Pot possession suspects face uncertain future

With the tabling of legislation that would make it legal in 2018 for Canadians to possess a certain amount of marijuana, those currently charged for actions that may no longer be deemed criminal in the near future face an unclear fate.

Despite the government's intention to legalize possession of up to 30 grams of dried or fresh cannabis, there has been no indication from the government that those facing charges — or those convicted in the past — will receive any kind of pardon.

Following the introduction of the bills, NDP MPs criticized the government for not addressing those individuals who could still be charged and convicted before the proposed legislation becomes law. 

"If you're facing a charge now, you haven't been tried and then the law changes, how is this going to affect you? It's hard to say," said Lenny Hochberg, a Toronto-based lawyer who has represented many clients in drug cases. "I think it depends on how the public prosecution service deems it appropriate to deal with those matters.

"So whether or not they would still proceed with going through the process of a trial — maybe they would want to deal with it in another way."

The issue of marijuana possession conviction becomes particularly troublesome for those trying to cross the border into the U.S., where customs officials routinely bar Canadians who have such convictions from entering the country. 

'Almost paralysis in the system'

Alan Young, a lawyer and associate professor at Osgoode Hall Law School, said currently there's "almost a paralysis in the system" when it comes to marijuana possession cases, with very little will to prosecute them unless the quantities are huge or involve additional, more serious charges, like possession of weapons.

"So a lot of these cases are just almost sitting in limbo and probably a lot of them ... they will be stayed for unreasonable delay because they're just sitting around waiting for someone to take some initiative."

- Read the proposed cannabis act legislation 

This is not uncommon when a law is changing, he said. But what makes this so critically different is rarely does the government change a law that will have an immediate impact on so many people — in this case people who are part of the cannabis culture, which Young says includes hundreds of thousands of Canadians.

"Usually when we change a criminal law, there are very few people who are directly impacted but what's happening here, they're creating a new law for an existing cannabis community."

So far, provinces have  had little to say about how they will proceed in terms of prosecuting current cases.

Ontario Attorney General Yasir Naqvi said nothing Thursday on how that province's Crown attorneys will move forward on cases still in the system. 

Instead, a spokesperson for Naqvi provided a statement from him saying that "Ontario will continue to work with the federal government to develop a responsible approach that aligns with their legislative framework."

A spokesperson at the B.C. Justice Ministry referred CBC News to a previous Public Safety Ministry factsheet on cannabis legalization, which was also silent on how that province will deal with current charges.

Nearly 25,000 charged

In 2014, the most recent year for which data is available, more than 24,540 people in Canada were charged with pot possession.

But it's difficult to determine which ones were standalone charges, meaning charges in which individuals were solely charged for pot possession and did not have it tagged on as part of a group of other charges.

Young said that typically there are three reasons the Crown will proceed with charges — the individual charged has a prior record, the suspect was found smoking marijuana while driving or was smoking near a school.

But most of the pot possession charges that do make their way through the system are routinely stayed, he said.

"Almost everybody that was charged with possession was given a diversion, to either make a [charity] donation or do community service and the charge is withdrawn," said Daniel Kayfetz, a Toronto-based criminal defence lawyer.  "So it was an expensive procedure of uselessness to have them go to court."

However, small-scale distributors, dispensaries, people who are involved in the market at the supply end and not organized crime, those are the people who are going to have greater difficulty, Young said.

"Trafficking charges or possession for the purpose are not [as] routinely stayed as possession charges are." 

In places like Toronto, the Crown is going to have to figure out eventually what to do with the dispensaries that have been charged with trafficking-related offences, Young said.

"We're sort of going through that waltz right now with the same idea that nobody seems to have the will to proceed in this, but decisions have to made because they've charged hundreds and hundreds of people."