If what we want to do is avoid a large-scale commercial enterprise, we are admittedly going to have to draw some difficult lines around what constitutes a legitimate form of growing and distribution and what does not.

I think in the final analysis, for the kinds of reasons you've set out, putting it in the liquor store alongside the liquor is the preferred route.

Mr. John Conroy: I don't think allowing people to grow five or ten plants will do anything to organized crime. Organized crime thrives on prohibition. You create black market prices; that's why they're in it. You have to get rid of the black market if you want to reduce organized crime's interest in this particular thing.

We have all kinds of people who grow. I mean, it's not as simple as just putting a seed in the ground or in some pot to grow marijuana. The medical users you talk about have discovered this.

Back in the sixties, the marijuana came from Colombia, Mexico, Thailand, or northern California. Now you see books that have 200 different varieties and strains and so on--it's become like the wine industry. So we have all these people who know how to grow all these different strains out there. Why don't we just license them and they can supply the liquor stores, and let's get on with it.

Prof. Neil Boyd: One possibility, too, going back to prohibition and the Bronfmans and the import-export business they set up interprovincially, if you really want to keep it out of the public sphere, you don't want to set up coffee shops, etc., but you do want to get rid of the black market, then maybe you would license places to distribute. You'd go through the cumbersome type of thing that I recall from the fifties and sixties with buying alcohol. You'd go into the store, write out a slip. They'd go away and come back with a bottle wrapped in brown paper. I mean, it's all a kind of ritual of a sort, but it serves, I suppose, the purpose of saying this is a drug, we're going to license it, we're going to get rid of the black market, but we're going to do so under these restricted circumstances.

[Translation]

Ms. Carole-Marie Allard: I have another question. Even though it has become legal, alcohol is nevertheless responsible for a large number of deaths. People end up killing others every weekend because they have had too much to drink. Legislation cannot take care of everything.

À (1035)

[English]

Mr. John Conroy: No, but you've realized the reason that you don't prohibit tobacco or alcohol again is because of the other consequences you get in terms of disrespect for the law--all the things you see happening with cannabis. So I don't think that's an argument.

I want to quickly say this, though, because often this is raised, this business about impaired driving, and how you have to have some kind of special device in order to determine how much cannabis is in somebody's blood and so on. You have to remember, there are two offences in the Criminal Code. One is to drive with a blood alcohol reading in excess of 0.08%. This is the thing that involves the machine and is specific to alcohol. The other one is impaired driving, which is to drive while your ability to do so is impaired.

Police officers are authorized under the law to have you come out of your vehicle, make you walk up and down a line, do the old heel to toe test and all the rest of it, to check your motor coordination skills to see if your ability to drive is impaired or not. They can do that for Ecstasy, they can do that for marijuana, they can do that for any number of substances. If your motor coordination skills are okay, they should let you get on your way. If they're not, they give you either a 24 hours....

Prof. Neil Boyd: I think we have to look at where we are today and what would happen if we had a situation somewhat like Amsterdam, and the best way of evaluating that is looking at the Amsterdam experience. Do they have more difficulties with the drug than we do? It's already here, the cannabis, in Canada, so if we set up a system that allows people to purchase it, are we going to have big increases in rates of use? That certainly hasn't been the experience in the Netherlands.

Ms. Carole-Marie Allard: The Netherlands increased tourism. We saw it.

The Chair: Mr. Macklin.

Mr. Paul Harold Macklin: Thank you.

I'd like to pursue some issues a little further. First of all, on the impaired driving issue, not only can you have a short-term suspension, that is, the taking away of your car keys, but also there can be a charge laid clearly under that section of the act. But one of the questions that has been brought up and brought up by police and others is the question of when you're dealing with impaired driving we seem to be having it brought to us that it's very important that they be able to identify the drug, in this case, marijuana, in order to be effective in doing their work.

Now, can you, from your perspective, tell us if that is something that is truly important in this process, or should, as you mentioned, Mr. Conroy, the fact you can show impairment of one's ability, motor skills, be adequate in order to bring forward a charge? And in fact I believe they're now starting to use video cameras on site in order to deal with this issue of corroboration of what went on at that time. Do you see that it is necessary in an absolute term that they be able to identify what drug it is?

Mr. John Conroy: I don't think it is. I know the police have been saying this for a long time. It's interesting that back in the seventies that's how they figured out that the use of marijuana reduced the glaucoma situation, because they were trying to see what the impact on the eyes was, dilation and so on of the pupils. But I don't see why it's important. As I say, it's the ability to drive that's the critical issue.

They have had training courses for officers, certainly in British Columbia, to identify people who were under the influence of marijuana. They were going to call the witness in the Caine case, but at the end of the day they didn't. But there are trained officers in this area, and it's fairly common in British Columbia, if they think somebody is under the influence of marijuana, to give them a 24-hour suspension. Either it's because they picked up smell.... And the smell thing is difficult, and smell of course doesn't necessarily mean that the person has been consuming. If the officers stop people in a car and they pick up a smell, if the smoke is pouring out the window then I suppose it's obvious, but if it's just a smell, say a smell of burnt...it may mean somebody smoked in that vehicle before. If it's the veg smell, obviously then it has something to do with either there's some marijuana present, or it's on the person's clothing, or something like that.

A voice: It could be the car door.

À (1040)

Mr. John Conroy: It could be the car door now. That's right. I'll use that next time when I'm cross-examining a police officer about smell.

Mr. Paul Harold Macklin: Secondly, following up on another issue that has been brought before us, the question of minimum penalties, it's been suggested by witnesses, and more particularly by members of this panel, that in fact we ought to be looking more at mandatory minimum sentencing as a way to deal with the grow operations. I would like to hear your response to that.

Prof. Neil Boyd: I think that would be a grave mistake. I think it will escalate violence in the trade, and it will entrench the power of criminal organizations. It will not in any sense decrease the profitability of the trade, as it will increase potentially the value of the product, and those costs will be passed along to consumers. The best evidence in favour of that proposition is from Washington State. If somebody walks marijuana across the border they increase its value by 50% because there's a higher risk. That risk gets passed along to the consumer in the form of higher prices.

There's nothing inherent in marijuana distribution that makes it a non-violent activity. Although one could certainly argue that the drug isn't connected with the kinds of behavioural problems that cocaine and alcohol are, it's possible to influence that market and to make it a more violent market. Mandatory minimum penalties, it seems to me, will be a push in that direction.

At the end of the day, why? Why have mandatory minimum penalties for something that is so trivial in terms of public health?

John made the point earlier on excessive consumption of fats and sugars. I'd add to that a comment I made during my presentation: the failure to exercise regularly is a much more important component of public health than the occasional use of cannabis. Perhaps we should think about imposing criminal penalties on those who fail to exercise regularly. Is our goal longevity? Do we use the criminal law to increase longevity in Canadian society?

I think we have to go back to first principles. Why would we do that? Why would we want to have mandatory minimum penalties for those who distribute a drug that's less dangerous than the kinds of things you can buy in supermarkets? If you think about it, Tim Horton's does pose as much danger to the Canadian public as marijuana distributors.

Mr. John Conroy: On the one hand, I'll make more money if you impose mandatory minimums, so it's good for my economic interests, but it's the wrong thing to do.

You have to go and read the Sentencing Commission report on mandatory minimums. It's acceptable to have mandatory life sentences for first and second degree murder and perhaps mandatory minimum parole eligibilities in those situations, or for treason. It's acceptable to have mandatory minimums for, say, second offence impaired driving, something like that--that's in the low end type of mandatory minimums--or the use of firearms in the commission of an offence, but that's about all we have in terms of mandatory minimums in Canada.

There used to be a mandatory minimum of seven years to export to the United States, and the courts struck it down as being unconstitutional because you could end up having a grossly disproportionate sentence--if somebody takes one joint across the line, for instance.

So I'm in the court of appeal again next week on the issue to do with the absolute and conditional discharges because in effect, if you have an offence that carries a penalty of 14 years or life, you can't get a discharge. So it's a type of mandatory minimum in the sense that you can't get that.

What's wrong with mandatory minimums is, again, you parliamentarians have said in the Criminal Code that the judges are supposed to do individualized justice in this country. We don't do what the Americans do: we don't have a mathematical grid where the prosecutor decides what you're going to get by the offences you're charged with. We have judges who look not just at the offence, but also at the offender and the background of the individuals, and then balance the various factors in each individual case to do individualized justice. If you have mandatory minimums, you take away the power of the courts to do individualized justice and you create injustices, because you'll have situations where people end up doing lengthy time when it's not warranted.

A woman a few weeks ago came back to Canada. She was a genuine member of the Ethiopian Zion Coptic Church, which genuinely has used marijuana as a sacrament for years. She was busted in the 1970s here in Ontario for bringing some marijuana with her from Jamaica and she got the mandatory minimum of seven years. She walked away after eight months. She came back to Canada and she is now sitting in the BCCW in British Columbia serving out the remaining six years of her sentence from 35 years ago. She's now a woman in her fifties. She hasn't been involved in any crime. Is this fair? Is this just? It's because you had a mandatory minimum.

She can't do anything about it because she wasn't in the system at the time when the court struck down the mandatory minimum. She can't come back all these years later and do something about it. Is that what you want to create, those types of problems?

À (1045)

The Chair: I have Ms. Jennings and then Ms. Allard.

Mrs. Marlene Jennings: I don't really have a question, but just a bit of a statement.

If in fact we move to legalization, where it is in fact controlled like tobacco or alcohol, with minimum ages, licences for distribution and production, etc., and if we look at the tobacco experience in terms of the surtaxes, etc., there is a fine line where organized crime then has an interest in getting back into distibution, but not necessarily production, and there is violence associated with it. One only has to look at Akwesasne, the Mohawk reserve straddling Ontario, Quebec, and New York State, and all of the violence that was associated there, and at Kanesatake, and Kahnawake, and the biker gangs who got involved as well.

So you never take away the interest of organized crime in certain sectors of activities, let's say, but I think the studies have shown that the actual cost of a package of cigarettes has a direct link to organized crime's interest in getting involved. When the federal government slashed the taxes, I remember that it put a lot of organized crime figures out of business, because they got caught with literally warehouses full of cartons of cigarettes they could no longer sell, because they would sell them at a loss.

Mr. John Conroy: So it illustrates again that prohibitions come in various forms, and one of them is higher taxation.

Mrs. Marlene Jennings: Exactly.

Prof. Neil Boyd: The irony is that we want to put less economic value on that product—tobacco—and we end up making it a more important contributor to our economy, while at the same time acknowledging that you want to discourage use.

Mrs. Marlene Jennings: Yes, certainly.

Prof. Neil Boyd: I agree completely with what you're saying. It's a very tricky balance.

Mrs. Marlene Jennings: Okay, thanks.

The Chair: Ms. Allard.

[Translation]

Ms. Carole-Marie Allard: I understand your arguments about tobacco. Just this weekend I read an article that stated that a cocaine addict could take up to 50 injections a day. In Amsterdam, people go and smoke in cafes and don't appear to be addicts.

One of your arguments concerns me somewhat, and it is something that I have heard before. Since marijuana is prohibited and more importantly since there are penalties in this bill for those who grow large quantities of marijuana, are you not afraid that the police will forego hard drugs to concentrate on the cannabis growers?

When I organized a round table in Laval—I represent the riding of Laval East, in Quebec—police officers told me quite bluntly that all of their manpower was assigned to marijuana, to the detriment of combating the sale of hard drugs, which are most harmful to our young people. Is that one of the reasons why you are against increasing the penalties for those who grow marijuana? Are you afraid that the police will spend too much time dealing with them and will not have enough manpower to go after the harder drugs?

[English]

Prof. Neil Boyd: I think that anyone who studies the drug field cannot come away with the conviction that these are all on the same playing field, that they are to be treated equally. There's no doubt that the intravenous injection of heroin or smoking crack cocaine regularly are much more risky activities and more detrimental to public health and individual well-being than cannabis use. And if you look at the way in which people use those drugs, yes, we ought to be more concerned about those kinds of problems.

At the same time, even there, there are mechanisms that may allow us to use means other than criminal ones to deal with the problem. Prescription heroin is apparently going to be tried in a number of Canadian cities for that intractable group that will not respond to methadone.

Having said that, I think that for the reasons Mrs. Jennings stated, there will always be a need for the criminal law in this sphere. We see it with alcohol and tobacco. We're not going to get away from it with cannabis. But the positive with alcohol and tobacco is that we are able, to a large extent, to regulate the distribution and use of those drugs so that the trade in those drugs—the trade itself—is not dangerous, and organized crime does not line its pockets with the trade in those drugs. Our challenge with cannabis is to accomplish the same objective.

À (1050)

Mr. John Conroy: I think that, unfortunately, you may be right, that if you jack up the penalties the police will focus more on it. It has never made any sense to me, even now, why we have in British Columbia green teams of police officers who spend their full day snooping and sniffing around people's houses, pointing these forward-looking infrared guns at their houses to determine the heat signatures. I had a couple of them--the marine division--floating around Minstrel Island a few weeks ago pointing the gun at the cabins to see if people were growing marijuana. The amount of money that's spent on going after marijuana makes you wonder about the police priorities. We know that crack cocaine...you talk about people shooting up cocaine twenty times a day. That's a crack cocaine problem.

A voice: Fifty times.

Mr. John Conroy: You have poor people mugging and robbing and stealing because of that. You have rich people depleting all of their inheritances and so on because of that. And we don't have treatment programs and the police don't seem to enjoy or make it a priority to deal with this problem.

You know, the one crack cocaine addict I have is from a wealthy family, so the police know that he's at home and in breach of his conditions. But they'll let him sit at home for a month before they'll do something about it. They won't do that if they think it's somebody with a big grow operation in their place, unless they're simply too busy because there are so many grow operations, which you hear from time to time in British Columbia.

I don't understand why they don't focus more on the harder drugs. I certainly get some police officers who say “Get rid of this marijuana thing, so we can.”

The Chair: Thank you.

To be clear about this, if we were to change the bill to allow for some kinds of plants, it would address some of your concerns about organized crime, I gather, Mr. Conroy.

Mr. John Conroy: Some, but--

The Chair: The same as we already have legal alcohol, yet we still have gangs involved, organized crime in bars and other--

Mr. John Conroy: Yes. If you allowed people to grow up to a certain number of plants, it would be interesting to see what impact that would then have on the market over a period of time. I don't think it would get rid of organized crime, but it would be interesting to see if it reduced, certainly, the demand for large growers and things of that nature.

The Chair: Mr. Conroy, in your experience defending people, do you really think that for the average 19-year-old who gets a $100 or $150 fine, they would be running to a defence lawyer trying to deal with that situation, if they're guaranteed they're not going to get a criminal record? Don't you think the average 19-year-old in Vancouver is going to say, “I'll just pay this and hope it all goes away really fast”?

Mr. John Conroy: I think so. That's something people don't seem to understand, that most people charged with offences plead guilty. Most people who plead not guilty are convicted, usually on the strength of their own admissions and confessions. The ones you read about in the paper who get off are few and far between.

A voice: I try that at the parking ticket court in my town all the time. So you did park--

Mr. John Conroy: Sure, most people are going to say “Oh well, $100...”. It all depends upon what the consequences are going to be for them in the future as a result of it. Are they going to be stigmatized as pot smokers, or are they going to have other consequences in terms of employment? The Americans will still have access to the CPIC computer, presumably—

The Chair: If it's not loaded up into CPIC.

Mr. John Conroy: --so you're going to have to do all sorts of things to try to hide it, but when you get to the border and they ask if you have ever smoked marijuana and you say yes, they won't let you in. So it's not a matter of whether you've got a conviction or a record only. There are other consequences because of the history.

The Chair: So to be clear, we covered off plants, we covered off the issue of how most people will deal with their tickets, the issue of 18 joints versus some other quantity. Really, this is designed to deal, in my opinion, with the bulk of the people who are either getting charged or not having any consequence for breaking the law. These are people who have a couple of joints and are intercepted or stopped by a police officer. It's not a question of being on the edge of 29 grams versus 32 grams; it's really about people having a couple of joints and going to a party.

À (1055)

Mr. John Conroy: The lower you have it, the more problems you're going to have, it seems to me. If you make it 30 grams or one ounce, which I think was the original proposal, you'll have fewer problems. If you try to bring it down lower, you'll have more arguments about this.

The Chair: Okay.

Mr. Boyd.

Prof. Neil Boyd: I think that's true, but I think we still have in Bill C-38 a great deal of uncertainty about whether this is decriminalization and statements from the minister to the effect that it is not decriminalization. I don't have quite the same confidence in relation to criminal-record-keeping provisions, in relation to the power of arrest. I understand the spirit of this is in the direction you suggest, but I'm not sure that the reality of it is.

The Chair: Well, Mr. Boyd, one of the challenges we face is that most people aren't criminologists, and in terms of public perception, when you talk about changing to decriminalization, which is in fact what the bill does, people are running around saying it's legal. So there is a great discrepancy.

I think, in fact, having a ticket for that 20-year-old with two joints is actually going to say to most of them that it is illegal, because right now there's great confusion.

Prof. Neil Boyd: Half my class thought it had been decriminalized--

The Chair: Right.

Prof. Neil Boyd: --and they're third-year criminology students.

The Chair: Ooh. Hence perhaps some of the communication mechanisms--

Mr. John Conroy: Why should they get a ticket?

Prof. Neil Boyd: But why should they get a ticket?

The Chair: Why should they? Because it is against the law right now.

Mr. John Conroy: Yes, but that's pathological. Why should they get a ticket?

The Chair: Mr. Conroy, we deal in the real world--

Prof. Neil Boyd: No, that's not an answer.

Mr. John Conroy: Oh, no, you're not dealing in the real world. I'm sorry, you're not in the real world.

The Chair: The real world of politics.

Prof. Neil Boyd: Okay, we'll accept that answer.

Mr. John Conroy: All right, we'll accept that.

The Chair: Mr. Boyd is trying to criminalize half the House of Commons who never get enough exercise.

Prof. Neil Boyd: I'm just pointing out the inconsistency. I'm not urging criminalization in any of those contexts, even tobacco use.

The Chair: You can hang out outside the door. I think some of the culprits are around the table.

Thank you very much for your testimony and for your good counsel, and for coming from British Columbia on relatively short notice. I will note that you guys, even though you're on a three-hour time change, were the first ones here. So congratulations.

Mr. John Conroy: If you want any of the legal arguments, all the evidence to do with the Caine case is on my web page in something called the Caine archive--the transcripts, the arguments, right up to the Supreme Court of Canada. The crown's factums and the appellant's factums are all there.

The Chair: And your website is...?

Mr. John Conroy: It's www.johnconroy.com.

The Chair: Perfect. Thank you very much.

Mr. John Conroy: All the Boje stuff is there too, if you want. She is the young woman the Americans are trying to ship back to the States for moving and watering some plants. They want to give her ten years to life for moving and watering some plants.

The Chair: And Mr. Macklin wants to know the 1-800 number.

Some hon. members: Oh, oh!

The Chair: Take care. Thank you.

The meeting is adjourned.