Criminal Law

Neuberger urges police discretion in period of marijuana transition

By Staff

Police should use discretion with members of the public as they become accustomed to new laws surrounding marijuana possession, Toronto criminal lawyer Joseph Neuberger writes in The Lawyer’s Daily.

Neuberger, a partner with Neuberger & Partners LLP, tells the online publication that there are bound to be misunderstandings over such things as how police will determine the weight of marijuana in a person’s possession and how they handle those with medical authorizations for the substance.

“It is a time of transition where discretion is the best approach for police dealing with the public,” he writes.

Since Oct. 17, Canadians have been allowed to possess 30 grams of marijuana legally. However, those carrying even a small amount over the legal limit could face arrest, prosecution, and a possible criminal record, Neuberger warns.

“There is also a challenge that police and the public face with regard to the weight of marijuana as there is a difference between fresh marijuana and dry marijuana.

“Fresh marijuana will have greater weight, even though once dried it can weigh 30 grams or less. People who purchase and carry marijuana on their person must be careful to ensure that they are in possession of no more than 30 grams,” he writes.

Neuberger says the issue of medical marijuana possession could also cause some confusion, particularly for those with medical authorizations who are “caught or stopped in vehicles with amounts in excess of 30 grams even though their particular authorization may greatly exceed the current limit.

“The next few months to a year should result in greater discretion of police and prosecuting authorities to allow the public to fully understand the limits, permissible instances of being in possession, and have a protocol of those who possess medical authorizations,” he writes in The Lawyer’s Daily.

Neuberger also references a Whitby driver who was charged with possession for the purpose of trafficking after he was stopped by Ontario Provincial Police for speeding on Highway 401 near Napanee.

Police observed garbage bags in the rear of the vehicle, and a subsequent search uncovered 44 kilograms of marijuana, Neuberger says.

“There may be a valid Charter issue regarding the lawfulness of the search that arose from a simple speeding stop, given the observations of the officers and their grounds to conduct a search of the vehicle,” Neuberger writes. “The presence of garbage bags in and of itself may be an insufficient basis to conduct a search of the vehicle and its trunk. The bags could have been filled with old clothing that was destined to be donated.

“That being said, Canadians must understand that the new regime in place after legalization of possession of marijuana has resulted in increased sentences and government enthusiasm for increased policing.”

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