Legalized cannabis still has a problem: broader search and seizure police powers

Five years ago, this month, Canada embarked on a much-needed journey into the world of legalized cannabis. You’d think the anniversary would be a time to roll a comically oversized legal joint and celebrate a rare example of rational drug policy. But amidst all the progress, injustices are still lurking.

But before we go further, let’s stroll down memory lane to the “before times.”

Back in 2015, the Liberals made a promise that sounded almost too good to be true. They vowed to “remove marijuana consumption and incidental possession from the Criminal Code.” It made perfect sense! I mean, let’s be brutally honest, the whole war on drugs thing, especially when it came to criminalizing adults who knew that Pink Floyd laser shows were way better after a toke, was like a colossal dumpster fire in a fireworks factory – am entirely predictable disaster.

Canada might have had a drug problem, but let me tell you, it wasn’t the weed; it was the policy!

The social and financial costs of criminalizing cannabis use far outweighed any illusory benefits. Law enforcement was squandering precious resources going after pot, instead of stopping the real bad guys. Thousands of Canadians were crowding a court system that was already bursting at the seams. And tens of thousands of folks were carrying around criminal records like a scarlet letter for engaging in a pretty darn harmless activity.

And let’s not forget how marginalized, Indigenous, and racialized communities got the short end of the stick, getting slapped with charges, prosecuted, and locked up at disproportionately higher rates.

Now, when it comes to the task of removing cannabis charges from criminal court, legalization has been a resounding success. Since the big green thumbs-up, there’s been a staggering 97 percent decrease in cannabis possession charges.

But here’s the kicker: legal pot hasn’t stopped over-policing and systemic discrimination. In fact, it’s opened the door to an expansion of police power. You see, after the legalization of cannabis, every province passed legislation to regulate its purchase, sale, consumption, and transportation – and these laws give the police lots of power.

In Ontario, the transportation of marijuana is governed by the Cannabis Control Act, which allows the police, in the absence of any suspected criminal activity, to search any vehicle and all its occupants (if they believe that “any cannabis is contained in the vehicle” and it is “readily available to any person in the vehicle.”)

It can’t be understated just how broad the new police search powers are – we are talking about searching anywhere in the vehicle, including the trunk, and all passengers and their belongings, down to the deep pockets, makeup bags, and yes, even bras.

And since the police power flows from non-criminal regulations, it’s subject to a less stringent standard of review. And police have used a laundry list of reasons to justify searches under the Cannabis Control Act, from the smell of cannabis, to alleged crumbs of marijuana on the dashboard, and even the presence “drug paraphernalia” like rolling papers.

Prior to legalization, these situations might have led to grounds for specific arrests, but it didn’t grant a free pass to search everyone and everywhere. So, here’s the big question: if the purpose of the Cannabis Control Act is to make sure drivers don’t have access to cannabis while driving, what’s the deal with searching the vehicle’s trunk? It doesn’t quite add up.

The proof of the injustice created by these new police powers is laid bare in court. Do you know what charges we rarely see? Regulatory charges for having accessible cannabis. Why? Because the searches aren’t about finding cannabis; they’re all about collecting information, investigating, and targeting individuals the police think are committing other offenses. It’s like a fishing expedition for any wrongdoings!

The new pot regulations are just another tool in an overzealous cop’s investigative toolbox. And when the searches result in unrelated criminal charges, do you know what evidence is rarely found? That’s right, cannabis. Sometimes there’s a whiff of marijuana but no actual stash to be found. Sometimes there are crumbs of cannabis, but they’re conveniently never collected or documented.

And guess who gets the brunt of these often-manufactured searches? You guessed it again, marginalized and racialized drivers and passengers. The very same groups of people who were disproportionately impacted by the criminalization of cannabis are taking the heat again. It’s a never-ending cycle of discrimination.

It’s mind-boggling that the legalization of cannabis, while diverting some matters away from criminal courts, has also given the police broader powers of search and seizure. It’s like a case of reefer madness but in reverse!

So, this fall, as we harvest our now-legal marijuana plants and give ourselves a hearty pat on the back for our progressive pot laws, remember the undeniable truth: just because cannabis is not illegal, the most dangerous thing about weed is still getting caught with it.