Ontario, having set its cannabis age at 19, a year older than Ottawa’s, faced the problem of what it was going to do with 18-year-olds found with marijuana.
On Wednesday, we found out what the province had in mind — people under 19 possessing pot will face a provincial charge, like a traffic ticket, and the lightest penalties worth the name — a fine of no more than $200, or attending an educational or prevention program.
“I want to be very clear that there will be no criminal record, it’s under a provincial offence…our purpose is not to punish our youth but to educate our youth,” explained provincial Attorney General Yasir Naqvi.
There’s an elephant in the room, however, that may make teens charged under the law fight their charges far harder than would seem to make sense, given the mild consequences — a guilty plea will mean a lifetime ban from the United States.
“I think you’re going to find that people aren’t going to readily plead guilty, as they would a traffic offence, because it’s also going to have implications for immigration into the United States,” says Toronto lawyer Sean Robichaud. “Even though it’s a provincial offence, it doesn’t mean that the U.S. can’t exclude people from the border, and I expect they will.”
Faced with a teenage client charged under the new law, Robichaud says he would advise him to go to trial.
“By him pleading guilty, it’s not about the small fine, it’s about the fact that he’s accepting that he’s not going to be allowed into the United States any more, and that’s worth fighting about, for most people.”
A youth record for a provincial offence – like a speeding ticket, but, as of next July, underage cannabis possession – will be more visible to U.S. immigration officers than a youth record for a crime would be, Robichaud says.
“Unlike criminal cases, where there are strong protections on disclosure of youth information, I don’t believe the same principles apply under provincial statutes. In a way, a youth would be far worse off pleading guilty to a provincial statute, admitting possession of marijuana, from a U.S. immigration point of view.”
The result: defendants will lawyer up and force provincial offences courts, which are now mostly traffic courts run by justices of the peace who may or may not be lawyers, to handle complex drug cases.
“What you’re going to find are significant drug trials going on in provincial offences court, with Charter arguments about unreasonable search and seizure, and them having to prove that it was marijuana.”
“The Charter will certainly apply, as will the standard of proof. They will need to prove these allegations, they will need to prove that these are drugs, that there wasn’t an illegal search.”
Underfunded provincial offences courts struggle with the cases they have to handle now, says lawyer Patrick Brown.
“Right now, our provincial offences courts are definitely backlogged,” he explains. “Putting more people in there, whether it’s cannabis or ticketing people for walking across the road with their cell phones, is just going to put a burden on the system that it can’t sustain.”
“You’re going to have more delay, a lot of cases being thrown out for delay, not to mention an additional burden on a system that’s already overburdened.”
Cases that are going to trial can take anything up to two years to get there, he says. This raises the prospect of 20-year-olds being made to listen to a lecture about how the government thinks they shouldn’t have been smoking marijuana back when they were 18, as a way of getting out of having to pay a fine.
“They would still go through it, but unfortunately they’d be a 20-year-old being taught like an 18-year-old.“
To make matters worse, Robichaud thinks that police will be more willing to write tickets for teenage marijuana possession than they would have been to lay criminal charges under prohibition.
“In the process of legalization, what is in effect going to happen is far more charges being laid, albeit not criminal. Now that the stigma of being criminal is taken away, prosecutors will be more inclined to seek convictions.”
“Despite legalization, I think this is going to be a very busy time for lawyers, who are going to be fighting this at all levels of the courts.”
With files from the Canadian Press
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