The Democratic Flower

A Conversation with Lawyer Caryma Sa’d

Interview By Chela Paulino 

In 2018, “Canada” legalized weed. It’s been a long road and many folks have different thoughts on how the market is being controlled, the lasting impacts of past criminalization, and the future of cannabis culture. One of the most important questions is around the legalities of cannabis consumption and how individuals navigate within this very new reality. Caryma Sa’d is a lawyer based out of Toronto who is passionate about cannabis law and the clients she represents. Chela Paulino, an editor with The Peak, took some time to sit down and discuss how the past, present, and future will be impacted by legal cannabis industries.

Can you introduce yourself and the type of legal work you do?

C: My name is Caryma Sa’d and I’m a lawyer who focuses on landlord-tenant and housing issues, criminal law, and cannabis law.

What drew you to start specializing in cannabis cases?

C: I’ve always been interested in the criminalization and regulation of cannabis. Throughout law school some of the most interesting cases were about people’s right to engage in an activity that was non-violent, not hurting others and yet there were serious consequences for growing and consuming. In many situations, there were charter arguments raised; and of course, I’m referring to the Charter of Rights and Freedoms which is part of our Constitution and certain rights were deemed to be infringed by the then-existing framework for cannabis. And from a civil liberties perspective, I thought that that was an interesting subject. When I finished my articling and was getting ready to be called to the bar and officially become a lawyer that was in 2016; and that summer Project Claudia was underway in Toronto. 

For those who don’t know — Project Claudia was an organized initiative by Toronto Police where all of these dispensaries that were operating without licenses. Project Claudia was a coordinated raid basically against all these dispensaries because at that time there were many many dispensaries in Toronto. It was kind of in-between when the Prime Minister announced that legalization was coming down the pipeline but nothing was finalized, many people jumped the gun or already had businesses that were aligned with that. Anyway, there was a day in Kensington market, I was sitting in a cafe and literally watching the raids take place. It occurred to me that it was unfair and this was an area of law [that is] emerging; there’s plenty of room and opportunity to shape the policy and for that reason, I decided to focus some of my attention.  I do practice not just criminal law but also housing. In that context, I deal with tenants who have prescriptions for medical cannabis and are getting push back from their landlord about growing or smoking; sometimes it’s purely recreation but there are again privacy and civil liberty interests at play depending on the lease. I also work with landlords who have problematic tenants who are not growing or consuming responsibly and I consult with condo boards on how to structure rules for condominiums. 

Can you describe how your work has shifted now that cannabis is legal?  

C:  I started practicing after my call to the bar and I didn’t take clients on until about 2017, so at that point, we were very close to legalization. In my observation, and it is kind of ironic, legalization in some ways has made things more difficult from that landscape I initially entered. When I started, if I was dealing with a dispensary raid, it would be relatively straightforward to get peace bonds — meaning the crown would drop the charge and the person would promise to the court that they would be on good behaviour for whatever set period of time. Now, there are minimum fines in the legislation, and in Ontario, the cannabis control act there is a $10,000 minimum [fine] whether you are the security guard outside or the person who is actually behind the counter regardless of how much control you have over the business. So, in some ways, it’s harder now and I think that’s surprising. I also know that there are people, specifically patients, who may have been growing or smoking in their units well before legalization under the radar, but with the proper authorization, and post-legalization landlords, some of them were quick to pass new rules and the same with condos. People were put in this awkward position of, “do I have to disclose my use? It’s not really anyone’s business.” And so legalization actually put more of a spotlight and undermined people’s rights, even though it was meant to have the opposite effect. I don’t mean to be a negative nancy about all of it, those are just instances that stand out to me because it’s sort of a counter-intuitive result. 

Historically, what has our society been taught about cannabis? 

C: The historic reference point is the reefer madness videos from the States in the 30s and “cannabis will make you lose” and “cannabis is going to…you’ll be crazy and you’ll start killing people” and all of these assertions that were totally not fact-based, divorced from reality but it was propaganda and it was effective propaganda. And it continued on with “this is your brain on drugs”, and a lot of the programming that we’ve received is: “you must abstain otherwise…this is a gateway drug and you’ll be doing heroin in the alley next”. And that’s not true, to the extent that cannabis is a gateway to harder drugs, I think that there’s probably a lot to do with it being illegal and therefore you’re already in a space that you’re more likely to have access to other illegal things versus something that’s inherent to cannabis itself. As a result of all this propaganda, I think there’s a lot of assumptions: ‘stoners are lazy’, ‘stoners are unproductive’, ‘they are good for nothing’, and it’s not the case. There are a lot of professionals who consume cannabis, there are people who work 9-5, who are stay at home parents, who are whatever else and contributing to society in their own ways. So I think as more people come out of the figurative “cannabis closet” so to speak, again that will affect chipping away at the stigma.

Why do you think cannabis has been criminalized so harshly in the past?

C: If you look at the history of drug prohibition, and this is not just Canada, it’s the States and also global — there are a lot of intersections with racist, sexist beliefs and thought patterns that resulted in the criminalization of cannabis. In part, it was a way to target certain demographics. Certainly in the U.S, we saw that prosecution for non-violent cannabis offenses was the entry point for many people into the criminal justice system. It was not a gateway drug to other drugs but rather a gateway into the custodial system. And it’s a pretty cynical perspective but I think that the records support the fact that politicians treated it harshly because it was a lever of power; I think that might be a way to put it. It is interesting because there are studies showing that even though the usage of cannabis was very similar between racial groups — I’m speaking specifically to Toronto but I think this pattern replicates itself more broadly. The people who were being criminalized the most tended to be black and poor or one or the other. So you know it really was a weapon wielded against more marginalized members of society and I don’t know that that was always a conscious decision on the part of prosecutors or police or politicians but that was the outcome and the effect. So, there is no good reason really, it’s not evidence-based policy, there is nothing to suggest that cannabis is a danger to public health in that it requires people to be put behind bars. I think you would find the opposite actually that putting people in prison for cannabis-related offenses actually is the harm, not the cannabis use itself.

We know that large numbers of Black, Brown, and Indigenous folks have been jailed for cannabis-related crimes. Oftentimes, they come out with a criminal record after these types of charges are laid. With the recent legalization of cannabis do you think we will see criminal records being removed?

C: There is some legislationin place to speed up the pardon process but only for certain types of cannabis offenses. So it’s a pretty narrow subset of people and has to be simple possession, pretty much, there might be a couple of other criteria but the point is that it’s not covering the whole scope of 500,000 Canadians or so who have a record. It’s still a very arduous process, you need to go to the courthouse, you need to get certain documents, and for anyone who is constrained by time or income that can be insurmountable.

Photo of Caryma Sa’d

I do hope that we will see records removed but I would prefer that the government opted for expungement. The difference between a pardon and expungement is with expungement the government is recognizing that this never should have been a crime in the first place, you never should have been prosecuted, and it allows the process to be more expedited. It takes some of the pressure off the individual accused or citizen and puts it back on the government [that’s what] I would like to see. There’s not really been the political will or drive for it so it’s organizations like Cannabis Amnesty that are pushing hard and I think that anything we can do to support those initiatives is a good thing.

Who does the gentrification of cannabis benefit? 

C: Primarily white men. If you look at the cannabis industry, you’re going to see it’s dominated by white men. Some of whom or many of whom have experience in other industries and are transitioning to the cannabis world but may lack the knowledge, insight, or cultural competence to deal with this plant and the target audience. It’s hard to say because cannabis is a pretty democratic flower and it’s not just one group of people who smoke or enjoy it. What we do see in some of the advertising, you know a replication of other industries or patterns where there is racism, sexism, whether it’s overt or more subtle. That has at least been my observation and it’s also important to note that at the higher levels of many of these cannabis companies or licensed producers or whatever other aspects of the industry, there are requirements for security clearances and you can’t have a criminal record. So it actually shuts out some of the legacy market participants who really played an important part in making cannabis legal in the first place. 

I think we do need to keep our eyes on where the money is going and where it’s coming from. And you will see that toward the end of 2019 and early 2020 the bubble has popped. So there was a point in time where people and investors were pouring money into these cannabis companies with the expectation of higher returns and instead we are seeing mass layoffs, we’re seeing losses, financial losses. So I think that hopefully, the market will regulate itself and that people who played a part in legalization or are new to the industry but a more diverse group of people, hopefully, there will be room for that innovation and reimagining the industry. 

Does the class system come into play with this new legalization of cannabis?

C: To enter the legal market, one needs to have access to a certain amount of capital if they’re planning to do it on their own or set up their own shop. And by that, I mean money from the bank or investors or whoever else to cover the costs associated with licensing, with purchasing equipment, with purchasing spaces, with legal fees. [So] if someone doesn’t have access to credit or is relatively low income and therefore [find it] difficult to get a loan, for sure there’s going to be a class element there. And that’s another good reason why we should be on guard for that sort of thing. There are jurisdictions that have created essentially equity programming where if you or someone in your family was affected by the war on drugs, you kind of get a fast pass into the system. For various reasons these initiatives have their own problems and are flawed perhaps in the execution but it’s not even something, we’ve turned our mind to in Canada. So I do think that to prevent the replication of unfair systems and to ensure that those who suffered the most under prohibition are given an opportunity to thrive under legalization there does need to be some level of intervention or programming in place to give a boost.

We know that for decades the assumption that cannabis is linked to criminal activity and deviance has been perpetuated in the media and reflected in our justice system. Does legalization change this assumption at all, do you think?

C: Stigma is much more deeply rooted than a simple change in law and we see that in municipalities. For example, [municipalities] are banning dispensaries, or banning people from smoking outdoors. So there is definitely still a mindset of “weed is bad”, and I don’t think that will change overnight.  Culture shifts generally, you know it takes time and there needs to be momentum. What I will say is that as we see an increase in the use of cannabis among baby boomers and older folks, I think that will chip away some of the stigma and the connection between criminality and cannabis. Again, it’s a chicken and egg scenario because you are associating it with criminal activity because it’s criminalized, not because of anything inherently wrong with the plant. And actually, if we’re really talking [about] criminality and drugs, alcohol is a huge driver. In all my time in criminal court, I’ve never heard an allegation of, “he was smoking cannabis and then punched his girlfriend and then robbed a bank, and then decided it was gonna be a good idea to start a bar fight whatever”. But alcohol fuels all sorts of stupid decisions. And I’m not suggesting that alcohol needs to now be prohibited; that we tried, it didn’t work. In fact, I would suggest that all drugs should be treated not as a criminal issue but a public health and wellness issue. It’s useless to keep drug users kind of ingrained in the system. Perhaps we need a different approach for the people who are actually in the higher levels of distribution of illegal drugs and naturally that results in serious criminal activity, but again only because the substance itself is illegal to obtain elsewhere. So it means that there isn’t enough incentive to take the risk or to do bad things to make more money. You can make more money because it can’t be acquired elsewhere. So I think that we really need to rethink how we treat drugs and the extent to which it is or is not appropriate to use the criminal justice system as a crutch. 

Chela Paulino is an artist
and community worker residing in Toronto’s Parkdale neighbourhood. Her writing began as an expressive outlet and turned into a full blown passion for poetry, music and the arts. A natural entrepreneur, Chela is developing creative therapy projects. She has dedicated herself to collaborating within communities that support vulnerable populations.