'Completely absurd': Lawyers doubt clout of pending pot regulations

Some criminal lawyers say the strict regulations around recreational marijuana proposed by the New Brunswick government might not stand up in court, or even be enforceable.

The proposed regulations include a requirement for marijuana users to store their pot in a locked container in their home, a rule that Ottawa-based criminal defence lawyer Michael Spratt called "completely absurd."

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Spratt is a partner at Abergel Goldstein & Partners and has testified before parliamentary committees on the federal government's marijuana legislation.

"It represents an myopic and outdated thinking that has characterized the war on drugs that has been unsuccessful for the last 100 years," he said.  

"There is no reason, at all, to require someone to lock their marijuana away, as they would a firearm, when marijuana is no more dangerous and no more accessible than alcohol."

He said the law is likely completely unenforceable, unless the New Brunswick government plans to embark on a campaign to tell people to lock up their weed.

Test called into question

The province also announced they plan to amend the Motor Vehicle Act to create a three-step test for drivers, with the first step involving a device that measures THC levels through a saliva test. 

Alcohol makes you do things that you regret in the morning. Marijuana makes you waste the entire evening watching the Little Rascals.- David Lutz, criminal defence lawyer 

Some critics have said the test is unreliable because THC can show up in the body for weeks after cannabis use.

Gilles Lemieux, a criminal defence lawyer based in Saint-Antoine, N.B., said he wasn't sure how reliable that kind of testing would be in court, because finding THC in someone's system is not an automatic indication of intoxication.

"I really don't think it will lead to convictions. There will be too much doubt," he said.

"Just simple pot in system, I don't think is anywhere near the evidentiary criteria to convict somebody [of impaired driving] under the Criminal Code."  

Few impaired cases involve marijuana

But Hampton-based lawyer David Lutz, who served as a federal prosecutor in Saint John for nearly 20 years, said in his experience with impaired driving charges, the evidence that kind of technology would present might not even be necessary to get a conviction.

"I've done probably, over my career, at least 1,500 impaired driving convictions," he said.

"Most of the time, you don't even need the breathalyzer. All you need is the officer saying, 'This is what I observed.'"

However, he added that in his five-decade career, he has seen relatively few people wind up in court for driving recklessly while under the influence of marijuana.

"The fortunate thing about weed, most people who smoke marijuana don't go very far. They stay at home, listen to music or eat peanut butter and jelly sandwiches, from what I've read," he said.

"Alcohol makes you do things that you regret in the morning. Marijuana makes you waste the entire evening watching the Little Rascals."

The province is holding a technical briefing outlining the details of the new legislation on Thursday afternoon.