N.W.T. defence lawyer on what legalized cannabis will mean for justice system

As N.W.T. draft legislation for the legalization of cannabis is under review, many have wondered how it will affect the criminal justice system and policing. 

Prime Minister Justin Trudeau renewed his promise Thursday that recreational cannabis use will be legal by summer. The N.W.T.'s Cannabis Legalization and Regulation Implementation Act, or Bill 6, is currently under review.

The CBC's Lawrence Nayally spoke with N.W.T. defence lawyer Peter Harte who has more than 30 years of experience in northern courtrooms.

This interview has been edited for length and clarity.

What effect do you think legalization will have on your work?

I have never seen a fight associated with cannabis, I have never seen an assault or a crime of violence associated with just cannabis — cannabis and alcohol, yes but not just cannabis.

Alcohol creates a huge amount of work for the criminal justice system in the N.W.T. and in fact throughout Canada but here there is a huge amount of violent crime associated with alcohol.

My hope is that if people turn to cannabis as their recreational intoxicant that we'll see rates of violence decline in the N.W.T. and that would be a significant difference, have a huge impact on local communities, because the violence that we see affects family members, affects the whole community, affects the law enforcement community and if we're able to get that under control by giving people a peace-inducing intoxicant then it's going to make a huge difference to the criminal justice system.

How are police, prosecutors and judges dealing with marijuana charges right now?

What I have seen so far in 2018 is that police tend to be simply throwing away minor amounts of marijuana. For significant amounts of marijuana, I would expect charges to be laid and then it would be up to the Crown to decide whether or not to proceed with the charges.

I suspect that in the event that charges proceed to trial or result in a conviction, fines would be moderated to some extent by the fact that the legalization is on the horizon. But generally speaking when something ends up in front of a judge it's going to be dealt with in a way that is consistent with the way judges have dealt with marijuana in the past.

What about people who have already been convicted of marijuana offences? What will happen to them once it's made legal?

I don't know of any proposals to deal with prior convictions associated with marijuana trafficking or possession.

It may be that there is pressure put on Parliament to make some sort of amnesty available for people who apply for it. But at this point the critical point to bear in mind is regardless of whether it was marijuana or not that was being sold or possessed, it was still illegal at the time and so the focus is on breaking the law not necessarily how you were breaking the law.

It also may be possible to obtain a record suspension more easily in respect of prior convictions for marijuana offences, but at this point nothing has been discussed to my knowledge about how that might work.

What penalties should people be aware of when it comes to cannabis after legalization?

Cannabis and driving is going to change the environment associated with driving while impaired and it's going to be easier for police officers to pull people over and demand that they provide samples of saliva or breath for enforcement purposes.

The limits on the amount of intoxicant you can have in your system as far as cannabis goes are quite strict and police officers will have the power to administer what are called field sobriety tests, although in this case they'll be associated with whether or not people are stoned.

Police officers right now are being trained to identify symptoms associated with having too much cannabis in your system and they will be able to administer those tests with a relatively low threshold.

It would be extremely important that people stay away from cannabis while they're driving because the fines and penalties that are associated with cannabis and driving will be similar to those associated with drinking and driving.

In the event that it proves to be as much of a problem as alcohol and driving, those penalties can be expected to be stepped up because it's something that the government is desperately trying to bring under control.

How ready do you think the police force and justice system are to manage the changes in the law that you're seeing in Bill 6?

My experience in dealing with the RCMP is that generally speaking they're ahead of the curve. I know that officers are receiving field sobriety testing training and so in that regard they will be in a position to begin enforcing cannabis and driving legislation immediately.

To the extent that drug enforcement activities are already taking place, the enforcement activities that are necessary to deal with, for instance, having too much cannabis and selling it illegally, they're already in place, those officers are experienced and well trained and that part of the legislation is going to be enforced without any difficulty at all.

The one area which I think will take some additional work is saliva testing and gathering buccal samples [cheek swabs] that will be used to determine how much THC [active ingredient in cannabis] is in your system. That's something that's going to require some additional training and probably some new equipment.