Prior to being elected, Prime Minister Justin Trudeau said his government’s approach to marijuana would be evidence-based—a contrast to Stephen Harper’s tough-on-crime agenda, which included two-year mandatory minimum jail sentences for drug trafficking crimes.
However, when the Cannabis Act and additional legislation to overhaul impaired driving laws were unrolled last week, the government made it clear that it would be taking an aggressive approach to penalties for breaking the new laws.
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For example: selling cannabis to a person under the age of 18 could result in up to 14 years of jail time (selling liquor to minors generally results in fines). And police will now be able to demand a breathalyzer sample from any driver, regardless of whether or not there is evidence to suggest the person is impaired. Currently, cops can only demand a breathalyzer if there’s “reasonable suspicion” the driver is under the influence.
Critics say the laws treat weed as if it’s worse than booze—an ideology that stems from the war on drugs—and that people of colour will be disproportionately targeted.
“This kind of approach isn’t going to take down drug empires,” said Toronto-based defense lawyer Annamaria Enenajor. “It will essentially penalize low level distributors who are barely out of youth themselves… who still have great potential to rehabilitate and become productive members of society.”
During Thursday’s rollout, Liberal MP and former Toronto police chief Bill Blair said someone illegally selling weed to kids is usually a “gangster in a stairwell.” The reality, Enenajor said, is it’s often black men in their early 20s who are from poor, racialized communities that start selling weed to their high school networks as a way of making ends meet.
“It’s really a continuation of the overcriminalization of young black men who are involved in low level drug distribution.”
Enenajor said being young is normally a mitigating factor for judges to consider during sentencing, but with these new proposed offences and penalty ranges, the government has created an overriding aggregating factor, under the guise of “protecting kids.”
“It’s based on fear which stems from this culture of the war on drugs,” she said.
“I think there should have been some kind of language that takes into consideration more directly the systemic social, economic, and racial factors that perpetuate drug use and drug distribution in certain Canadian communities.”
Ottawa-based attorney Michael Spratt told VICE the impaired driving bill presents its own set of red flags.
“A police officer can pull you over and detain you, not provide you a right to counsel, remove you from your vehicle and demand a sample of your breath for no reason whatsoever,” he said. “We’d be fools not to think in a number of years we won ‘t see data showing that visible minorities are disproportionately affected.”
He said the legislation relating to alcohol is similar to a private member’s bill tabled by Conservative MP Steven Blaney last year, which also recommended cops be allowed to demand breath samples indiscriminately.
Under the proposed laws, having between two to five nanograms of THC per millilitre of blood within two hours of driving would be punishable by $1,000 fine and having five or more nanograms per millilitre of blood within two hours of driving could be considered a summary or indictable offence, punishable by a fine of $1,000 on the lower end to a maximum of 10 years in jail for repeat offenders (ditto for having booze and THC in your system).
However, officials admitted that it’s difficult to determine how much THC results in impairment.
Studies on the issue are mixed. One 2015 study from the US National Highway Traffic Safety Administration found driving stoned results in significantly less risk than driving drunk.
Colorado and Washington State, which have both legalized weed, have seen increases in both the number of fatal car accidents and the percentage of drivers involved in those crashes who tested positive for cannabis, though a definitive link has not been made.
On a practical level, the average person doesn’t know how long they’d have to wait after smoking a joint to test below the five-nanogram/ml limit. And yet, not doing so could yield jail time.
“Any punishment under the Criminal Code is a severe punishment because it usually comes with a driving prohibition and the stigmatization of a criminal record,” said Spratt, adding all the new regulations will do nothing to clear the courts or streamline law enforcement.
Both Spratt and Enenajor noted the government’s messaging around legalization focused heavily on criminality instead of the failure of prohibition and personal freedom.
“I think they took a heavy-handed approach… that followed in the steps of (Stephen) Harper,” said Enenajor. “Raising penalties for offences does not actually decrease crime rates, it’s an approach that is all optics and no substance.”
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