Is Canada New Legal Framework Regulating Cannabis Use Too Restrictive? Some Expert Think So.
The legalization of cannabis in Canada is seen as one of the most progressive public policies in Canadian history. The move has been celebrated as a means of promoting public health, reducing crime, and “bringing a multi-billion-dollar industry from the black market into the legal one”. Canada became the second country to legalize the recreational use of cannabis behind Uruguay.
Since legalization, the federal government has promised to adopt a ‘strict’ public health-focused model of production, and sale that emphasizes minimizing harm. Such as the risks of contamination or unknown potency associated with drugs sold in the illicit markets. The government also wants to ensure criminals groups are not profiting from cannabis legalization and reduce the burden on the criminal justice system.
The Cannabis Act, also known as Bill- C46, is the federal legislation regulating the cannabis industry. Some experts such as civil liberties groups, scholars, criminal and constitutional lawyers have express concerns about how restrictive the new legislation is.
Abby Deshman of the Canadian Civil Liberties Association (CCLA) says, “we’re legalizing the industry, but criminalizing a lot of the aspects around the use of cannabis,”. In Ontario for example, only cannabis purchased from the official recognize cannabis store is considered legal. Anyone caught in possession of cannabis not purchased from the Ontario Cannabis Store (OCS) is considered legal and could potentially face a fine or a criminal charge. Some legal experts believe too much attention and discussions are around legalization, but the focus should be on the impact the policies are going to have on certain communities.
Speaking to some of Toronto’s top criminal lawyers for this article, they point to the fact that the government rushed to put the legislation together. The fact is you have a patchwork of provincial, territorial, and municipal laws and by-laws that interact with the federal criminal laws, which make it difficult for the average Canadian to understand what everything means. Under the Cannabis Act, each province and territory is responsible for setting its own rules for how cannabis can be sold, where stores can be located, and how stores must be operated. Provinces and territories may also set additional restrictions they feel are necessary. For instance, the federal legislation sets the age limit for purchasing cannabis at 18, however in Ontario, the age limit is 19, In Quebec and Alberta, it is 18.
As I noted above, one of the key reasons the government chose to legalize cannabis was that the old legal framework was not serving its intended policy objective. At the time of legalization, the government said, “the old approach to cannabis did not work. It let criminals and organized crime profit while failing to keep cannabis out of the hands of Canadian youth. In many cases, it has been easier for our kids to buy cannabis than cigarettes”. However, Michael Smith a constitutional lawyer and sociologist professor, from the University of Toronto, believes the new legal framework might be counterproductive to the government objectives.
Expunging Criminal Records?
Legalization has also raised questions about what to do with Canadians with criminal records for minor possession. It is estimated, more than 250,000 Canadian have a criminal record related to minor cannabis infractions. Several experts have expressed their concerns with the lack of action taking by the federal government to expunge individuals’ records.
Akwasi Owusu-Bempah, a professor at the University of Toronto says “Canadian celebrating cannabis legalization should be cautioned, “unless both the federal regulations and various provincial legislation provide avenues for inclusion and a means of repairing the harms caused by Canada’s war on drugs. We need to make sure that everyone has the opportunity to participate in this growing economy, while also working to improve the lives of people criminalized for activities that will no longer be illegal”.
Canadians convicted for simple possession, face difficulties finding work, traveling, and difficulties during vulnerable sector searches if they want to work with children or vulnerable adults. While former cops who advocated for harsh sentences for minor possession of cannabis are cashing in on legalization, such as former Toronto police chief Julian Fantino. Fantino was fiercely opposed to cannabis legalization and once said “legalizing cannabis is like legalizing murder”. He is now the Chief Executive for Aleafia, a Concord Ontario-based company that produces cannabis.
The government has proposed Bill-C-93, which will amend the Criminal Records Act, and allow anyone convicted of less than 30 grams of cannabis to file a formal application to get a pardon. However, this is a long and tedious process explained by Annamaria Enenajor, a Toronto-based lawyer directing the national Cannabis Amnesty campaign. She says “automatically expunging the records for those convicted of low-level cannabis crimes is a far better policy than putting the onus on the person to apply for such relief.
Legal experts say the government has taking the right steps forward but there’s still a long way to go. Jack Lloyd, a Toronto-based lawyer specializing in these cases, offered his analysis, “Out of the 250,000 Canadian convicted for minor cannabis infraction, 80,000 are eligible for this pardon program.
That is great. Any day the government says we are going to remove the stigma from 80,000 victims of the drug war, that is a great day. But they could be doing a lot more to help communities that have been impacted negatively, especially if they have now admitted that simple possession was a wrong-headed law, to begin with”.
So Far only 44 pardons have been granted out of a total of 71 people who have applied. The process is very cumbersome and bureaucratic, says Toronto lawyer Caryma Sa’d.
Infringing On Civil Liberty
Another area of concern is the type of power the Cannabis Act gives to police officers. As it stands, the Act gives any police officer with reasonable probable grounds who believes there is cannabis illegally in a vehicle to — without a search warrant and at any time — search the entire vehicle and any person found in the vehicle.
The overhaul of the Criminal Code also saw the government introduced new impaired driving laws related to cannabis use. Under Canada’s new drug-impaired driving laws, drivers are prohibited from having blood THC levels of two and five nanograms per milliliter. If drivers are found, they are liable for a fine of up to $1,000, while drivers with over five nanograms face a minimum $1,000 fine and up to 10 years in prison for a first offence. However, a new study from the University of British Columbia (UBC) says the new law on cannabis-impaired driving penalties may be too strict. Researchers found no link between low levels of THC, the psychoactive chemical in pot, and car crashes”.
Lead investigator for the research Dr. Jeffrey Brubacher says, “THC does not appear to be associated with an increased risk of crashing”.
Criminal defense and constitutional lawyers are also concern about the new legislation. A group of prominent criminal defence lawyers have brought the matter to the attention of the federal government, by signing a letter asking the government to remove parts of the proposed regulation in bill C-46 that would make it a criminal offence for people found to have more than two nanograms of THC in a milliliter of their blood within two hours of driving.
Lawyers say the proposal would disproportionately affect people who consume the drug for medical purposes and is contrary to s. 7 of the Charter.
Caryma Sa’d, one of the letter’s signatory’s say’s there are a lot of flaws in the legislation,” I wouldn’t be surprised to see constitutional challenges.”
The legalization of cannabis has brought excitement to many Canadians around the country, however, questions remain