Legalization or Re-Criminalization: Comments on a Recent Presentation Concerning Canada’s New Cannab

With Special Thanks to: The Robson Hall Criminal Law Group

On Wednesday, October 10, the Robson Hall campus was fortunate enough to be visited by Katherine Dowle, Supervising Attorney at Legal Aid Manitoba, and her colleague Amanda Sansregret. They spoke on potential issues and concerns with the new cannabis legislation. With legalisation, this has become a hot legal topic, in the criminal realm and beyond. The picture that these two experienced criminal defence lawyers painted was a rather alarming one. On their view, the new legislative scheme, both federal and provincial, amounts to a re-criminalization of cannabis, rather than its legalisation. I understand that several of us who attended this presentation have written blawgs on the topic. Therefore, I shall leave a recounting of the details of the presentation to them. Instead, the present blawg will discuss some of the issues raised by Ms Dowle at a macro level, and ask why this is the case, the implications for Canadians.

The overall framework for cannabis regulation was, at the time of the presentation, spread across Bill c-45, new provisions in the Controlled Drugs and Substances Act, and a slew of provincial acts and regulations. Legalization, and thus all of this legislation, was ostensibly intended to achieve the following goals: restrict access of cannabis for young persons, protect public health, and reduce the burden on the justice system from cannabis related offences. According to Ms Dowle and Ms Sansregret however, the new legislation fails miserably in meeting these purposes. They essentially identified three overarching issues with both the federal and provincial approaches to cannabis regulation: many provisions, especially those relating to impaired driving, will too easily capture people who present no risk to society; many of the provisions are extremely vague and amount practically to a virtual prohibition, and; expanded police powers and evidence recognition are expanded, including testing regimes which are not scientifically reliable.

The first point was illustrated by the new impaired driving rules, set out in Bill c-46. The federal government provides a helpful summary chart on the Department of Justice website.

This chart indicates that there is a new summary offence for drivers found to have between 2 and 5 nanograms of THC per millilitre of blood in their system. While the website indicates that this level was chosen on scientific advice that any detectable level of cannabis is incompatible with safe driving, no citation of scientific evidence is provided. Ms Dowle and Ms Sansregret suggested quite the opposite. They noted that the 2 ng level has no link to impairment, according to studies they had read. Furthermore, they recounted the view of a toxicologist, whom indicated to them that that level of THC could remain in a person’s blood for months after their last use of cannabis. Being within the 2-5 ng range draws a fine of up to $1000, while meeting or exceeding 5 ng draws a fine of at least $1000 and minimum terms of imprisonment for second and third offences. Given that an individual could be within the range well after last use, and without being aware, this is somewhat disturbing.

The example given in the presentation of vague and effectively prohibitive provisions was s 17(1) of Bill c-45. This provision sets out the rules for promotion of cannabis products or related accessories. There was much amusement expressed over clause (e), which prohibits promotion of cannabis:

“by presenting it or any of its brand elements in a manner that associates it or the brand element with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.”

As both Katherine and Amanda were quick to point out, the drafters’ time would probably have been better spent listing what forms of promotion are allowed; the list would be much shorter. We all had a rather good laugh picturing a judge presiding exhaustively as lawyers made competing arguments on the precise legal definition of the term “glamour”.

Perhaps the most alarming development of all was the power that police will now have in determining who is impaired. If you look just below the aforementioned chart on the Department of Justice website, you will see several bullet points that explain how the legislation “makes drug-detection easier”.

I highly recommend that everyone read these points, and the associated legislation. Here is one major concern: the evidence of drug recognition and evaluation trained officers is to be treated as expert evidence by default. This has been confirmed by the Supreme Court in R v Bingley, 2017 SCC 12. There are major issues with this. The officers are only experts in administering the saliva test, and are allowed to demand a saliva sample roadside if they see signs such as red eyes, muscle tremors, agitation, or abnormal speech patterns. While these could be indicators of impairment, they could indicate other conditions as well. Someone emotionally distraught could exhibit all of the same indicators. Combine this with a test that is looking for a THC threshold so low that it could register even though last use of cannabis was a month ago, and there is a very real potential that an accused who was not impaired will find him/her self convicted as an impaired driver.

There was much more depth to the presentation than that, along with many more examples, however I shall leave the details to other authors. What is clear from this brief picture is that there is every suggestion that the new cannabis legislation is not what Canadians were promised. I have no doubt that many people, less cognizant and alive to these issues as those of us who have chosen to pursue law, will be caught unawares by these rules. If anything, the new framework will further burden the courts with cannabis related cases, rather than relieve them. As if to underscore this point, one of the news headlines on the first day of legalisation was that an impaired charge had been handed out within an hour of the new laws becoming effective. The threshold for impairment is too low, regulations are too broad, and the opportunities for constitutional challenges are far too numerous. All of which, so obvious as the presentation progressed, led me to wonder why.

On its face, the legislation that is coming will create more problems than it will solve, and will overload the already overloaded courts into the mix. It would be arrogant to believe that those of us listening to Ms Dowle and Ms Sansregret’s presentation had somehow seen something that all of the people involved in making these laws had not. Yet the issues are glaring. So why does the legislation look the way it does? To my mind, there is only one answer: the purposes that the government is pursuing through this legislation are different from the declared purposes of the framework.

If the federal legislation is considered through a different lens, then much of what the presenters highlighted as legally problematic starts to make sense. I would suggest that the purpose of the new legislation is to boost governments’ revenues. The new legislative framework helps them to achieve this end by providing strong tools to protect the government monopoly over cannabis, and by creating a regime where anyone using cannabis, however responsibly, could be fined.

The summary offence for driving with a blood THC content of 2-5 ng illustrates this perfectly. The summary offence is punishable only by a fine, and uses a threshold low enough that pretty much anyone who has uses cannabis with any regularity, even say once a week, will meet it. As Ms Dowle and Ms Sansregret said, the threshold has no relation to impairment. Most people, confronted with the intimidating nature of the legal system will likely just pay the fine and try to avoid the whole problem. Those that do try to fight the charge will face an uphill battle, as the legislation eliminates defence opportunities like challenging the expertise of the officer, allows officers to take samples easily in the first place, and operates on an “any amount is too high” basis. While a lot of this framework may be open to constitutional challenge, only the right client, with both the resources and drive, will want to go that direction, and even then the process will be long and the outcome uncertain. In other words, this legislation makes perfect sense if the intended purpose is to make issuing fines easier.

Of course, this is simply speculation. It fits the facts though. However, in the end it does not really matter why the legislation is the way that it is. What matters is that, regardless of the reason, the new cannabis legislation will cause unimpaired people to be charged for impaired driving. It will restrict cannabis to the point of factual prohibition in some cases. It will add to the burden on the courts. Not only is this not what was promised us by our representatives, it violates the fundamental principle of our justice system that the innocent should not be punished. Canadians were told that they would get legalization. I have to agree with Katherine Dowle and Amanda Sansregret that what Canadians are getting is re-criminalization.