Pot smokers should proceed with caution

Canadian cannabis consumers should be cautious after marijuana laws change Oct. 17 because new police powers and the validity of impairment testing equipment both have yet to be tested in court, says Toronto criminal lawyer Melody Izadi.

“You don’t want to be the test case for any part of this major change,” says Izadi, an associate with Caramanna, Friedberg LLP.

“Police have expanded discretionary powers which have not been tested in court, and neither has the device approved to test for cannabis use. And the courts have not ascertained what the scientific level of impairment is when operating a vehicle, unlike blood alcohol levels which have long been established,” says Izadi.

The thing to remember, she tells AdvocateDaily.com, is that Oct. 17 does not mean marijuana is completely legal in Canada.

“It’s a decriminalization but there are still going to be rules, regulations, and criminal charges possible,” Izadi says. “They include operating a vehicle while impaired by cannabis and possession of more than the allowed amount for personal use and even consuming cannabis in public.

"You are not going to get away with walking down Yonge Street blazing a joint. You could be charged criminally, or get a ticket and a fine. So you still may have to go to court and get legal advice.”

Since the majority of police engagement in vehicle stops and on the street is statistically with minorities, Izadi says, she expects the same to be reflected in the number of minorities charged with being impaired by cannabis.

“This is a problem because mounting a Charter s.7 challenge is very difficult, and it's hard to prove racial profiling,” Izadi says. “Still it might be something to consider with the change in the laws.”

The next phase will be for the courts to test the new rules and regulations, especially around consuming cannabis and driving, she says.

The federal government is putting up $161 million for testing machines, Izadi says, but there are questions around how soon they can be rolled out across Canada and have officers trained to use them.

“There's also an issue with the machines — they will detect a level of cannabis, but we don’t know whether that level is enough for impairment, or how accurate the machine is in detecting how much marijuana could be in an individual’s body at any given time,” she says. “Everyone and every situation is different.

"You might have consumed cannabis three days ago, but it could show up on the machine today. Then they can demand a urine test. You could end up being charged with impaired driving even though you’re not impaired.”

The other way to determine if someone is impaired is an assessment by an officer trained to detect drug impairment, a method currently in use, Izadi says.

“In the latter, the officer could observe a smell of marijuana, if your eyes are bloodshot, your reaction times, ability to carry out simple tasks,” she says. “It’s subjective, but the police officer is empowered to arrest you if they have reasonable and probable grounds that you are impaired while operating a vehicle. They don’t need to be convinced beyond a reasonable doubt to arrest you.”

Whichever way the police opt to test for drug impairment, Izadi says, it’s going to be an inconvenience because your car can automatically be towed away, and you’ll be detained at a roadside or brought to a police station for testing by the machine or the officer.”

In the meantime, cannabis users should be cautious and discreet, and if pulled over, maintain the highest level of respect and politeness.

“You can’t drive around smoking a joint or you will get pulled over,” says Izadi. “And whether you or your passenger or both are smoking, that can be enough for grounds to search the car. And what might they find? They might find weed bought from a non-government supplier. Or too much weed for personal use? Or they may choose to have you tested for impaired. Which will lead to more charges and fines.

“It’s only truly legal to ingest marijuana on your privately owned property — aka your privately owned home,” she says.

"It’s going to be a hassle. Don’t become the test case. Be polite and don’t give them cause to get back at you by laying charges.”