Toward the legalization, regulation and restriction of access to marijuana: Discussion paper – 3.4 Enforcing public safety and protection
- 2. Background
- 3. Discussion Issues: Elements of a New System
- 3.1 Minimizing harms of use
- 3.2 Establishing a Safe and Responsible Production System
- 3.3 Designing an appropriate distribution system
- 3.4 Enforcing public safety and protection
- 3.5 Accessing Marijuana for Medical Purposes
- 4. Conclusion and References
3.4 Enforcing public safety and protection
Establishing a successful legalization regime will require a clear and robust legislative and regulatory framework. Law enforcement will also need to explore their role, and develop policy, training and practices. This will need to be coupled with appropriate actions to enforce measures outlined in the new regime and to deal with those who operate outside of it if the objectives detailed earlier in this paper are to be achieved.
As the experiences of other jurisdictions and of the regulation of alcohol and tobacco in Canada have shown, regulating a substance does not automatically remove it from illicit markets (e.g., contraband tobacco). In fact, experiences to date in Colorado confirm the need for consistent enforcement of regulations, and investing in the development of new policies, training and tools for those responsible for enforcement. Among other objectives, this can help to prevent and address impaired driving and diversion to youth, control the black market, and deal with associated crimes.
In designing the new system for legal access, close consideration must be given to new or strengthened sanctions for those who act outside the boundaries of the new system. For example, new laws may be necessary to punish those who sell to minors. Also, vigilant enforcement as well as new or strengthened laws, at the federal, provincial or territorial, or local level, may be needed to consistently protect public and individual health and safety by addressing:
- concerns regarding the location of production or distribution sites;
- hours of operation;
- density or overall number of producers and/or retailers; and,
- consumption of marijuana outside of personal dwellings (e.g., public space).
The law enforcement community will be responsible for enforcing the laws that support the new regime. If the regime (e.g., production, distribution, taxation, consumer access, etc.) is too complex or onerous for enforcement and legal production and access, there will be opportunities for organized crime to satisfy the demand through the illicit market.
While one of the objectives of legalization is to keep profits out of the hands of criminals, organized crime groups and networks currently entrenched in the Canadian illicit marijuana market may continue to produce and distribute marijuana outside of the new regime if there is profit to be made. There may be risk of theft and the diversion of marijuana from the legitimate supply chain. There are a number of other scenarios and challenges related to organized crime that will need to be minimized in a legalized system. Discussions with key law enforcement stakeholders will be essential.
Another central objective is the need to guard against marijuana-impaired driving. Driving while impaired by alcohol and/or drugs, including marijuana, is an offence under the Criminal Code of Canada. Impaired driving continues to kill and injure more Canadians than any other crime. Marijuana impairs a number of brain functions needed for safe driving such as coordination, judgement of distances, reaction time, and ability to pay attention. Marijuana is second to alcohol as the drug most frequently found among drivers involved in crashes and drivers charged with impaired driving, and among seriously injured drivers. Marijuana and alcohol are also among the most frequently occurring alcohol-drug combinations.
In contrast to alcohol, there is currently no roadside "breathalyzer"-type test to detect impairment with marijuana. However, roadside oral fluid tests are being used in other jurisdictions that can detect the presence of marijuana in oral fluid which can be suggestive of recent use. This is an active area of Canadian and international research.
The development of tools, training and forensic laboratory capacity would be required for the Canadian law enforcement community to mitigate any potential increase in drug-impaired driving related to legalization of marijuana. For example, the government could establish an offence of driving while having a specified concentration of THC in the blood, similar to the offence of driving with a blood alcohol level at or above the legal limit and/or it could authorize roadside oral fluid screening devices for THC.
- Strengthened laws and appropriate enforcement response: Establishing a successful legalization regime will require the strengthening of laws that will minimize or eliminate criminal involvement. It could also require the strengthening of laws to punish those who choose to operate outside of its parameters, including those who provide marijuana to youth or produce or traffic marijuana outside of the new regulated framework, and move it across Canadian borders.
- Enforcement tools for marijuana-impaired driving: There is a need and opportunity for Canada to research, develop, test, train and promote technologies and related guidelines and protocols that can equip law enforcement to deal with possible increased rates of impaired driving, particularly for roadside testing of impairment. This should be complemented by public education campaigns that emphasize risks associated with drug-impaired driving and that advocate preventive measures, as is the case for drinking and driving.
- Restriction of consumption to the home or a limited number of well-regulated publicly-accessible sites: Consumption of marijuana could be restricted to private residences. However, the system may need to be pragmatic to respond to the demand for venues to consume marijuana outside the home in order to avoid proliferation of consumption in all public spaces. Consideration could be given to identifying—and strictly limiting and controlling—allowable sites for use by adults. This could serve to minimize normalization of marijuana and protect against the exposure of non-users to second-hand smoke and vapours. In addition, consideration will need to be given to the use of marijuana in workplaces. For example, a zero tolerance policy could be applied for those who operate heavy machinery or conveyances.
- How should governments approach designing laws that will reduce, eliminate and punish those who operate outside the boundaries of the new legal system for marijuana?
- What specific tools, training and guidelines will be most effective in supporting enforcement measures to protect public health and safety, particularly for impaired driving?
- Should consumption of marijuana be allowed in any publicly-accessible spaces outside the home? Under what conditions and circumstances?
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