The right to be high: Cannabis is legal, but less if you're sick or racialized

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Cannabis may be legal in Canada, but the issue is far from black-and-white. Political agendas and paradoxical regulations have created a tricky new legal landscape for users – particularly medical users and members of racialized groups.

“If you're a drug-impaired driver, I don't care what your race is,” says Anne McLellan, former federal health minister and chair of Canada’s legalization task force. “If you're impaired, you shouldn't be on the road.”

However, academics, defense attorneys and medical experts are acknowledging that race and ability play a factor in roadside police encounters, regardless of whether someone is actually impaired.

“Nobody wants to hear about the colour of the person's skin, but that's intimately tied to the sensitivity of the officer's nose,” says Toronto cannabis lawyer Jack Lloyd.

“Significantly more persons of colour are pulled over by police under the auspices of cannabis searches than persons that are not. That's common.”

Sergeant Stephane Fontaine says Winnipeg police do not keep statistics on race with regard to impaired driving stops.

“We treat everyone equal. Our focus is not on one person's race, per se. It's the offense that they're conducting,” Fontaine says. “If we're dealing with an impaired driver, it makes no difference what race or background you are. Our concern is and has always been for the safety of all citizens of Winnipeg, and to ensure that our streets are safe, and that impaired drivers as a whole are removed and dealt with appropriately.”

Nonetheless, Kelly Gorkoff, head of the University of Winnipeg's Criminal Justice department says "more nets are being cast" in certain neighbourhoods, and that spells trouble for marginalized people who use cannabis.

Section 15 of the Canadian Charter of Rights and Freedoms establishes each person as “equal before and under the law” with “the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Cannabis laws may not be meeting this standard, critics say.

The colour of cannabis

Nobody really has an explanation for why cannabis was made illegal in Canada in the first place. In 1923, however, cannabis became an illicit drug alongside heroin and codeine.

No discussion or opposition to this was recorded in parliamentary records but history and research suggest the move was rooted in race.

At the time, opium, morphine and cocaine were already listed on the schedule of proscribed drugs. The Opium Act made opium, a highly addictive narcotic, illegal in 1908 as moral crusaders became concerned about the impact of drugs on Canadian society. The main reason for the prohibition of opium, though, came as a result of growing racial tensions over Asian immigration and settlement to Canada. With Asian newcomers seen as economic competition, the outlawing of the drug, which was popular with those of

Asian descent, became a top concern of Prime Minister Mackenzie King, who was deputy minister of labour at the time.

In a chapter published in the 2019 book High Time: The Legalization and Regulation of Cannabis in Canada, Jared Wesley, associate professor of Political Science at the University of Alberta, raised concerns about the inclusion of Indigenous voices in the legalization process, given the drastic impact of Canada’s “War on Drugs” on Indigenous people.

Researchers Akwasi Owusu-Bempah, Alex Luscombe and Brandon M. Finlay addressed over policing of racialized Canadians for drug-related offences in the same publication, writing the Opium Act and other drug laws in Canada have had a “detrimental impact on the very groups that their proponents so often purported to help.”

“(Racialized and marginalized populations) should not be both targeted by drug-law enforcement and subsequently excluded from working in the legal cannabis economy,” they argue.

Lloyd says the Charter is what protects the rights and freedoms of all Canadians from undue prosecution, police brutality and arbitrary government authority.

“The Charter only requires that the rights of one person are affected to be engaged,” Lloyd says. “I think (that’s) a really important part of what keeps our country functioning in a healthy and democratic way.”

He says Canada’s cannabis laws in their current state, and their enforcement, should offend Canadians.

“It’s just offensive to anybody (that) people are going to jail over legal cannabis in today's day and age. But that will continue because it's regulated by the criminal law,” he says.

Lloyd anticipates the coming years will see a significant increase in litigation, particularly around using the odour of cannabis as grounds to detain and investigate people.

“There's tons of evidence that the enforcement against persons of colour is inevitably tied to cannabis, because it's a really obvious and easy tool to facilitate investigation into vulnerable minorities,” Lloyd says. “If he smells like cannabis, that's grounds to search them and dig into it.”

By legalizing cannabis, legislation had to be created to regulate the drug in Canada. Decriminalization, put simply, would have removed cannabis-related offences from the Criminal Code.

“Legalization has created more surveillance of the practice … people are subject to more scrutiny as a result of purchasing it,” says Bronwyn Dobchuk-Land, who teaches courses on race, colonialism and the criminal justice system at the University of Winnipeg.

“Since it's available to be done legally, the punishments for the illegal use have ramped up.”

Some have called cannabis only partially legalized under Canadian law, owing, in part, to the strict regulation on where and when the drug can be used. Dobchuk-Land and Schwartz say some of these laws have the potential to be challenged as discriminatory.

“The fact that people are not allowed to smoke weed in their rental properties and that there is a … more concrete and stricter penalty associated with that in the context of the new legalization regime … it gives police another reason to potentially intervene in people's lives,” says Dobchuk-Land.

“Some of those policies have created real issues for folks. Even thinking about things like inability to go and smoke marijuana in a public park,” says Schwartz. “The question becomes, where are those people legally supposed to do that? And if it's supposed to be on their property, what do we do with folks who live in apartment buildings?”

Schwartz says most of the clients he sees are Indigenous.

“You start to see that there are certain things that are a lot more common in their experience with police than folks that have my (non-Indigenous) background, or someone who grew up in (upscale suburbs and Winnipeg neighbourhoods like) East St. Paul, River Heights.”

More spot checks and frequent stops by police are among those common experiences for Indigenous people, Schwartz says.

“There's no legal basis for the police to do these things without good reason to do it.”

Dobchuk-Land says reasons for these stops can sometimes be manufactured by police. Many stops of racialized people happen because an individual is already known to police for a previous offence.

“When it comes to poor, Indigenous and Black young men, for example, who already have the weight of being stigmatized as participating in gangs or other kinds of drugs or just disorderly activity in general, this becomes another legitimate reason that the police could stop somebody,” Dobchuk-Land explains.

“The reason is often more related to trying to control certain groups of people's movements and interactions in a certain area. The more tools they’re given to do that, the easier it is for the police to kind of justify interventions.”

Criminal law specialist Michael Spratt says the wide discretionary powers afforded to police make it inevitable they will be disproportionately used against racialized and marginalized groups – and these most definitely constitute Charter violations.

“Unfortunately, history has shown us through the enforcement of drug laws – through carding, through other investigative techniques – that police disproportionately think that nonwhite individuals are more likely up to no good,” Spratt says.

Generally, racialized individuals are much more likely to be stopped for no reason other than the colour of their skin, Dobchuk-Land agrees.

“It's types of people in particular places that they're not supposed to be that are constructed as problems,” she says.

“It's just because of all the different ways that conspire to create minor interventions in their lives that then build a picture of … somebody who appears to be a serious repeat offender when really, it's just a whole bunch of minor misconducts or breaches.”

While specific data and research in the area of who is being stopped for impaired driving laws is scarce, Spratt says anecdotal evidence is ample in the over-deployment of police resources in this area, in a manner he says is quite troubling.

“We know that non-white individuals, especially Black men and Middle Eastern men, are pulled over way more than their white counterparts. And they're ticketed way less,” he says. “When you put that data together, they're pulled over for no reason. And disproportionately, it seems because of the colour of their skin.”

Anne McLellan says the task force on cannabis legalization also heard from Indigenous leaders and people of colour in their consultations prior to the release of their final report. However, while Indigenous people are referenced in areas pertaining to regulation and the economic side of cannabis, the term race and concerns about racialized enforcement of cannabis do not appear in the report’s discussion of impaired driving.

“There’s no question … we know that often racialized populations get pulled over more frequently than Caucasian drivers,” McLellan says. “In that context, I suppose a driver might be subject to harassment, which is most unfortunate and unacceptable, and improper conduct on the part of the officer. But any impairment charge would have to be backed up by evidence, regardless of the racial background of the driver. And charges, I presume, would be thrown out or not pursued if there was not sufficient evidence to justify impairment.”

But the reality on the ground can be quite different.

“I was in court today and a poor lady just got a six-month jail sentence over really not very much cannabis,” says Lloyd. “And, you know, I sat there and listened to the court talk about how lenient they were being with this poor Aboriginal woman who had the misfortune of being stopped … the government continues to just love putting people in jail over this harmless substance.”

Gorkoff and Spratt believe too many police resources are being used to target cannabis-related offences when funding could be better spent elsewhere – areas that would improve the socio-economic status of racialized individuals to help reduce their visibility to law enforcement.

“The reality is, it's used as a tool to target minorities, including Aboriginal people. And you know, it's a very useful tool for the hegemonic continued enforcement of patriarchal and racist drug laws,” says Lloyd.

“Pushed” from the medical system

Medical users are also being unfairly targeted, critics say.

Both tetrahydrocannabinol and cannabidiol – cannabinoids found in cannabis – have proven to have scientific benefits for people experiencing pain from chronic and other illnesses. People with conditions like multiple sclerosis or simple back pain find cannabis helps them cope with medical symptoms.

However, many defense attorneys and cannabis advocates we interviewed share the sentiment that cannabis legalization seems to have forgotten medical users.

Medical users already face hurdles to legal use, starting with heavily secure packaging that makes it hard for people with disabilities to open their prescriptions. Add to that the inadequate medicare coverage, “sin” taxes and cheaper products on the illegal market.

Medical Cannabis Canada’s Max Monahan-Ellison says cannabis legislation was created to focus on creating a framework for consumption of recreational cannabis, reducing youth access, and eliminating the black market.

“When you prioritize those over the health and safety of patients, what you get is that patients are actually being actively pushed away from using the legal medical system,” he says.

In preparation for legalization, McLellan, who chaired the Task Force on the Legalization and Regulation of Cannabis, says the task force listened to a series of consultations and participated in several roundtables with medicinal cannabis users.

“One of the things we heard was their concern around drug impaired driving, because if you're using every day to control pain or nausea, you will in all likelihood, build up a resistance, your body becomes a climatized to the amount of product that you're inhaling or however you choose to take it,” McLellan says.

Concerns about the complexity of detecting cannabis use and how medical cannabis users might be affected on the roadside were referenced in the task force’s final report, yet it seems medical users are among the most impacted by cannabis-impaired driving enforcement efforts.

In B.C., defense attorney Kyla Lee says she has seen disproportionately people between the ages of 40 and 70 and people with serious medical issues being targeted for cannabis enforcement.

“I think it's because they present as not having something right about them just because they're on medications or they've got serious injuries or cognitive defects,” Lee says.

“At the end of the day, you don't want people on the roads who are impaired, whether they're medicinal users or not, and, you know, I think the police and generally law enforcement, not always, but generally, they use their discretion, they use their judgment,” says McLellan.

“There may be some patients who feel I don't know that they're mistreated or bad, unfairly treated, but … you have to put the safety of the public first above any individual.”

“If you're consuming marijuana … for medical purposes, that's fine. But if it's impairing your ability to operate a conveyance or a motor vehicle, then it's a concern,” says Winnipeg Police Service patrol sgt. Stephane Fontaine.

“If the dosage … is such that it doesn't cause impairment, then we're not going to see that in the drug influence evaluation, and as a result, there will not be any charges.”

However, research and interviews with police and defense attorneys show that roadside testing devices are not always reliable in determining impairment, with saliva testing devices only able to reliably indicate the presence of THC, not whether an individual is impaired.

Toronto cannabis lawyer Jack Lloyd says these standards mean any medical cannabis user is almost certain to fail a roadside saliva test.

“It's much less common than we thought it was going to be when we contemplated legalization. But it's not as if it's like completely unheard of,” Lloyd says.

The case of Michelle Gray, a Nova Scotia medical cannabis user, is evidence that an oral fluid screening device can detect cannabis in the human body that was consumed several hours prior – a length of time after which it would be unlikely for an individual to still be impaired by cannabis, particularly when that individual uses cannabis regularly for medicinal purposes.

“You’ve got a medical cannabis patient, Gray, who is disabled,” says Lloyd, who will be representing Gray’s Charter challenge before the courts. “Your argument would be that’s she’s being discriminated against in a way that’s unacceptable … I think the real concern is that she uses considerably more cannabis than your recreational user, so she’s subject potentially to increased enforcement as a consequence.

“I think a fairly significant number of Canadians realized that if it could happen to Michelle Gray, it could happen to them, too.”

In Health Canada’s 2020 Canadian cannabis survey, Monahan-Ellison says an estimated four to five million Canadians used cannabis for medical purposes. However, there were fewer than 500,000 medical registrations.

“That’s a huge gap, and for a reason,” says Monahan-Ellison.

Medical users are also at a disadvantage when it comes to where and when cannabis can be legally consumed – usually limited to private property.

“Medical users tend to have more interaction with law enforcement because they're required to access cannabis more urgently,” Lloyd says. “They end up consuming cannabis more often in places where it brings them into contact with the authorities whereas a recreational cannabis user is perfectly okay to wait until they're in a private place to consume their cannabis. A medical cannabis patient might not have that opportunity.”

“You're looking at a framework that is not incentivizing or encouraging (legal) use,” says Monahan-Ellison. “It's really problematic, but it's what Health Canada does when they release new regulations. If there's a concern around if things are too lax, it's really hard to add enforcement measures after the fact. Whereas if a piece of regulation and legislation is very restrictive, it's easier to pull back restrictions later than it is to add them on.”

That practice is seen at the forefront of cannabis-impaired driving enforcement.

“You have someone that has an illness that's affecting things like eye movement … body movement, muscle movement. Those are going to be things that are going to trigger concerns from an officer in the standardized field sobriety tests,” says Winnipeg defense attorney Mat Schwartz. “That absolutely opens up additional problems.”

Schwartz says this kind of scenario can more likely lead to police requiring a blood sample to determine whether an individual is impaired by cannabis or not – a timely and invasive process.

Fontaine and West Gray police chief Robert Martin agree that knowing someone is a medical cannabis user – information many will quickly volunteer to officers at the roadside – does not influence how an officer will conduct their investigation.

“I've had circumstances where what's been investigated and ultimately determined (is) that this is a medical condition that’s causing some of these symptoms,” Fontaine says.

“Having said that, you may encounter provincial sanctions … the driver may have to present (an) appeal for their case.”

The lack of protection for medical cannabis users is why Gray is pursuing legal action.

“My liberties were taken from me,” Gray says. “I was penalized for something that I proved my innocence on, and I was still penalized after the fact.

“I want to see the laws change.”