The government of New Brunswick has recently introduced its provincial legislation for legal marijuana, and its policies are raising eyebrows. The new regulations provide for sale, public use, the legal age of consumption, and something not seen yet in the country: mandatory storage in a locked container in their home. Many are asking about the merit of this last provision and if it is even possible to enforce it.
The Cannabis Control Act states that “no person shall store cannabis in a private dwelling unless the cannabis is stored in a secure space that is inaccessible to a person under 19 years of age”. Regarding how enforcement will play out, the act gives inspectors (appointed by the minister of health) powers to enter any place to make examinations or inquiries and conduct any tests that the inspector feels necessary. The provision explicitly excludes private homes from being subjected to this power, however, so you do not have to worry about a person in a suit demanding to enter your home and view your stash anytime soon. Still, governments should not tell people how to manage their private households. This regulation seems to analogize marijuana to a substance that is far more dangerous than it is. You do not have to keep alcohol, prescription medications, or cleaning supplies under lock and key, so why cannabis?
“For people here in New Brunswick who have guns in their houses, it’s locked. It’s their responsibility. This will be the same thing,” – Dennis Landry (Minister of Justice & Public Safety)
The Act does seem to give Inspectors broad search and seizure powers for places of sale. Inspections can be carried out without a warrant and warrants can even be applied for retroactively if needed. Broad government powers have historically opened the door for injustice and civil liberties abuses, and one could imagine private dispensary owners may be looking at this legislation with unease. The province will have their stake in the retail marijuana market, setting up stand-alone shops through NB Liquor. Hopefully, this government interest will not lead to disproportionate enforcement and inspections on privately run dispensaries in the province.
The province will also be amending the provincial Motor Vehicle Act in time for legalization. Now drivers suspected of being under the influence of marijuana will face a three-step test to determine their intoxication level. The first step involves the usage of a saliva testing device that measures THC levels. New Brunswick is not alone in their proposition of this testing device, following the lead of seven other jurisdictions that have tested similar devices. The government has also provided extra training for officers to detect cannabis impairment and will offer further training if needed. The penalties from cannabis-impaired driving will be severe under new federal legislation, with sentences ranging from fines to 10 years in jail where there are findings of significant amounts of THC in a person’s blood (life imprisonment if a person is injured or killed).
Saliva testing has been criticized as being wildly unreliable because the remnants of THC can remain in anyone’s system for up to 30 days. Drug-recognition experts, who can supposedly spot tell-tale signs of impairment are also suspect. Many natural causes could lead to a person’s eyes becoming red, or their pupils dilating. Barring some strong odor of marijuana, one could envision a situation where an otherwise law-abiding citizen may look stoned while driving a vehicle. Imagine being stopped, and an officer notices red eyes because of a sneezing or coughing fit. That person can then be forced to give bodily fluids, which Canadian courts have held holds a high reasonable expectation of privacy! If that person (who for this hypothetical sober at the time of the stop) indulged in recreational marijuana use anytime in the last month, they may fail the test, be placed under arrest, and possibly lose their liberty! With marijuana inching closer towards legalization, it would seem that the provincial government must come up with a more reliable testing method or will run the risk of violating the fundamental civil liberties interests of ordinary citizens.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.