Despite looming legalization, cannabis possession charges remain a reality

An Edmonton man says a recent cannabis possession charge has put his business in jeopardy and left him frustrated with the state of the justice system in advance of legalization.

Roman Lyubashenko said he was cruising the Anthony Henday Drive the morning of March 14 when he was pulled over by a Sherwood Park RCMP officer for having tinted windows.

While speaking with him, the officer noticed cannabis residue on his centre console. The officer asked him if he had a medicinal licence or any cannabis in the vehicle. Lyubashenko, who said he doesn't smoke marijuana but has friends who do, told the officer he wasn't sure. The officer arrested him, Lyubashenko said.

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While Lyubashenko was in the back of the police cruiser, the officer found a small bag of cannabis in his car. He was charged with possession of marijuana under 30 grams, and released on a promise to appear in court.

At the time, Lyubashenko thought it was a joke.

"I was calm," he said. "I was sure that it was funny, due to the circumstances, how it's going to be legalized. I thought it was a silly situation. But now I have to go to court. And [a] chance of getting a criminal record for something that is so common in this country."

Lyubashenko said the amount of cannabis found in his vehicle was less than two grams, though the RCMP officer documented the amount as 13 grams. He never thought someone could potentially get a criminal record for possessing a small amount, especially when the drug is expected to be legalized as early as this summer. 

He is starting up a custom car styling business and is concerned the charge could result in a criminal record, which would jeopardize his ability to travel to the U.S. for trade shows to boost his business. 

'It is still illegal'

RCMP Cpl. Laurel Scott said despite the impending legislation, the law remains clear.

"It is still illegal to possess marijuana," she said. 

"Our job is not to question, anticipate legislation, anything like that. It's just to say, 'What is the current legislation? Do we have the grounds and authority to lay these charges?' The answer is yes."

In a statement to CBC News, the Edmonton Police Service confirmed it continues to enforce cannabis-related laws, and that its enforcement practices will change once legalization happens.

The fact that possession charges continue to be laid by police is a frustrating and confusing reality for those charged, and for legal professionals who deal with them.

Edmonton criminal defence lawyer Brian Hurley said the penalty for possessing a small amount of cannabis is typically a fine. But it's still a criminal charge, and a conviction leads to a permanent criminal record. A criminal record can impact job prospects and prohibit someone from travelling to many countries, including the United States. 

Alberta has a high rate of prosecution for simple possession compared to the rest of the country, Hurley said. In his practice, he said he has seen no significant decline in the number of possession charges laid since the government announced impending legalization.

"How law enforcement chooses to spend their dollar and enforce laws is sometimes a little curious," he said. "And this marijuana thing is certainly very curious."

It makes me feel like the justice system is inefficient.- Roman Lyubashenko

Once cannabis is legalized, questions remain around whether criminal records for possession will be wiped, Hurley said. 

Hurley's advice for anyone charged recently with cannabis possession is to ensure their case goes to trial.

"Your trial will be after July 1, and hopefully after legalization, whenever that occurs," he said. "You would have a very strong argument that if this conduct is now legal, you can't be punished for something that is now legal."

Lyubashenko is due to appear in court on June 6.

He said at this point the justice system should be focused on punishing distributors instead of users.

"It makes me feel like the justice system is inefficient," he said.

"I'm going to let it be. If they think that it's fair for me to get a criminal record for a gram and a half of weed, they can do it."