Improperly packaged pot tickets ‘almost unenforceable’: lawyer By: Solomon Israel Posted: 7:00 PM CST Tuesday, Dec. 10, 2019

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This article was published 09/12/2019 (1846 days ago), so information in it may no longer be current.

A new regulation that will allow Manitoba police and provincial inspectors to issue $672 tickets to people found possessing cannabis without its legal packaging is raising eyebrows among local criminal defence attorneys, who say it will be hard to enforce.

The new rule is meant to “crack down on the illicit market” and “(support) the legal cannabis retail market,” said a provincial news release issued Monday.

It’s already a crime under federal law to possess illicit cannabis — a status that applies to any cannabis sold, produced, distributed or imported by someone without the proper government authorization to do so. (In short, it’s a crime to possess cannabis sold illegally by a drug dealer, but legal to possess cannabis sold by a licensed store.)

The new Manitoba regulation, which takes effect Jan. 1, appears to treat improperly-packaged cannabis as if it were necessarily illicit cannabis, without establishing the drug’s actual legal status.

The text of the regulation prohibits “possession of cannabis not packaged, labelled and stamped in accordance with federal requirements,” which include child-proof packaging, mandatory health warning labels and a federal excise tax stamp.

According to a provincial spokesperson, however, the new rule will still allow Manitobans “to remove legal cannabis from its packaging for storage and consumption.” Specifically, an exception in the regulation’s enabling legislation means the rule won’t apply to people found possessing 30 grams of cannabis or less, the spokesperson wrote.

The $672 ticket for the offence could be issued by provincial inspectors with the Liquor, Gaming and Cannabis Authority, the LGCA said Monday. The agency has 19 such inspectors, who may inspect licensed liquor, gaming and cannabis establishments “and the immediate vicinity surrounding the licensee,” wrote a spokesperson.

Cannabis-related tickets from LGCA inspectors have been rare so far — the agency says it has only issued two: both for unlawful sale of cannabis.

The new tickets could also be issued by Manitoba law enforcement officers, according to the province.

Criminal defence attorney Karl Gowenlock said the new provincial offence seems “a little bit silly,” not to mention “almost unenforceable on its own.”

“People generally don’t carry these things outside, where police or provincial inspectors would be able to see them,” he said.

Gowenlock worries about how such tickets might impact the people he believes are likeliest to receive them.

“The law itself might be more of a deterrent than it is a practical, enforceable law.”
– Criminal lawyer Ethan Pollock

“Who it’s going to be, ultimately, is people who are arrested by the police on other matters who happen to have some marijuana on them… That’s going to disproportionately be Indigenous people, young people, people already subject to over-policing and often coming from circumstances of poverty — who are going to be then slapped with this provincial offence notice on top of any other criminal charges they may or may not have.”

Criminal lawyer Ethan Pollock described the new provincial offence as a “quasi-criminal” one. If a ticket gets challenged in court, Pollock questioned how a Crown attorney could prove whether cannabis was illicit.

“The law itself might be more of a deterrent than it is a practical, enforceable law,” said Pollock.

Attorney Saul Simmonds believes the government is trying to lighten the load on courts by using provincial offence tickets instead of criminal charges.

“While I’m not telling you that I completely agree with the legislation, I do understand their mindset,” he said. “They’re in a position in which they want to be assured that a person having the marijuana in their possession has been using marijuana that (the government) has some control over.”

“They’re in a position in which they want to be assured that a person having the marijuana in their possession has been using marijuana that (the government) has some control over.”
– Attorney Saul Simmonds

Simmonds said he sees two silver linings in the new rule.

First, cannabis possession tickets likely wouldn’t be enough to keep a Manitoban from entering the United States, where border guards are notoriously disapproving of drug-related brushes with the law. Second, provincial tickets will at least give police discretion to use non-criminal sanctions.

Justice Minister Cliff Cullen cited such discretion in a written statement, saying the provincial offence gives inspectors and police “the option of issuing a ticket to help deal with the matter more efficiently, as opposed to having it go through the courts.”

Another regulation unveiled by the province Monday will enable $672 provincial offence tickets for possessing more than 30 grams of cannabis in public without a valid medical authorization. That offence is also a crime under federal law.

solomon.israel@freepress.mb.ca

Twitter: @sol_israel