Most marijuana possession charges laid by Hamilton police last year were dropped by the courts — even as police enforcement skyrockets and investigators continue to crack down on the city's pot smokers.
The courts have show little interest in prosecuting the marijuana charges laid by Hamilton police, attempting to divert more than 80 per cent of last year's 455 possession charges.
'In many cases I'd say there's no point to laying the charge.' - Beth Bromberg, lawyer
They succeeded with 62 per cent of them, painting a picture where the justice system's most important agencies appear totally out of sync with each other.
Compared to 2006, the number of marijuana-related charges laid in Hamilton has increased by 154 per cent — yet the police service says it doesn't monitor how many of those charges end in a conviction or guilty plea.
Instead, investigators maintain that they are duty-bound to enforce the law as it's written, and that the convictions process is for the courts to decide.
- Pot possession charges increase 154 per cent in Hamilton since 2006
- Majority of Canadians support softer marijuana laws
But in a country with overburdened courts and with a new federal government that has promised to legalize marijuana anyway, experts and others involved in the legal system say this is a waste of police and court resources. It raises questions such as why aren't these agencies working towards a common strategy, and what impact is all this having on people who end up in handcuffs just for smoking pot?
There are Charter issues, too. One Hamilton lawyer maintains some of these charges stem from random searches downtown, focused on people who don't know they have a right to refuse when a police officer asks to search them.
"We should be asking questions about whether it serves public safety to arrest or charge these people at all," said Laura Berger, the acting program director of the Canadian Civil Liberties Association.
"Criminalizing very low-level drug offences can have even more of an adverse effect on overly marginalized communiities."
'There's no point to laying the charge'
The police service itself says the ACTION strategy, which Chief Glenn De Caire implemented in 2010, is one of the reasons charges have risen.
But Hamilton lawyer Beth Bromberg told CBC News that from the get go, many of these minor possession charges will never go to trial. In fact, for any marijuana charge under 30 grams, she tells people to not even bother retaining her services.
"In many cases I'd say there's no point to laying the charge," Bromberg said.
Instead, the charge gets diverted. Here's how it works: The John Howard Society of Hamilton/Burlington runs a "Direct Accountability" program for the courts.
When the Crown or federal prosecutor agrees that a charge can be diverted, the accused is then referred to the John Howard program. The Crown makes that decision based on guidelines that measure things like the person's risk to the community.
The accused person signs a form agreeing to responsibility, and then accepts a court-mandated remediation process like a charitable donation, drug prevention classes or community service.
Does making a donation help with drug education?
If that process is completed successfully, the charge is withdrawn and there is no criminal record or conviction.
"I have nothing at all against the education portion of the process, especially for youth," Bromberg said. "But I'm not sure if a donation really helps facilitate education."
Even the John Howard Society, which runs this program, agrees that arresting low level offenders like this doesn't make sense. "For small amounts of marijuana, we should be looking at alternative ways of managing that," said David Lane, the society's executive director.
"It doesn't have to go through the courts at all."
And in some cases, Bromberg says, these charges are brought against people who don't know they have the right to refuse a random police search.
"There have been occasions when my clients have been charged with possession of marijuana after a police officer asked to look in their bag or pockets, and my clients have agreed because they didn't know they had a right not to consent," she said.
Crown says it has no role in charges, police say they have no role in prosecution
So far in 2015, there have been 156 possession charges referred to the John Howard society, but police statistics have not been made available to show if the number of charges has dropped.
Public Prosecution Service of Canada spokesperson Dan Brien said that it's important to remember in these cases that the Crown "has no role in who gets charged or who doesn't."
"If there's a pattern, it's because of the conditions under which people are charged," he said.
While Brown says the Crown doesn't decide who gets charged, Hamilton police say they don't decide what happens once an offender is in the court system — leaving a situation where the left handis disconnected from what the right hand is doing.
Hamilton Police Insp. Ryan Diodati told CBC News that he couldn't comment on the judicial side of convictions. "Our role is for public safety and to enforce the law," Diodati said.
"We bring them before the courts, and that's our job – to enforce the law. Hamilton police will continue to enforce that law."
Liberal campaign promised drug reform
But those laws show signs of changing. Prime Minister Justin Trudeau has ordered a major overhaul of Canada's criminal justice system that will hatch a priority plan to regulate and legalize pot.
While that plan percolates, Hamilton police say they will continue to enforce drug laws as they have been.
"Marijuana is illegal. Citizens have made it very clear they do not want illegal drugs in their neighbourhoods and continue to connect with Hamilton Police to report and provide information on illegal drug activity," said Det. Sgt. Paul Downey, of the police Vice and Drug unit.
Yet according to a recent poll on the issue conducted by Forum Research, a solid majority of Canadians — 59 per cent — support new laws that would legalize, tax and regulate recreational marijuana usage under some conditions.