Pubdate: Sat, 22 Dec 2012
Source: Ottawa Citizen (CN ON)
Copyright: 2012 The Ottawa Citizen
Contact: http://www.canada.com/ottawacitizen/letters.html
Website: http://www.canada.com/ottawacitizen/
Details: http://www.mapinc.org/media/326
Author: Dominic Lamb
Note: Dominic Lamb is a criminal defence lawyer with Edleson Clifford 
D'Angelo LLP.

COLORADO POT LUCK - THE FUTURE OF MARIJUANA REGULATION?

In the U.S. elections in November, Colorado and Washington State both
passed ballot initiatives that could fundamentally and forever change
the way the United States deals with the regulation of marijuana.

What exactly did they do? Residents of both states voted to
effectively decriminalize the production, possession and consumption
of the substance, and regulate it in a manner very similar to the way
they currently regulate alcohol.

In the words of the Colorado state constitutional amendment, "in the
interest of the efficient use of law enforcement resources, enhancing
revenue for public purposes, and individual freedom, the people of the
State of Colorado find and declare that the use of marijuana should be
legal for persons 21 years of age or older, and taxed in a manner
similar to alcohol."

The amendment continues, declaring that in the interests of health and
public safety the people find and declare that marijuana should be
regulated in a manner similar to alcohol.

These changes to state law in the U.S. are a seismic change in public
attitudes toward marijuana. It is not so long ago, that California's
"three strikes" laws were subjecting people found in possession of
marijuana to a lifetime behind bars.

So what about Canada? We have a tendency to frown on our U.S. cousins
as not being as progressive and sensible in their approach to certain
public policy, and at times, in a very smug way, we have a tendency to
pontificate as to how we are quicker to create rational and evidence
based public policy.

Indeed, candidates vying for the leadership of the federal Liberal
party have made reference to the legalization of marijuana, and some
years back there was legislation drafted to decriminalize possession
of small amounts of marijuana.

Alas, if we are going to be smug on this issue, it is because we have
decided to make our marijuana laws tougher.

So as the state of Colorado introduces law to allow personal
possession of up to an ounce of marijuana and personal possession of
up to six plants, along with licensing cultivation facilities, the
Criminal Code of Canada was amended this past Nov. 6 to impose a
mandatory jail sentence of six months for anyone who grows more than
five marijuana plants for the purpose of trafficking.

The new mandatory minimum sentences for growing marijuana can be as
high as three years, depending on the number of plants being grown,
where a person is growing the marijuana, whether the growing caused a
potential security, health or safety hazard to people under 18 or a
residential area, or if the location housing the marijuana was
booby-trapped in any way.

Those found guilty of growing marijuana can only avoid the mandatory
minimum sentences if they successfully complete a drug treatment
program approved by the Attorney General or a treatment program
approved by the province.

Colorado is also in the midst of legalizing the commercial sale of
marijuana. Under the proposed new regime, sale of marijuana or
marijuana products to consumers, if the person selling the marijuana
has a valid licence to operate a retail marijuana store, or is
employed by that person, will be legal. Authorized "cultivation
facilities" will be allowed to traffic in marijuana at the wholesale
level.

In contrast, our new legislation puts in place possible mandatory
minimum sentences of up to two years in jail, depending on the amount
of marijuana involved, and the circumstances surrounding the selling
of the drug.

Last weekend, our federal government announced that it is getting out
of the medical marijuana business. Currently, the government is
involved in authorizing the possession and growing of marijuana for
medical purposes. It also operates a cultivation facility that will
provide marijuana for those unable to obtain medical marijuana from an
individual approved to grow marijuana for medical purposes.

In its announcement, the government has advised that it will licence
private businesses to grow and sell marijuana to individuals in
possession of a medical prescription to use marijuana.

The new legislation emulates much of what is set to be put in place in
Colorado, in that it will introduce private authorized vendors of
medical marijuana that will replace the current regulations that allow
individuals to grow marijuana either for themselves or for others who
have a licence to possess the substance.

Many have said that the prohibition on marijuana is an example of
failed public policy and has led to an unnecessary drain on public
resources, from policing to fire services. As we move to bolster our
prohibition with these new mandatory minimum sentences, U.S. states
are blazing a trail toward legalizing and regulating marijuana.

The stark contrast between our "Canadian approach" and the Colorado
experiment gives a fascinating insight into the unexpected direction
democracy can take our criminal law. Yet there seem to be hints,
particularly with the announcement of our new medical marijuana supply
plans, that our government is preparing for the possibility that the
Colorado "pot luck" could lead to high times across the continent.

Dominic Lamb is a criminal defence lawyer with Edleson Clifford D'Angelo LLP. 
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