Recriminalization of Cannabis
The Trudeau government and the recriminalization of cannabis
By Michael Bryant
crime will go up, not down, now that cannabis has been “legalized” by the
Trudeau government. Because the law that passed Parliament amounts to a
recriminalization of cannabis possession, production and commercialization.
It takes a second or two to sink in, but once I say it, the response is
universal: really? Does anyone know this? Why haven’t I heard this before? The
statement is shocking to everyone but criminal defence lawyers, apparently. I
did a straw poll online of the Criminal Lawyers’ Association members: 85 per
The prime minister and cabinet fully intended to legalize cannabis in 2018. No
doubt about it. But the truth is that his justice minister has recriminalized
pot, to the point where I expect more, not less, cannabis criminal charges,
post-“legalization.” As I submitted to a Senate committee last April, the bill
lays a minefield of criminality best avoided without a platoon of lawyers.
Parliament is legalizing the cannabis industry, but not the substance
or its usage.
The Department of Justice (DOJ) is expert in criminal law. Codes, prosecutions,
process, penalties, criminal courts, constitutional boundaries. It is less able
on project management, technology, or anything that doesn’t belong in a
courtroom. You wouldn’t want the the DOJ to organize a Secret Santa exchange.
There would be lots and lots and lots of rules, disqualifications, unworkable
sanctions and a byzantine process for resolving everything. Ask the Department
of Justice to manage pot legalization, and you get Bill C-45.
Meanwhile, Canadians imagine that cannabis will be legal soon. Legal
like coffee or vodka or orchids. Leeeegal. However, under this DOJ doozie, the front door of your humble
abode can be separated from its hinges, by a federal-provincial vice squad
(Project Leaf Blower!!), without a warrant, if they think a warrantless search
Urgent? Search and seizure powers for police? This isn’t sounding like a legal
substance. Worse still, your home, farm and all the agricultural equipment
shall be forfeited to the state, just like the old illegal grow-ops or a
contemporary meth lab — as proceeds of crime, if convicted. And there are new,
more punitive and wholly disproportionate maximum sentences for running afoul
of Bill C-45. I know of no 14-year prison sentence arising from distribution of
Smirnoff, let alone orchids.
Lest you think that these new criminal penalties are just going to gather dust,
the feds invested an extra $274 million to ensure they get enforced. Two-thirds
of that money is earmarked for the new, draconian laws aimed at intoxicated
driving (draconian because police can force you to blow or give blood without
any reasonable cause or warrant), but with every officer that pulls someone
over for a random drug test, an opportunity arises to shake down the vehicle
for cannabis. The remaining $100 million-plus goes to police for enforcing the
law generally. That spells cannabis crackdown, to me. And that $274 million was
just a down payment. Municipalities, provinces and the RCMP have already
demanded more, and will likely get it by the next federal budget. Meanwhile,
there is no corresponding investment provided to legal aid lawyers to defence
people against these new laws.
Be that as it may, legalization has launched a beautiful friendship between
cannabis capitalism, retired police captains and government treasuries. The
bill’s ugly underbelly, however, is the firm thumb under which the state keeps
’em down on the farm, as they say. Ex-cons and addicts find no relief in this
bill, which rewards heretofore opponents of legalization with riches piled upon
their taxpayer pensions, but nothing, nothing, nothing by way of new legal or
economic opportunities for those punished by cannabis prohibition to date.
Those previously punished for trafficking and possessing cannabis are not
filling the boardrooms of the cannabis industry. They cannot even get a job at
the companies, because people with criminal records are all but sentenced to a
life of unemployment outside the low wage labour market (and even there it’s a
mighty struggle to find employers open to convicted applicants). We know that
thanks to the great work done by the John Howard Society Ontario’s 2018 report,
So unless you’ve got a criminal law firm on speed-dial, you should wait. Wait
before even thinking about growing your own, or setting up a little cottage
cannabis soap and souvenir shop. Wait many moons after the bill becomes the law
of Canada, after much legal advice has proliferated publicly, after your
province has legislated and the federal regulations finally promulgated. Caveat
cannabis emptor ad infinitum.
Michael Bryant is executive director of the Canadian Civil
Liberties Association and ex-officio bencher at the Law
Society of Ontario. He was the 35th attorney general of Ontario and has
published, taught and practised in the area of criminal law since 1995.
This article was originally published by The Lawyer’s
part of LexisNexis Canada Inc.