 |
| Jacob Stilman |
Q: I went for a smoke break at work yesterday, lit up a joint and promptly got fired from my job. What’s going on? I thought weed was legal.
A: Welcome to what is certain to become one of the biggest headaches the Canadian public is going to have to contend with within this brave new world. Yes, your consumption at work is no longer a “criminal” offence, but your boss may still not take kindly to you smoking up on the job.
Think of it this way: If you are a heavy machinery operator and you pounded back four bottles of beer during your lunch break, would your boss have a case to fire you? Most likely yes. Legitimate workplace safety policy operates separately from the criminal law, and practices which are legal from the criminal law perspective may still contravene your terms of employment.
Short of discriminatory workplace practices, you will still be required to adhere to company rules.
Q: I’ve been growing great weed for years and want to get into the business. Why can’t I produce my own product for sale?
A: The Cannabis Act mandates that the commercial supply of cannabis be subject to strict licensing and control. Persons or corporations wishing to enter the market are required to submit to an application process, clear background checks and assure that proper security and product safety controls are satisfied.
All cannabis which is produced from commercial grow-ops is to be tracked so that the supply chain is monitored for the purposes of revenue generation, distribution control and quality and health control.
A principle objective of the new regime is to replace the criminal element which has run the cannabis industry and derived the exclusive benefits of it, with an accountable and regulated corporate model.
Q: I smoked a joint last night and started to drive home. I was stopped by the cops, and the next thing you know I was arrested and charged with impaired driving. How can this be?
A: How to deal with what is likely to be an epidemic of impaired-by-cannabis driving incidents is one of the most confounding problems under the new regime.
It has always been an offence to drive under the influence, whether it be from alcohol, marijuana or other illegal drugs or prescription medication. However, with legalization the government has tweaked the impaired driving provisions of the Criminal Code in order to specifically address road safety concerns. A maximum THC-blood concentration of 2 nanograms (ng) per millilitre is the “per se” legal limit now, just as 80 milligrams of alcohol per 100 millilitres of blood has been the per se legal limit for drinking.
It is also a more serious offence to have a THC-blood concentration over 5 ng per millilitre and still another offence to combine cannabis with alcohol if the concentrations of each substance exceed 2.5 ng per mililitire and 50 milligrams per 100 millilitres, respectively.
Q: How are the cops going to know that I’m driving high?
A: The detection/enforcement provisions in the new legislation are going to prove very controversial. Police are now empowered to demand of any driver “suspected of operating a motor vehicle with a drug in their body” to submit to either physical sobriety tests or to provide a bodily sample into an approved drug screening device.
The problem is that cannabis consumption supplies far fewer cues to the outside observer than does alcohol consumption.
Police may end up resorting to the vaguest of hunches to justify the detention or investigation of motorists or use their powers of investigation simply as a pretext to conduct otherwise unwarranted searches of vehicles and their occupants.
A further problem is that the only screening device currently approved for use, which tests for THC concentration through a saliva sample, may not be reliable in cold conditions, is expensive to operate and risks producing false positives where there has been recent consumption.
Similarly, roadside physical sobriety tests are going to be subject to a high degree of confirmation bias by the officers conducting the tests. All of this leads to the conclusion that the new impaired-by-cannabis laws are going to be in for a rough ride in court.
Q: If I go on a road trip to the U.S. and the nosy customs and border control agent asks me if I have been taking full advantage of our new permissive laws, what should I say?
A: Good luck with this one. While lawyers cannot ethically counsel you to lie to law enforcement personnel an admission of current or even past consumption of cannabis can get you barred from entry to the U.S. permanently.
Every practising lawyer knows either anecdotally or directly of cases where persons with weed possession convictions from their distant past encounter difficulties at the border well into adulthood. It’s even worse than merely admitting that you have smoked dope at some point in your life.
A recent advisory on this whole question from our American cousins has put us on notice that simply having a financial interest in the cannabis industry is enough to disqualify you from entry. Best to sell your Canopy stock before you head down for that next Buffalo Bills game.
This is part two of a two part-series. Read part one here.
Jacob Stilman is a criminal defence lawyer at Lo Greco Stilman LLP with extensive experience defending impaired driving and drug offences.
Photo credit / mrhighsky ISTOCKPHOTO.COM
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.