Many unknowns on the horizon as Canada prepares to legalize pot

On Oct. 17, Canada will become one of the first Western nations to decriminalize possession of small amounts of marijuana.

And it’s only fair that we go first, since we were one of the first countries to ban it. A Liberal government under William Lyon Mackenzie King added marijuana to the list of substances banned by the Opium Act almost 20 years before the Americans outlawed pot.

Then, when the United States banned weed in 1938, Canada banned it again. It was such a non-problem that the King government forgot they’d already made it illegal.

We can expect some serious issues to arise next fall. For one thing, the sale of marijuana in Ontario is still up in the air. The previous provincial government planned to open a chain of marijuana stores similar to the LCBO. The new Progressive Conservative government appears to be leaning toward free enterprise. A decision needs to be made soon: decriminalization is only three months away.

The new law has other traps. Growing pot will be legalized, but only for four plants for personal use. Commercial growing and selling will be just as illegal under the new law as they are now. In fact, some penalties for growing and dealing will be harsher.

Some advocates of a wide-open market are, for now, simply ignoring the law. Marijuana “dispensaries” are open in most cities and towns, selling marijuana, hashish and edibles. In at least one Eastern Ontario First Nation, Tyendenaga, dozens of new marijuana outlets have opened in defiance of the old and new laws.

It will be interesting to see how the government reacts to these outlets. Until recently, pot growers were simply ignoring the federal narcotics law. The RCMP and local police forces went after growers, especially in the fall, but more than enough pot was grown illegally to supply the Canadian market. Now, it’s not just a matter of breaking the law. Unlicensed commercial pot growers and dealers will be competing against well-connected licensed growers and government retailers.

It’s one thing for pot growers and dealers to compete against each other. It may be quite another for them to compete with governments that have become desperate for new revenue streams.

And no one is sure what will happen about impaired driving. It has always been illegal to drive under the influence of drugs. Now, the challenge for the police will be to find a way to convince judges that people who drive stoned are “impaired”. No one has come up with a quick test similar to a breathalyzer.

People who want to smoke pot will need to be careful not to break several new rules. While the regulations of the decriminalization law haven’t been published, it’s clear that it will be rather easy to break the new law.

Under the new law, you can possess up to 30 grams of legal cannabis, dried or equivalent in non-dried form in public. And you can share up to 30 grams of legal cannabis with other adults. But you’d better make sure they are adults: give or sell pot to someone under 18 and you’re looking at up to 14 years in jail.

You can only buy dried or fresh cannabis and cannabis oil from a provincially-licensed retailer or online from the federal government. The law says nothing about hashish. Edibles are excluded, as are marijuana vapes. And, while you can “share” your marijuana, but you can’t sell it. That’s illegal dealing.

And you’ll have to buy seeds, seedlings or clones from a licensed dealer. Presumably, the new regulations will make it illegal to sell seeds and clones.

You can make cannabis products, such as food and drinks, at home as long as organic solvents are not used to create concentrated products. But the law is not clear about the legality of baking with cannabis and transporting the stuff to a friend’s place. Will there be a rule like Ontario’s law against transporting an open bottle of wine or case of beer?

I think the government has made things far too complicated. People will still be charged, either under provincial laws, which do not carry a criminal record, or federal laws, which do. It will be up to the police to decide which charges will be laid.

As well, the people convicted of simple possession will not have their criminal records erased. In several of the U.S. states where marijuana was legalized, criminal records were destroyed. That should be done here; people who have done something now recognized as relatively harmless should not be stuck with records that affect their ability to get a job or travel.

There will likely be a class action lawsuit filed in the next few months to try to force the government into suspending the criminal records of people convicted of offences for things that will be legal under the new law, things like simple possession and cultivation of four or fewer plants. If I had a marijuana record, I probably wouldn’t wait for this lawsuit to grind through the courts. I’d get the forms and apply now.

(To get them, simply google “Official PBC Record Suspension Application Guide and Forms” and the material you need will show up on the National Parole Board website. Ignore the ads for companies that offer help. This is something you probably can handle yourself.)

Mark Bourrie

Mark Bourrie is a lawyer practicing in Lanark County and Ottawa. He is also a part-time professor of History and Canadian Studies and an author. You can reach him at [email protected] or 613-255-2158.