Cannabis laws may have changed, but courts haven’t By: Katie May Posted: 7:00 PM CDT Thursday, Oct. 4, 2018

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This article was published 03/10/2018 (2278 days ago), so information in it may no longer be current.

Cannabis laws may have changed, but the courts haven’t – and that could cause confusion about how marijuana-related cases are prosecuted after Oct. 17.

Manitoba’s chief federal prosecutor warns legalization won’t necessarily stop the trickle of cannabis cases through the courts, nor will it necessarily save a great deal of prosecution resources. It’s a stance some cannabis advocates see as “fearmongering” in the face of widespread national acceptance of the drug.

Chief prosecutor Ian Mahon says charges already in the criminal-justice system are expected to go through the courts as usual – and marijuana possession can still be a criminal offence after the new law comes into effect if the weed comes from an illegal source. But, Mahon acknowledges, there’s no clear way for law enforcement to tell the difference between legal and illegal cannabis once it’s in users’ hands.

“If you buy your 30 grams from your local, authorized government distributor, no problem. But if you buy 30 grams from someone on the street who’s not an authorized government dealer… then that would be illicit marijuana and the possession of that is still illegal,” Mahon said.

“I’m not sure how that is going to be determined, because there’s no requirement to have it remain in the packaging that the government distributor sells it in, so that’s a shortcoming of the (legislation).”

There are other gaps between the federal and provincial cannabis laws prosecutors at both levels still have to figure out how to deal with, Mahon said.

The federal legislation allows individual users to grow up to four cannabis plants, for example, but Manitoba is one of two provinces (along with Quebec) to prohibit growing cannabis plants.

Under federal law, those charged under the Cannabis Act (Bill C-45) will still have to go to court. Although the new law considers some cannabis infractions ticketable, that federal ticketing system hasn’t yet materialized, and there’s currently no mechanism to divert marijuana-related cases out of the court process.

Meanwhile, cannabis users caught breaking Manitoba-specific rules — by consuming the drug in a public place, for example — can be ticketed and fined. If a charge is laid, it will be handled by a provincial prosecutor.

“The court processes haven’t changed a lot. The nature of the offences and the relationship between the provincial offences and the federal offences will be reviewed as matters proceed,” Mahon said, adding the law can evolve and this is a “learning process.”

“As with any new legislation, there’s going to be challenges to it. There’s going to be implementation issues and we’re going to be dealing with them as they arise. We’ve anticipated as many as we can, but you can’t anticipate everything, and some of it will be dealt with as it arises.”

The idea Manitobans should be wary of being prosecuted for carrying cannabis even after it’s legal is “fearmongering,” cannabis advocate Steven Stairs said.

“Generally, for possession… there’s no way that you’re going to see the law being enforced as it’s written,” he said. “You’ll see a convergence in the court system of… small fines and seizures. I think you’re going to see the court bogged down for a while, maybe a year or two.

“I don’t think it will be onerous on the part of citizens, but I think you will see a lot of people who are concerned or maybe not happy with the way the law was enforced on them, or vice versa with the police making sure the law is enforced the way they think it should have to be.”

Prosecutors in Manitoba handled 87 cases of simple possession of marijuana between Aug. 1, 2017, and July 31, 2018, according to statistics provided by the Public Prosecution Service of Canada. That number doesn’t include cases in which marijuana possession was just one of multiple criminal charges laid.

It’s unclear how many Manitobans were charged with marijuana possession during that time. The Winnipeg Police Service declined a request to provide statistics, and said in a statement it will soon address the public about its organizational response to legalized cannabis.

The Criminal Defence Lawyers Association of Manitoba says the most common marijuana-possession cases that end up before the courts arise from larger criminal cases where police happen to find marijuana, or from arrests of individuals charged with breaching court orders. Police have been more likely to lay marijuana possession charges if the suspect is in a vehicle or there’s a concern they’re driving while high, spokesman Scott Newman said.

However, he said the overall impact of cannabis legalization on the justice system will not come from a drop in possession charges. Shrinking demand for black-market marijuana will lead to a decrease in large-scale investigations and prosecutions aimed at taking them down, he predicted.

“The big savings are going to be the search warrants and the grow teams and the infrared devices to search houses, and drug-sniffing dogs, and all of these things that we’re using to combat large scale, organized-crime-driven marijuana. That’s where the cost savings will be to the system, ultimately.”

Mahon said he isn’t convinced the black market will dry up. The prosecution service can’t be sure, he said, illegal cannabis producers in Manitoba aren’t shipping their product outside Canada.

Stairs said he believes those abusing Canada’s medical marijuana laws are both supplying and feeding demand in the black market, which isn’t likely to go away anytime soon.

katie.may@freepress.mb.ca

Twitter: @thatkatiemay

Katie May
Reporter

Katie May is a general-assignment reporter for the Free Press.

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