Opinion: These are the 5 biggest mistakes of cannabis legalization in Canada

Written for Grow by Sarah Leamon, a criminal defence lawyer and founder of Sarah Leamon Law Group. Sarah specializes in impaired driving offences and cannabis law.

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It’s been nearly nine months since the legalization of cannabis, but things are far from perfect in the great green north.

Here are the five biggest fails of Canadian cannabis legalization so far:

See also

• This Canadian city just launched a hilarious campaign about driving with cannabis
• Canada's ending of cannabis prohibition parallels alcohol in big ways
• China wants Canadians to stop mailing weed into their country

Packaging

Our federal government recently declared a climate change crisis. With scientists predicting catastrophic effects for our planet if we don’t clean things up immediately, everyone seems to be interested in the environment.

Everyone, it seems, except the people overseeing cannabis packaging regulations at Health Canada.

Cannabis packaging requirements shocked the public when they were unveiled back in October and it quickly became apparent that way too much plastic was involved. Following legalization, a single gram of cannabis comes with approximately 70 grams of plastic, foil, and packaging. The amount of packaging goes up if cannabis is sent through the mail. 

With tamper-resistant, multi-layered opaque plastic packaging, the days of tin foil or a plastic baggie are long gone.

This fact has many cannabis-users worried about their increasing environmental footprint.

And to add insult to irony, just a few weeks ago, the Prime Minister announced a comprehensive, intended ban on single-use plastics in an effort to help combat climate change, leaving the government’s approach to cannabis completely disconnected from reality.

So, while the government insists that encasing a plant in a plastic tomb of packaging is absolutely necessary in order to protect the public, most reasonable people remain unconvinced. 

Impaired driving laws

When cannabis was legalized, several new impaired driving laws were also introduced.

The first of these laws involved the launch of roadside oral fluid screening devices, intended to test for the presence of cannabis in a driver’s salvia. Depending on the results, a driver could be arrested, criminally charged, and convicted of a serious offence. We presently have two federally approved devices for police use on our roadways: the Draeger DrugTest 5000 and the Abbott SoToxa. 

The problem?

Neither of these devices are able to detect driver impairment. And, on top of that major malfunction, both devices are prone to failure, meaning that they can generate both false positive and false negative readings depending on a myriad of factors, ranging from temperature to tilt. 

And to make a bad situation worse, the Criminal Code has been amended to include per se limits for THC in a driver’s bloodstream.  This means that a driver will be charged with an offence if they have a particular amount of THC in their bloodstream while driving, regardless of whether they are impaired or not. It mirrors provisions in relation to alcohol.

But, the big problem is that THC is fat-soluble; not water-soluble like alcohol. 

This means that THC can remain in a persons’ body for an extended period of time and long after the effects of impairment have worn off, which will inevitably lead to sober people being charged with serious offences. 

While these changes were done in the interests of public safety, there has been absolutely no indication that they were necessary. 

Rates of impaired driving have not increased in since October 17, 2018. 

The continued criminalization of cannabis

While cannabis is technically legal in Canada, the flower is still far from being free.

At the same time that it legalized cannabis, the Cannabis Act concurrently created over forty new cannabis-related offences in this country — with serious penalties. Many offences could land a person with a criminal record, or even behind bars. 

Just ask Winnipeg resident Rodney Clayton Felix. He was sentenced to ten months in jail after being found with more than 30 grams of cannabis in his possession only one month after legalization. Felix, an Indigenous man, serves as a stark reminder of the fact that cannabis enforcement has always been deeply racialized and that legalization has done nothing to quell such discrimination.

And on top of it all, the government has been dragging its heels on the issue of cannabis amnesty. 

Failure to include amnesty provisions from the very outset of cannabis legalization was a critical misstep, which opened the door to criticism about the governments’ commitment to true cannabis decriminalization. 

However, now that a streamlined pardon system has now available to non-violent cannabis offenders, many advocates argue that we are not going far enough to correct our historical wrongs. 

Support for expungements, rather than pardons, has gained traction as some argue that we should utilize these to recognize the moral blamelessness of cannabis use.  After all, a pardon does not really wipe a persons’ record clean nor does it recognize the historical injustice of cannabis criminalization.

This issue will be moot, however, if Canadians like Rodney Clayton Felix, continue to be jailed for non-violent cannabis offences like simple possession. 

Stigmatizing employment policies

When cannabis was legalized on October 17, 2018, many employers acted as though it had just been invented that very day. 

With concerns about safety, liability, and insurance, they sought legal advice about how to best deal with the problem of employees showing up “stoned” at work, without realizing that this was an issue they probably should have contemplated years ago. 

The kneejerk reaction to legal cannabis caused employers to create strict new policies around cannabis use and employment. 

One particularly stringent example can be seen in the airline industry, which has effectively banned cannabis use for all employees, no matter if they are on duty or not. The 28-day pre-flight cannabis ban sits in stark contrast to Transport Canada policies around alcohol, which simply prohibit consumption 12-hours prior to reporting for duty. 

The irony is rife. 

But this is just one of many unfounded notions about cannabis that continue to shape employment policies which are ultimately overbroad, unnecessary, and potentially contrary to human rights.

Distribution and shortages

Last but certainly not least, are issues around effective cannabis distribution and shortages that have plagued our country since legalization. 

It was perhaps the first public gripe about the legalization process; Canadians wishing to access a legal supply were forced to wait in long lines and subject themselves to unreasonable wait times. With few brick and mortar stores up and running, many Canadians were left to rely on the internet to order online. 

This inevitably led to widespread dissatisfaction.

This dissatisfaction only worsened when the government reported that systematic cannabis shortages could be expected for years to come. 

With the vast majority of producers running well below their full grow potential, the question is when Health Canada will allow them to grow the more than 6 million kilograms of cannabis annually that will be required to meet domestic demand. And with the impending legalization of edibles and a range of other cannabis products, distribution and shortage issues are only expected to get worse before they get better. 

Current projections predict that cannabis shortages will last well into 2022, which is just too long to ask Canadians to wait before sparking up.