Gray area for anyone charged as Ottawa moves to legalize pot

VANCOUVER (NEWS 1130) – We know pot will soon be legal, but anyone charged in the meantime can still be punished. Legal experts say the law of the day of the charge stands.

Anyone can still be charged with possession up until the bill legalizing non-medicinal use of the drug is signed into law, which the federal government claims will be sometime next spring. However, police, prosecutors and judges have some discretion.

NEWS1130 Legal Analyst Michael Shapray says how each individual case is handled will likely be different.

“The issue becomes whether or not there will be a discretion exercised by federal prosecutors to continue prosecutions for simple possession of marijuana or potentially not to continue those prosecutions. And then of course issues on sentencing may become a big issue because of changes in the law and it may seem odd for a judge to sentence somebody for possession when it is now legal.”

Marijuana activists have called for a moratorium on pot related arrests while the new law is developed.

UBC creates marijuana breathalyzer

Researchers at UBC have developed a cheap, portable breathalyzer that will be able to tell if someone has been smoking pot before getting behind the wheel. But there are still some hurdles to clear before the device is in the hands of police.

The units are expected to cost around $1,500, but it’s not as simple as just buying and distributing them says Shapray.

He draws a parallel between the new devices and roadside alcohol breathalyzers. “[Alcohol breathalyzer] are not admissible in court to prove anything. They are used by the police as a screening device and a screening tool but they are still not, even after this many years of being developed, admissible in a court room to prove something.”

He could see the new devices filling a similar role, leading to roadside suspensions or further investigation but there would have to be changes before that.

“If it was going to be something used by the police to enforce the Motor Vehicle Act, we would have to see changes to provincial legislation. If it had broader use across Canada and was something that could be used for criminal investigations, then we would see changes to the Criminal Code that would permit for demands to be made for samples to be provided into these particular devices. And these devices would have to be listed in the Criminal Code as being approved,” says Shapray.

But he doubts they would get that far. Shapray says it would also take time to get them on the road and they could then face legal challenges.