Public ban on smoking cannabis would lead to inequity, say experts

A ban on smoking cannabis in public would leave marginalized people with nowhere to light up without breaking the rules, making them vulnerable to being over-policed, say community workers and activists.

Quebec's law, enacted in June, does not ban smoking in all public places, leaving it up to municipalities to pass their own bylaws.

Public health agencies across the province have advised municipalities against creating more restrictive rules because, they say, that could lead to issues of social inequity.

But many cities and towns have adopted public smoking bans anyway — most notably, Montreal boroughs run by Ensemble Québec, Westmount, Hampstead, Quebec City and Sherbrooke. Laval has said it will eventually do the same.

And the CAQ government has signalled more than once that it plans to implement a similar, provincewide ban.

During the election campaign, François Legault said his government won't allow private cannabis cafés to open.

We don't want to make consumption of cannabis only possible for people who have a house and a big backyard.- Maxime Roy-Allard, spokesperson of tenants' rights group RCLALQ

Coupled with the fact that many landlords and condo associations are trying to ban cannabis smoking in their buildings, that leaves a wide swath of the population unable to smoke either at home or outside.

It may become an issue that will play out in the courts.

Different effects on different people

Léo Fugazza is a criminal defence lawyer and member of the Association des juristes progressistes, a group that looks at how the law can be used as a tool for progress.

Laws are, by definition, neutral, he said. They apply to everyone, everywhere, equally.

But a law that's neutral on paper has different effects on different people.

"If you allow people to do something, but in effect make regulations and put parameters in place that prevent a segment of the population that you're aware of to actually enjoy that right," Fugazza said, "... then you need to make sure your law is balanced."

Banning cannabis in public would exacerbate existing tendencies to over-police the homeless and youth — members of society who usually come under more scrutiny than others, he said.

And when it comes to the use of discretion, Fugazza said studies show police officers apply it unequally: people in marginalized communities tend to benefit less.

Fugazza said he believes that criminal defence lawyers will challenge a provincial law that bans public smoking of cannabis, if it comes to pass.

Concerns about profiling

Montreal police spokesperson Insp. André Durocher said that racial profiling isn't a concern because "everyone will be treated equally and that the law applies to everyone the same."

However, community organizer and activist Will Prosper, a former RCMP officer, said "of course" black people will face more consequences when it comes to legalization, because they already come into contact with police more often than their white counterparts.

"It's something we already face — consequences from being racially profiled," he said.

But Prosper said he hasn't seen any policy on racial profiling coming from the police.

He added he's worried about the urine samples police will collect as part of roadside tests for cannabis impairment and whether DNA will be kept in some kind of database.

Matthew Pearce, president and CEO of the Old Brewery Mission, said homeless people are at a heightened risk of being stopped for loitering, jaywalking and other less serious infractions.

The shelter won't allow clients to consume cannabis or any drugs or alcohol inside the shelter, but they are served even if they are intoxicated.

Under the current version of the provincial law, the right to smoke weed in public means there is one less thing they have to worry about.

If the CAQ goes ahead with its plan to change the law, Pearce said he believes it will be hard to enforce a ban across the board, not just for the homeless.

"The government has to think twice about trying to control something they really are going to be unable to control," he said.

Pearce said homeless people are unable to pay the tickets they receive, which creates other challenges down the line.

The mission helps its clients rent social housing units, for example, but those with outstanding debts aren't eligible for the rent subsidies.

The Office municipal d'habitation de Montréal (OMHM) hasn't yet revealed whether residents will be able to use cannabis in their units.

Pearce said he is in favour of a minimum of regulations, so that people trying to get into social housing can become "fully realized citizens."

Renters will be penalized, rights group says

The current law gives landlords 90 days to change the conditions of an existing lease to ban smoking cannabis. Landlords in Quebec have already started taking steps to ensure smoking pot will be banned in rental properties.

Those bans can be contested, according to lawyer Jamie Benizri, but it's unclear how long those cases will take to be heard.

Maxime Roy-Allard, spokesperson for the tenants' rights group RCLALQ, said if smoking is banned in public, as well, that creates a problem because 40 per cent of Quebecers are renters.

"We hope that renters won't be the only people penalized in all this. We don't want to make consumption of cannabis only possible for people who have a house and a big backyard."

Tenants who want to smoke weed would be forced to either break the rules and smoke indoors, or break the law and smoke outdoors.

His group is in favour of having the Régie de logement deal with disagreements on a case-by-case basis, instead of a blanket prohibition which, he says, penalizes everyone.

Ethical dilemma

In his examination of the ethical issues at play in legalizing cannabis, Michel Désy, an ethics advisor at the Institut national de santé publique du Québec, looks at equity in terms of the principles of beneficence and non-maleficence.

Beneficence refers to actions that promote the well-being of others — in this case, making it so that people don't come into contact with cannabis smoke.

Non-maleficence is avoiding actions that harm others — for example, diminishing the negative aspects of the rules, bylaws and laws so that everyone can smoke cannabis if they want to.

"These values are in tension right now, we can't have one without trampling the other," he explained.

The obvious solution, said Désy, is for lawmakers to rethink outright bans on cannabis smoking.

He says an alternative would be to allow cannabis cafés — an option that Legault has already vetoed and one that might, in any case, create a conflict with the province's tobacco law.

With files from CBC Montreal's Daybreak