Canada is legalizing possession of small amounts of marijuana, but it’s also introducing 45 new criminal offences. How will police and the courts react?

Canada’s plan to legalize cannabis could bring with it an increase in law enforcement activity, arrests and jail time — and here’s why. Cannabis is currently controlled by the country’s federal Controlled Drugs and Substances Act (CDSA). Canadians can be charged with any of about eight offences related to cannabis, including possession, trafficking, importing and exporting. The proposed Cannabis Act removes the cannabis plant from the purview of the CDSA, and with that change it removes criminalization of possession of small amounts of cannabis, including up to 30 grams in public. However, in its place the Cannabis Act proposes approximately 45 new criminal offences, ranging from public possession of more than 30 grams to unauthorized promotion.

At least one prominent cannabis lawyer believes enforcement activity will go down come legalization. “Anyone that thinks cannabis enforcement will go up post-legalization isn’t paying attention to (a) it going down now; and (b) WA/CO/OR,” BC lawyer Kirk Tousaw tweeted in early June 2017, referencing Washington, Colorado and Oregon, three states that have legalized the plant and seen arrests decrease.

But there is a big difference between the path these states followed and the Canadian approach. These jurisdictions did not enact a bevy of new criminal offences with their legalization regimes; instead, they merely opted to remove criminal penalties for possession of small amounts and to introduce legal sales channels.

One group of new offences found in Canada’s Cannabis Act but not in the three states arises from the Act’s criminalization of conduct related to “illicit cannabis,” marijuana that is not bought from a provincially regulated store or grown legally. In Colorado, for example, it is not an offence to purchase and possess three grams of cannabis from an illegal source, but under the proposed Cannabis Act the same activity could theoretically land a Canadian in prison for up to five years. It’s open to question whether police will enforce the prohibition of such small amounts in the first place, especially since Canadians will be allowed to grow up to four plants of their own. But the provision could open up the possibility of arrest and prosecution for people carrying cannabis in an ordinary plastic bag instead of a licensed sales container.

Not only may enforcement activity ramp up across Canada, but the length of a sentence for jail or house arrest could also increase. Although the Cannabis Act does remove the Harper-era mandatory minimums for cannabis production, which were found unconstitutional by courts across the country, half of the new offences in the Cannabis Act — such as distribution of illicit cannabis or distribution to those under 18 — carry a term of up to 14 years in prison. And because the Criminal Code does not let judges give discharges or conditional sentences on any offences that carry a maximum punishment of 14 years, judges will have fewer non-prison options when they sentence offenders.

The legalization of recreational cannabis could mean greater scrutiny of “grey market” medical cannabis sellers, such as unauthorized dispensaries and mail-order websites. The Cannabis Act brings with it the narrow offence of “illicit cannabis” distribution instead of the broadly defined offence of trafficking. With the tighter language, police forces across Canada might see the new offence as Parliament’s blessing for them to begin increasing enforcement efforts. When patients have access to two legal sales channels – brick-and-mortar recreational retail outlets as well as couriered medical cannabis – prosecutors may argue in court that medical needs are being met. Greatly increased access may weaken the defences and justifications that grey-market sellers currently rely upon in court.

No one really knows what will happen: it’s possible that with legalization, police forces across the country will ease up on cannabis enforcement generally, even as the government gives them the ability to chase Canadians on many newfangled offences. Some encouraging news is that authorities laid only 17,733 cannabis possession charges in 2016, about 3,600 less than in 2015.

To continue reducing reliance on the criminal justice system, the federal government should make many of the new offences regulatory in nature, with civil tickets and fines for violations instead of trials and criminal penalties. The Cannabis Act does allow some discretion to impose tickets for certain offences; the conviction that results from a ticket is kept separate from a criminal record, so it probably won’t show up on employment background checks and cause the degree of societal stigmatization that criminal records bring. But it would be foolish to assume that front-line police officers and the legal system will fully adopt such discretionary authority, and it’s too early to tell whether this discretion will be exercised at all.

Photo: Shutterstock/Eskymaks

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