Canada has just legalized recreational cannabis concentrates, this includes edibles, rosin, shatter, dabs and any other form of cannabis extraction. This happened October 15, 2019 as promised by Prime Minister, Justin Trudeau. This was the second step in the recreational legalization of cannabis which occurred one year prior. The prior legalization made is legal to possess and smoke recreation cannabis in plant/flower form.
The specifics to the first legalization stated that Canadians were allowed the following;
- Up to 4 plants are allowed to be grown on your property
- Up to 30g of dried cannabis may be carried on the person with no limit inside your home
- Cannot be smoked inside a vehicles, around children or where children would be expected to inhabit(ie. Parks and playgrounds), and wherever else tobacco is restricted(ie. indoors and 5m away from buildings)
- May not be sold to minors under the age of 18
These were the general guidelines that were laid out by the Trudeau government. The specifics and details were written and amended as laws. We will cover those later in the article.
As this was a rather swift move under the Trudeau administration, this left a lot of unanswered questions and a lot of unforeseen and regulated scenarios. It could be looked at by many as a move that was made much too early and without a full plan.
To start the question remained, what will happen to the charges, convictions and pending convictions of those who have been charged with a cannabis offence. Is the government planning on pardoning these offences? As it was previously decriminalized for years there were few to no possession offences. Unless a person was caught with significant amounts, the typical procedure was confiscation. The amount was the same 30g they decided to make legal however it was often up to the police officers discretion. Furthermore without police carrying scales on hand it wasn’t always easy to judge 30g, especially if it were to go to court. So it was typical that if you were searched and found to have cannabis and it was a small bag, you would get a stern talking to, a confiscation and on your way you go. Interestingly enough many people found with cannabis were drivers who were searched, whether arbitrarily or with probable cause, many of these individual were also under the influence of marijuana.
This brings us to our next question, what about driving? By that we mean, what if you were pulled over and have legal amounts of cannabis on your person but you are under the influence of marijuana? Well, as always it is considered intoxicated by the laws long list of what constitutes intoxication. This list includes things like prescription medication, over the counter medication like melatonin and even stretches to too tired. All of which COULD land you a full blown DUI in Canada and marijuana is no different.
However, with respects to the judicial system and citizens rights you would of course need proof. Both police and judges were concerned with this law creating more opportunity for driving under the influence of marijuana. How would one prove that someone was under the influence of marijuana without a confession? Unfortunately, and rightfully so, because of our rights, a simple assumption because of red eyes is not enough under the Canadian criminal code. It doesn’t even constitute for reasonable suspicious, unless it were paired with other signs. The smell is also not sufficient for probably cause or reasonable suspicion as a supreme court ruled back in 2008 that it simply wasn’t sufficient and does not prove intoxication at the time of the event. To date we still do not have any type of breathalyzer device for cannabis.
Many police departments came out to state their concerns. The reality was there were few to no police officers that were actually trained with marijuana detection. Both for practical reasons and for liability reasons this was necessary. Since the US had legalized marijuana before Canada, the only law enforcement training facilities were in the United States. They were all full and only took a limited number of students. It would also mean members of law enforcement would have to be sent away from their job and accommodations would have to be made. They stated that there just simply isn’t sufficient time for law enforcement to be trained prior to legalization.
Interestingly enough, they have already had procedures in place prior, they were just used very rarely and did not always win in court. One method was the classic cotton swab and test, they would swab the window of the vehicle or by consent the inside of a persons mouth to test for thc. This would give them evidence that cannabis was used recently as the residue does not stick for a long time. However legal arguments could be as simple as someone else had smoked in the case of the window, and the individual had smoked hours prior in the mouth. It would be really hard to prove without any science that ‘hours’ is sufficient or not for an individual to no longer be intoxicated. Similarly with a consented blood sample we have a similar situation of not proving they were intoxicated at the time. So with no legal limit and no systems to determine if there is any in the system it leaves both law enforcement and the judicial system with nothing to convict an intoxicated driver. The prime minister did address this issue and stated that you cannot drive under the influence or marijuana. There will be no legal limit until science is able to prove at what level will begin to affect ones ability to operate a motor vehicle. It is up to the provinces to provide the guidelines as what is allowed and what isn’t on their highways. Ontario addressed the issue by having a zero tolerance policy and reducing the drinking legal limit if combined with cannabis.
Trafficking was the next issue and controversy. With legalization comes taxation, that is a given. Now that it is legal, can I sell marijuana? This got really tricky because technically yes you can, however without licensing no you cannot. At the time of legalization there was no licensing in any province. Many provinces addressed the issue and most left it where alcohol was sitting for them. To most provinces you were allowed to sell commercially as long as you aren’t selling to minors, just like tobacco and alcohol. It got really grey because suppose you decided to grow 4 plants and had a friend that needed cannabis and so you sold some of yours to him. Is that the same as trafficking and essentially doing it for business, profiting and not being taxed? Well no, it falls where selling alcohol goes, it is legal to buy and consume alcohol but you technically can’t sell it without licensing. However if a friend needs alcohol and liquor stores are closed and you sell to him and are caught, as it is technically illegal but more for permitted sales, police officers will typical let it fly. Furthermore, if there was no exchange of money it would simply just being sharing and be 100% legal.
Many questions to ask, many questions unanswered and new situations are arising daily for law makers. All we can do is regulate as we go at this point and hope for the best. Was the timing on this move slightly irresponsible, yes. However it was a good decision and definitely pushed politicians to start looking at cannabis more serious and regulate it as opposed to ignoring it completely.