FILE PHOTO - Growing this greenery outdoors is a risk, according to Paul Doroshenko. He says the recent Revelstoke raid was due to lack of clarity in provincial legislation.
Image Credit: THE CANADIAN PRESS/AP/Andrew Selsky
August 11, 2019 - 6:00 AM
KAMLOOPS - A Revelstoke garden tour that led to the seizure of three marijuana plants may spark changes in provincial cannabis legislation.
When an off duty RCMP officer went on a garden tour at Anna Minten's, he took note of the three pot-plants he saw in her garden and brought the information back to the station. Due to the fact marijuana plants can’t be growing within public view, the incident led to a raid of Minten’s home and seizure of the plants.
Paul Doroshenko, a criminal defence lawyer in Vancouver, says this is the first time he's heard of any such action being taken upon the discovery of cannabis plants. He believes that this incident is the first which will bring awareness and legislative change to the grey areas on cannabis law.
READ MORE: BACKYARD POT PLANTS BECOMING THE NEW TREND IN GARDENING
“We've got this definition of ‘from public view,’” Doroshenko says. “How is that going to be defined? Does that require a legislative change to clarify it, or will it be something that the court has to deal with? Then you think of all of the people who will grind through the wheel of justice while they figure that out.”
According to Doroshenko, the issue lies in the definition of ‘public view.’
Doroshenko says that public view could potentially be stretched to include someone seeing the plants from an unusual viewpoint or a neighbour peeping in with intention. He also points out the confusion around who is defined as the public, such as in this scenario where the RCMP officer purchased a ticket and was invited to view her garden.
“Growing it in your backyard is a risky thing, somebody can view it from an airplane flying over and the next thing you know the RCMP might be getting a warrant and coming over to your property, and that's a concern we didn't think would be a concern,” Doroshenko says.
Doroshenko says that many people have been left questioning the role of the RCMP in such a situation. According to Doroshenko, not only was the raid of her home a bit much, but the RCMP might not be the proper unit to handle such cannabis issues.
Doroshenko says the Community Safety Unit was originally tasked to handle cannabis issues, but they have instead focused on shutting down unregistered dispensaries.
“So the RCMP are basically tasked with this and have decided I guess, in this case, that they were going to take the harshest of harsh action and it's quite surprising to me,” Doroshenko says. “Why not knock on the door?”
Doroshenko believes that the provincial regulations regarding federal legislation create many grey areas for law enforcement and the public to navigate.
“My understanding was that they were going to be there to regulate and give people a warning before they do something rather than just coming down hard on enforcement,” Doroshenko says. “We’re still early on in the world of legalization and you are lawfully entitled to have these plants. You've got to set the moral panic aside that we've had for generations.”
Cpl. Chris Manseau with the RCMP says that training had been done and is still available to RCMP officers, but says that legalization has been a learning curve for the organization.
“Legalization was a big change for a lot of members who for many, many years, myself included, executed many search warrants where they produce cannabis,” Manseau says. “Going from that to being allowed to possess has really had to change the mindset on members and what our grounds were.”
Manseau says that the change in legislation has forced members of the unit to take on a different approach for issues they've dealt with in the same way for years. According to Manseau, continuous training during the transitional period is much needed.
“As things change, we have to be open to new changes. We can’t be using techniques and old theories that we used prior to legalization when that's obviously not appropriate or accurate anymore,” Manseau says.
Both Manseau and Doroshenko have not heard of any other outdoor pot plant seizures in the province. Doroshenko believes this incident will serve as a warning to cannabis consumers and reminds people that until legislative change on procedures is put into place, other gardeners may face the same fate.
“Take a lesson from these people in Revelstoke, not all RCMP officers are going to exercise discretion in those cases. They see what they conclude is an offence being committed and they may just decide to proceed,” Doroshenko says. “Whether or not that would hold up when a tribunal or a court looks at it, I don’t know.”
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