CANA­DIAN WEED U.S. EN­FORCE­MENT

The link be­tween cannabis le­gal­iza­tion, Canada’s po­lice and the most in­fa­mous jail in the USA

The Coast - - FRONT PAGE - BY JA­COB BOON

When Hal­i­fax coun­cil ap­proved the city’s new cannabis by­law last week, the re­ac­tion was un­der­stand­ably fierce. Smok­ing is now il­le­gal out­side. It’s also il­le­gal in­side. What was pre­sented by HRM as a sen­si­ble first ap­proach to deal­ing with cannabis le­gal­iza­tion has, in­stead, been con­demned for its po­ten­tial for abuse.

It’s al­most a fore­gone con­clu­sion this pol­icy will be used by au­thor­i­ties to tar­get the poor, racial mi­nori­ties and ev­ery other com­mu­nity with a his­tory of mis­treat­ment by law en­force­ment.

Hal­i­fax is not alone in tak­ing a sledge­ham­mer to try and im­pose some or­der on the fed­eral govern­ment’s cannabis chaos. Courts and po­lice de­part­ments across the coun­try are all scram­bling to cre­ate a new equi­lib­rium come Oc­to­ber 17.

Nowhere is that en­force­ment more bla­tant in its sym­bol­ism than Canada’s new drug recog­ni­tion ex­perts.

The RCMP and the coun­try’s mu­nic­i­pal po­lice de­part­ments have spent mil­lions of dol­lars train­ing a new army of of­fi­cers to rec­og­nize im­paired driv­ers un­der the in­flu­ence of cannabis or other con­trolled sub­stances be­sides al­co­hol. It’s a strat­egy built on the backs of in­mates held at the most no­to­ri­ous jail in North Amer­ica.

Hun­dreds of Cana­dian cops have been awarded their drug recog­ni­tion cer­ti­fi­ca­tion af­ter test­ing re­mand pris­on­ers in Mari­copa County—the in­fa­mous sher­iff’s of­fice run for over two decades by Joe Ar­paio.

Ar­paio’s fre­quent and fla­grant civil rights abuses were de­tailed in a fiery 2011 in­ves­ti­ga­tion by the United States depart­ment of jus­tice. Its find­ings of racism, in­com­pe­tence, phys­i­cal and psy­cho­log­i­cal abuse proudly dis­played by Mari­copa County’s law en­force­ment of­fi­cials caused the Royal Cana­dian Mounted Po­lice to sus­pend its DRE train­ing the fol­low­ing year.

Two years later, the pro­gram was qui­etly re­in­stated.

Spokesper­son Tania Vaughan tells The Coast that “the RCMP re­mains con­fi­dent that Cana­dian po­lice of­fi­cers are train­ing in an environment that ad­heres to the core val­ues of the RCMP.” No doubt. For decades the pro­hi­bi­tion on cannabis en­abled, en­hanced and ex­cited a polic­ing frame­work that crim­i­nal­ized cannabis smok­ers to rad­i­cal ex­tremes. Why should we ex­pect that to change just be­cause the drug is sud­denly le­gal?

Mari­copa sits across the border and about 5,300 kilo­me­tres south­west of Nova Sco­tia. The sprawl­ing south-cen­tral Ari­zona county is home to the city of Phoenix, and about 3.8 mil­lion res­i­dents. Its sher­iff’s of­fice—the largest in the state—han­dles law en­force­ment in the un­in­cor­po­rated ar­eas and runs the five county jails that were, un­til re­cently, over­seen by a man who liked to call him­self “Amer­ica’s tough­est sher­iff.”

For po­lice across the con­ti­nent, Mari­copa is also a su­per­mar­ket. Ev­ery­one goes here. It’s the lead­ing drug recog­ni­tion ex­pert cer­ti­fi­ca­tion site in North Amer­ica. The sheer vol­ume of pris­on­ers booked on drug of­fences makes for a con­ve­nient sam­ple size, es­pe­cially for Cana­dian po­lice un­der fierce pres­sure to be ready for le­gal­iza­tion.

Canada has a tar­get of 2,000 trained DRE of­fi­cers come Oc­to­ber 17, but the Cana­dian As­so­ci­a­tion of Chiefs of Po­lice said ear­lier this month it’s unlikely to reach that goal. Only 825 ac­tive po­lice have their cer­ti­fi­ca­tion—65 in Nova Sco­tia. At cur­rent rates, the CACP says it will take an­other five years to hit 2,000.

The prob­lem is num­bers. The bat­tal­ion of of­fi­cers in need of train­ing re­quires more in­car­cer­ated drug users than are cur­rently locked up in Canada. There are three DRE field cer­ti­fi­ca­tion sites na­tion­wide—Van­cou­ver, Win­nipeg and Mon­treal—which “sup­ple­ment” the train­ing of­fered in the United States, and the RCMP is try­ing to se­cure more.

But drug recog­ni­tion can­di­dates need to eval­u­ate at least six in­di­vid­u­als for im­pair­ment—cor­rectly iden­ti­fy­ing which drugs at least three of those sub­jects are un­der the in­flu­ence of—and wit­ness an­other six eval­u­a­tions by their class­mates be­fore re­ceiv­ing their cer­ti­fi­ca­tion.

Each train­ing class con­tains be­tween 20 and 24 po­lice of­fi­cers, ne­ces­si­tat­ing hun­dreds of dif­fer­ent drug users rounded up and ready to be inspected by DRE cadets. It’s just eas­ier to buy in bulk.

“As a re­sult, DRE field cer­ti­fi­ca­tions train­ing pri­mar­ily oc­curs in Jack­sonville, Florida and Phoenix, Ari­zona, where there is a greater vol­ume of drug-im­paired vol­un­teers and di­ver­sity of drugs,” writes Vaughan.

So Cana­dian po­lice of­fi­cers re­ceive their train­ing, ex­pe­ri­ence and at­ti­tude from our neigh­bours to the south who have a long, shock­ing record of civil rights abuses.

“It’s cer­tainly a con­cern,” says Rob de Luca, di­rec­tor with the Cana­dian Civil Lib­er­ties As­so­ci­a­tion.

Be­ing aware of abuse hap­pen­ing in a for­eign jail is dif­fi­cult when you’re a coun­try away. At the very least, says de Luca, this sort of train­ing needs to be done in Canada, where we have con­trol and over­sight. The price tag might be greater, but the cost isn’t nearly as high.

“Any sort of small dol­lar sav­ing doesn’t jus­tify the po­ten­tial ero­sion and pro­tec­tion of our Char­ter rights and those of the US cit­i­zens or other res­i­dents who might be some­how in­volved with this pro­gram,” he says. “We’ve had the time and ca­pac­ity to de­velop in­ter­nal re­sources so that we’re not sub­ject to these kind of dan­gers of get­ting in­volved with a po­lice force that might have their own over­sight and ac­count­abil­ity is­sues and hu­man rights abuses.”

Canada’s po­lice de­part­ments seem to be in agree­ment. The as­so­ci­a­tion of po­lice chiefs told a House of Com­mons com­mit­tee last fall it would be bet­ter for Cana­dian of­fi­cers to train here at home, since the Amer­i­can cour­ses are in such high de­mand.

Bear in mind that Mari­copa County is a hot­bed of DRE train­ing, at least in part, be­cause of the fac­tory sys­tem set up to ar­rest and mon­e­tize pris­on­ers at the ex­pense of hu­man­ity.

The fault for that goes to Joe Ar­paio. For 24 years the sher­iff ruled with ter­ror.

Un­der his or­der, in­mates—most of whom had yet to face trial, many who were later found to be ar­rested il­le­gally—were reg­u­larly hu­mil­i­ated and de­hu­man­ized. They were fed spoiled food, made to wear pink un­der­wear and broad­cast to the pub­lic through an on­line “jail cam.”

Many lived out­side, in ex­treme tem­per­a­tures, as part of a con­cen­tra­tion camp-es­que fa­cil­ity dubbed Tent City.

While the sher­iff’s of­fice was busy lock­ing up and abus­ing its pris­on­ers, vi­o­lent crime soared and a record num­ber of sex­ual as­saults went with­out in­ves­ti­ga­tion.

Af­ter years of com­plaints, the US depart­ment of jus­tice’s civil rights divi­sion opened an in­quiry in 2010 to in­ves­ti­gate all the al­le­ga­tions of racism and abuse of power. The sher­iff’s of­fice re­fused to co-op­er­ate.

It was found to be the most egre­gious case of racial pro­fil­ing ever seen in the United States. The in­quiry doc­u­mented a bla­tant pat­tern of dis­crim­i­na­tion and a “sys­temic dis­re­gard” for Amer­ica’s beloved con­sti­tu­tion.

Ari­zona’s lower courts would also find that Ar­paio and his deputy sher­iff “de­fied and even mocked” a court or­der re­quir­ing the sher­iff’s of­fice to stop sin­gling out Latino res­i­dents dur­ing traf­fic stops and work­place raids. In re­sponse, Ar­paio launched his own in­ves­ti­ga­tion into the judge and the depart­ment of jus­tice for en­gag­ing in what he felt was a con­spir­acy against him.

The sher­iff was even­tu­ally con­victed for crim­i­nal con­tempt of court. “Sher­iff Joe” was par­doned last year by pres­i­dent Don­ald Trump.

Fol­low­ing the DOJ re­port and fac­ing pub­lic scru­tiny, the RCMP sus­pended its DRE train­ing at Mari­copa County in early 2012. But af­ter re­view­ing the find­ings, con­duct­ing a site visit and in­ter­view­ing the sher­iff’s of­fice man­age­ment, the Moun­ties de­cided to re­in­state the pro­gram.

“An ex­am­i­na­tion of the poli­cies and prac­tices in place at MCSO fa­cil­i­ties in­di­cated all sub­jects in­volved in the DRE pro­gram are dealt with in a re­spect­ful, pro­fes­sional and hu­man man­ner by MCSO staff and DRE stu­dents,” writes RCMP spokesper­son Vaughan via email. “The RCMP is sat­is­fied that lit­i­ga­tion against the MCSO, at the time, was not as­so­ci­ated with the DRE pro­gram.”

That as­sess­ment of con­di­tions is “fair,” based on what Phoenix lawyer Michael Man­ning has seen. He doesn’t be­lieve any DRE test sub­jects were among the abused pris­on­ers un­der Ar­paio’s watch.

Man­ning has fought mul­ti­ple law­suits against both Ar­paio and the county sher­iff’s of­fice, in­clud­ing an $8.25 mil­lion set­tle­ment he won in the wrong­ful death of Scott Nor­berg

(killed in a strug­gle with jail guards) and an undis­closed set­tle­ment for the fam­ily of Carol Got­baum (who died hand­cuffed to a bench and left un­su­per­vised in a hold­ing cell).

Things have changed since Ar­paio’s time, ac­cord­ing to the lawyer. Sher­iff Paul Pen­zone, who took over when Ar­paio left in 2016, has re­moved all the old po­lit­i­cal pa­tron­ages and cre­ated a sea change in the depart­ment. When mis­takes hap­pen now, they’re promptly in­ves­ti­gated and the re­sults are quickly re­leased to the pub­lic.

“It’s ev­i­dent to any­one who’s walked through it, and I have,” says Man­ning. “The place is like new in ev­ery im­por­tant law en­force­ment re­spect.”

One of the first ac­tions Pen­zone took was to im­me­di­ately an­nounce the clo­sure of Tent City, which the new sher­iff de­cried as nei­ther a crime de­ter­rent nor cost-ef­fi­cient. The camp, which cost $9 mil­lion US each year to op­er­ate, was fi­nally shut­tered last fall.

It wasn’t the only cost that Mari­copa had to pay for Ar­paio’s abuse of power. Dur­ing his time in of­fice, the county gave out over $43 mil­lion in law­suit set­tle­ments. County of­fi­cials re­cently set aside close to $30 mil­lion for body cam­eras, new per­son­nel and a court­mon­i­tor po­si­tion—all to meet a dis­trict court or­der’s re­quire­ments to rid the depart­ment of its dis­crim­i­na­tory polic­ing.

Pen­zone’s of­fice didn’t re­spond to re­quests for com­ment, and Man­ning had no idea how much the sher­iff’s depart­ment re­ceives for fa­cil­i­tat­ing the ma­jor­ity of Canada’s DRE train­ing. But given the fi­nan­cial penal­ties Mari­copa has been hit with, it would be a safe guess that any out­side money would be wel­come.

It costs a Cana­dian po­lice depart­ment be­tween $6,000 and $8,000 to train a sin­gle drug recog­ni­tion ex­pert. The money goes to­wards travel, ac­com­mo­da­tion and per diem al­lowance. The RCMP pitches in to cover the pro­gram costs, which come to $40,000 for a class of 24 can­di­dates.

Since its in­cep­tion in 1995, the DRE pro­gram has trained about 1,800 of­fi­cers through­out Canada. Only 825 of those are on ac­tive duty. Due to at­tri­tion rates and “strin­gent re­cer­ti­fi­ca­tion re­quire­ments” by the In­ter­na­tional As­so­ci­a­tion of Chiefs of Po­lice, it’s chal­leng­ing to main­tain DRE lev­els, says the RCMP.

The rush to boost those num­bers be­fore le­gal­iza­tion is mo­ti­vated as much by prac­ti­cal con­cerns as pub­lic re­la­tions.

Last month, the fed­eral govern­ment ap­proved over­hauls to Canada’s driv­ing laws that im­pose fines of up to $1,000 for any driver found with be­tween two to five nanograms of THC in their blood. Jail time and harsher penal­ties are doled out for any­one driv­ing over five nanograms.

It’s an au­to­matic charge, with­out any need to prove ac­tual im­pair­ment.

But the Crim­i­nal Code also re­quires a drug test to be com­pleted within three hours of some­one ex­it­ing their ve­hi­cle. A field so­bri­ety test can take any­where be­tween 30 min­utes to an hour.

All of which means a plethora of DRE-cer­ti­fied of­fi­cers is needed, ad­e­quately dis­persed through­out the coun­try, to en­sure drug tests can be made within that nar­row win­dow of time.

One of the ma­jor rea­sons for mov­ing the cannabis le­gal­iza­tion date from the orig­i­nal July to later this Oc­to­ber was to al­low more time for po­lice de­part­ments to pre­pare and bump up those DRE num­bers. Last year, the RCMP was al­lot­ted $1.67 mil­lion from the feds for DRE train­ing. But even that’s not enough, given the slow rate of cer­ti­fi­ca­tion.

Polic­ing is ex­pected to be one of the largest on­go­ing cannabis costs for cities and prov­inces come Oc­to­ber 17. Hal­i­fax city hall is an­tic­i­pat­ing to spend $3 mil­lion an­nu­ally on any and all cannabis mat­ters re­lated to mu­nic­i­pal op­er­a­tions. A third of that is ear­marked for po­lice.

So far over $6.5 mil­lion has al­ready been spent na­tion­ally on DRE cour­ses. Hal­i­fax alone has spent over $100,000 to fly 15 of its of­fi­cers down to Jack­sonville, Florida for cer­ti­fi­ca­tion.

Jack­sonville, it’s worth men­tion­ing, is a smaller train­ing ground com­pared to Mari­copa and dif­fer­ent in sev­eral re­spects when it comes to DRE cer­ti­fi­ca­tion.

There are no “tem­po­rar­ily in­car­cer­ated” re­mand pris­on­ers used as vol­un­teers like in Ari­zona. Jack­sonville so­cial ser­vice work­ers re­cruit in­di­vid­u­als off the street and pay them for their time. The ran­dom sub­jects are paid be­tween $10 and $40 US—de­pend­ing on level of im­pair­ment—to take part in the 90-minute field so­bri­ety tests.

Af­ter­ward, par­tic­i­pants can ei­ther leave on their own or will be trans­ported by work­ers back to where they were first picked up.

Where both pro­grams in­ter­sect is in their core mis­sion. Whether it’s in Jack­sonville or Mari­copa or even in Canada, ad­dicts and those un­der the in­flu­ence are be­ing used to train the next gen­er­a­tion of po­lice to ar­rest so­ci­ety’s most vul­ner­a­ble.

Do we re­ally want that train­ing to hap­pen in Amer­i­can ju­ris­dic­tions with a his­tory of po­lice bru­tal­ity?

“I think there’s a prob­lem with po­ten­tial creep of bad prac­tices,” says the civil lib­er­ties as­so­ci­a­tion’s de Luca. “Just the his­tory of hu­man rights abuses is suf­fi­cient to sug­gest that we would be much bet­ter off hav­ing do­mes­tic DRE train­ing pro­grams.” Or none at all. One of the rea­sons for all the DRE cer­ti­fi­ca­tion is be­cause cannabis im­pair­ment isn’t as easy to spot as al­co­hol. Of­fi­cers need to rely on their train­ing and per­sonal ob­ser­va­tions to con­clude whether a driver might be high.

Un­der­stand­ably, there are plenty of ques­tions over whether this test­ing even works.

“The science of cannabis im­pair­ment is still quite hazy,” reads a re­cent press re­lease from the CCLA. “Un­like drunk driv­ing, there is no sci­en­tific stan­dard for de­ter­min­ing if a per­son’s abil­ity to op­er­ate a mo­tor ve­hi­cle is im­paired by a drug or a com­bi­na­tion of al­co­hol and a drug.”

Un­like booze, the level of THC in the blood isn’t as closely tied to im­pair­ment. There’s no cur­rent con­sen­sus on how much cannabis can be con­sumed be­fore driv­ing is im­paired. Blood tests and saliva tests don’t al­ways match, and how long THC traces re­main in the body’s sys­tem can be heav­ily in­flu­enced by in­di­vid­ual me­tab­o­lism.

Saliva-screen­ing de­vices should be in use by year’s end, but for the time be­ing of­fi­cers have to rely on visual as­sess­ments such as pupil size, check­ing for nee­dle marks, record­ing blood pres­sure and ob­serv­ing whether or not the stopped in­di­vid­ual re­sponds to po­lice com­mands.

De­pend­ing on how the po­lice of­fi­cer feels, the driver could then be ar­rested and or­dered to give a blood or urine sam­ple for tox­i­col­ogy test­ing.

All of that in­va­sive per­sonal sur­veil­lance of a hu­man body will ul­ti­mately come down to the DRE’s ex­pert opin­ion of the driver’s im­pair­ment. And the “sub­jec­tive eval­u­a­tion” is what wor­ries the civil lib­er­ties as­so­ci­a­tion.

The CCLA fought against a re­cent Supreme Court of Canada de­ci­sion that ruled the opin­ions and qual­i­fi­ca­tions of a drug recog­ni­tion ex­pert don’t need to be vet­ted for qual­ity be­fore be­ing al­lowed as ev­i­dence in a trial.

“Given the in­her­ent sub­jec­tiv­ity in a drug recog­ni­tion ex­pert’s opin­ion about whether an ac­cused used drugs—we shouldn’t treat a sub­jec­tive opin­ion as in­con­tro­vert­ible ev­i­dence,” writes CCLA ex­ec­u­tive di­rec­tor Sukanya Pillay in a re­lease. The CCLA in­stead ar­gues a Mo­han voir dire safe­guard—“which ex­ists for this very rea­son”—should be used to as­sess the ad­mis­si­bil­ity of the DRE’s opin­ions.

As it stands now, un­less the trial judge chooses to ex­clude it, the DRE’s eval­u­a­tion is al­lowed in court cases re­gard­less of any ev­i­dence of per­sonal bias, fail­ure to com­ply with train­ing, con­tra­dic­tions with blood or saliva sam­ples or even the con­tra­dict­ing ev­i­dence of by­standers.

These are the tools be­ing ma­chined for Canada’s new def­i­ni­tion of cannabis crim­i­nals. A Sta­tis­tics Canada re­port that came out this week shows that pot-re­lated ar­rests have been steadily drop­ping in re­cent years—while opi­oid-re­lated crime has risen—but that was be­fore re­vised driv­ing laws as en­forced by a fresh army of DRE-trained po­lice takes hold. When le­gal­iza­tion ends up only benefitting the white, well-off com­mu­ni­ties who were al­ready at lit­tle risk of per­se­cu­tion, this is how it will hap­pen.

The fear is that Canada hasn’t le­gal­ized cannabis, it’s just built a more ef­fi­cient en­gine to vic­tim­ize cannabis users. Be­cause it’s not just the le­gal sta­tus that mat­ters. It’s the mind-frame.

Pro­grams like the DRE train­ing be­ing done at break­neck speed across the coun­try won’t re­move the prob­lems of mod­ern polic­ing in Canada. There will still be racial pro­fil­ing of First Na­tions, street checks dis­pro­por­tion­ately tar­get­ing African Nova Sco­tians, pris­ons filled with the poor who couldn’t af­ford the fines for smok­ing on the side­walk. It’s an in­fected sys­tem. New rules just cre­ate new op­por­tu­ni­ties for abuse.

The recog­ni­tion Canada re­ally needs with cannabis le­gal­iza­tion is a rad­i­cal shift in how law en­force­ment agen­cies view drug users. Un­til then, a lot more money will be spent in places like Mari­copa County be­fore Canada feels safe.

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