A new era of legal recreational marijuana in Canada is bringing with it an expanded enforcement regime that increases police powers and provides hundreds of millions of dollars in new funding for law enforcement to prosecute new weed-related offences.
Every aspect of the growing, possession, sale and transportation of cannabis is now strictly regulated. And the legislation that legalized pot also created a slew of new criminal offences that will target people who, willingly or otherwise, violate the new laws.
The federal government has allocated hundreds of millions of dollars to train and equip police to investigate and prosecute cannabis crimes under the legal regime, including on the roads and at the border. A VICE News analysis has found that provinces and cities are ponying up millions more to support cannabis enforcement, even as experts warn that some aspects of cannabis laws may be unconstitutional and that their enforcement could disproportionately impact young people and already overpoliced communities.
Canada’s legal cannabis regime was created by two pieces of legislation: the Cannabis Act, which legalizes possession of small amounts of pot, and the Impaired Driving Act, which updates the Criminal Code with stiffer sentences for impaired drivers and grants police new powers to detain suspected high drivers and to test them for THC, the main psychoactive ingredient in cannabis.
To help police across Canada enforce these new laws, the federal government is providing up to $274 million to pay for new training, equipment and research on cannabis policy. Of this, $113 million will be divvied up between Canada’s federal law enforcement bodies - the RCMP, Canada Border Service Agency and Public Safety Canada - and will be used to keep legal pot inside our borders, and to “ensure organized crime does not infiltrate the legalized system”, according to a statement from Public Safety Canada provided to VICE News.
The other $161 million from the federal government will support the implementation of the Impaired Driving Act, including training police to identify signs of drug use and covering the costs of equipment used to test drivers for cannabis use.
Abby Deshman, Director of the Criminal Justice Program for the Canadian Civil Liberties Association, says that while the CCLA supports legalization, they have concerns that the laws surrounding legal cannabis are confusing for users and that their enforcement may disproportionately impact young people and communities of colour.
“The government has legalized the cannabis industry, but re-criminalized use of cannabis by individuals,” Deshman told VICE News in a phone call.
“Enormous amounts of resources are being put into policing but the laws are difficult to understand. Overpoliced communities [will] bear the brunt of the enforcement of these laws.”
Beyond federal funding, tens of millions more in provincial and local funding is being diverted to police and other services to help them enforce cannabis laws during the first five years of legalization, after which point tax revenue collected by provinces and cities from cannabis sales are expected to cover the costs of enforcement.
VICE News reached out to police services across the country and found that the amounts of funding police are receiving to enforce cannabis laws varies widely.
Boost to city police forces
Police in Edmonton, Alberta said in an email that they’ve already received an additional $1.4 million from the City of Edmonton to support cannabis enforcement efforts, while the Calgary Police Service has so far been reimbursed $300,000 by Public Safety Canada to cover the costs of training police to become Drug Recognition Experts.
In British Columbia, the Vancouver Police Department said in an email that they haven’t yet received any additional funding to enforce pot laws.
In Quebec, where cannabis will be subject to some of the strictest provincial controls in Canada (including an outright ban on home growing), law enforcement has prepared well in advance for legalization: A spokesperson for the Service de Police de la Ville de Montreal (SPVM) told VICE News in an email that their cannabis enforcement unit, ACCES cannabis, has been allocated $2.6 million for 2018 and another $5.1 million for 2019 by the province’s Ministry of Public Security to combat the illegal growing, distribution and sale of pot.
Quebec will also shoulder the costs of purchasing roadside devices to test drivers’ saliva for THC and to train some police officers to analyze suspicious financial transactions related to cannabis, to the tune of $10,000 per officer.
In Ontario, a spokesperson for the Ministry of the Attorney General said in an email that the province will distribute an additional $40 million over two years to cities and towns across the province to help cover costs associated with legalizing weed. They said that the province and municipalities are still working out how the money will be spent.
A spokesperson for the Ottawa Police Service declined to say if the Service had received any additional funding for cannabis enforcement, but noted that any future funds provided by federal or provincial governments would be used to pay for an expected “increase in calls for service” related to legal weed.
A spokesperson for the Halifax Regional Police said in an email that the force had already received federal and provincial funding to pay for officer training under the Drug Recognition Expert program, which is administered by the RCMP, and would apply for more funds to pay for roadside testing devices.
The Ontario Provincial Police and police services in Toronto, Hamilton, Winnipeg and Regina did not respond to questions about funding related to cannabis enforcement.
A chunk of federal and provincial funds allocated for weed enforcement will be spent on training and equipment to test drivers for cannabis use.
New police powers
Before the passage of the Impaired Driving Act, there was no legal framework in place to test drivers for cannabis use and no devices approved to do the testing. But the Act gives police new powers to pull over drivers they suspect are high; to swab a driver’s mouth for saliva (referred to as “oral fluid testing”); and to test the saliva for THC.
If THC is detected, the driver is detained (not charged, since failing a THC test isn’t a criminal offence under the Act) and taken to a police station for additional testing, which can include a blood test. If the driver’s blood shows a level of THC beyond the legal limit, they can be charged with impaired driving. (The Act also allows police to demand a breath sample for alcohol testing from any driver without needing a “reasonable suspicion” that the person has been drinking.)
Deshman points out that there is no proven link between the level of THC in a person’s blood and impairment.
“Marijuana [creates] an individualized response. People aren’t going to know how long they have to wait before they can [legally] drive,” she said.
In August, the federal government approved the first device for oral fluid testing in Canada, the Draeger DrugTest 5000.
Some legal experts say that aspects of the Act may not stand up to constitutional challenges and have pointed out that the Draeger DrugTest 5000 has a history of giving false readings, and may not work well in Canada’s cold climate. (Draeger says that the devices will be calibrated to Canadian guidelines to reduce the risk of false readings, and that they will be kept in officers’ vehicles to keep the devices warm in winter.)
Concerns about the suitability and effectiveness of the Draeger device are serious enough that Ottawa police have announced that they will not be using the device, and will instead continue to use roadside sobriety testing techniques, such as having a driver stand on one leg, that are already in use.
More than a dozen police services across Canada have also announced that they will hold off on purchasing oral fluid testing devices for the time being, with some police in British Columbia saying they won’t use the Draeger DrugTest 5000 at all. The RCMP has ordered 20 of the Draeger devices to develop a training program for police across Canada, but hasn’t said whether or not RCMP officers will be using the devices in the field as of Oct. 17.
Police are also concerned that the questionable constitutionality of the Act will tie up police resources and clog up the court system. Mario Harel, previous president of the Canadian Association of Chiefs of Police, has stated that he expects that the Act will lead to an “exponential” increase in drawn-out drug-driving trials.
Deshman of the CCLA is particularly concerned about how cannabis laws will affect minors who find themselves on the wrong side of the law.
“Teenagers will be subject to criminal penalties for [possessing] a legal substance,” said Deshman.
Under the Cannabis Act, minors can only legally be in possession of less than five grams of cannabis; anything more than that and they can be criminally charged.
Deshman said that communities that are already subject to overzealous policing will feel the effects of increased enforcement most strongly under a legal cannabis regime.
“Drug laws are enforced in a way that disproportionally affects communities of colour - people who are already in the spotlight of law enforcement.”
Cover image An officer closes the trunk of a police cruiser with confiscated marijuana and other products in front of the Cannawide marijuana dispensary during a raid by Toronto Police as part of Operation Claudia in Toronto on Thursday, May 26, 2016. Cole Burston/The Canadian Press