Canada's cannabis criminals

While Liberals stall on legalization, marijuana laws applied unevenly across Canada

In some cities, possession of a joint is enough for police and prosecution
Photo: Guilhem Vellut

While medical marijuana laws are being hashed out in Canada's courts, recreational users are being rounded up by the thousands, in and out of jail for no good reason. Between 10 years of Stephen Harper's tough-on-crime conservatism, Liberal Prime Minister Justin Trudeau's campaign promise to legalize marijuana, and rule-crazy cops still enforcing a dying law, pot smokers have been left in a limbo of sorts.

By all accounts, the War on Drugs has been a monumental failure. So who are Canada's cannabis criminals?

In this first instalment of a two-part series exploring the state of marijuana laws and enforcement in the country, readers see how a young recreational user is thrown into the system, the impacts it has on his life and how he manages to navigate it all.

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A warrantless search

In Brampton, Ontario, a quiet though enterprising suburb of the Greater Toronto Area, around the year 2010, a police vehicle was waiting for Andrew — who agreed to speak only under a pseudonym — to leave his home. He was about 20 years old. Not long after getting into his friend's car, it was pulled over.

Cops found a half-ounce (14 grams) of dried pot, a few baggies and a scale. The latter two are sold in convenience stores. They also found $5 on him. Without a warrant, they proceeded to enter and search his home, where they found nothing but a safe with documents in it. They opened it with the key that was on top, which Andrew had pointed out.

Enforcement of the law has been anything but uniform.

He was charged with trafficking, which assumes he would "sell, administer, give, transfer, send or deliver the substance" as defined under the Controlled Drugs and Substances Act, and carries a minimum one-year sentence. His parents and siblings were present.

"I had to tell (my family) they (the cops) were looking for a knife just to ease them out," he said as we sipped on a couple of beers and puffed on a perfectly rolled joint in an empty parking lot. "'Cause they didn't do nothing wrong, and I didn't do nothing wrong."

Later, he said, at the interrogation room, cops came in with his safe and asked him why there was cocaine in it.

"I told them I don't even do or know about cocaine. That's fucking crazy. My parents would kill me," he recalled. "I smoke weed and that's about it."

At his lawyer's detrimental advice, he admitted to marijuana possession.

Andrew said that having failed at their embarrassing attempt to get him to confess to something he had no connection to, the cops ended up returning his supposedly cocaine-filled safe in the morning.

"Why would (they) give me that back?" he asked sarcastically. "Isn't that (their) evidence?"

Criminal by geography

Statistics Canada data from 2014 revealed that on average, cops reported a pot possession incident across the country every nine minutes that year. That would mean more than 25,000 arrests since Trudeau's election last October.

The main impetus was Stephen Harper's brand of conservatism, which included the introduction of mandatory minimum sentences. Indeed, marijuana incidents and charges increased by 30 per cent between 2006 and 2014, the CBC has reported.

And "there is no indication that the rate of arrests has slowed since Trudeau took over," wrote Dana Larsen, a Vancouver Sun blogger and well known advocate for cannabis legalization.

Yet enforcement of the law has been anything but uniform.

"All these hostile forces, like prosecutors and cops, get way too much discretion in this world."

While some cities such as Kelowna, B.C., reported as many as 251 charges per 100,000 people in 2014, others such as St. John's, N.L., reported as few as 11. Out of 34 Canadian cities surveyed, Statistics Canada found the average was 79. Four of the five cities with the lowest number of arrests were in Ontario. The other one was in Newfoundland and Labrador.

Supt. Marlene Jesso of the Royal Newfoundland Constabulary said she can't comment on what other agencies do, but in hers "each case is looked at on a case-by-case basis."

"It depends on the circumstances such as quantity, (proximity to) school grounds, violence, etc.... There is no set criteria," she wrote in an email, dismissing questions about possible racial profiling when it comes to enforcement across the country.

Still, said Miriam Martin, an Ottawa-based criminal defence lawyer, prosecution is "regionally specific."

"I'm from Vancouver, and I know certainly someone would not be prosecuted for possession of a joint there," she said from her Ottawa office. "But in Ottawa, people seem to be prosecuted for possession of a joint."

Hostile forces with too much power

The lack of consistency has led some commentators to note that police forces and Crown attorneys have too much power when it comes to enforcing drug laws.

Anthony Doob, professor of criminology at the University of Toronto, said that enforcement basically comes down to the "different values of different chiefs of police."

"So it's not unusual … given that we give over a lot of power and control to the police on priorities," he explained.

Paul Lewin, a criminal lawyer with over two decades of experience, the last 10 of which have been with marijuana-related offences, agreed.

"All these hostile forces, like prosecutors and cops, get way too much discretion in this world," he said over the phone from his Toronto office.

Though local authorities won't admit it, Lewin said, "the poor and minorities are much more likely to end up with convictions and being prosecuted."

"For someone who's got some money, they get bailed out by their wealthy parents and they find a lawyer and they fight the charges. But any other minority, without any means, ends up having to plead guilty because they couldn't get bail."

Money talks

Andrew, who admitted he did not pay his lawyer "too much money," believes that's why he ended up with a record. He said it would have been more than easy to avoid sentencing since the cops had violated his rights when they entered his house without a warrant.

But "the lawyers have to give a criminal record to someone, because it's their duty to do that," he claimed. "Because whoever pays will get off that criminal record, even if they did wrong."

"It's a self-perpetuating system, because once you have that record you do have trouble finding employment."

Lewin said that's not how it works, though he conceded that money and egos, unfortunately, are always issues.

"They're all egomaniacs," he said of criminal lawyers in general, not entirely kidding. "They're all obsessed with winning. So no criminal lawyer is going to intentionally try and fail in court as some secret punishment (to their client) for not getting enough money. They don't get enough money, they don't take the case. That's all."

Though Andrew, originally from Sri Lanka, said he hasn't felt personally prosecuted because of his ethnicity, he admitted the inexperienced (usually the young) are easy prey for cops, prosecutors and greedy lawyers.

"(They're) trying to put people down," he said. "They're not trying to help people escape the struggle of getting these petty charges, which shouldn't even be happening."

Making ends meet

The stigmatization of marijuana doesn't only lead to the needless criminalization of thousands of non-criminals, but also to a life of limitations.

Andrew said he's had trouble applying for jobs due to his criminal record, which has taken an emotional toll.

"It's hard to get a job (with) a criminal record. I've tried. So what are my choices?" he said, adding that he's had to resort to selling small amounts of marijuana to make ends meet. He said he hopes to go back to school and eventually get a decent job once his record clears.

Until marijuana is legalized, recreational smokers will continue having to learn how to navigate a criminal system they should have never been thrown into in the first place.

But until then, he said, he feels "unmotivated" and sees a bleak future, "feeling panicked and like I'm wasting my time. Not being clear on my path of getting to where I'm trying to get to."

Martin said this is a common situation for people carrying the burden of a criminal record on their back who still "have to make a living somehow."

"It's a self-perpetuating system, because once you have that record you do have trouble finding employment," she said. "And if you can't find work you're stuck trying to make a living by whatever means you can."

On the flip side, Andrew said, he now knows how to navigate the system and the cops' and prosecutors' dirty games, who will always try to lay a charge on the inexperienced.

"I'm educated in that sense, to know what the operation is."

Navigating the system

According to Andrew, he beat his last "ridiculous" possession charge — for a gram of weed and a rolled, unsparked joint — with style.

At first he was offered a conditional discharge, which meant that although he would not be found guilty, the incident would remain in his record for one year. This would give any cop who stops him, for whatever reason, more ammunition to hassle and possibly charge and arrest him. He didn't take the discharge.

"I felt like taking it to trial because I did nothing wrong. I didn't deserve that. If they're wasting my time, I'll waste their time," he said.

Like an angel on his shoulder, his experience advised him against a lawyer for something he was sure he was going to beat before it got too far.

And that was it.

"So they think, 'This (guy) is crazy. Okay, let's give him (the) withdraw. He's hungry for that,'" he said as we laughed in the parking lot, our beers empty and the joint long gone. "That's what happens. I don't play around with the law, the law don't play around with me."

Until marijuana is legalized, recreational smokers will continue having to learn how to navigate a criminal system they should have never been thrown into in the first place.

Martin said she believes people should not be criminalized for choosing to use a substance that is no more dangerous "than other substances that are legal and regulated."

"I am more in favour of a harm-reduction approach to drugs and addiction as opposed to criminalizing them," she said.

So how many more people must have their choices in life limited simply for choosing to smoke a plant that many studies have proven to be less harmful than alcohol? How many more stoners will end up with criminal records before the government makes good on its word to legalize pot?

"Let's give adults some decisions," Andrew said as we got up to leave the parking lot. "Not kids. Just like with alcohol."

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