B
Blused
This was posted by another member at another forum but thought some would like to read
Bill C-15: What it means for cannabis producers and sellers
Bill C-15 imposes mandatory minimum jail sentences for a variety of
CDSA (Controlled Drugs and Substances Act) offences including the sale
and production of cannabis. It also raises the maximum penalty for
producing cannabis from 7 years to 14 years. This article will focus
on the impact on cannabis producers and distributors, though we should
be aware that the negative consequences of this Bill will affect all
Canadians.
The Bill, proposed by the Conservative minority government in the
House of Commons and supported by the Liberals, was
amended, slightly, by the Senate Committee that studied it. While the
Committee heard from a lot of witnesses, the amendments that were
adopted tell me that they didn't hear what those witnesses had to
say. I am profoundly disappointed in the members of the Committee
who, at the very least, could have amended this Bill to protect
medical cannabis producers and sellers. For a time it seemed they
would - I was asked specifically to write amendments for that
purpose. They were not even debated. The Committee could also have
amended the Bill to restore judicial discretion to depart from
mandatory sentences in appropriate circumstances (as it did for
aboriginal offenders). That didn't happen either.
The one amendment that affects cannabis removed the mandatory
sentences for between 6 and 200 plants if, and only if, no aggravating
factors apply. Let me repeat that to be clear: the Senate amendment
did not remove mandatory jail time for under 200 plants. It only
removed jail as an option if none of the aggravating factors are
present.
Unfortunately the aggravating factors are so broad as to make the
amendment nearly meaningless. Mandatory minimums will still be
imposed for producing between 1 and 200 cannabis plants for the
purpose of trafficking if there were weapons used or found, the
location was booby trapped or rendered unsafe, the production created
a danger to the public in a residential area or the property of a
third party (ie, a rental unit) was used in the offence. These four
factors are called "aggravating factors" and they also increase the
mandatory sentences if more plants are being grown.
On a practical level, this will impact renters disproportionately.
Also, when was the last time a cannabis production site in a
residential area was not considered to be a danger to the public?
Prohibitionists have mounted a decade-long propaganda war that has
successfully convinced the public that cannabis can only be produced
unsafely - something we know is completely false but that has become
dogma. This means that, if you grow cannabis to sell (or even give
away), in order to avoid the impact of the mandatory sentences you
basically have to do it on rural property that you own. Oh, and by
the way, if you do it on property you own you run the very real risk
that the government will seek to forfeit that property, in some cases
without even needing to convict you of the crime!
Cannabis producers
If you produce between 1 and 200 plants for the purpose of trafficking
and one of the aggravating factors is present, you will be sentenced
to nine months in prison.
If you produce between 201 and 500 plants for any purpose you will be
sentenced to one year in prison. If any of the aggravating factors
are present, the sentence is increased to eighteen months.
If you produce more than 501 plants for any purpose you will be
sentenced to two years. If any of the aggravating factors are
present, the sentence is increased to three years.
Hash, resin, oil, cookie producers
If you produce anything in Schedule II to the CDSA (which contains
essentially all of the cannabis derivatives including resin) for the
purpose of trafficking you will be sentenced to one year in prison.
If any of the aggravating factors are present, the sentence is
increased to eighteen months.
Cannabis sellers
If you sell cannabis (or any Schedule II substance) in amounts greater
than 3 kilograms, or possess such amounts for the purpose of
trafficking, you will be sentenced to a mandatory year in prison if
you commit the offence in connection with a criminal organization,
threaten or use violence in committing the offence, carry, use or
threaten to use a weapon in the commission of the offence or if you
were convicted of, or served a term of imprisonment for, a "designated
substance offence" in the last 10 years. "Designated substance
offences" are basically production and sale offences. Note that the
Senate Committee changed the last aggravating factor to read
"convicted of and served at term of imprisonment of at least one year,
or served a term of imprisonment for a 'designated substance offence'".
The sentence is increased to two years if you commit the offence in or
near a school, on or near school grounds or in or near a place usually
frequented by people under 18, in a prison or on prison grounds, or if
you involve a person under 18 in committing the offence.
The purpose of trafficking: what does it mean?
One of the prerequisites to mandatory sentences for producing less
than 201 plants or for producing hash and byproducts is that it be
done for the purpose of trafficking. This will have to be proven
beyond a reasonable doubt at trial or at a sentencing hearing. The
typical manner of proof is to put forward evidence that suggests
trafficking: score sheets, scales, quantities of cash, multiple cell
phones, baggies and the like. Obviously having those things at your
production site will significantly increase your chances of facing a
mandatory jail sentence.
Another method is to use a police "expert" witness to give an opinion
based on the various circumstances. Police will, for example,
typically assign average yields to plants and multiply that yield by
the number of plants found to come up with an expected harvest. The
witness will then assign values to that harvest at per gram ("street")
and per pound prices. The officer then opines on the average
consumption habits of even heavy, chronic users and suggests that the
harvest will produce so much cannabis that the person could not
possibly use it all before it goes bad. These things, according to
the expert, support a conclusion that the purpose of producing the
cannabis was to sell it.
It is certainly likely that people accused of producing for the
purpose of trafficking will need to find and call rebuttal experts to
seek to poke holes in the police theories. Police often, for example,
fail to take into account things like sexing the plants, crop failure,
genetic predisposition on yield, harvest fluctuation due to manner of
growth (ie, 200 plants in a "sea of green" garden will yield
substantially less cannabis than 200 growing 8 feet high in a
warehouse) and other factors. They also tend to underestimate the
ability of people to consume vast amounts of cannabis, or the
different methods of ingestion that affect how much of the plant is
used.
Other aspects of C-15
One of the more pernicious, and little discussed, aspects of C-15 is
its effects on the availability of discharges (either absolute or
conditional) and Conditional Sentence Orders.
A discharge is a sentencing option that allows the finding of guilty
but no entry of a criminal conviction. Absolute discharges take
effect immediately, at sentencing. Conditional discharges take effect
after the individual completes certain conditions, typically spending
a period of time on a sort of probation.
Discharges have often been used to give people second chances, or to
dispense with the need for a conviction when it is in the interests of
justice to do so. I have often had success obtaining discharges for
persons growing cannabis for medicinal purposes, or for people growing
a few plants for their own personal use.
Unfortunately, if C-15 passes, those days are over. Discharges are
not permitted if the offence is punishable by either a mandatory
minimum sentence or if a 14-year sentence is available. Cannabis
production will now carry a 14-year maximum (up from 7), meaning that
even personal non-commercial producers - even those not subject to the
mandatory sentences - will no longer be discharge-eligible.
A Conditional Sentence Order (CSO) is a custodial sentence served in
the community. The sentence length is set by the judge, though it
must be under 2 years, and so are the conditions. Conditions can run
the gamut from very strict 24-hours-a-day house arrest to much less
restrictive curfews. A CSO is imposed in situations where the judge
feels that the offence was serious enough to merit custody but the
offender is not a risk to the community and the CSO fits with the
principles of sentencing.
I've been successful in obtaining CSO dispositions even for persons
charged with very large commercial production when, for example, there
was no evidence of violence, no involvement with organized crime, the
person was a first time offender with a family, job and good community
involvement. Judges are often receptive to giving people a chance to
continue contributing to their family and community instead of
incarcerating them for growing cannabis.
Unfortunately, that discretion has also been stripped away by C-15. A
CSO is not available for offences that carry mandatory minimum
sentences.
What does it all mean?
One of the most ironic effects of C-15 will be to drive "mom and pop"
growers out of the business. This will inevitably mean that organized
crime will further solidify its grip on cannabis production and
distribution. Despite propaganda to the contrary, the reality of
cannabis production is that there are a whole lot of people engaged in
relatively small scale production for distribution to friends and
acquaintances. Organized crime certainly operates the massive
production sites: much of this product is destined for the export
markets. But by and large the cannabis that ordinary Canadians buy
and use comes from small-scale local producers and is sold to them by
people they describe as friends. That is probably going to change.
Another ironic effect will be an increase in the number of production
sites. The market will respond to this legislation. Not by going
away - that idea is lunacy. But, instead, organized criminals (who
have substantial financial resources due to prohibition) will avoid
the most harsh mandatory sentences by (a) buying properties to avoid
the "rental property" aggravating factor; and (b) establishing many
smaller production sites (with larger plants) to avoid the harsher
penalties for over 200 and 500 plants.
A final irony comes when comparing the sentences for importing with
that for production. Importing any amount of cannabis (from one joint
to a hundred thousand pounds) will carry a mandatory minimum sentence
of one year in jail. This means that the mandatory minimum sentence
for importing cannabis is less than that imposed for growing 501
plants. Whether this will increase the import trade remains to be
seen as these are mandatory minimums and importers of any significant
quantity almost always receive penalties substantially longer than one
year in prison.
Medical cannabis producers and sellers will be impacted severely by
this legislation. It was not unusual to obtain discharges for people
truly motivated by compassion. That will no longer be an option. If
police decide to take enforcement action against Canada's compassion
clubs a lot of good, caring, compassionate people will be facing long
jail terms.
People that produce hash and cannabis products such as cookies will
also face severe penalties - production of even one gram of hash or a
dozen cookies, if made to sell or even to give away, will carry a
minimum one year sentence and possibly more if you are baking the
cookies in a rental property.
All told, the effects of this legislation on the cannabis community
should not be underestimated. Canadian enjoy cannabis: we consume an
estimated 7 - 10 million grams of it each week. Someone has to grow,
process and sell it to the over two million regular consumers.
Because of Bill C-15, it is likely that the exact people we don't want
controlling this marketplace will be able to tighten their grip
perhaps to the point of a virtual monopoly. This bodes ill for all
Canadians.
What can be done?
The Bill contains a mandatory two year review (and the Senate added
another at five years) but unfortunately reviews can be used as
methods to shelve contentious issues. Or even issues wrongly
perceived to be contentious, like this one. I suggest that you write
to the members of the Senate Committee and/or the Senate as a whole to
express your profound disappointment in their complicity in this
legislation. You could also consider sending a financial donation to
the Beyond Prohibition Foundation (bank account coming soon but for
now checks can be made out payable to cash and sent to our offices at
142-757 West Hastings, Suite 211, Vancouver BC V6C 1A1 or contact me
to discuss) so that we can continue working on this issue and
preparing for the review process. We are also likely to actively
pursue a Charter challenge to the legislation as soon as possible.
Finally, don't forget this issue during the next federal election.
The Conservative revamping of our criminal justice system must be
stopped. The Liberals and NDP must be forced to show some courage and
leadership on this issue and every Liberal and NDP candidate must be
confronted - repeatedly if necessary - to articulate their position on
cannabis policy, the incarceration on non-violent cananbis offenders
and medical cannabis. If that position is unsupported by fact, logic
and compassion, they must be educated and motivated to change their
tune.
Bill C-15 is dangerous. It will cause harm. We must never cease our
efforts to undo the damage that is being done to our country. Onward!
Kirk Tousaw, Executive Director
Beyond Prohibition Foundation
142 - 757 West Hastings, Suite 211
Vancouver BC V6C 1A1
Cell: 604.836.1420
kirktousaw@...
www.whyprohibition.ca
Working to repeal cannabis prohibition and replace it with a regulated
and controlled system of production and access.
Bill C-15: What it means for cannabis producers and sellers
Bill C-15 imposes mandatory minimum jail sentences for a variety of
CDSA (Controlled Drugs and Substances Act) offences including the sale
and production of cannabis. It also raises the maximum penalty for
producing cannabis from 7 years to 14 years. This article will focus
on the impact on cannabis producers and distributors, though we should
be aware that the negative consequences of this Bill will affect all
Canadians.
The Bill, proposed by the Conservative minority government in the
House of Commons and supported by the Liberals, was
amended, slightly, by the Senate Committee that studied it. While the
Committee heard from a lot of witnesses, the amendments that were
adopted tell me that they didn't hear what those witnesses had to
say. I am profoundly disappointed in the members of the Committee
who, at the very least, could have amended this Bill to protect
medical cannabis producers and sellers. For a time it seemed they
would - I was asked specifically to write amendments for that
purpose. They were not even debated. The Committee could also have
amended the Bill to restore judicial discretion to depart from
mandatory sentences in appropriate circumstances (as it did for
aboriginal offenders). That didn't happen either.
The one amendment that affects cannabis removed the mandatory
sentences for between 6 and 200 plants if, and only if, no aggravating
factors apply. Let me repeat that to be clear: the Senate amendment
did not remove mandatory jail time for under 200 plants. It only
removed jail as an option if none of the aggravating factors are
present.
Unfortunately the aggravating factors are so broad as to make the
amendment nearly meaningless. Mandatory minimums will still be
imposed for producing between 1 and 200 cannabis plants for the
purpose of trafficking if there were weapons used or found, the
location was booby trapped or rendered unsafe, the production created
a danger to the public in a residential area or the property of a
third party (ie, a rental unit) was used in the offence. These four
factors are called "aggravating factors" and they also increase the
mandatory sentences if more plants are being grown.
On a practical level, this will impact renters disproportionately.
Also, when was the last time a cannabis production site in a
residential area was not considered to be a danger to the public?
Prohibitionists have mounted a decade-long propaganda war that has
successfully convinced the public that cannabis can only be produced
unsafely - something we know is completely false but that has become
dogma. This means that, if you grow cannabis to sell (or even give
away), in order to avoid the impact of the mandatory sentences you
basically have to do it on rural property that you own. Oh, and by
the way, if you do it on property you own you run the very real risk
that the government will seek to forfeit that property, in some cases
without even needing to convict you of the crime!
Cannabis producers
If you produce between 1 and 200 plants for the purpose of trafficking
and one of the aggravating factors is present, you will be sentenced
to nine months in prison.
If you produce between 201 and 500 plants for any purpose you will be
sentenced to one year in prison. If any of the aggravating factors
are present, the sentence is increased to eighteen months.
If you produce more than 501 plants for any purpose you will be
sentenced to two years. If any of the aggravating factors are
present, the sentence is increased to three years.
Hash, resin, oil, cookie producers
If you produce anything in Schedule II to the CDSA (which contains
essentially all of the cannabis derivatives including resin) for the
purpose of trafficking you will be sentenced to one year in prison.
If any of the aggravating factors are present, the sentence is
increased to eighteen months.
Cannabis sellers
If you sell cannabis (or any Schedule II substance) in amounts greater
than 3 kilograms, or possess such amounts for the purpose of
trafficking, you will be sentenced to a mandatory year in prison if
you commit the offence in connection with a criminal organization,
threaten or use violence in committing the offence, carry, use or
threaten to use a weapon in the commission of the offence or if you
were convicted of, or served a term of imprisonment for, a "designated
substance offence" in the last 10 years. "Designated substance
offences" are basically production and sale offences. Note that the
Senate Committee changed the last aggravating factor to read
"convicted of and served at term of imprisonment of at least one year,
or served a term of imprisonment for a 'designated substance offence'".
The sentence is increased to two years if you commit the offence in or
near a school, on or near school grounds or in or near a place usually
frequented by people under 18, in a prison or on prison grounds, or if
you involve a person under 18 in committing the offence.
The purpose of trafficking: what does it mean?
One of the prerequisites to mandatory sentences for producing less
than 201 plants or for producing hash and byproducts is that it be
done for the purpose of trafficking. This will have to be proven
beyond a reasonable doubt at trial or at a sentencing hearing. The
typical manner of proof is to put forward evidence that suggests
trafficking: score sheets, scales, quantities of cash, multiple cell
phones, baggies and the like. Obviously having those things at your
production site will significantly increase your chances of facing a
mandatory jail sentence.
Another method is to use a police "expert" witness to give an opinion
based on the various circumstances. Police will, for example,
typically assign average yields to plants and multiply that yield by
the number of plants found to come up with an expected harvest. The
witness will then assign values to that harvest at per gram ("street")
and per pound prices. The officer then opines on the average
consumption habits of even heavy, chronic users and suggests that the
harvest will produce so much cannabis that the person could not
possibly use it all before it goes bad. These things, according to
the expert, support a conclusion that the purpose of producing the
cannabis was to sell it.
It is certainly likely that people accused of producing for the
purpose of trafficking will need to find and call rebuttal experts to
seek to poke holes in the police theories. Police often, for example,
fail to take into account things like sexing the plants, crop failure,
genetic predisposition on yield, harvest fluctuation due to manner of
growth (ie, 200 plants in a "sea of green" garden will yield
substantially less cannabis than 200 growing 8 feet high in a
warehouse) and other factors. They also tend to underestimate the
ability of people to consume vast amounts of cannabis, or the
different methods of ingestion that affect how much of the plant is
used.
Other aspects of C-15
One of the more pernicious, and little discussed, aspects of C-15 is
its effects on the availability of discharges (either absolute or
conditional) and Conditional Sentence Orders.
A discharge is a sentencing option that allows the finding of guilty
but no entry of a criminal conviction. Absolute discharges take
effect immediately, at sentencing. Conditional discharges take effect
after the individual completes certain conditions, typically spending
a period of time on a sort of probation.
Discharges have often been used to give people second chances, or to
dispense with the need for a conviction when it is in the interests of
justice to do so. I have often had success obtaining discharges for
persons growing cannabis for medicinal purposes, or for people growing
a few plants for their own personal use.
Unfortunately, if C-15 passes, those days are over. Discharges are
not permitted if the offence is punishable by either a mandatory
minimum sentence or if a 14-year sentence is available. Cannabis
production will now carry a 14-year maximum (up from 7), meaning that
even personal non-commercial producers - even those not subject to the
mandatory sentences - will no longer be discharge-eligible.
A Conditional Sentence Order (CSO) is a custodial sentence served in
the community. The sentence length is set by the judge, though it
must be under 2 years, and so are the conditions. Conditions can run
the gamut from very strict 24-hours-a-day house arrest to much less
restrictive curfews. A CSO is imposed in situations where the judge
feels that the offence was serious enough to merit custody but the
offender is not a risk to the community and the CSO fits with the
principles of sentencing.
I've been successful in obtaining CSO dispositions even for persons
charged with very large commercial production when, for example, there
was no evidence of violence, no involvement with organized crime, the
person was a first time offender with a family, job and good community
involvement. Judges are often receptive to giving people a chance to
continue contributing to their family and community instead of
incarcerating them for growing cannabis.
Unfortunately, that discretion has also been stripped away by C-15. A
CSO is not available for offences that carry mandatory minimum
sentences.
What does it all mean?
One of the most ironic effects of C-15 will be to drive "mom and pop"
growers out of the business. This will inevitably mean that organized
crime will further solidify its grip on cannabis production and
distribution. Despite propaganda to the contrary, the reality of
cannabis production is that there are a whole lot of people engaged in
relatively small scale production for distribution to friends and
acquaintances. Organized crime certainly operates the massive
production sites: much of this product is destined for the export
markets. But by and large the cannabis that ordinary Canadians buy
and use comes from small-scale local producers and is sold to them by
people they describe as friends. That is probably going to change.
Another ironic effect will be an increase in the number of production
sites. The market will respond to this legislation. Not by going
away - that idea is lunacy. But, instead, organized criminals (who
have substantial financial resources due to prohibition) will avoid
the most harsh mandatory sentences by (a) buying properties to avoid
the "rental property" aggravating factor; and (b) establishing many
smaller production sites (with larger plants) to avoid the harsher
penalties for over 200 and 500 plants.
A final irony comes when comparing the sentences for importing with
that for production. Importing any amount of cannabis (from one joint
to a hundred thousand pounds) will carry a mandatory minimum sentence
of one year in jail. This means that the mandatory minimum sentence
for importing cannabis is less than that imposed for growing 501
plants. Whether this will increase the import trade remains to be
seen as these are mandatory minimums and importers of any significant
quantity almost always receive penalties substantially longer than one
year in prison.
Medical cannabis producers and sellers will be impacted severely by
this legislation. It was not unusual to obtain discharges for people
truly motivated by compassion. That will no longer be an option. If
police decide to take enforcement action against Canada's compassion
clubs a lot of good, caring, compassionate people will be facing long
jail terms.
People that produce hash and cannabis products such as cookies will
also face severe penalties - production of even one gram of hash or a
dozen cookies, if made to sell or even to give away, will carry a
minimum one year sentence and possibly more if you are baking the
cookies in a rental property.
All told, the effects of this legislation on the cannabis community
should not be underestimated. Canadian enjoy cannabis: we consume an
estimated 7 - 10 million grams of it each week. Someone has to grow,
process and sell it to the over two million regular consumers.
Because of Bill C-15, it is likely that the exact people we don't want
controlling this marketplace will be able to tighten their grip
perhaps to the point of a virtual monopoly. This bodes ill for all
Canadians.
What can be done?
The Bill contains a mandatory two year review (and the Senate added
another at five years) but unfortunately reviews can be used as
methods to shelve contentious issues. Or even issues wrongly
perceived to be contentious, like this one. I suggest that you write
to the members of the Senate Committee and/or the Senate as a whole to
express your profound disappointment in their complicity in this
legislation. You could also consider sending a financial donation to
the Beyond Prohibition Foundation (bank account coming soon but for
now checks can be made out payable to cash and sent to our offices at
142-757 West Hastings, Suite 211, Vancouver BC V6C 1A1 or contact me
to discuss) so that we can continue working on this issue and
preparing for the review process. We are also likely to actively
pursue a Charter challenge to the legislation as soon as possible.
Finally, don't forget this issue during the next federal election.
The Conservative revamping of our criminal justice system must be
stopped. The Liberals and NDP must be forced to show some courage and
leadership on this issue and every Liberal and NDP candidate must be
confronted - repeatedly if necessary - to articulate their position on
cannabis policy, the incarceration on non-violent cananbis offenders
and medical cannabis. If that position is unsupported by fact, logic
and compassion, they must be educated and motivated to change their
tune.
Bill C-15 is dangerous. It will cause harm. We must never cease our
efforts to undo the damage that is being done to our country. Onward!
Kirk Tousaw, Executive Director
Beyond Prohibition Foundation
142 - 757 West Hastings, Suite 211
Vancouver BC V6C 1A1
Cell: 604.836.1420
kirktousaw@...
www.whyprohibition.ca
Working to repeal cannabis prohibition and replace it with a regulated
and controlled system of production and access.
