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  • K. Walker (law student)

Are Our Rights to Toke Just a Smoke Screen?

A commentary on new marijuana legislation based on a lunch-time lecture by Amanda Sansregret and Katherine Dowle at Robson Hall.

The event, hosted by Robson’s very own Criminal Law Group, centered around the potential problems and effects that Bill C-45 and the new Cannabis Act may have on our legal system.

If you are not an expert in marijuana you may want to think twice about lighting up a joint before learning the ins and outs of the new Cannabis Act. Bill C-45 has put such strict rules and indecipherable language in it that the only thing being accomplished by this Act is the recriminalization of pot through penalties. The legislation is bringing with it more questions than answers and we are all waiting with baited breath to see how the various courts will address the questions all these changes will bring.

Don’t worry if you aren’t an expert in pot though. We’ve got thousands of police officers getting expert training in “voodoo” marijuana recognition science who will be sure to help you out by telling you that you are high when they pull you over. Even if you have never touched an illegal or controlled substance in your life, these “recognition” tests are easily failed by individuals on prescription drugs or those who may have trouble passing tests that include standing on one foot for 30 seconds. I will be the first person to put out that I don’t have a good enough center of balance required to pass that test.

At this stage, Canada is relying solely on these so called “drug recognition experts” and is severely lacking in the knowledge and tests that would be required for the same charges regarding alcohol consumption to be laid. Lawyers are calling these recognition tests the “hair and fiber tests of today”. Not only are these tests a bunch of hocus pocus, there is currently a huge bias issue between roadside stops for driving high testing and testing back at the station if you fail the roadside stop. The same police officer performs both tests and only has to reaffirm or back up his original decision. At a minimum, it should be two different officers doing the different tests so there is no motive for the officer to prove that their initial assumption was correct.

Right now the regulations are saying that if you smoke pot do not drive, period. Research on the affects of THC in relation to its usage is severely underwhelming. There is currently no notion of how much pot it takes to affect an individual like there is for alcohol. With alcohol we have a general idea that one glass of wine with dinner is generally under the legal limit to drive and won’t get anyone arrested, depending of course on multiple other factors.

There is also a cause for concern about the build up of THC in the body. Due to the fact that THC is stored in fat cells, it can be present in your system for much longer than alcohol stays in your blood. So, while having a glass of wine with a meal two nights in a row would not collectively put you over a legal limit to drive, smoking a blunt two nights in a row on the weekend may very well leave you with a criminal record come Monday on your way to work.

Now that we’re more confused than cleared up on blowing smoke before driving, lets worry about the actual purchase of this herbal refreshment. It may come without saying that all cannabis products must be bought from a government approved store, as it is still illegal to buy off the street. But is it okay for you to go to the store to pick up some of that silly spinach for you and a friend and have that friend reimburse you for their half? Nope, congratulations you are now a drug dealer. And don’t forget to keep track how much weed you stock up on too. It is still a prosecution under the Controlled Drug and Substances Act to have more than 50 grams at a time.

While we are on the subject of purchasing legal weed, it is also important to be careful which government approved stores you buy from. Currently all cannabis laws are based on strict liability, so if you buy weed that has not been properly cleaned you could be up for another criminal charge. Even though these stores are government sanctioned and you are doing your best to be a law-abiding citizen, if you walk out of a store carrying some of that devil’s lettuce and it has too many seeds in you can be criminally charged. And for those who are not cannabis connoisseurs, seeds are very hard to find or pick out. Are we now expected to pick through our government approved weed before leaving the store to make sure we didn’t get a bad batch with seeds in?

So, you step out of these strict rules by making a mistake and you get charged, now what? Well, the Crown no longer needs to meet the Mohan criteria (R v Mohan, [1994] 2 SCR 9) for bringing expert evidence in the case of a cannabis legislation violation. This means that the Drug Recognition Experts that are popping up like weeds in the ranks of police officers do not require much “expert” training to be considered an expert witness. These so-called experts are not even required to know the science behind these ridiculous tests. Evidence that would have been found inadmissible in a court before has now become admissible before the court.

The new legislation states that “[t]he objectives of the Act are to prevent young persons from accessing cannabis, to protect public health and public safety by establishing strict product safety and product quality requirements and to deter criminal activity by imposing serious criminal penalties for those operating outside the legal framework. The Act is also intended to reduce the burden on the criminal justice system in relation to cannabis.” ( Do these strict laws serve their purpose? No, I do not believe they do.

So, beware before you pack the pipe or light up the reefer.

Works Referenced:

Amanda Sansregret and Katherine Dowle, CLG talk on Marijuana Legislation; October 10, 2018.

R v Mohan, [1994] 2 SCR 9

Works Cited:


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