Police facing complicated cannabis learning curve
Whether you view cannabis legalization in Canada as the arrival of Cheech & Chong Heaven, Reefer Madness Hell or something in between, the police want to make a few things clear.
One: if you think legalization means it is perfectly fine to stroll down Yonge St., brazenly blazing a joint as you bask in new-found freedom on Oct.17, think again. Such audacious public consumption is likely to end the way it would for anyone trying the same stunt today with a bottle of scotch. No criminal record but a hefty fine, up to $1,000 for recreational cannabis use in public, under the incoming federal law.
Try it a second time and that penalty could leap to $5,000.
Two: if you are a teetotaller who is likely to be totally teed off by a perfectly legal cloud of cannabis smoke, should it drift into your yard or onto your balcony from a private residence a month from now and your first impulse is to call police, also think again.
Police across Canada are braced for a spike in such “nuisance calls” and forewarn that such concerns are a matter for bylaw enforcement, not law enforcement.
Three: whoever you are, don’t even think about smoking and driving.
Police forces throughout Ontario and beyond are undergoing training and will soon deploy a range of new tools.
Those include the first federally approved yet still controversial saliva-testing device for THC, to target stoned drivers. Roadside testing, you may soon find out, is about to get much more complicated.
If it all seems somewhat hazy, that’s because it is: after nearly a century of being trained to see marijuana as the enemy, law enforcement is navigating the same cultural curve as the rest of Canada — and until all the bylaws are written and ensuing court challenges play out, they are struggling to define what the new normal will ultimately be.
But police leaders across Canada face the added challenge of policing themselves on legal cannabis.
What, for example, is the appropriate lag time between an off-duty officer eating a cannabis brownie and then strapping on a weapon and reporting for work? Both the Toronto Police Service and the OPP are in the midst of drafting new internal guidelines.
The Toronto force acknowledged those challenges in a formal statement Friday, emphasizing that even as the rules evolve, there is no wiggle room on the question of public consumption — recreational cannabis cannot be consumed on the streets or in the parks.
“Until regulations are established that determine specific offences and associated penalties, officers will use discretion in some circumstances,” the TPS statement said.
“In others, the law is quite clear: cannabis is prohibited for anyone under the age of 19 and recreational cannabis use is prohibited in public places and workplaces.”
Less formally, in a series of background interviews with the Star, Toronto and Ontario provincial police officials suggest that front line officers will cut the public some slack in the early days after Oct. 17.
Cannabis violators are likely — but not guaranteed — to get away with warnings, rather than have the book thrown at them. At least for a while.
“Are we going to see uniformed officers hiding behind billboards, ready to pounce on cannabis users smoking a joint in the wrong place? I don’t think so, not right off the bat,” said Jeff McGuire, executive director of the Ontario Association of Chiefs of Police.
“There’s a learning curve for everyone involved. People not yet familiar with the law are asking themselves, “Can I sit in the park? Can I smoke in a bar? Can I walk down the street with it?’ ” said McGuire.
“And while the answer to all those questions is no, people will need time to learn. It’s no secret that there’s been a dramatic drop-off in cannabis possession charges in recent years and I think the spirit of that approach will continue after Oct. 17. Sometimes a person can earn their way into a ticket by being difficult — but if you are caught smoking illegally and you are willing to listen and learn, I think in the vast majority of cases you will be able to walk away, at least in the beginning.”
Rachel Huggins, the OPP’s Executive Lead on Cannabis Legalization, agrees. “We’re not flicking a switch on Oct. 17. If you look at cannabis possession charges and how they ’ve dropped steadily year over year, it’s clear that police understand the social shift and have been using discretion when it comes to enforcement.
“So I think on that level not all that much is going to be different after Oct. 17. Law enforcement uses discretion now and will continue to use discretion. There is some concern about people not understanding the new law right off the bat. Municipalities have to start thinking about bylaws, and who enforces them and 911 operators need to be ready to direct calls to bylaw service and not straight into the detachment.”
(Clearly some police are following the letter of the law. Toronto-based cannabis lawyer Jack Lloyd said he has 10 new clients recently charged with possession, including one arrested in the Kensington Market area just two weeks ago, despite the near-zero chance of conviction under the existing soon to be mothballed law.)
The specifics of the federal law fall under provincial regulation. In Ontario that will mean that just because you smell cannabis smoke in public doesn’t mean there’s an illegal fire. The source of the smell may well be a medical marijuana licence-holder and thus exempt from the ban on public places. Yet when it comes to smoking and driving, a range of new training suggests police will soon introduce an entirely new level of vigilance.
The RCMP has led the rollout of updated online and in-person training of police forces across Canada with an emphasis on detection of cannabis impairment. And late in August, the federal government approved the first saliva-testing kit, aimed at detecting and measuring cannabis and cocaine impairment — a controversial piece of technology that critics argue is prone to false positives and is certain to spark court challenges.
By some estimates, a roadside police stop for suspected impairment in Ontario could expand to a 30-minute procedure, including an expanded Standard Field Sobriety Test and/or the summoning of a trained Drug Recognition Evaluator to the scene.
In cases where drug impairment is determined to be likely, the OPP says, a suspect would then be detained and taken to the nearest location for blood testing.
Neither the OPP nor the Toronto force has made a final decision on whether and to what extent they will acquire and deploy the saliva-testing kits, known as the Draeger DrugTest 5000.
The uncertainty over investing in the technology appears to reflect a lack of confidence that saliva-test results will withstand court challenges.
“No decision has been made with regard to (saliva) testing devices, but what’s important to know is that impaired driving by any means is against the law and the Toronto Police Service has Drug Recognition Evaluators and officers who are trained to deliver the Standard Field Sobriety Test,” said TPS spokesperson Meaghan Gray.
“These officers are capable of identifying an individual who may be under the influence of drugs and alcohol when operating a motor vehicle.”
One added complication, said the OAPC’s McGuire, is that even if the technology emerges to measure cannabis impairment as easily and accurately as a Breathalyzer measures alcohol impairment, there’s nothing in existence that can measure the combination of the two. “What about the guy who has two beers and a joint and then gets behind the wheel? Now you have that combo of two different intoxicants doing two different things and there’s no way to measure the combined affect when it comes to impairment, apart from the officer’s opinion,” said McGuire.
“That is tricky from a policing perspective, in my opinion, because you are relying on subjective information where a trained officer observes a person walking a straight line or holding a pen to their nose.
“And there’s a whole lot of grey in that, compared to relying on a machine that indicates in black and white precisely what the blood-alcohol level is at any given moment.”
The headiest combination of all, arguably, will involve Canadian cannabis users who take a drive to the border and attempt to cross into the United States. Like everything else that happens after Oct.17, this, too, will be a matter of officer discretion — but crossing into America will be at the discretion of U.S. Customs and Border Patrol agents.
U.S. officials have sent a sobering variety of signals suggesting a hardline approach to Canadian border crossers after Oct. 17.
But a scan of recent history shows the border has long been a wild card for anyone attempting to cross with a personal history with drugs.
Take the case of late Toronto mayor Rob Ford, who twice in 2013 made in-
ternational headlines, admitting first to having “smoked a lot” of cannabis and later, “Yes I have smoked crack cocaine — probably in one of my drunken stupors.”
The power of front line U.S. customs officials was laid bare in what happened next. The following March, Ford, despite his now global notoriety, had no difficulty flying from Toronto to Los Angeles to make a guest appearance on Jimmy Kimmel Live!
Yet barely two months later, when Ford flew by private jet to Chicago for a stint in rehab, he was unable to pass customs and instead voluntarily returned to Canada.
Joe Couto, director of government relations and communication with the Ontario Association of Chiefs of Police, said all these variables add up to “a lot of bumps in the road ahead as we grapple with a pretty fundamental shift for all of us.
“I teach a justice class and one of my students recently asked me, ‘What’s right and wrong now?’ in light of how marijuana used to be the enemy, and now you have a completely legal industry emerging.
“That’s a great philosophical question. The reality is that our society is changing and cops have to change with it. And the reality is it won’t all happen on Oct. 17. This is going to take some time to see how it all shakes out.”