As legalization looms, outstanding pot charges still linger

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In less than six weeks, it will be legal to buy and possess marijuana. But possession charges will remain before the courts.

That was made clear in a Yellowknife courtroom recently, when a 41-year-old man appeared before a territorial judge to answer to a pair of charges laid following a vehicle stop on Feb. 9.

The man, charged with impaired driving and possession of less than 30 grams of marijuana, is due back in court on Oct. 16 – one day before Canadians can legally light up. By then, Yellowknifers will be allowed to possess up to 30 grams of pot in public.

It’s a stark illustration of overhanging prohibition laws met by new legislation – but it isn’t a one-off.

So, what happens to those with outstanding marijuana related-charges come Oct. 17?

According to Crown attorney Morgan Fane, overlapping charges won’t go up in smoke post-legalization.

“It will still be on Oct. 17, 2018 an offence to have possessed marijuana on February 9, 2018,” said Fane. “Nothing affects the legality of prior convictions for possession or for the purpose of trafficking or any other offences as they previously existed.”

But prosecutors are viewing alleged possession offences differently in the wake of legalization.

When Bill C-45 – legislation which lays out legalization under the Cannabis Act while making amendments to the Criminal Code and the Controlled Drugs and Substances Act – received royal assent in June, the Public Prosecution Service of Canada (PPSC) made changes to its national deskbook – a guide for Crown attorneys.

Before determining whether or not to prosecute any given offence, prosecutors consider the likelihood of a conviction and the public’s interest, among other variables.

Now, prosecutors in NWT and across Canada are instructed to “consider the purpose of the Cannabis Act,” when assessing public interest in the prosecution of offences implicated by legalization. These offences include possession of 30 grams or less of cannabis, possession by a youth of five grams or less and the production of four cannabis plants or less.

The health of young people and access to a “quality-controlled supply of cannabis,” are among the new factors to be weighed.

According to the revised PPSC deskbook, prosecuting a marijuana charge would be of public interest if a young person’s well-being is negatively affected (if the offence occurred near a school) or if the offence committed was “blatantly defiant of the existing prohibition.”

If the person charged is a youthful offender and the amount of pot seized is five grams or less, a prosecution generally won’t be in the public interest, and the charges likely won’t move forward.

The new guidelines are being applied to weed cases currently before the courts – and to charges laid today.

Oct. 17, licit cannabis becomes legal through a strictly regulated regime. Illicit pot produced outside of that legal framework remains illegal.

Peter Harte, a defence lawyer based in Yellowknife, doesn’t think many outstanding possession charges will result in convictions.

“I would expect that most (Crown prosecutors) would not conclude that it is in the public interest to pursue a conviction in respect of legalized conduct,” said Harte.

As for the 41-year-old man facing a minor possession charge, Harte said he doesn’t see that going anywhere, either.

“I will be shocked if the charge proceeds after legalization. I have a file sitting right next to me where the officer simply confiscated eight joints but laid no charges,” said Harte.

“I have seen that more than once in the past few weeks.”

According to the RCMP’s national spokesperson, until Oct. 17, the law is still the law.

“Cannabis remains a controlled substance (under the) CDSA, which prohibits the importation, exportation, trafficking, cultivation, production and possession of cannabis and its derivatives.”

Come legalization, RCMP say they’ll be focusing on organized crime.

“The RCMP will contribute to the implementation of the Cannabis Act once it comes into force by continuing to work towards our strategic priority of combating organized crime, and through our mandate to prevent, disrupt and investigate serious criminal activity in partnership with contract partners, law enforcement, outreach services and communities across Canada.”

Despite marijuana's looming legalization, many still face pot charges that are before the courts. Lingering charges won't go up in smoke on Oct. 17, but Crown prosecutors are looking at some pot offences differently in light of legalization. Sept. 10, 2018.
Despite marijuana’s looming legalization, many still face pot charges that are before the courts. Lingering charges won’t go up in smoke on Oct. 17, but Crown prosecutors are looking at some pot offences differently in light of legalization.
Brendan Burke/NNSL photo.

While critics of the Cannabis Act, including the Canadian Civil Liberties Association, have warned the legislation could lead to more pot charges clogging the courts, due to the uncertainty of the fresh framework, Peter Harte disagrees.

Harte does have some reservations about legalization’s impact – namely smoking and driving laws – but welcomes the presence of legal pot.

“I believe that marijuana has the potential to displace alcohol as the intoxicant of choice,” he said.

“Alcohol has a significant connection to violence that I have never seen with marijuana in 30 years as a lawyer. If we see less violence as a result of legalization of weed, that would be a great thing,” said Harte.

In Canada, more than 50 percent all of drug offences reported to police are related to cannabis, according to Statistics Canada. In 2016, 81 per cent of 55,000 cannabis-related charges were for possession – leading to 23,000 charges being laid.