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Question for Law Talking Guys/Girls - sfissel - 10-14-2005

I'm thinking there are a couple of lawyer/law students on this board...

I am writing a paper about the legal status of possessing a small amount of marijuana according to legal theorist Lon Fuller. The essay requires us to look at the criminal code of Canada to see what law says about possession, as well as court cases.

I've been looking through the online version of the criminal code for relevant sections, and the only thing that seems to really apply is in the controlled drugs and substances act, but our prof was talking as though there were other relevant sections not in the controlled drugs and substances act.

So the question for you law types: is there another relevant section I should be looking at other than the controlled drugs and substances act?

Any help would be appreciated!

- Stephen Dame - 10-14-2005

Well I'm not in the LSAT club but I've looked at legislative issues around your issue. Sections XII 1. and 2. of the Triple C are a big part of vetting and Charter proofing the legislation. They make indirect reference to the Shanghai sweet grass and other drugs under the "illicit" and "proceeds" sections. Is that what yer after?

How bout the F&DA: "instrument for illicit drug use" means anything designed primarily or intended under the circumstances for consuming or to facilitate the consumption of an illicit drug, but does not include a "device" as that term is defined in section 2 of the Food and Drugs Act;"

So, if you're busted with Hippie Lettuce but can convince the cop your "instrument" is for peeling potato's: yer home free.

But wouldn't the F&DA be outside the CD&SA and still apply? I'm kinda stumped for outside the CD&SA unless we're talking about shipping kilo's of horse tranq to Bolivia... which reminds me... I gotta stop by the Post Office.

- TLB - 10-14-2005

I've got a Crim degree, and I happened to be fond of the Sweet Leaf for many years until about eight months ago. Consequently I covered many angles of the subject numerous times throughout my studies.

I'll dig out my Pocket Criminal Code as well as some papers & research I've kept over the years. I might post something here but I'll probably just PM ya.

By the way, I'm pretty sure but didn't we meet each other in Victoria during either the IVL tour or at Gord's solo gig?

- sfissel - 10-14-2005

Stephen Dame Wrote:Well I'm not in the LSAT club but I've looked at legislative issues around your issue. Sections XII 1. and 2. of the Triple C are a big part of vetting and Charter proofing the legislation. They make indirect reference to the Shanghai sweet grass and other drugs under the "illicit" and "proceeds" sections. Is that what yer after?

How bout the F&DA: "instrument for illicit drug use" means anything designed primarily or intended under the circumstances for consuming or to facilitate the consumption of an illicit drug, but does not include a "device" as that term is defined in section 2 of the Food and Drugs Act;"

So, if you're busted with Hippie Lettuce but can convince the cop your "instrument" is for peeling potato's: yer home free.

But wouldn't the F&DA be outside the CD&SA and still apply? I'm kinda stumped for outside the CD&SA unless we're talking about shipping kilo's of horse tranq to Bolivia... which reminds me... I gotta stop by the Post Office.

Yeah, I read that stuff on instruments for ilicit drug use, it certainly pertains to marijuana in general, but I think that possession is a seperate issue from the instruments used. (also, I don't think you can really get busted for instrumentation since every device that you might use for [insert clever allusion to pot here] can be legally used for the consumption of tobacco)

Maybe the criminal code is relevant just insofar as it refers to the controlled substances act? I'm not too sure.

The court cases I've looked at all seem to refer exclusively to the Controlled Drugs and Substances Act (well, that and the charter of rights).

I guess the solution is to just read the whole damned criminal code? I think I'd rather fail my paper. It feels like our criminal code was written, then translated into higher german by a first year german class, then translated back into english by some kind of free web service, then passed as law.

I think I've ruled out law school as a possible career path.

Thanks Stephen,

Steve(n)

- sfissel - 10-14-2005

TLB Wrote:I've got a Crim degree, and I happened to be fond of the Sweet Leaf for many years until about eight months ago. Consequently I covered many angles of the subject numerous times throughout my studies.

I'll dig out my Pocket Criminal Code as well as some papers & research I've kept over the years. I might post something here but I'll probably just PM ya.

By the way, I'm pretty sure but didn't we meet each other in Victoria during either the IVL tour or at Gord's solo gig?

Hi TLB,

Thanks a lot, I appreciate any help.

As for meeting you, it wouldn't have been at the solo gig because I actually missed the victoria show and saw gord at stanley park instead, because that way I was able to also see REM and Radiohead that weekend. If I met you at the IVL show, I didn't know you as TLB...

Maybe next time they play Royal theatre?! *fingers crossed*

- Stephen Dame - 10-15-2005

sfissel Wrote:
Stephen Dame Wrote:Well I'm not in the LSAT club but I've looked at legislative issues around your issue. Sections XII 1. and 2. of the Triple C are a big part of vetting and Charter proofing the legislation. They make indirect reference to the Shanghai sweet grass and other drugs under the "illicit" and "proceeds" sections. Is that what yer after?

How bout the F&DA: "instrument for illicit drug use" means anything designed primarily or intended under the circumstances for consuming or to facilitate the consumption of an illicit drug, but does not include a "device" as that term is defined in section 2 of the Food and Drugs Act;"

So, if you're busted with Hippie Lettuce but can convince the cop your "instrument" is for peeling potato's: yer home free.

But wouldn't the F&DA be outside the CD&SA and still apply? I'm kinda stumped for outside the CD&SA unless we're talking about shipping kilo's of horse tranq to Bolivia... which reminds me... I gotta stop by the Post Office.

Yeah, I read that stuff on instruments for ilicit drug use, it certainly pertains to marijuana in general, but I think that possession is a seperate issue from the instruments used. (also, I don't think you can really get busted for instrumentation since every device that you might use for [insert clever allusion to pot here] can be legally used for the consumption of tobacco)

Maybe the criminal code is relevant just insofar as it refers to the controlled substances act? I'm not too sure.

The court cases I've looked at all seem to refer exclusively to the Controlled Drugs and Substances Act (well, that and the charter of rights).

I guess the solution is to just read the whole damned criminal code? I think I'd rather fail my paper. It feels like our criminal code was written, then translated into higher german by a first year german class, then translated back into english by some kind of free web service, then passed as law.

I think I've ruled out law school as a possible career path.

Thanks Stephen,

Steve(n)

There's some academic work out there about applying the Charter to pot laws, especially posession. Conviction for posession of an illegal substance treads the line of presuming guilt, since just because you have it doesn't mean you're going to sell it or do anything illegal with it. Or so goes the logic. The problem arises when, in order for it to be a Charter case, you have to prove that a prohibition on pot violates your inviolable rights.

It's kinda out there, but there's probably a paper in applying the individual rights and freedom of expression (maybe even religion) aspects of the Charter to any form of prohibition, drugs included. How can something be illegal when it harms no one but yourself and may even contribute to your quality of life. This starts to fall apart with hard drugs and organized crime come into the picture, but with a plant you can grow in your basement it's still somewhat plausible.

Flin-Flon will undoubtedly play a role in any future pot debates since it's such obvious logic: "So, the government has taken it upon itself to grow and distribute this stuff because they feel it is valuable, even essential, to people with certain ailments, and yet I could have a criminal record if they find a joint in my bags at Pearson?"

I've always felt that keeping pot illegal allows it (a relatively harmless drug) to serve as the forbidden fruit. What will kids turn to when even Grampa smokes dope and there's nothing cool about it anymore? But the criminal record for possession doesn't make any sense, and I think the legislation last year was just plain common sense... you could write a paper about spineless politicians ignoring the obvious "what is" for some odd "what should be"

- nutsac78 - 10-17-2005

For the record, i've been caught & charged with possesion of 1.4g of the green stuff. Slightly more than a joint has me labelled a convicted criminal. :x

- sfissel - 10-17-2005

Stephen Dame Wrote:It's kinda out there, but there's probably a paper in applying the individual rights and freedom of expression (maybe even religion) aspects of the Charter to any form of prohibition, drugs included. How can something be illegal when it harms no one but yourself and may even contribute to your quality of life. This starts to fall apart with hard drugs and organized crime come into the picture, but with a plant you can grow in your basement it's still somewhat plausible.

Flin-Flon will undoubtedly play a role in any future pot debates since it's such obvious logic: "So, the government has taken it upon itself to grow and distribute this stuff because they feel it is valuable, even essential, to people with certain ailments, and yet I could have a criminal record if they find a joint in my bags at Pearson?"

Certainly there have been some court cases applying the charter to marijuana laws. Here's one if anyone's interested:
http://www.courts.gov.bc.ca/jdb-txt/ca/00/03/c00-0335.htm
however, let it be known that this document is roughly 5 times the length of the bible but with significantly less miracles. The judge found in the end that no one's charter rights were being trampled upon.

I guess it's a question of balance. The biggest thing to me is the hipocracy of allowing a serious mind altering drug to be legal (alcohol) and a drug that is smoked and serioiusly damages people's lungs (tobacco) and yet not allow marijuana. I think ultimately it comes down to lobbying from alcohol and tobacco. They don't need the competition.

nutsac78 Wrote:For the record, i've been caught & charged with possesion of 1.4g of the green stuff. Slightly more than a joint has me labelled a convicted criminal.

Interesting. When did this happen? Also, aren't you able to get a pardon from the government? I thought they were giving out pardons to anyone who had under a certain amount awhile ago.

Also, my essay is complete. Thanks for the help guys, although I might have a few more days to edit it because classes might be cancelled today due to all the job action here in BC.

- VioletlightHeron - 10-17-2005

Speaking of drug enforcement in Canada, what's up with Winnipeg and Vancouver handing out crack pipes and needles to addicts? I understand they are doing it to try and reduce risky behaviors like sharing needles and to try to give them a safe place to so t hey can counsel and treat them, but is it really helping? It strikes me as odd that they are going after marijuana users to a certain extent and yet creating these safe haven zones for crack and heroin users. If it was me, I'd have mandatory drug treatment in prison or have people with possession busts have to go through treatment facilities.

- nutsac78 - 10-17-2005

sfissel Wrote:Interesting. When did this happen? Also, aren't you able to get a pardon from the government? I thought they were giving out pardons to anyone who had under a certain amount awhile ago.
It will have been 3 years in April, this is when i'll be able to apply for a pardon. There was talk of eliminating criminal records for such offenses, but you know how the government works. Actually, the day i got charged in court was the first day ol' Chretien came on the news saying marijuana will soon be decriminalized eh, VOTE FOR ME! Anyhow, i was fined $250 & charged, the pardon will cost between $550-650 and will take 1-2 years to process; even then, no guarantees i'll be able to enter the U.S.... what do you think about that?