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Leaked Document Reveals Ontario’s Conflicted Path to Legalization

Published on October 9, 2017 · Last updated July 28, 2020
The House of Commons in the Canadian Parliament Building, in Ottawa, Ontario.

Across Canada, police used to arresting and jailing people for cannabis are puzzling over what their role will be in what the province of Ontario calls the “New Cannabis Landscape.”

Some, like former Toronto Police Chief and OPP commissioner Julian Fantino, are cashing in. Fantino— a lifetime opponent of cannabis who famously compared legalizing cannabis to legalizing murder—has joined former RCMP deputy commissioner and onetime undercover drug officer Raf Souccar on the board of Aleafia Inc., a for-profit medical cannabis company.

Fantino and Souccar are both retired, and free to turn a profit in the industry. For active police, however, there remains the problem of how to enforce cannabis law under the new regime. Provincially proposed legalization plans are all restrictive of cannabis possession, growing, sharing, and refinement—which means police will still be very involved in policing the possession, sale, and consumption of cannabis once it becomes legal to have and use. How they will police those things is as yet uncertain.

Ontario’s plan isn’t what cannabis advocates hoped legalization would look like. It’s not even what the Ontario government thought legalization should look like.

Ontario announced its legal cannabis framework in early September, to a chorus of derision from critics. Selling dried marijuana to those over 19 for $10 per gram in government-run stores and criminalizing all divergence from that path—this isn’t what those who agitated for an end to prohibition hoped legalization would look like.

It turns out it’s not even what the government of Ontario thought legalization should like, according to a document from the Ontario Ministry of Community Safety and Correctional Services (MCSCS) leaked to Vice last week.

Titled “Impacts of Cannibis Legislation on Police,” the document takes the form of a slideshow presented to the Future of Policing Advisory Committee in early August, more than a month prior to the unveiling of the official framework.

Early on in the document, under the heading of “General Enforcement,” the MCSCS states flatly that they anticipate an “increase in enforcement capacity pressures due to cannabis legalization.” Simply put, legalization will (at least at the outset) increase funding to police departments, as they attempt to muddle their way through continuing to arrest cannabis users for having or growing too much cannabis, or selling cannabis, or using cannabis outside of their homes.

“The illegal market will not disappear once cannabis is legalized (e.g. Illegal dispensaries will continue to operate),” the document notes, prompting this question: If undercutting organized crime is the goal of legalization, why has Ontario resisted simply legalizing the already existing gray-market structure of dispensaries and taxing them heavily? Instead, as the document makes plain, Ontario’s multitude of dispensaries will remain illegal and continue to operate, flouting the law. Accordingly, policing budgets and hours will be funneled into shutting dispensaries down for selling a now-legal product the wrong way, rather than drawing them into a well-taxed legal economy from which Ontario could derive (rather than spend) tax dollars.

Policing hours will be funneled into shutting down dispensaries for selling a now-legal product the wrong way, rather than drawing them into a well-taxed legal economy from which Ontario could derive (rather than spend) tax dollars.

The MCSCS document is presented as a series of sections with data about Bills C-45 and C-46, followed by “Considerations for Police,” which include aims and desires for enforcing the law, and then “Discussion Questions” for Committee attendees. These include questions like “Do you think Ontario should consider lowering possession limits for youth?” and “Do you think Ontario should restrict where people can consume non-medical cannabis? If yes, in what public places should people not be able to use cannabis?”

The document is full of contradictions with Ontario policy—it notes that raising the minimum age “could lead to continued reliance on the illicit market by youth and young adults,” and that a minimum age above 18 would require “a provincial regulatory regime for youth between 18 and the age chosen, increasing the complexity in enforcing for police officers.” A month after the MCSCS made this presentation, Ontario decided to set the legal age for cannabis at 19.

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Meanwhile, adults can legally possess up to 30g of dried cannabis, but the report ponders the “operational issues with trying to accurately measure 30 grams of dried cannabis or equivalent in public.” The other place the MCSCS expects to find “operational issues” is in deciding when “social sharing” of cannabis constitutes “a drug transaction.” No answers to that question are apparent—for the time being, it seems individual police officers will be left to decide themselves when consenting adults sharing a legal product become guilty of a crime.

Ontario will only allow the use of cannabis in private homes, which the report notes “could increase the risk of users turning to other mediums (e.g. edibles) which could lead to stronger impairment/effects.” And given that consuming edible cannabis products has few of the olfactory giveaways of smoking cannabis, the report acknowledges it would be difficult to enforce “restrictions on public consumption/impairment.”

The report is especially uncertain about home-grown plants, noting how home-grows could provide unregulated cannabis to organized crime, and how the new law could increase criminalization of people growing a bit more than the limit for their own use. Either way, the report concludes, police don’t have the resources to enforce this part of the law.

Finally, the report considers cannabis-impaired driving, which is a real and legitimate concern. Cannabis is the second-most commonly detected intoxicant involved in fatal collisions, the report notes, and the public don’t yet have a broad understanding of the risk of cannabis-impaired driving. However, “drug screeners only test for presence of drug not impairment”—meaning while everyone wants to keep stoned drivers off the road, there’s no way at present to tell whether drivers are stoned. On this end, the report concludes, “There is a need to build up short- and long-term drug-impaired driving expertise/capacity and appropriate training approach.”

It’s hard not to read that last point as “We’re flying blind and we have no idea what to do with all this,” a theme that runs throughout the report. Police who worried that legalization would put them out of a job have nothing to fear. They’re going to continue arresting and jailing people for cannabis for years to come in Ontario, even if they don’t necessarily understand why or how, and probably won’t for a while.

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Jesse B. Staniforth
Jesse B. Staniforth
Jesse Staniforth reports on cannabis, food safety, and Indigenous issues. He is the former editor of WeedWeek Canada.
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