S1E3 - The Lawyer

Do your old cannabis possession charges go away when pot is legalized in Canada?  How will the police know if you are driving while impaired by Cannabis?  How will US Border security deal with Canadians after pot is legalized?  Kirk and Trevor talk to lawyer Aaron Beddome about the upcoming changes in Canada's Cannabis laws.

 

 

Monday, 12 March 2018 21:30

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Episode Transcript

Kirk:: Welcome welcome to Reefer Medness. Aaron Beddome.

Aaron: Yeah.

Kirk: Introduce yourself to us. Thank you for coming in and introduce yourself.

Aaron: Sure happy to be here. I'm Aaron Beddome. I'm a lawyer at Dawson and Bretecher Law Office here in Dauphin. I moved to Dauphin about two and a half years ago for the job and I lived in Winnipeg before that. I have a Bachelor of Arts, a philosophy major and I have my Juris Doctor which is my law degree. Yeah.

Kirk: When you get cold called to the bar?

Aaron: My call to the bar was 2016.

Aaron: Well it's something that I deal with a lot in my practice. I have a focus on criminal law that's almost exclusively what I do just that's you know I started our firm has a heavy practice in criminal law. And of course with that comes along a lot of drug cases. So I've dealt with a lot of those from just simple possession to possession for the purpose of trafficking to actual trafficking in all sorts of drugs. Of course marijuana.

Kirk: So so talking about cannabis. So how much of your practice is exclusively cannabis you say that lots of drugs but how much is exclusively cannabis?

Aaron:  I mean we do you know pretty much any sort of you know criminal activity. Percentage wise anything to do with cannabis.

Aaron: I don't know maybe 10 but I'll say 10 percent sure.

Kirk: 10 percent of your practice?

Aaron: Of my practice.

Kirk: That's that's a fair bit actually is it not?

Aaron: Yeah it is. That may be a little high but we'll go with 10.

Kirk: OK so so come July 2nd. Is that is that a bad thing. We're going to legalize or.

Aaron: No. I mean there will. I mean there's still an act right. So some things will still be illegal and we'll still have criminal consequences. It'll just be looked at differently. And I think that you know you could say that the people who are dealing in marijuana illegally right now may just switch to something else. We might just see a switch over to a different substance.

Kirk: So is Bill C 45. Yeah. Can you explain to us and explain to our listeners what does it mean what is what is C 45 is that is that going to be the final act or is that just the working Bill. How's it work?

Aaron: So it's not finalized. But I think from what I understand it's close to what we're going to see come July 2nd.

Kirk: OK. And what I like about what I like about the act is it sort of seems to be very harm reductionist.

Aaron Right. The main thing I get from it is it's a main focus of it is protecting children. Anyone under 18 there's a you know they want to make sure that no one selling to kids that kids don't have large amounts of this but they're not advertising to kids. So that's a main part of it. From what I see.

Kirk: Yeah. I'm looking at the points here the ACT will seek to restrict youth access protect young people from promotion and enticements defer and reduce criminal activity by imposing serious by imposing serious criminal penalties. So there is a protection of public reduce the burden provide for legal production of it allow adults possession and enhance public awareness. So it's very much a harm reduction issue.

Aaron: Exactly. So when you talk about you know public awareness this is something that's been largely you know kind of in the dark maybe not so much in past years but you know you look at prohibition back in the day and it was something where you know people were having to you know go and drink in basements and backrooms and that and and it was all kind of hush hush. And it's kind of been that way for marijuana and now with it coming to the forefront kind of in the light we're going to be able to really see you know what the issues are how do we fix those issues and it will be more accessible in that way.

Kirk: So. So from my perspective I think that's a good thing. I mean cannabis seems to I do have some statistics and I guess later I'll have at hand but any sense of how much law enforcement is around marijuana and cannabis.

Aaron: Oh absolutely I think that it will definitely free up a lot of resources for sure because right now when you have simple possession say you know someone has a few grams on them they get arrested maybe for something else. But this comes along with it they do a search and then they have to you know lay a charge of possession. And from what I've seen since I started practicing is the crown would typically if someone has no record they don't really have any drug history. They'll actually offer to divert those charges outside of the court as they call it diversion and they'll allow them to maybe take part in some some drug counseling things like that. And then once they've successfully completed that they'll just drop the charge they'll enter a stay of proceedings.

Kirk: So these are people who have been who have been charged with simple I'm gonna call simple cannabis charges. And there's nothing nothing else involved. Walking down the street you got a couple grams and hey buddy come with me.

Aaron: Simple possession of cannabis.

 

Aaron: Well it's going to let's see the way I see it.  I think it's kind of turning it taking something that was mainly criminal into something more regulatory.  So you'll see changes like for example you know in the selling and the distribution the amounts that you can have. There are certainly criminal repercussions but then it allows the provinces to make their own legislation for example. The LCGA that regulates you know young people having alcohol. You know how many people you can put in a bar. Things like that which is not a criminal offense but something that the province would enforce.

Kirk: LCGA?

Aaron: Look the Liquor Gaming and Control Act.

Kirk: Manitoba has said they're going to be part of this equation with the distribution.

Aaron: Yes. I don't know exactly you know in what capacity. I think they're still working on that but that's something that the provinces themselves will will encounter.

Kirk: Is there anything you want to add about just the legislation change and how that's going to affect your practice.

Aaron: Well I think that like I said there are certain certain things that will still be illegal. It's still you know illegal to have cannabis that wasn't obtained properly. It's still illegal to sell that type of cannabis. It's going to be still illegal to sell to children like it is now. Albeit you know not dealt with quite as seriously because it's no longer a illegal substance.

Kirk: As of as of July.

Aaron: As of July 2nd yes.

Kirk: So today it’s an illegal subject.

Aaron: Oh absolutely yes.

 

Kirk: OK. OK so let's let's talk about past tense then in your opinion and I know this may be an unfair question in a sense but in your opinion what happens to all those fellows and girls out there that have criminal records due to possession of a substance that is no longer illegal. Come July 2nd.

 

Aaron: Right. So I'm sure there will be some concerns there because you know from their perspective there they have a criminal record say they were convicted on July 1st for something like that and then come July 2nd someone else gets charged with the exact same thing and they won't have record. So as it stands in order to get people refer to it as a pardon that is actually called a record suspension. You have to wait five years from your sentencing date your date of conviction and then you can apply for a record suspension. Someone say if they were to try and do that today they've waited five years they've got convicted five years ago.  Something like a simple possession of marijuana. I don't think they'd have any trouble getting that wiped from their record.  So that would be the process going forward. Now a lot of people are going to be upset that they would have to wait that five year period. I foresee that will be. I hope that there would be some sort of a streamlined process for those types of people who had.  That's the only charge they have on their records as a simple possession of marijuana or cannabis. I think that it just makes sense not to lump them in with the rest of the people who have you know other charges that are still illegal.

Kirk: So what happens when you have your record. What did you call it? You said.

Aaron: It's a record suspension.

Kirk: Record suspension. So it goes away. What what happens to it does go into a bitbucket does it go into another file. I mean is it if I get someone taps me into a computer they still find it. What happens?

Aaron: Right. So it would essentially be taken away from the system. You know the RCMP would be the ones who can access your criminal record and it would be essentially gone from their system.

Kirk: But if I get if I get caught by a municipal municipality police force and I get a pardon from a federal jurisdiction.

Aaron: I should say whether it's RCMP if you're living out here or if you're in Winnipeg Winnipeg if you're in Brandon Brandon police services whatever whoever laid the charge.

Aaron: I suppose although it's available to to any force Yeah it's just are no longer considered to have have that conviction.

Kirk: So if I go across the border and they call my name up it's gone.

Aaron: So with borders I always caution people because you know they always ask well if I have this on my record or or if I have that on my record. Can I get through. Now I always like to remind them that you know it's really up to the country that you're trying to enter whether they want you in or not. And there's really no hard and fast rules to it. They have their own you know decisions they make and they could deny you for whatever reason they want essentially so I never tell people you're for sure are going to get in but will for sure make it easier.

Kirk: But if your record has been suspended there is no ethical moral lawful reason for you to declare that I had a record

Aaron: That's right.

Aaron: You can go in there and say I have no criminal record.

Kirk: I have no criminal record. So it is expunged.

Aaron: Yes.

Kirk: So. So now we're going to have a whole country July 2nd that's legal. How are you going to advise your clients if they want to go to the states when the states is said and documented that they have restricted people who are who have admitted there was a fella who went to Washington state and went into a dispensary in Washington cannabis retail outlet opposed to a dispensary. And he said yeah why. I tried something and the border guard said Well you're no longer welcome in our country. And he was coming from a legalized state to a country and back. So what's going to happen what do you think.

Aaron: Well like. Like I said before you know each country has their own laws and regulations that you have to follow if you want to go into their country.  So you know it's all well and good that you know you Canada has you know will have essentially legalized it but if you're going to the States I would advise people to be careful.

Kirk: Be Careful. Just don't don't tell the whole truth.

Aaron: Well I mean. I have to be careful about that one. But you know it's up to them what they want to tell the security and if they know that something like that is going to get them in trouble it's up to them. If they want to disclose it.

Kirk: So one of the biggest issues about cannabis is and everyone's talking about driving. And from my understanding about how cannabis works in the system it's not quite the same as alcohol. Cannabis sort of stays in the system a little longer.

Aaron: That's right.

Kirk: So so I guess from that perspective as as a lawyer and I'm a guy who's just been pulled over and stopped for for smoking pot. July 3rd and I said you know what I had I had myself a little bit of a hit five hours ago. And there and the officer pulls me over and I call up and say Aaron I need some help.

Aaron: So the tests that they have now you know forget about you know July 3rd is you can be arrested for driving while impaired. And that doesn't have to be alcohol can be alcohol drug anything. And they have to prove that your your were impaired and your ability to drive a car was impaired by something. Now how do they do that. They have basically when you talk about alcohol it's a little easier because they have that roadside screening device that they use an approved screening device (ASD) and they can give that to you. And it'll either register as a pass or fail or a warn. So if you fail that then they have grounds to arrest for impaired and then they usually bring you to the station and give you the demand to blow into the real breathalyzer and that will give your actual number of point zero eight higher lower. Now they can also form the grounds that you were impaired by just observing you. So typically, what we see is if someone has slurred speech if they have glassy eyes their breath smells like alcohol. Their manner of driving was a little odd. They were swerving all over the road. And then you know something like that. Now it is a gray area but they would at least be able to charge them with that. So, when we're talking about impaired by substance the observation alone can form the grounds to arrest them for that. Now. From what I've seen with driving while impaired on marijuana they can employ the roadside test they observe them walking. I'm sure we've all familiar with the you know touching the nose and walking 10 steps. So that's another way they can do it. They have a sheet that they fill out and check off the boxes and if they feel that that person met the test for being impaired they charge them. So that's what they do for cannabis right now. And there's nothing that's going to change right away. As soon as this legislation comes in so they're going to have to keep doing that. Now I've heard some they're proposing that maybe they give them saliva swabs they have them spit into a cup. The problem with that is what you were saying is that THC can stay in your system for quite some time. So while they could maybe prove that they had smoked some marijuana or had THC in their system. They can't prove that they were impaired by that alone. So that's not going to cut it. They're going to have to come up with some test that's better than that. And right now I don't know what that will be.

Trevor: No it's really good. I'll go into a segue. So I'm a pharmacist. You know we we literally give people all sorts of stuff that are going to impair them. In theory there could be medicinal marijuana a year from now. What sort of. I tell people to you know be careful before operating heavy machinery with their medications all the time. You run into people who are you know taking their regular prescriptions gotten into trouble with the police by driving and. And these are thoughts you can pass back to the pharmacist. Don't do this because Aaron has seen this happen.

Aaron: Right well we always see those warning labels on the prescription bottles don't drive or operate the machinery after you've used it. And you know it's really up it's on them to to make sure that they're not impaired while they're driving. And from what I've seen it's not a defense to say that well the doctor said I prescribed me this because you know they should know that this is going to affect them in that way. You know in the same way that you know if someone has prescription pills and then they're taking more than they should and that's impairing them that's not an excuse it's not going to be a defense.

Kirk: Is are often people arrested for taking their pharmaceuticals and driving.

Aaron: I haven't seen it very often. I think the only I see it actually more often when people are arrested for breaching their bail conditions with a probation order that says they should not have any illegal drugs or prescription pills that they don't have a medication for. And sometimes they'll go and take a bunch even though they've been prescribed it. And you know the courts have said that well you know that's not OK. If you're taking more than your allotted prescription you're voluntarily you know making yourself impaired and that's a breach of your conditions. I haven't seen that as often with driving but I have seen I have seen cases where people were impaired by you know something other than alcohol or any illegal drugs and it was prescription and it really is the same result.

 

Kirk: It's interesting because as we know of. I mean as a pharmacist Trevor knows of people who will pick up or pick up their narcotics and I'm sure you've seen people go take one in the pharmacy you get a glass of water I'm sure because I see it in my practice someone will take a glass of water take their take their T-3 and walk out and get behind the wheel of a car and off they go and it's like what am I supposed to do with that information. Right. Because they're not supposed to be you know but yet it's prescribed. So now when we deal with when we deal with cannabis we're going to have medicinal cannabis and recreational camp. So if someone gets their their brownie or their you know medicinal and has a bite and goes for a drive hey it's prescribed I have pain. Is that a defense.

Aaron: Well it all. Now we have to remember that the offense is driving while impaired. So just because you've had a hit or had a little bit of brownie maybe you hadn't kicked in yet.  You the charge is driving while impaired. So if if you know say someone has a beer or two beers they're probably not impaired to the level. That's why we have it set at point zero eight. In the same way as you know.

Kirk: But a beer hasn't been prescribed.

Aaron: Right. I don't think it makes any difference at all whether it's been prescribed or not honestly. I think that if it's something that will affect your ability to drive in such a way that it becomes criminal. Well I think the there should be some kind of warning and often there is one would hope. But it's up to them. They're making that decision to take that pill and get behind the wheel.

Kirk: What do you think about these paraphernalia stores. How do they stay in business, I mean so I got I've got a store with water pipes and bongs and they're all and we all know intuitively that it's for cannabis. How did these how did these stores stay in. How did they get licensed. Can you speak to that at all.

Aaron: Well I think the key word is paraphernalia. They're not selling cannabis. They're selling. And like you said they're selling things that we all know that is likely to be used for cannabis. But you know they sell rolling papers and pipes that could be used for other things and I'm sure are used for other things sometimes. So when it comes down to it they're not selling any illegal substances. And I think that's really you know the gist of it it may seem sketchy they may be targeted by police more often because there's some things going on maybe they're selling out the back door or things like that.

Kirk: Right. Right.

Aaron: But what they're actually selling and what they're doing isn't illegal.

Kirk: So yeah. So it's a legit business but on the gray zone.

 

Kirk: Also come July 2nd. What advice do you give your clients like. I think one of the things I'm thinking about is that I may or may not have been an outlaw for the last 40 years but as of as of July 2nd Am I an early adopter. Right. So I guess the question I have for you is on my resume as a like what do you do from a.

Aaron [00:24:47] Yeah so you're talking about the difference between the law and the culture.  And and one has to catch up to the other and you know in some ways the law is catching up to culture but in some ways it's the other way around. There's still going to be going to be people who feel it's you know the people who use it are a different type and they don't approve of it.  So I would say you know it's really up to that person you know he's talking about a resume you know well what kind of place are you applying for. Is it some place that has traditionally frowned upon that sort of thing. Maybe don't talk about that party or life. I don't put on my resume that you know I enjoy a glass of bourbon it's not really anyone's business. But definitely it's something that you have to be aware of and still there's going to be quite a few people that don't approve. And in that sense it's going to have to catch up to the law.

Kirk: What was was the FBI agent from what was the FBI agent.  No the fella. What are you going to do. What are you going to do once. Prohibition is is over. He said I'm going to go have a drink. Ness Elliot Ness Elliot Ness. So I guess what's going to happen July 2nd we're all just going to go and roll up a spliff. I don't know. You want to speak on the stigma.

Aaron: I mean I think that the people who already use it are going to keep using it. The people who you know have never used it or don't use it maybe for other reasons besides the fact that it's illegal right now they're not really going to be you know jumping at the chance to go use it but there will be some people who are on the fence who said you know I enjoy it you know now and then and now that it's illegal it's a little more comfortable for me. It's a little more acceptable there maybe.  I always think that there's going to be a little bit going towards maybe this culture of connoisseur you know having different strains and things like that and it's actually I think it that will that's a positive thing because you see that with alcohol. You know you look at prohibition they were drinking the worst stuff.

Kirk: Bathtub Gin.

Aaron:  Exactly. And and now it's night and day. You know the world of wine and World of Beer and world of spirits. I think it's going to eventually become that way with with cannabis and I think that's a good thing.

Kirk: That's that's a really interesting comment. I just had a conversation with somebody today and they called it a budtender instead of a bartender and I thought isn't that interesting. We have a we have a new nomenclature. The budtender. So and you know when you start with resumes I mean at one point in a resume I did talk about you know sometimes they used to say talk about your hobbies or one of my business is brewing. I've been brewing for 35 35 years I've been creating my own alcohols. You know beer wine meads So come July 2nd does someone put on the resume well you know I've kind of been growing stuff from my basement for five years. So can someone be arrested for doing something five years ago when the law changes.

Aaron: No.

Kirk: No no no. All right. Very good. Any final words from you sir. What would you like people to know as a lawyer about cannabis. About the law. Anything.

Aaron: Well. Let's see. Just think for some.  Well I think that people have to remember that that there are still laws they've just changed. And I think it's moving in the right direction. I think that this cannabis coming into the foreground into light is going to eventually be a good thing. Things are going to have to catch up. The culture the way that it's enforced especially with driving impaired cases that's going to have to catch up. And I think that that it's now being legalized. It's almost the the kick in the pants that needs to focus on it because you know there hasn't really been a change in that for years. And I think now there's some there's a need to to really focus on that. Other than that I think people just need to be aware of what the law is and you know if they want to stay out of trouble with the law to follow that.

 

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