If Justin Trudeau Is About To Legalize Weed, Why Are We Still Imprisoning People Over It?

Canadians who commit nonviolent weed crimes are facing up to two years in jail over laws that are about to change.

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Apr 21 2016, 2:58pm

THE CANADIAN PRESS/Adrian Wyld.

When David Chun woke up from the grand mal seizure that almost killed him, he found himself shackled to his hospital bed.

The 54-year-old Toronto resident was diagnosed with a golf ball-sized brain tumour in 2012, causing him to have memory loss, headaches, and nausea. He was at his Etobicoke home with his two sons in January of this year when the seizure—the first one he'd ever experienced—struck, lasting 20 minutes.

Chun's sons called the ambulance.

"They had to give me a double dose of tranq just to put me out, It took seven firefighters—seven grown men—to hold me down while I was seizing. It was so bad," Chun told VICE.

According to Chun's version of events, paramedics tending to the scene noticed he had six small cannabis plants in the home and alerted police, who additionally found 300 grams of bud, and 15 dogs and a cat (Chun said the pets belonged to him and his sons). When Chun woke up in hospital six hours later, he said they arrested him for production for the purpose of selling. News reports described his house as an "illegal grow-op." His two sons, aged 22 and 23, had been thrown in jail, he learned, under the same charge, despite having showed officers Chun's medical license, which allows him to legally possess and grow pot.

Two days after he regained consciousness, while being guarded by cops and cuffed by his hands and legs to a hospital bed, Chun said he was taken to Toronto police's 22 Division station; hospital staffers, who told him he "would have died" if he had another seizure, asked that he be returned for treatment, he said. He was, briefly, but then got thrown into jail for a night, an experience he described as "terrifying."

Up until last week, when the charges against Chun and his sons were dropped, he was forbidden from entering his home. The $6,000 in cash cops found there was seized.

"They destroyed my life. They destroyed my house," said Chun, adding he didn't consume cannabis before he got ill and was growing his own strains so he could tailor them to manage his symptoms (he prefers less of a psychoactive effect).

"The police apply the laws however they decide to apply them," he told VICE, his voice rising at times. "They've eroded any sense of safety and security in my belief in democracy in Canada."

On 4/20, the Canadian government announced it would be unrolling its marijuana legalization plan in spring 2017, with the goal of having a system in place by year's end.

"We know it is impossible to arrest our way out of this problem," Canada's Health Minister Jane Philpott said at United Nations General Assembly Special Session on drugs.

That's a nice soundbite, but on the ground, arrests, raids, prosecutions and jail sentences for crimes like possession and small scale production have been ongoing since Justin Trudeau was elected to office last November, prompting a growing body of criminal lawyers, patients, industry folks, to call for a moratorium on the prosecution of weed crimes. Just yesterday, NDP leader Thomas Mulcair asked the prime minister if he would decriminalize marijuana and "promise that there will be legislation to remove the criminal record" for thousands of Canadians who've been convicted of weed crimes. Trudeau deflected in his response that "decriminalization... actually gives a legal stream of income to criminal organizations."

According to Statistics Canada, police recorded roughly 68,000 cannabis-related drug offences, including possession, trafficking, importation, and exportation, in 2014. That's down from 2013, which saw 75,000 such charges, but still shows that a Canadian is arrested every nine minutes because of pot—primarily for being in possession of it.

For people who end up with a criminal record due to charges like these—and over 90 years of prohibition there have been many—the fallout can last a lifetime, damaging a person's ability to travel and be gainfully employed.

Despite acknowledging that the 22,000 possession charges laid in 2014 were "shocking," and that Indigenous people and visible minorities are disproportionately targeted, Bill Blair, parliamentary secretary to the justice minister and Liberals' legalization point man, said in a policy meeting earlier this year the current laws should be upheld.

"Until Parliament has enacted legislation, and new rules are in place to ensure that marijuana is carefully regulated, the current laws remain in force and should be obeyed," the former Toronto police chief said, rejecting the notion of a moratorium on charging or prosecuting for possession. Granting pardons to those with criminal records, "is not being contemplated at this time," he added.

The Ministry of Justice told VICE neither Blair nor Justice minister Jody Wilson-Raybould was available for interviews about marijuana while the Public Prosecution Service of Canada only said it will continue to proceed with offences that fall within its jurisdiction, which includes the Controlled Substances and Drug Act.

Alan Young has been fighting the government on pot prohibition since the early 90s. The Toronto-based lawyer and York University prof has lobbied legal challenges over banned drug literature (which was successful) and drug paraphernalia e.g. bongs, rollies, vaporizers (which was unsuccessful, but everyone leaves head shops alone anyway).

"It wasn't just a professional interest," Young said from his York office, which is outfitted with framed newspaper articles headlined "The great marijuana debate" and "High time to stop the war on marijuana," highlighting his life's work.

"I had been a person who's used cannabis since high school... It's one of the most benign psychoactive substances on the planet."

From 1997-2001, Young worked on a number of cases relating to medical cannabis, resulting in the Marihuana Medical Access Regulations being enacted in 2001. The program expanded, and with it, public hysteria over reefer madness died down; there was even a brief moment in 2003 when weed was almost decriminalized. However, the gains that were made took a hit when Stephen "marijuana is infinitely worse than tobacco" Harper and his "tough-on-crime" agenda came into power (police incidents relating to pot increased 30 percent from 2006 to 2014.)

Enter Trudeau, who admitted he's smoked pot and campaigned partially on the premise of regulating weed to keep it out of the hands of children and the black market.

"He probably believes it's the right thing, partly cause he wants the revenue source and partly cause he wants to be cool," said Young.

While Young said he understands that it'll take a while for the feds to figure out legalization (read: manage optics), he feels the government should at the very least put a stop to jail time for nonviolent weed crimes.

"There should be a memo sent to Department of Justice indicating that unless there are serious aggravating factors, they should not be seeking terms of imprisonment for an activity that may be legalized." The US Department of Justice made a similar directive when Colorado and Washington State went legal.

In fact, prosecutors drop the "vast majority" of possession charges, (more evidence, critics argue, that enforcement is a waste of time and more than $1 billion in resources), but Ottawa Supt. Paul Johnston, a member of the drug abuse committee of the Canadian Association of Chiefs of Police, told VICE the decision of whether or not to write someone up comes down to an officer's discretion. If it's a person quietly smoking a joint, "I may choose to use my discretion," he said. If it's someone blazing in front of a family having a picnic, "you're likely getting charged."

Thanks to Harper, there are also mandatory minimum sentences of six months to two years from crimes like trafficking, importing, and production (e.g. growing).

Montreal resident John Vergados, 48, who is also editor of Skunk, a cannabis-focused magazine, told VICE he's lived a "respectable life." He raised two kids, coached their hockey teams and has helped out fundraising causes like that of Mykayla Comstock, a little girl who had leukemia and used cannabis as a treatment.

"I've never been in trouble with the law," he said. But if he's convicted of the offences he's currently charged with—importing; conspiracy to import; possession for the purpose of trafficking; and possession—he'll be facing at least a year in jail.

The allegations against Vergados, which he couldn't discuss in detail because it's an open case, are that he purchased pot seeds online with the intent of selling them here.

"The [Marihuana Medical Access Regulations] system, they were providing one strain for every condition, it wasn't even a good strain," he said. "I think genetic diversity is the one thing that trumps everything, you need it." Due to the charges, which were laid in 2014, briefly dropped and then revived at the end of last year, Vergados has been unable to cross the Canada-US border. He'd been planning on moving to California, where he wanted to document legalization.

His lawyer, Paul Lewin, pointed out seeds are available everywhere—to the point where people don't even realize they're illegal.

"Go on the internet for three seconds and you can find seed sellers who are left alone," said Lewin. "The things John's accused of doing people are doing legally above board all over Canada."

Vergados and Lewin both sit on the board for NORML, an organization that's pushing for a moratorium on pressing charges for weed-based offences.

"This is a human rights catastrophe," said Vergados. "You're saying it's a bad law, you're gonna change it, but the law is the law."

Supt. Johnston, who seemed much more concerned about people driving high than possession, said in some parts of the country (cough, Saskatoon) cops tend to be more vigilant about enforcement because community tolerance for cannabis is low. He advised being careful about using it openly to avoid trouble.

"The government of Canada is considering legalization. Don't screw it up," he said.

Longtime pot lobbyist Dana Larsen has the opposite prescription.

After his recent arrest in Calgary, the first he's ever encountered in 30 years of activism, Larsen told VICE he was grateful to the cops.

"I really gotta thank the police in Calgary because it gave my tour a huge boost, it drew a lot of media attention, I have way more seed requests than before," he said.

He'd been handing out pot seeds for free as part of his Overgrow Canada tour and was charged with trafficking. After making him spend the night in jail and sign a document explaining he'd qualify for a six-month prison term, the cops gave Larsen back his pot seeds in a little evidence bag. He's excited about his May 18 court date.

"We're gonna plant seeds outside the courthouse. I'm gonna get people to go down to the police station and plant seeds there. We're gonna have fun with it. I would be very surprised if I get any kind of jail sentence at all."

The night he spoke to VICE, Larsen was giving a speech about prohibition at Kensington Market's Hot Box Cafe vapour lounge. He talked about how there'd been several false starts toward legalization and so the opportunity Canadians have now shouldn't be wasted. He then, while advising audience members to plant their seeds in public parks and traffic circles, said the one thing that's proven to be effective is civil disobedience.

Head shops, vapour lounges, and dispensaries, though ubiquitous in places like Vancouver and Toronto, are all still technically illegal, Larsen pointed out, but that hasn't stopped anyone.

"Simply through sheer force of numbers and force of will, we've made the police stand down, we've made prosecutors stand down again and again, and the final phase of that campaign is overgrowing Canada with cannabis plants everywhere so they can't keep up anymore," he said.

"The cannabis leaf is really more important to Canada and its history than the maple leaf has ever been."

History is what the Trudeau's party will make when it legalizes weed. If we're to believe the hype, it's coming very soon. But curing the hangover from decades of failed drug policies may take a lot longer.

Follow Manisha Krishnan on Twitter.