Cannabis in the Courts
The Question of Criminality Post-legalization
Laws are written by legislators, but their constitutionality is often decided in the courts. This is a way for the government of the time to draft laws – in this case, laws that are popular with citizens – while shifting responsibility to the court systems to iron out any wrinkles. In the case of Bill C-45, legislation which effectively legalized cannabis in Canada, there are many.
Legalization, on the surface, is great, and it was jubilantly celebrated by many. Canada has positioned itself a global leader in the cannabis space, driving research and development activities, but instead of decriminalizing cannabis, what legalization did was criminalize new activities and create new systemic inequalities that marginalize entire cohorts of the population.
What most people didn’t account for is that despite legalization, certain aspects of criminality would be left intact, complete with constitutionality issues that are sure to do little to reduce the burdensome caseload of the court systems.
Though cannabis is legal, it is still illegal to sell without a license, distribute cannabis to a minor, consume marijuana in public, drive impaired, possess more than thirty grams of marijuana at any given time, mail marijuana, or possess a flowering plant in public – and all marijuana must be from licensed sellers or else it is still considered an illicit substance.
Many people expect the matter of drug-impaired driving to be one of the most common court challenges given that the law does not take impairment at the time of driving into consideration. Bobby Russon, a criminal defense lawyer from Windsor, Ontario, referred to the matter as “problematic” and “nonsensical,” saying, “In simple terms, it does not criminalize what it seeks to criminalize.”
He explained that, “It is currently an offence to have between two nanograms and five nanograms of THC in your blood within two hours of driving, and a more serious offence to have five nanograms of THC in your blood within two hours of driving,” adding, “It plainly does not test for impairment at the time of driving,” making it arbitrary as it does not meet the rational connection test.
Likewise, roadside testing using saliva can be easily disputed, as the equipment hasn’t been proven to the degree a breathalyzer has, for instance. Tetrahydrocannabinol (THC), the psychoactive cannabinoid found in marijuana, is stored in fat cells in the body and can remain detectable for as long as a month after use. The most effective testing is via the blood and it takes much longer to collect and process blood samples and thus, for cases to proceed. Warnings and tickets are being issued under provincial law, but police officers are reluctant to proceed with the new criminal charges, likely because of the potential challenges that could arise.
Further to the issue of impairment, there are several aspects of Bill C-45 that have serious implications for youth specifically. A major point of contention is the punitive nature of the law and the fact that it is in direct opposition to the Youth Criminal Justice Act. Russon provided some insight into why this is an issue.
“I believe this is the first law ever to create a criminal offence for youths when it is legal for adults – that being possessing five grams or more of dried cannabis. One of the fundamental purposes of the Youth Criminal Justice Act is to recognize the diminished level of moral blameworthiness of youthful offenders. This does the complete opposite,” Russon said.
For instance, a person aged eighteen or older could face up to fourteen years in jail if they were to simply pass a joint to a youth, anyone aged seventeen and younger. This could be a simple scenario amongst friends of the same age cohort. According to Russon, “While that punishment would never be handed out, it still makes it a criminal offense, and an absurd one,” noting that it is even more serious for anyone who is a permanent resident, as it would result in them being deported without the right to appeal, regardless of their sentence – another issue of constitutionality.
The issue of possession has already been the subject of a constitutional challenge by Allan Harris, a Vancouver man who argued that his rights to liberty and equality were violated by a 150-gram possession cap, as he is authorized to use 100 grams of cannabis a day to manage chronic pain. His challenge was initially successful but was later overturned by the Federal Court of Appeal.
Harris’ argument is that he cannot travel for more than a day and a half due to the limitations of his medication and while he was originally granted an exception to have a ten-day supply of his medicine, the decision was challenged by the Attorney General and overturned. He is one of many challenging for the right to possess a thirty-day supply, as is common with many other pain management medications.
In granting a constitutional exemption in this case, the court of appeal cited concern that it would cause irreparable harm to the public interest, which is why the cap was established in the first place, to reduce the motivation for theft, violence and diversion.
Another reason the decision was overturned is that Harris can access his medication in other ways whenever he chooses to travel in Canada, and as such, his rights were not violated, though he argued that shipping fees and orders of smaller quantities can be cost prohibitive versus larger bulk orders. He uses the cannabis to produce his own oil, which is used to treat his pain.
From impaired driving charges to possession charges, issues related to promotion and advertising, home cultivation bans, First Nations jurisdictional challenges, and battles between landlords and tenants and employers and employees, there are numerous reasons cannabis will remain a matter for the courts, both constitutional and criminal.
Of the shortcomings of Bill C-45, it is possible that its greatest failing is in the achievement of equity. The legislation does little to address past wrongs or incorporate social equity programs to reconcile the disproportionate harm and stigmatization that prohibition and the war on drugs caused minorities. The Liberal government has established a system by which individuals who have been convicted of simple possession charges can more efficiently apply for pardons. Bill C-93 attempts to remove barriers to employment, travel, housing and volunteer opportunities for those with simple pot convictions.
By waiving the $631 application fee and the required ten-year waiting period, the government hopes to streamline the process. What it doesn’t intend to do is expunge records for those convicted of cannabis offences, missing an opportunity to promote equity.
Russon offered his thoughts on how Bill C-45 disproportionately affects the poor and marginalized, saying, “When a marijuana offense is punishable by a ticket, the accused can keep the judicial record sealed by paying a fine within thirty days. If a poor person cannot do that, then the record is unsealed, and will have negative consequences for travel, employment, et cetera. This is to say nothing of the fact that poorer people are more likely to possess and consume in public, and therefore more likely to attract scrutiny.”
Where Canada has failed, others have succeeded. There are many examples of how social equity programs can coexist alongside legalization in cities and states across the United States, though cannabis remains federally prohibited.
Illinois is a great example of how legalization and equity can go hand in hand. It recently became the eleventh state to legalize marijuana for recreational adult use, but what makes it unique is that it is the first state to legalize cannabis through the state legislature and the first to include a racial justice provision. The racial justice provision will see the expungement of nearly 800,000 past convictions.
The bill also includes a social equity program that will offer grants and loans to minority-owned businesses to increase their representation and access to capital. The Restore, Reinvest and Renew program will earmark one-quarter of tax revenues earned from the industry in the state for minority communities that have been disproportionately impacted by the war on drugs and who are less likely to benefit from the market now that cannabis is legal.
The war on drugs has proven to be an abject failure, but the process of legalization didn’t have to be. In Canada, it just happens to be a lot worse than most people expected. Despite legalizing marijuana, there is still a lot of work to be done. The government failed to draft legislation that promoted fairness and equity and as such, cannabis will continue to find itself a matter for the courts