The recriminalization of cannabis

— by Michael Bryant —

Cannabis crime will go up, not down, now that cannabis has been “legalized” by the Trudeau government. Because the law that passed Parliament amounts to a recriminalization of cannabis possession, production and commercialization.

It takes a second or two to sink in, but once I say it, the response is universal: “Really? Does anyone know this? Why haven’t I heard this before?” The statement is shocking to everyone but criminal defence lawyers, apparently. I did a straw poll online of the Criminal Lawyers’ Association members: 85 percent agreed.

The prime minister and cabinet fully intended to legalize cannabis in 2018. No doubt about it. But the truth is that his justice minister has recriminalized pot to the point where I expect more, not less, cannabis criminal charges, post-“legalization.” As I submitted to a Senate committee last April, the bill lays a minefield of criminality best avoided without a platoon of lawyers. Parliament is legalizing the cannabis industry, but not the substance or its usage.

The Department of Justice (DOJ) is expert in criminal law. Codes, prosecutions, process, penalties, criminal courts, constitutional boundaries. It is less able on project management, technology, or anything that doesn’t belong in a courtroom. You wouldn’t want the DOJ to organize a Secret Santa exchange. There would be lots and lots and lots of rules, disqualifications, unworkable sanctions and a byzantine process for resolving everything. Ask the Department of Justice to manage pot legalization, and you get Bill C-45.

Meanwhile, Canadians imagine that cannabis will be legal… like coffee or vodka or orchids. Leeeegal. However, under this DOJ doozie, the front door of your humble abode can be separated from its hinges, by a federal-provincial vice squad (Project Leaf Blower!!), without a warrant, if they think a warrantless search is urgent.

Urgent? Search and seizure powers for police? This isn’t sounding like a legal substance. Worse still, your home, farm and all the agricultural equipment shall be forfeited to the state, just like the old illegal grow-ops or a contemporary meth lab, as proceeds of crime, if convicted. And there are new, more punitive and wholly disproportionate maximum sentences for running afoul of Bill C-45. I know of no 14-year prison sentence arising from distribution of Smirnoff, let alone orchids.

Lest you think that these new criminal penalties are just going to gather dust, the feds invested an extra $274 million to ensure they get enforced. Two-thirds of that money is earmarked for the new, draconian laws aimed at intoxicated driving (draconian because police can force you to blow or give blood without any reasonable cause or warrant), but with every officer that pulls someone over for a random drug test, an opportunity arises to shake down the vehicle for cannabis. The remaining $100 million-plus goes to police for enforcing the law generally. That spells cannabis crackdown, to me. And that $274 million was just a down payment. Municipalities, provinces and the RCMP have already demanded more and will likely get it by the next federal budget. Meanwhile, there is no corresponding investment provided to legal aid lawyers to defend people against these new laws.

Be that as it may, legalization has launched a beautiful friendship between cannabis capitalism, retired police captains and government treasuries. The bill’s ugly underbelly, however, is the firm thumb under which the state keeps ’em down on the farm, as they say. Ex-cons and addicts find no relief in this bill, which rewards heretofore opponents of legalization with riches piled upon their taxpayer pensions, but nothing, nothing, nothing by way of new legal or economic opportunities for those punished by cannabis prohibition to date.

Those previously punished for trafficking and possessing cannabis are not filling the boardrooms of the cannabis industry. They cannot even get a job at the companies because people with criminal records are all but sentenced to a life of unemployment outside the low wage labour market (and even there, it’s a mighty struggle to find employers open to convicted applicants). We know that thanks to the great work done by the John Howard Society Ontario’s 2018 report, [The] Invisible Burden.

So unless you’ve got a criminal law firm on speed-dial, you should wait. Wait before even thinking about growing your own, or setting up a little cottage cannabis soap and souvenir shop. Wait many moons after the bill becomes the law of Canada, after much legal advice has proliferated publicly, after your province has legislated and the federal regulations finally promulgated. Caveat cannabis emptor ad infinitum.

Michael BryantThis article was originally published in The Lawyer’s Daily, as part of LexisNexis Canada Inc. Michael Bryant is executive director of the Canadian Civil Liberties Association and ex-officio bencher at the Law Society of Ontario. He was the 35th attorney general of Ontario and has published, taught and practised in the area of criminal law since 1995.

1 thought on “The recriminalization of cannabis”

  1. Nicely put.

    There was consistently more focus on the potential harms and the enforcement side of this ‘historic’ event and little to no focus on the benefits and social reform that could and should follow the release of an undoubtedly magical plant to sensible Canadian adults. What about HEMP!?!?

    I am a clinical lab scientist and have enjoyed the plant in many ways for over a decade, even continuing on to complete a degree in lab science at the U of A while enjoy the plant and its psychoactive effects.

    Eric D Jansen (BSc MLS)


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