When Prime Minister Justin Trudeau starts discussions with the provinces about legalizing marijuana and the initial haze of smoke clears, a lot of people will be quickly disillusioned as the reality of the process ahead dawns on them.
A couple of criminal lawyers I’ve chatted with laugh when they tell me clients have already called to ask if the court will drop their charges now that the Liberals have a majority in Ottawa. The answer is no, of course. Moving pot off the Controlled Drugs and Substances Act opens up a Pandora’s box of thorny legal issues at both the federal and provincial levels.
Ontario Premier Kathleen Wynne has been neutral for good reason because the province will bear the greater burden of enforcement when the system starts treating possession of pot like alcohol or tobacco.
There are a myriad of questions: How much marijuana is personal and how much constitutes trafficking?
Would it remain a Criminal Code offence or would the law treat it like open liquor in a public place?
Then there’s the question of how to deal with drivers impaired by the drug. Ontario has a blood alcohol limit of .05 per cent above and beyond the Criminal Code’s level of .08, but how will we intercept and prove what drivers have ingested?
While there are specially trained police officers acting as drug recognition evaluators to administer a series of tests much like the field sobriety test, it’s not always practical. A breathalyzer would be preferable, and while companies such as Cannabix Technologies Inc. are working on it, the challenges are palpable in that it only detects usage rather than impairment and there’s no fixed metric to gauge pot intoxication.
Using the drug in the workplace is another issue. How will the Occupational Health and Safety Act deal with the issue? How will supervisors challenge and test for the drug?
There’s also going to be some impact on health-care costs, although there’s an argument that savings from enforcement, prosecution, and incarceration will offset some of those additional expenses.
In the United States, we have the laughable standoff where states have authorized marijuana sales but the federal government, which controls banking, deems it a criminal offence and thus bars financial institutions from handling retailers’ deposits. How will it play out as a cross-border issue? Might U.S. authorities seize the assets of those in the legitimate Canadian drug trade on the grounds of money laundering?
Then there are the logistical issues, such as how to secure a growing, processing, distribution, and retail supply chain. While there are 26 licensed medical growers in Canada, it’s hard to imagine they can supply millions of users.
Where will people get their weed? Will they get it from pharmacies, the LCBO or specially licensed and regulated outlets? The supply chain has to be secure from start to finish in order to generate tax revenues and ensure control.
Cash, of course, is the pot of gold under the rainbow for the provinces and the federal government.
Whatever regime emerges, however, it will be competing against an established and highly efficient black market.
We only need to look at the smoke shacks across Ontario and the pathetic attempts to enforce tobacco taxes to get a sense of how it might play out.
It’s no coincidence that marijuana is a staple among the 175 odd organized crime groups running contraband tobacco, cocaine, and guns. A federal report last summer noted one of the biggest money-laundering threats to the nation comes from tobacco smuggling and trafficking through Mohawk First Nation reserves straddling the Quebec, Ontario, and New York borders. “Given the profitable nature of the illicit tobacco trade, there is significant organized crime involvement in the smuggling and trafficking of illicit tobacco across the Canada-U.S. border,” according to a report that suggested the groups involved are “some of the most sophisticated and threatening in Canada.”
Against this backdrop, Ontario has long tried to stem the distribution of illegal cigarettes and has recently increased taxes and bumped up parts of the Ontario Tobacco Tax Act. Like marijuana, the law says simple possession of untaxed tobacco is illegal and goes further by allowing for warrantless search, seizure, and charge.
And what has this wrought in enforcement? There hasn’t been much, according to Toby Barrett, the Haldimand-Norfolk MPP whose riding encompasses much of Canada’s tobacco country.
“They don’t have the expertise or understand the industry,” he says. “What’s happening now is that tobacco is being made into cigarettes here by First Nations and ending in Mexico, Guatemala, and Costa Rica. It’s worrying because you know the drug cartels are operating down there and you’ve seen the violence and you wonder how it’s going to play out if it comes up here.”
First Nations tobacco players have a lot of money and have taken over that industry, costing Ontario alone up to $1.1 billion in lost taxes in 2011. Some 35 per cent of cigarettes sold in Ontario in 2014 were illicit, according to the National Coalition Against Contraband Tobacco.
With their established business in drugs and guns, organized crime groups won’t find it much of a stretch to up their interest in marijuana growing and distribution because they know there’s little Ontario will do to stop them.
Ian Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is [email protected].
