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Cannabis is Legal in Canada: So What Now?

By Alexander Beadle
Published: Oct 23, 2018   
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As of midnight, October 17, Canada became the second country in the world, after Uruguay, to legalize the possession and use of recreational cannabis nationwide.

The move has been a long time coming; it was a major part of the ruling Liberal party’s manifesto in the 2015 election campaign and has been a key issue for Prime Minister Justin Trudeau since being elected as the Liberal party leader in 2013. Legalizing cannabis, Trudeau repeated on the campaign trail, would help to remove the criminal element and stigma associated with use of the drug and help to fix a broken system which saddles Canadians with life-long criminal records for minor drug offenses.

While the federal cannabis act will legalize recreational cannabis use and possession in all 13 of Canada’s provinces, each province is responsible for creating more specific laws, such as whether residents will be allowed to self-cultivate cannabis plants, or where cannabis can be consumed. This has created a patchwork of different regulations across the nation, leaving many Canadians confused as to how the new regulations are going to impact their lives.

To cut through some of the confusion, we’ve put together some of the major cannabis-related issues that you should be keeping an eye on over the next few months as the legal recreational cannabis industry expands in Canada.

Weed in the workplace

As with many of the new cannabis regulations, how legal cannabis might affect the employment sector will vary from province to province; but it will also vary from job to job.

For example, if you’re a prison guard, you won’t be allowed to use cannabis within 24 hours of starting your shift, but if you’re in the Royal Canadian Mounted Police, that rises to no cannabis use within a month of going on duty.

From the perspective of the employer, the biggest issue is going to be how to define what will classify as “impairment” due to THC, and how to determine if an employee is impaired at work.

As an alternative to traditional drug tests, which can have undesirable implications for worker privacy as well as generally providing a poor picture of recent cannabis use, some companies are looking at the use of digital performance tests to detect impairment. The test is essentially a short interactive video game designed to be administered at the start of a regular working day. Due to the high levels of concentration and awareness required to complete the game and pass the test, it is thought that the game can be used to detect impairment irrespective of cause, whether that is drug use, fatigue, or even emotional distress.

The current best advice for employees who wish to use cannabis recreationally is to check whether your province has brought in any workplace legislation as a result of cannabis legalization and to check if your employer themselves has a specific stance on the issue.

Roadside drug testing

Just as police officers use breathalyzers to determine if reckless drivers are under the influence of alcohol, some Canadian provinces are in the process of phasing in the use of similar roadside devices that are designed to detect and quantify recent cannabis use.

Approved for use by Justice Minister Jody Wilson-Raybould in August, the Dräger DrugTest® 5000 is supposed to present police officers with a portable and straightforward way to judge if a driver is driving under the influence of THC. It does this by analyzing a saliva sample, taken from the driver with consent, and formulating a short and easy-to-read drug report for the frontline officer. The detection limits of the Dräger apparatus allow it to accurately detect drug use within the past 6 hrs, despite the tendency of cannabis to remain in the body for many weeks after use, allowing positive readings to correlate well with likely intoxication.

Despite the apparent suitability of this system for detecting cannabis intoxication, there are still lingering concerns surrounding its use. Some legal professionals believe that the system will lead to an increased burden on the courts as provinces deal with legal challenges concerning the system’s accuracy and speed. Additionally, while the testing system does not work using DNA analysis, the act of testing still requires giving a law enforcement official a potential DNA sample in the form of the saliva sample, and so this could open up the potential for further legal battles if provinces do not make it explicitly clear how these samples will be stored and destroyed.

While the system has been approved for use in Canada, regional law enforcement teams will have the final decision on whether they are choosing to implement the technology alongside traditional field sobriety tests for use in their jurisdictions.

Amnesty for historic cannabis-related offenses

Previously, Prime Minister Trudeau has spoken at length about his late brother's cannabis possession charge, and how their father used his resources and legal connections to ensure his son wouldn’t end up with a life-long criminal record as a result of a simple cannabis offense. In legalizing cannabis, Trudeau wants to make sure that people who do not have access to the same sort of resources that his brother had will also not have their lives ruined by these kinds of charges.

In the same spirit, the Campaign for Cannabis Amnesty has spent the months since legalization was first proposed providing education and advocacy resources to people whose lives have been affected by non-violent cannabis-related charges. Citing the large racial disparity in cannabis charges between black or indigenous people versus white people, the group has been petitioning the government to introduce a form of amnesty for the nearly 500,000 Canadians with non-violent cannabis charges on their criminal record.

On the morning of October 17, the same date legalization came into effect, the Canadian federal government officially announced that it does intend to offer amnesty to Canadians who have been convicted of simple cannabis possession. The exact nature of how this will work, in terms of whether these will be simple pardons or a full expungement of cannabis-related offenses, still needs to be negotiated in parliament; however government officials are confident that they will have a fully worked set of legislation ready to pass through parliament by the end of 2018.

While this news has been received positively by many, American officials at the U.S.-Canadian border have said that even once a pardon or expungement system is put in place, Canadians who admit to a history of cannabis use could still be found inadmissible to the U.S. on the grounds that cannabis use is federally prohibited in America. Previously, American border officials were not required to ask questions about cannabis use unless the traveler offered the information first, but in the light of Canada’s federal legalization and the potential expungement of criminal records, this may be open to change over the coming months.


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