The war on the drugs is supposed to be coming to an end in Canada as far as marijuana is concerned, but you wouldn’t know it from the number of pot charges still making their way through Toronto’s Old City Hall courthouse. Or, for that matter, Mayor John Tory’s threat to shut down what he describes as the “alarming” number of medical marijuana dispensaries cropping up around the city. It’s reefer madness all over again, even as the federal government has promised to establish a regime for legalized weed by next spring.

On a recent morning at Old City Hall, 40 people were scheduled to appear on various drug possession charges. The accused varied from drug dealers to a 19 year-old from North York with his parents in tow. 

It’s difficult to say how many cannabis charges are processed on a given day, but about two-thirds of the 90,000 drug-related charges reported in Canada every year involve pot.  

Susan Morris, who in her position as duty counsel for Legal Aid in Ottawa helps arrange plea deals for the mostly low-income clients who come through Legal Aid Ontario (LAO), is concerned that the number of pot cases continue at a steady stream. She says she still sees 25 to 50 marijuana cases in a given month. 

“It’s very frustrating to see people incurring charges and convictions for something that the government itself has said it is not just going to decriminalize, but legalize,” says Morris. 

Despite the fact that the majority of us see the drug as mostly harmless – two-thirds preferring softer laws, according to the Department of Justice – everything down to simple possession is a criminal offence.

Marijuana use has become increasingly mainstream in Canada. Prospective growers are looking to get a head start in the cannabis industry when it’s legalized, with dispensaries popping up in Toronto. Now those too face legal sanction after operating in a legal grey zone.

The city had reportedly been working on regulations for dispensaries. In Vancouver, for example, dispensaries pay fees and can only operate in certain proximity to schools and other dispensaries. But last week Tory dropped a bomb, threatening a crackdown on the operations and to levy fines of up to $50,000. The city’s medical officer of health, David McKeown, also weighed in on the issue, calling for strict regulation of dispensaries when marijuana is legalized.

The crux of the government’s legalization argument is that it will keep money out of the hands of criminals. The problem is that as we wait to get there, organized crime is not the group feeling most of the burn – it’s ordinary Canadians receiving criminal records for minor offences, and the taxpayers footing the bill for enforcement and charges making their way through court.

In the meantime, any of the nearly 50 per cent of Canadians who the Centre for Addiction and Mental Health says have admitted to smoking pot could land in hot water the next time they light up. 

Some marijuana activists, like Vancouver’s Jodie Emery, have called for a moratorium on cannabis arrests. 

“There’s no harm being done [by users], so having tax dollars spent on persecuting and arresting people is a waste and a violation of their liberty,” she says.

The Criminal Lawyers’ Association echoes that sentiment. In February the CLA wrote to Justice Minister Jody Wilson-Raybould urging the government to issue a stay of proceedings on simple possession charges. Michael Lacy, a vice-president at CLA, says the courts are wasting time and money persecuting people for something that won’t remain a crime for long. 

“It takes up time and delays those cases that should be getting to trial,” he says. “Why put people at risk of being found guilty or otherwise being tagged criminals for possession of something that will become lawful in the near future?” 

Former Toronto police chief Bill Blair, the parliamentary secretary heading the Liberals’ legalization efforts, reaffirms the government’s intent to loosen the country’s drug laws, but says there’s no rush.

“Our government has committed to legalize, strictly regulate and restrict access to marijuana in a careful and orderly way. And we will take the time that is necessary to get this right,” he said in a statement.

The Justice Ministry offered a similar response to the CLA, saying that a task force is reviewing the legalization files and that current laws should continue to be followed. 

“It’s a very polite way of saying we’re not going to be staying or imposing a moratorium on current prosecutions before the court,” says Lacy. “What they don’t appear to be considering is any sort of short-term policy.”

The cost of enforcing marijuana prohibition in Canada is significant. A University of Ottawa study that considered the costs of both policing and the legal system put the figure at around $500 million a year. 

Simple possession – typically, any amount under 30 grams – won’t lead to a jail sentence, but other offences, like trafficking in minor amounts or cultivating a few plants, can. 

Morris says the courts are becoming more lenient, in line with public opinion, but those convicted who avoid incarceration will still have a criminal record and all the adverse impacts that go with that. Things like travelling abroad and finding a job become much harder.

“A criminal record is far more damaging than the use of cannabis itself,” observes Craig Jones of the National Organization for the Reform of Marijuana Laws in Canada.

“Most employers will ask for a criminal record check, and you can’t get a clean criminal record check if you have a conviction on your record, sometimes even when you have a conditional discharge,” says Morris.

So the tense looks on the faces of the accused at the Toronto courthouse aren’t hard to understand.

Morris adds that even when legalization is enacted, the many thousands of people with criminal convictions will likely continue to have that blot on their record.

“Looking through every single person’s criminal record to see if they had a conviction for simple possession of marijuana and then expunging that and issuing a pardon for that specific offence – that’s a huge, huge endeavour,” she says.

It seems the government is willing to sacrifice a few people on the way to legalization. Blair’s statement makes it clear that the laws on marijuana won’t be changed until the government is good and ready.

“Until Parliament has enacted new legislation and new rules are in place to ensure that marijuana is carefully regulated, current laws remain in force and should be obeyed,” he says.

Critics say those laws are doing more harm than good. The former Conservative government increased the penalties for a variety of marijuana offences. This is the same dated legislation that Blair would have Canadians follow pending legalization.

The solution isn’t to force legalization through Parliament as soon as possible. Rather, activists say, it is to change the present laws to ensure that more Canadians aren’t becoming criminals for recreational marijuana use.

“It makes sense for them to declare a moratorium on further criminalization for possession. In other words, to stand down on arrests for cannabis possession,” says Jones.

This would still take some time to go through Parliament but would buy the Liberals some time to figure out the finer details of legalization. 

But Morris says things aren’t that simple. A moratorium would still require legislation.

“Someone can’t just say there’s a moratorium it wouldn’t stop people from being charged. The change has to be in the law itself,” she says.

Until that happens, tokers will continue to look over their shoulders before sparking up.

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