An impending provincewide initiative campaign to decriminalize marijuana faces legal hurdles but may have merit as well, local lawyers say.
Dana Larsen, pot activist and former NDP leadership candidate, has branded his provincewide initiative petition drive “Sensible B.C.” His campaign is modeled on the successful initiative brought about by ex-premier Bill Vander Zalm to quash the HST.
The purpose of this one?
To make B.C. safer from criminal gang activity, save taxpayer dollars spent on law enforcement and bring the law into line with the will of the majority, Larsen said, citing a recent poll suggesting 80 per cent public support for decriminalization.
Since enforcing marijuana prohibition is federal jurisdiction under the Controlled Drug and Substances Act, and therefore beyond B.C.’s reach, Larsen is spearheading Plan B: a campaign to have the Police Act amended such that police would not enforce simple possession among adults.
There would be no impact on laws applying to trafficking, possession for the purpose of trafficking or cultivation. Police would still confiscate pot from minors, just as the B.C. Liquor Control Act applies to minors.
“Elections B.C. has confirmed that it’s valid,” Larsen said. “It’s fully within provincial jurisdiction.”
A second part of his proposal would exempt B.C. from the Controlled Drugs and Substances Act (or remove cannabis from the act). This would carry decriminalization a considerable step further, allowing B.C. to tax and regulate pot.
Two other initiatives convinced Larsen that the approach might work. The anti-HST campaign and an earlier move, when eight provinces, including B.C., refused to expend resources enforcing the now-defunct long-gun registry.
“If they can do it with guns, they can do it for cannabis.”
A similar approach was used to keep Vancouver’s safe-injection clinic, InSite, operating against Ottawa’s directive, he said.
To have the draft law brought before the legislature, petitioners need the signatures of at least 10 per cent of voters in all 85 provincial ridings. But Larsen and his supporters may find it more difficult than even the colossal task of obtaining the required John Does.
Micah Rankin, a TRU law professor who specializes in areas of criminal and constitutional law, sees potential conflict between federal law and the proposed Sensible Policing Act.
“It would be kind of an attempt to do an end run around federal criminal law,” Rankin said. He cited the doctrine of paramountcy. This doctrine holds that in Canadian constitutional, where provincial and federal laws conflict, federal law prevails and provincial law is inoperative.
However, B.C.’s attorney general has the power to decline to prosecute laws deemed not in the public interest, which might provide an avenue for the proposal, he suggested.
“I think there are creative ways in which the provinces could try to use their regulatory and enforcement powers to attenuate the severity of federal criminal law in certain cases,” Rankin said.
Another difficulty he sees with the back-door concept is enforcement jurisdiction. While municipal police might take their marching orders from such a law, the RCMP is regulated federally.
“I have difficulty with the proposition that the province would be able to prevent federal police officers from enforcing federal laws,” Rankin said.
Shawn Buckley, a Kamloops lawyer who has defended Carl Anderson, a local medical marijuana advocate, sees some potential for the idea. He wonders whether the attorney general’s oath of office specifically requires the province’s top cop to enforce federal laws.
“There is some room for the attorney general to use discretion,” Buckley said. “We want our politicians directing police as to what public charges are made.”
Whether there is legal merit or not to the initiative, there is certainly political merit in staging a referendum campaign to pressure governments to bring about change by other means, Buckley said.
Rankin thinks so, too.
“It’s a good way to attract attention to the issue. It’s creative. I’m not aware of anyone having done this kind of thing before.”
Larsen, meanwhile, was buoyed by passage last week of U.S. ballot measures legalizing pot in Washington State and Colorado, measures that are bound to face the challenge of federal authority.
Elections B.C. is expected to issue the Sensible B.C. petition on Monday, at which time Larsen has 90 days to gather the signatures of at least 10 per cent of voters from all 85 B.C. electoral districts.
But Larsen plans to use the months ahead to build public awareness and support, then start collecting signatures next September after reapplying for a second petition.
On Tuesday evening, Larsen gives a public talk at 6:30 p.m. at Desert Gardens Community Centre, 540 Seymour St.
“We’re trying to register people and sign them up ahead of time,” Larsen said.