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Canadian cannabis, American enforcement

As Canada readies for weed legalization, the RCMP is spending millions training drug experts at the infamous Arizona jail once ruled by sheriff Joe Arpaio. Here's why this should come as no surprise.

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When Halifax council approved the city's new cannabis bylaw last week, the reaction was understandably fierce. Smoking is now illegal outside. It's also illegal inside. What was presented by HRM as a sensible first approach to dealing with cannabis legalization has, instead, been condemned for its potential for abuse.

It's almost a foregone conclusion this policy will be used by authorities to target the poor, racial minorities and every other community with a history of mistreatment by law enforcement.

Halifax is not alone in taking a sledgehammer to try and impose some order on the federal government's cannabis chaos. Courts and police departments across the country are all scrambling to create a new equilibrium come October 17.

Nowhere is that enforcement more blatant in its symbolism than Canada's new drug recognition experts.

The RCMP and the country's municipal police departments have spent millions of dollars training a new army of officers to recognize impaired drivers under the influence of cannabis or other controlled substances besides alcohol. It's a strategy built on the backs of inmates held at the most notorious jail in North America.

Hundreds of Canadian cops have been awarded their drug recognition certification after testing remand prisoners in Maricopa County—the infamous sheriff's office run for over two decades by Joe Arpaio.

Arpaio's frequent and flagrant civil rights abuses were detailed in a fiery 2011 investigation by the United States department of justice. Its findings of racism, incompetence, physical and psychological abuse proudly displayed by Maricopa County's law enforcement officials caused the Royal Canadian Mounted Police to suspend its DRE training the following year.

Two years later, the program was quietly reinstated.

Spokesperson Tania Vaughan tells The Coast that "the RCMP remains confident that Canadian police officers are training in an environment that adheres to the core values of the RCMP."

No doubt.

For decades the prohibition on cannabis enabled, enhanced and excited a policing framework that criminalized cannabis smokers to radical extremes. Why should we expect that to change just because the drug is suddenly legal?

Maricopa sits across the border and about 5,300 kilometres southwest of Nova Scotia. The sprawling south-central Arizona county is home to the city of Phoenix, and about 3.8 million residents. Its sheriff's office—the largest in the state—handles law enforcement in the unincorporated areas and runs the five county jails that were, until recently, overseen by a man who liked to call himself "America's toughest sheriff."

For police across the continent, Maricopa is also a supermarket. Everyone goes here. It's the leading drug recognition expert certification site in North America. The sheer volume of prisoners booked on drug offences makes for a convenient sample size, especially for Canadian police under fierce pressure to be ready for legalization.

Canada has a target of 2,000 trained DRE officers come October 17, but the Canadian Association of Chiefs of Police said earlier this month it's unlikely to reach that goal. Only 825 active police have their certification—65 in Nova Scotia. At current rates, the CACP says it will take another five years to hit 2,000.

The problem is numbers. The battalion of officers in need of training requires more incarcerated drug users than are currently locked up in Canada. There are three DRE field certification sites nationwide—Vancouver, Winnipeg and Montreal—which "supplement" the training offered in the United States, and the RCMP is trying to secure more.

But drug recognition candidates need to evaluate at least six individuals for impairment—correctly identifying which drugs at least three of those subjects are under the influence of—and witness another six evaluations by their classmates before receiving their certification.

Each training class contains between 20 and 24 police officers, necessitating hundreds of different drug users rounded up and ready to be inspected by DRE cadets. It's just easier to buy in bulk.

"As a result, DRE field certifications training primarily occurs in Jacksonville, Florida and Phoenix, Arizona, where there is a greater volume of drug-impaired volunteers and diversity of drugs," writes Vaughan.

So Canadian police officers receive their training, experience and attitude from our neighbours to the south who have a long, shocking record of civil rights abuses.

"It's certainly a concern," says Rob de Luca, director with the Canadian Civil Liberties Association.

Being aware of abuse happening in a foreign jail is difficult when you're a country away. At the very least, says de Luca, this sort of training needs to be done in Canada, where we have control and oversight. The price tag might be greater, but the cost isn't nearly as high.

"Any sort of small dollar saving doesn't justify the potential erosion and protection of our Charter rights and those of the US citizens or other residents who might be somehow involved with this program," he says. "We've had the time and capacity to develop internal resources so that we're not subject to these kind of dangers of getting involved with a police force that might have their own oversight and accountability issues and human rights abuses."

Canada's police departments seem to be in agreement. The association of police chiefs told a House of Commons committee last fall it would be better for Canadian officers to train here at home, since the American courses are in such high demand.

Bear in mind that Maricopa County is a hotbed of DRE training, at least in part, because of the factory system set up to arrest and monetize prisoners at the expense of humanity.

The fault for that goes to Joe Arpaio. For 24 years the sheriff ruled with terror.

Under his order, inmates—most of whom had yet to face trial, many who were later found to be arrested illegally—were regularly humiliated and dehumanized. They were fed spoiled food, made to wear pink underwear and broadcast to the public through an online "jail cam."

Many lived outside, in extreme temperatures, as part of a concentration camp-esque facility dubbed Tent City.

While the sheriff's office was busy locking up and abusing its prisoners, violent crime soared and a record number of sexual assaults went without investigation.

After years of complaints, the US department of justice's civil rights division opened an inquiry in 2010 to investigate all the allegations of racism and abuse of power. The sheriff's office refused to co-operate.

It was found to be the most egregious case of racial profiling ever seen in the United States. The inquiry documented a blatant pattern of discrimination and a "systemic disregard" for America's beloved constitution.

Arizona's lower courts would also find that Arpaio and his deputy sheriff "defied and even mocked" a court order requiring the sheriff's office to stop singling out Latino residents during traffic stops and workplace raids. In response, Arpaio launched his own investigation into the judge and the department of justice for engaging in what he felt was a conspiracy against him.

The sheriff was eventually convicted for criminal contempt of court. "Sheriff Joe" was pardoned last year by president Donald Trump.

Following the DOJ report and facing public scrutiny, the RCMP suspended its DRE training at Maricopa County in early 2012. But after reviewing the findings, conducting a site visit and interviewing the sheriff's office management, the Mounties decided to reinstate the program.

"An examination of the policies and practices in place at MCSO facilities indicated all subjects involved in the DRE program are dealt with in a respectful, professional and human manner by MCSO staff and DRE students," writes RCMP spokesperson Vaughan via email. "The RCMP is satisfied that litigation against the MCSO, at the time, was not associated with the DRE program."

That assessment of conditions is "fair," based on what Phoenix lawyer Michael Manning has seen. He doesn't believe any DRE test subjects were among the abused prisoners under Arpaio's watch.

Manning has fought multiple lawsuits against both Arpaio and the county sheriff's office, including an $8.25 million settlement he won in the wrongful death of Scott Norberg (killed in a struggle with jail guards) and an undisclosed settlement for the family of Carol Gotbaum (who died handcuffed to a bench and left unsupervised in a holding cell).

Things have changed since Arpaio's time, according to the lawyer. Sheriff Paul Penzone, who took over when Arpaio left in 2016, has removed all the old political patronages and created a sea change in the department. When mistakes happen now, they're promptly investigated and the results are quickly released to the public.

"It's evident to anyone who's walked through it, and I have," says Manning. "The place is like new in every important law enforcement respect."

One of the first actions Penzone took was to immediately announce the closure of Tent City, which the new sheriff decried as neither a crime deterrent nor cost-efficient. The camp, which cost $9 million US each year to operate, was finally shuttered last fall.

It wasn't the only cost that Maricopa had to pay for Arpaio's abuse of power. During his time in office, the county gave out over $43 million in lawsuit settlements. County officials recently set aside close to $30 million for body cameras, new personnel and a court-monitor position—all to meet a district court order's requirements to rid the department of its discriminatory policing.

Penzone's office didn't respond to requests for comment, and Manning had no idea how much the sheriff's department receives for facilitating the majority of Canada's DRE training. But given the financial penalties Maricopa has been hit with, it would be a safe guess that any outside money would be welcome.

It costs a Canadian police department between $6,000 and $8,000 to train a single drug recognition expert. The money goes towards travel, accommodation and per diem allowance. The RCMP pitches in to cover the program costs, which come to $40,000 for a class of 24 candidates.

Since its inception in 1995, the DRE program has trained about 1,800 officers throughout Canada. Only 825 of those are on active duty. Due to attrition rates and "stringent recertification requirements" by the International Association of Chiefs of Police, it's challenging to maintain DRE levels, says the RCMP.

The rush to boost those numbers before legalization is motivated as much by practical concerns as public relations.

Last month, the federal government approved overhauls to Canada's driving laws that impose fines of up to $1,000 for any driver found with between two to five nanograms of THC in their blood. Jail time and harsher penalties are doled out for anyone driving over five nanograms.

It's an automatic charge, without any need to prove actual impairment.

But the Criminal Code also requires a drug test to be completed within three hours of someone exiting their vehicle. A field sobriety test can take anywhere between 30 minutes to an hour.

All of which means a plethora of DRE-certified officers is needed, adequately dispersed throughout the country, to ensure drug tests can be made within that narrow window of time.

One of the major reasons for moving the cannabis legalization date from the original July to later this October was to allow more time for police departments to prepare and bump up those DRE numbers. Last year, the RCMP was allotted $1.67 million from the feds for DRE training. But even that's not enough, given the slow rate of certification.

Policing is expected to be one of the largest ongoing cannabis costs for cities and provinces come October 17. Halifax city hall is anticipating to spend $3 million annually on any and all cannabis matters related to municipal operations. A third of that is earmarked for police.

So far over $6.5 million has already been spent nationally on DRE courses. Halifax alone has spent over $100,000 to fly 15 of its officers down to Jacksonville, Florida for certification.

Jacksonville, it's worth mentioning, is a smaller training ground compared to Maricopa and different in several respects when it comes to DRE certification.

There are no "temporarily incarcerated" remand prisoners used as volunteers like in Arizona. Jacksonville social service workers recruit individuals off the street and pay them for their time. The random subjects are paid between $10 and $40 US—depending on level of impairment—to take part in the 90-minute field sobriety tests.

Afterward, participants can either leave on their own or will be transported by workers back to where they were first picked up.

Where both programs intersect is in their core mission. Whether it's in Jacksonville or Maricopa or even in Canada, addicts and those under the influence are being used to train the next generation of police to arrest society's most vulnerable.

Do we really want that training to happen in American jurisdictions with a history of police brutality?

"I think there's a problem with potential creep of bad practices," says the civil liberties association's de Luca. "Just the history of human rights abuses is sufficient to suggest that we would be much better off having domestic DRE training programs."

Or none at all.

One of the reasons for all the DRE certification is because cannabis impairment isn't as easy to spot as alcohol. Officers need to rely on their training and personal observations to conclude whether a driver might be high.

Understandably, there are plenty of questions over whether this testing even works.

"The science of cannabis impairment is still quite hazy," reads a recent press release from the CCLA. "Unlike drunk driving, there is no scientific standard for determining if a person's ability to operate a motor vehicle is impaired by a drug or a combination of alcohol and a drug."

Unlike booze, the level of THC in the blood isn't as closely tied to impairment. There's no current consensus on how much cannabis can be consumed before driving is impaired. Blood tests and saliva tests don't always match, and how long THC traces remain in the body's system can be heavily influenced by individual metabolism.

Saliva-screening devices should be in use by year's end, but for the time being officers have to rely on visual assessments such as pupil size, checking for needle marks, recording blood pressure and observing whether or not the stopped individual responds to police commands.

Depending on how the police officer feels, the driver could then be arrested and ordered to give a blood or urine sample for toxicology testing.

All of that invasive personal surveillance of a human body will ultimately come down to the DRE's expert opinion of the driver's impairment. And the "subjective evaluation" is what worries the civil liberties association.

The CCLA fought against a recent Supreme Court of Canada decision that ruled the opinions and qualifications of a drug recognition expert don't need to be vetted for quality before being allowed as evidence in a trial.

"Given the inherent subjectivity in a drug recognition expert's opinion about whether an accused used drugs—we shouldn't treat a subjective opinion as incontrovertible evidence," writes CCLA executive director Sukanya Pillay in a release. The CCLA instead argues a Mohan voir dire safeguard—"which exists for this very reason"—should be used to assess the admissibility of the DRE's opinions.

As it stands now, unless the trial judge chooses to exclude it, the DRE's evaluation is allowed in court cases regardless of any evidence of personal bias, failure to comply with training, contradictions with blood or saliva samples or even the contradicting evidence of bystanders.

These are the tools being machined for Canada's new definition of cannabis criminals. A Statistics Canada report that came out this week shows that pot-related arrests have been steadily dropping in recent years—while opioid-related crime has risen—but that was before revised driving laws as enforced by a fresh army of DRE-trained police takes hold. When legalization ends up only benefitting the white, well-off communities who were already at little risk of persecution, this is how it will happen.

The fear is that Canada hasn't legalized cannabis, it's just built a more efficient engine to victimize cannabis users. Because it's not just the legal status that matters. It's the mind-frame.

Programs like the DRE training being done at breakneck speed across the country won't remove the problems of modern policing in Canada. There will still be racial profiling of First Nations, street checks disproportionately targeting African Nova Scotians, prisons filled with the poor who couldn't afford the fines for smoking on the sidewalk. It's an infected system. New rules just create new opportunities for abuse.

The recognition Canada really needs with cannabis legalization is a radical shift in how law enforcement agencies view drug users. Until then, a lot more money will be spent in places like Maricopa County before Canada feels safe. a

Jacob Boon is city editor at The Coast.

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