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. - --- MAP posted-by: Jo-D