QUEBEC PARDONS POT POSSESSION ON FIRST OFFENCE

Up To 30 Grams

The Quebec government is effectively pardoning first-time possessors of
small amounts of marijuana under a program that also forgives first-time
shoplifting and physical assault.

It is the only program of its kind in the country, and echoes Prime
Minister Paul Martin's recent statements that first-time marijuana
possession should not come with a criminal record.

In 2003, the provincial Ministry of Justice left the records of 834
marijuana users blemish-free, surprising even some of those charged with
possession in the first place.

Apart from saving court time, the program, "gives a certain right to make a
mistake," said Anne Couture, Quebec's chief deputy Crown prosecutor.

The "non-judiciary program" has been in effect in the province since 1995
and has pardoned thousands of cases of shoplifting, public mischief and
assault.

Simple possession of marijuana was added in May, 2003, and will forgive
those charged with possession of up to 30 grams of pot, or one gram of
hashish, according to a Quebec government Web site.

It is the most recent addition to the little-known program, under which
offenders are given a second chance, instead of facing a stiff fine or even
jail time.

Under the program, each potential case is evaluated by a Crown prosecutor
to see if it is suitable for the program.

Assault and mischief cases punishable by up to five years in prison can
qualify, though Ms. Couture notes that cases involving domestic violence
and sexual assault are not considered.

As well, offenders with prior convictions cannot qualify.

"We have to recognize, in effect, that certain illegal activities are often
but minor offences by a citizen, an isolated act that doesn't disturb the
social order and doesn't compromise its values," reads an explanation of
the program on the Quebec government Web site.

"We can put an end to this type of mistake without having to use the
judicial system."

It is the province's right to implement such a program, according to
Sylvain Beaudry, a Department of Justice Canada spokesperson. "While the
Criminal Code is federal law, the provinces are responsible for
implementing it. Therefore, there is leeway in the implementation, if so
desired."

In 2003, 1,876 shoplifting and petty theft cases, 307 public mischief cases
and 807 assault cases were dismissed under the program.

Offenders do not opt in. Instead, they are sent a letter informing them
they have been accepted -- sometimes surprising the offenders.

Howard, who did not want his last name used, was smoking a joint in a
Montreal park late last summer when a police officer approached him. He was
arrested and charged with possession of .75 grams of cannabis and a quarter
of a "marijuana cigarette." He was handcuffed and given a court date.
However, when he showed up for court, his case was not on the docket. A few
days later, Howard got a letter.

"We are informing you that ... you won't be subject to criminal
proceedings, and if you receive a citation or a promise to appear notice,
ignore it.

"However, we advise you that we will remember this decision if you commit
another crime."

It is this last line that worries Howard. "I was concerned because of its
ambiguity. On the surface, it looks like I'm getting a break," said the
32-year-old musician. "At the same time, it's ambiguous. It's like I'm
guilty, but I'm not."

Ms. Couture said the ministry does keep personal information on those in
the program for five years, but only to make sure they do not get in should
they re-offend. "Recidivism is very rare," Ms. Couture added.

"I actually think [the program] is a good thing," said Lloyd Fischler,
Howard's lawyer. "I'm certainly not in favour of decriminalizing
[marijuana] completely, but I think this is a good way of dealing with it."
He added the case was his first to be dealt with under the non-judicial
program.

One legal expert questions whether this is a "non-judicial" program at all,
noting the offender does not have to admit guilt in order to qualify. "The
terms and the conditions under which a person can be admitted to
alternative measures have not been completely fulfilled in the document,"
said Patrick Healy, a professor of criminal law at McGill University, and a
practising lawyer.

"In order for it to be consistent with the Criminal Code, there has to be
an agreement on the part of the person to accept the program, and secondly,
it has to be communicated with an acceptance of responsibility for the
offence. Otherwise, it's not a program. It's a decision not to charge."