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The Trudeau government announced in late June it would begin the process of legalizing marijuana for recreational use, which should be finished by spring 2017.
A nine-member task force has been assembled with former deputy prime minister under Paul Martin Anne McLellan serving as chair. Details of the upcoming process are scarce, but it's probably a given that possessing, selling and growing marijuana will be strictly regulated.
Marijuana will remain an illegal substance until new legislation happens and Canadians will continue to be charged with possession, trafficking or growing cannabis.
One major issue remains uncertain: will people currently in jail or with records related to marijuana be pardoned?
Trudeau would not commit to an answer in the House of Commons when asked in late June, but retroactive ameliorative relief may be the solution to the problem.
Why retroactive ameliorative relief could work
Marijuana legalization in Canada is a complex issue and several factors need to be taken into consideration during this process.
First, let's consider Nullum crimen, nulla poena sine lege, one of the main principles of the modern rule of law, which prohibits the retroactive application of law, meaning there is no penalty for a crime without a legal regulation. Or simply: you cannot be charged with a crime if it was not a crime at the time.
However, the situation of when something is a crime by law, and over time that law changes, prompts many questions about if it is no longer considered a crime. Do the offenders get legal pardons? Will they have to amend the legislation to deal with specifics? Will they have to amend the legislation to deal with specifics?
Marijuana offenders can only hope that Canada will guarantee retroactive ameliorative relief, which is considered a right in all but 22 countries, including the U.S.
In the U.S., this is further complicated by the fact that relief for convicts (after conviction) differs from one state to another. Retroactive ameliorative relief needs to be specified within state law to take effect, but in general the U.S. does not grant retroactive relief.
This infographic compares countries that have legalized marijuana at least partially.
Five U.S. states: Colorado, Oregon, Alaska, Washington, and Washington D.C. have been dealing with the same matter of pardons and expungements of criminal records for marijuana-related offenses.
As more states are expected to legalize the substance, experience from the U.S. is currently the most relevant for new Canadian marijuana laws. How marijuana-legalized states handle the issue varies.
For instance, Oregon has granted convicts with 10-year-old, low-level marijuana charges that were previously considered misdemeanors, eligibility for record expungement.
Colorado has downgraded punishments and, under Amendment 64 in 2012, legalized of up to an ounce for personal possession, which was considered a low-level petty offense before. In addition, many prosecutors in Colorado announced they were dropping investigations into marijuana crimes dues to new laws.
California has retroactive amelioration clauses under Proposition 36. It allows for non-violent criminal offenders serving a life sentence to petition for ameliorative relief under the state's Three Strikes law.
Regardless, the concept behind them can be applied to Canada. In each case, Canada may consider the success and advantages of each approach.
In Colorado, marijuana charges dropped by 77 per cent a year after Amendment 64 was passed. California with Proposition 36 can offer two legal options which Canada can attempt to implement should they desire to be lenient, but also definitive with their legal treatment of marijuana offences.
Portugal and the Netherlands have also had their own long-time experiences with marijuana, though they took different routes than the U.S.
Portugal has taken to completely decriminalizing all drugs, allowing a certain amount for personal use. Users who are caught with more than 25g are subject to drug and addiction treatment programs. Their approach has overall seen a decline in drug-related deaths and decrease in lifetime usage in teens.
The Netherlands has decriminalized possession for up to 5g and up to five plants can be grown through professional cultivation is prohibited.
Canada can certainly look up to them when it comes to dealing with marijuana convictions.
Finding the ideal solution
"When it comes to outstanding marijuana-related offenses in the period post-legalization, we expect this to most favorably impact those who have been charged with simple possession-type charges," says David Moon, legal partner at the OMQ law firm.
"However, even in the period post-legalization, we expect continuing restrictions concerning production and/or importation at the federal level and distribution at the provincial level. Any drug charge can have serious consequences and should be properly handled even in anticipation of legalization."
- DISCUSS: Survey on marijuana policy
Maybe prisoners and persons on probation will have their sentences modified; perhaps some could even be released. This is something to look forward to as soon as the process of legalizing marijuana is finished.
Every country and state is different and, as seen, have their own laws to reflect that. Fortunately, Canada has several months left to regulate the non-medical use of marijuana strictly and to consider all laws necessary for 2017.
Hanna Anderson is a legal assistant who works at O’Neill Moon Quedado law firm. After working hours, she likes to spend her free time by reading, traveling and doing yoga.
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