February 9, 2009

Can you be arrested and charged for possession of marijuana?

The short answer is yes, you can be arrested and charged for possessing marijuana because despite several controversial court decisions, possessing pot remains a criminal offense in Canada under the Controlled Drugs and Substances Act.

The uncertainty about whether pot posession is legal in Canada stems from the fact that court decisions in several provinces have found Canada's marijuana possession law to be unconstitutional for failing to provide adequate exceptions for medical marijuana users.

Here are a couple of the key cases which struck down Canada's marijuana laws: R. v. Parker (2000 Ontario Court of Appeal), Sfetkopoulos v. Canada (2008 Federal Court), R. v. Masse (2003 BC Provincial Court).

Sometimes A law isn't THE law

These cases held that Canada's marijuana laws were unconstitutional, and therefore they were of no force and effect. A declaration that a law "is of no force or effect" means that that law is no longer the law, and since someone can't be convicted of breaking a non-existent law, the accused in those cases were acquitted.

It is now up to Parliament to redraft the law to make it constitutional, and some of this redrafting has been done. In the meantime, the police can arrest and charge you for possessing marijuana and it would be up to the judge to determine whether the revised law you were charged under is constitutional.

While Vancouver has had a reputation of leniency towards pot smokers in recent years, more recent statistics indicate that the VPD is cracking down on possession, "In all, 200 people were charged with simple possession of marijuana in Vancouver in 2006 -- up from 133 a year earlier."

According to Crown prosecutors, people are rarely charged for possession without some other aggravating factors. For instance, if the police suspect someone of trafficking, but can only prove possession, then that lesser charge may be laid. Vancouver still has one of the lowest criminal charge rates for marijuana in the country, but there remains a small risk of criminal charges for those possessing marijuana for personal use.

Decriminalization vs. legalization

Much of the debate about marijuana laws involves talk of decriminalization. Decriminalizing marijuana would mean that possessing it would no longer be a criminal offense. This doesn't mean it would be legal, but possession would result in a ticket and fine (like a parking ticket), instead of a criminal charge with the possibility of a criminal record and jail time. Many politicians and activists are calling for the decriminalization of marijuana, arguing that those who simply possess the drug for their own use should not be subject to the stigma and loss of liberty inherent in criminal charges.

Decriminalization or legalization. What do you think?

1 comment:

  1. Legalize it. Do not let the American's "War on [anything we do not like]" Come to Canada and ruin this country like it has ruined America. Liberty forever! Do not let the American's take that away with their bullying!


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