Lawyers predict 'significant period of transition' as justice system faces legal cannabis

Saskatoon defence lawyers suggest that, in the coming months, police and the courts are going to struggle mightily with the legalization of cannabis.

The new rules mean the players in the justice system are being asked to change decades of patterns of behaviours and beliefs.

"This idea that on October 17 a small enough amount in certain circumstances will not be illicit, that's a foreign concept to the justice system, it's a foreign concept to many police officers, it's certainly a foreign concept to us as defence lawyers," said Mark Brayford.

"There will be a significant transition period where it's unclear what will happen if you make a mistake and you're a cannabis user."

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These are the rules, according to the Department of Justice.

On Oct. 17, subject to provincial or territorial restrictions, adults who are 18 years of age or older will be able legally to:

  • Possess up to 30 grams of legal cannabis, dried or equivalent in non-dried form in public.
  • Share up to 30 grams of legal cannabis with other adults.
  • Buy dried or fresh cannabis and cannabis oil from a provincially-licensed retailer.
  • In provinces and territories without a regulated retail framework, individuals would be able to purchase cannabis online from federally-licensed producers.
  • Grow, from licensed seed or seedlings, up to 4 cannabis plants per residence for personal use.
  • Make cannabis products, such as food and drinks, at home as long as organic solvents are not used to create concentrated products.

The rules may seem straightforward, but Brayford said that people may not fully appreciate the consequences of running afoul of the rules.

"The police are going to stop people that have bought too much pot or are carrying too much pot or are carrying it inappropriately or so on. Yes, in some cases it can result in a regulatory type of offence that doesn't cause much difficulty," he said.

"But in other situations it's going to result in very serious criminal charges for someone that in no way, shape or form ever viewed themselves as a drug trafficker. Or ever intended to be a drug trafficker. And yet the full weight of the criminal law will be brought to bear on them."

According to Ottawa, someone caught possessing more than 30 grams in public could face a fine, or up to five years in prison. Similarly, someone charged with illegal distribution or sale could face a fine – or up to 14 years in prison.

Determining whether someone is fined or faces something more serious is what's going to be worked out in the coming months and years, Brayford said.

He used the analogy of buying case of beer for a friend on the way to their house.

"If you go and buy an ounce of pot and then you make a mistake with that ounce of pot by selling it to a friend for money, not as a profit-generating exercise, just in the normal way that you might help out a friend," he said.

"You run the risk of being charged criminally with very serious offences that result in incarceration and criminal records and inadmissibility into the United States."

A driving concern

One area that is under considerable scrutiny is how legal cannabis will mesh with current driving laws. The questions turn on what constitutes impairment when a user is behind the wheel.

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Andrew Mason is president of the Saskatoon Criminal Defence Lawyers Association.

"There's a number of issues relating to the detection of the level of impairment," he said.

"It's very difficult because there's no objective machine that will give you a reading for the level of impairment for marijuana."

Saskatoon Police will be using a device called a Dräger DrugTest 5000. It allows officers to take a saliva swab from a suspect and then test it for THC, the active ingredient in cannabis that creates the high.

The catch, said Mason, is that while it may accurately determine the amount of THC, there is no agreed-upon, objective scale of what level actually constitutes impairment.

"The tests are somewhat controversial. There's no clear relationship between level of THC in the blood or saliva, and the level of impairment," he said.

Police say that officer judgment is going to play a major role, both in the field and at the police station.

An officer will first do a roadside field test, similar to someone suspected of driving under the influence of alcohol. If the driver fails the standard field sobriety test (walk a straight line, raise one leg), then they can be taken back to the station.

There they can undergo up to 45 minutes of additional testing under the watch of an officer trained to be a drug recognition expert. It involves a more in-depth series of tests lasting 45 minutes and includes pulse and temperatures readings, an interview and observation.

Mason said the issue is that it will still come down to a subjective analysis by a trained officer.

"That is the method by which the police, I believe, are going to have to proceed in order to support charges of impaired driving due to marijuana consumption. And that's very difficult," he said.