Is your weed legal, or illegal? After legalization, police might want to know

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This article was published 13/08/2018 (1680 days ago), so information in it may no longer be current.

On Oct. 17, the Canadian government will flip a metaphorical switch from cannabis prohibition to cannabis legalization. But even after that, it will still be illegal for adults to possess cannabis deemed “illicit” in the eyes of the law.

Legal cannabis will be produced in line with with the federal government’s Cannabis Act and sold by licensed stores, or grown at home in limited amounts by adults (except in Manitoba or Quebec). Any adult will be allowed to possess up to 30 grams of that cannabis in public without fear of arrest.

But any cannabis produced illegally, or sold or distributed without the government’s say-so, will be deemed illicit. Under the new federal law, penalties for possession of illicit cannabis could range from a $200 ticket to a $5,000 fine to nearly five years in prison.

But government-sanctioned cannabis won’t look any different than forbidden, illicit weed — so how are police supposed to tell the difference?

The proof is in the package

For bud bought from a legal cannabis retailer, original packaging and receipts could provide a quick answer for law enforcement, according to the RCMP.

“Original store packaging and proof of purchase from a cannabis retailer sanctioned by the province of purchase could constitute proof that the cannabis is licit,” wrote RCMP spokesman Sgt. Harold Pfleiderer in response to an inquiry sent by The Leaf News to the federal departments of Health and Justice.

If legally-purchased cannabis is no longer in its original packaging, Sgt. Pfleiderer suggested, “a police officer can ask an individual to describe the packaging that the cannabis originally came in, for example was there an excise stamp on it?”

“Officers will have to exercise investigative due diligence,” he wrote.

Police might have to be extra diligent to puzzle out whether unpackaged cannabis in a Canadian’s possession was grown legally at home.

According to Sgt. Pfleiderer, “the police officer will have to assess based on the factors available to him/her whether they believe it is licit cannabis. Subject to evidence to the contrary the 30 (grams) of cannabis can be deemed licit.”

“A police officer can ask questions to this individual as to how the dried cannabis was made,” he wrote. “Were there solvents used? How did the plant come into being, i.e. how did they obtain the seeds; did any youth help in growing the plants?”

(The use of organic solvents like butane in home cannabis production is prohibited under the Cannabis Act, and any homegrown cannabis would have to be grown from legally-obtained seeds or seedlings.)

‘Almost an element of comedy’

Even though police will have the legal authority to quiz Canadians about the provenance of their pot, criminologist Neil Boyd expects it won’t be a major priority for law enforcement.

“Police are already somewhat skeptical about using scarce resources in relation to (cannabis possession),” said Boyd, a professor of criminology at Simon Fraser University.

“And to go to the trouble that is described there, to try to determine whether what the person has is licit or illicit, there’s almost an element of comedy to it.”

Instead, Boyd expects law enforcement to focus more on enforcing the law against those selling illicit cannabis.

“My guess is that we’re going to see very few possession charges and convictions, that really in terms of enforcement the focus will be on trying to basically eliminate the illicit market and entrench the legal market.”

Toronto-based cannabis lawyer Paul Lewin feels the prohibition against possessing illicit cannabis represents a flaw in the federal government’s legalization law.

“I’d understand a regime in which they said, ‘Listen, it’s a criminal offence to sell cannabis other than under our rules, or to grow it other than under our rules,'” said Lewin, who sits on the board of directors for the Canadian branch of the non-profit National Organization for the Reform of Marijuana Laws.

But “trying to target the possessor seems kind of mean-spirited, and something you’d see in a police state,” said Lewin, who believes police investigations into the legal status of a plant are “doomed to fail.”

“There’s no way they’re going to be able to prove that people didn’t grow it themselves, and nobody’s going to stand around to be asked all these rotten questions. Maybe they can ask them, but no one has to answer them.”

Lewin is concerned the general public won’t realize that not all cannabis will be legal to possess after legalization comes into force.

“Really, everybody’s perspective on this is, either you have the right to possess cannabis or you don’t…. This idea of where it came from, and proving its pure roots — it’s kind of contrary to the way everybody thinks about this.”

Like Boyd, Lewin doesn’t anticipate many charges for simple possession of small amounts of illicit cannabis.

“It could maybe be used as a tool to get a search warrant, maybe, so maybe it’ll have some police enforcement value in that way. But it needlessly confuses the state of the law,” he said.

“And it could also be something that maybe over time gets phased out as people realize that it makes the law less clear rather than more clear.”

solomon.israel@theleafnews.com   

@sol_israel