One marijuana legalization surprise: it may feel more repressive than what we see now

Police remove marijuana products from Cannawide dispensary in Toronto on May 26, 2016. GETTY IMAGES

To watch people smoke marijuana in public – sometimes in front of indifferent police officers – you would think that marijuana legalization had already happened.

Smoking pot in public isn’t legal now, but the reality in most provinces is that it’s not going to be legal on Oct. 17 either, when provincial cannabis laws kick in.

In Ontario, for example, public consumption will be a provincial offence, like a traffic ticket, with a fine of up to $1,000 for a first offence and up to $5,000 after that. (Ontario traffic fines typically have a maximum of $1,000, but are much lower than that in practice.)

The provinces have taken different approaches to public consumption, but in general, Manitoba, Ontario, Newfoundland and Labrador, P.E.I., New Brunswick and Saskatchewan have more restrictive rules, and Alberta, B.C., Quebec and Nova Scotia more lenient ones.

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Lawyers point to a paradox: police now have little interest in laying traditional possession of marijuana charges, and busy courts have little patience for them. But when offences like public consumption or underage consumption can be dealt with by a quick and easy ticket and a fine, police may be willing to do more enforcement.

The result: the tolerance we now often see for public marijuana smoking may vanish, as new laws are tried out and enforced.

“I think there are going to be a fair number of tickets for public consumption,” says Toronto lawyer Paul Lewin.

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In recent years, and especially since the federal Liberals came to power in 2015 on a program of marijuana legalization, fewer and fewer Canadians have been charged with possession.

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“In the last five years, not too many people have been charged with simple possession,” Lewin says. Police would be “mocked a little bit by judges who would be saying, ‘Are you kidding me?'”

Will we see the same openness about public marijuana use next summer, months after it will have become legal? The answer is less obvious than it seems.

“It’s acceptable in certain communities to smoke openly without repercussions – that’s something that certainly may change,” says criminal lawyer Jordan Gold.

“I could certainly anticipate that happening — I wouldn’t be surprised at all if they used this sort of lesser measure to crack down.”

Underage consumption and public consumption will be the most common tickets, he predicts.

Toronto lawyer Jack Lloyd disagrees.

“I don’t anticipate that you’re going to see an increase in these charges,” he says. “I guess it’s easier for police to investigate and prosecute, but to be perfectly frank, we’ve got an opioid crisis, we’ve got a gun crisis in the city of Toronto – I don’t anticipate that police are going to be spending a lot of time focusing on this issue.”

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A ticket could be challenged much the way a criminal drug charge is now — by demanding the Crown prove what the drug is through lab tests, Lloyd says. (To complicate things, marijuana found on a person that’s not actually being smoked in public will be perfectly legal to possess.)

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“There’s actually a lot of work that they have to put in to prove that there’s cannabis inside the joint. By the time they smell it, and get to the guy, usually the joint is finished.”

On the other hand, pure confusion may lead to people getting charged:

“We’ll have really frustrating issues with enforcing the law, with people either unaware that they can’t smoke in public or they’re doing it just to taunt police, saying, ‘It’s legal – bring it on!’”

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A ticket may seem like a manageable annoyance at worst, compared to a criminal charge.

“Charging somebody criminally with possessing cannabis is a pretty heavy-handed measure,” Gold says. “The criminal law is a very blunt tool, and if this will serve as a deterrent without saddling people with criminal records potentially for the rest of their lives, maybe police will be less reluctant to write up tickets and enforce the new provincial laws.”

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A pot ticket could get you banned for life at the border – if U.S. officials could see it (they can’t)

A marijuana ticket in Canada could get you banned from the United States for the rest of your life – if U.S. border officials knew about it – U.S. immigration lawyers confirm.

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U.S. law provides that an “alien” who is convicted of “a violation of any law … of a foreign country relating to a controlled substance” as defined in U.S. law is inadmissible to the country. Marijuana is on the list of controlled substances.

And as legalization nears, the U.S. has been aggressive about banning Canadians with any involvement with marijuana. Three executives of a Surrey, B.C. farm equipment company on their way to the U.S. to discuss the design of a bud trimming machine were grilled for six hours at the border in April and slapped with lifetime bans on entering the United States.

However, provincial marijuana tickets won’t be visible in Canadian law enforcement databases that U.S. border officials have access to, the RCMP told Global News.

Global News asked the U.S. Customs and Border Patrol how many Canadians have been barred from the U.S. for marijuana-related reasons, and they refused to answer.


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