On Friday, March 20, 2015, B.C. lawyer Kirk Tousaw attended the Supreme Court of Canada to argue the encroachment of certain provisions of the Controlled Drugs & Substances Act on a person’s ability to consume medical cannabis.
As it stands, the only way in which medical marijuana can be legally consumed is through smoking or vaping. This posed a huge issue in 2009 for Mr. Owen Smith, a Victoria resident who baked cannabis-infused cookies and produced cannabis-infused cooking oils for members of the local Cannabis Buyers Club. Mr. Smith was charged with trafficking for his production of over 200 cookies and oils after a large volume of paraphernalia was found in his apartment. He was acquitted of all charges after the B.C Supreme Court ruled that the criteria within the annex of Marijuana for Medical Purposes Regulations, part of the Controlled Drugs and Substances Act governing rules of consumption, was indeed unconstitutional.
The B.C. Government appealed the ruling of the Supreme Court in the B.C. Court of Appeal. Unfortunately for the Fed’s, the Court of Appeal upheld the decision in a 2-1 split. Because of the split decision of the Court, the Government was automatically granted Leave to Appeal in the Supreme Court of Canada.
One of the main focuses of the pro-cannabis argument to allow for the consumption of edibles and the like, circles around the fact that not all marijuana users wish to be smoking day in and day out. For those suffering from conditions that include chronic pain or discomfort, the act of smoking can be unpleasant and can result in unwanted side effects. Aside from that, it also allows consumers to dose while being discreet (apparently not everyone loves the smell of freshly burned herb) which should satisfy roommates, neighbors, and landlords.
Furthermore, studies have suggested that edible marijuana products can leave you with a much more desirable high than you get with smoking. The effects also last much longer, which leads to users having to medicate on a less frequent basis.
We still do see people charged with criminal offences that are marijuana-related in Vancouver and its surrounding suburbs of Richmond, Surrey, and beyond. However, this is the first time that a medical marijuana matter of contention has made it to the Supreme Court of Canada. It is, without a doubt, going to be a landmark decision that will impact medical cannabis users, producers, and suppliers.
In British Columbia, and across Canada, we pride ourselves in being known as multicultural, diverse, and tolerant. In particular, we encourage the celebration of our Aboriginal peoples’ heritage and culture – an ideation that has deep roots in our history. The issues surrounding the treatment our First Nations’ peoples are as delicate as they are primary; although we have made great strides over the past decade, we still have a long way to go before we declare success. An area that is often over looked by the general public, however, is how Aboriginal people are handled in our Judiciary system.
For example, Aboriginal people account for approximately 2.8% of the entireCanadian population – a fairly small percentage. Therefore it may be surprising to learn that they account for a whopping 18% of Canada’s federal inmates (according to the Correctional Service of Canada (“CSC”)). The CSC has stated that they are committed to developing a National Strategy that will specifically target the unique considerations that must be taken when dealing with Aboriginal offenders. They place specific importance on interventions for these offenders by developing and implementing care strategies for individuals suffering from substance abuse, and other addiction issues. Unfortunately, this likely means removing individuals from homes on reserves, which are often located in remote communities, without the resources to deal with the serious medical issues that accompany substance abuse problems. It is also an idea that is met with resistance from the First Nation’s people, which is understandable.
The lack of ways and means to address addiction issues early on often leads to “intervention” (i.e. the arrest and detainment of an Aboriginal offender) at the point where there is little that can be done – other than to have the individual slowly manoeuvre their way through our ever-clogged Court system. It is in our sophisticated and couth judicial system, that the unique needs of the Aboriginal offender are often neglected.
So by this point you’re probably wondering what justice-specific initiatives our Government is taking in order to properly deal with this issue. Well, there were a couple of legislative actions taken back in the 90’s, a few Directives from various commissions, and even an Annex or two. But it seems pretty obvious that these attempts can’t be labelled as anything other than futile.
Probably, though, the most noteworthy stride made by the Canadian Government towards respectfully handling the issue of Aboriginal offenders in our penal system, is the creation of Gladue Court.
Essentially, if you meet the specific requirements (Aboriginal Heritage being key, among others) you can have your case directed to Gladue Court, where the sentencing Judge will take into consideration the specific and unique circumstances of you being Aboriginal (discrimination, residential schools, etc).
The name of the Court is derived from the landmark 1999 Supreme Court of Canada case known as R. v. Gladue. The main principle of the case is that other reasonable alternatives should always be considered prior to a custodial (jail) sentence. This could mean serving a sentence in the community, counselling, and rehabilitation in relation to drugs and alcohol abuse. If the sentencing Judge determines that a jail term is necessary due to public interest, he or she must still take the sentencing provisions of Gladue into account, which could result in a lighter custodial sentence.
There are a few flaws, though. One major pitfall is that an individual cannot be considered for Gladue Court if they are in custody. If you’ve been detained without Bail, or can’t obtain the necessary resources to make Bail, you’re considered ineligible. Another disadvantage is that the principles of Gladue are still improperly applied in many instances. It isn’t a system that is necessarily taken advantage of by those who may benefit from it, simply due to a lack of knowledge surrounding its existence.
We are fortunate enough to have a Gladue Court in Vancouver, British Columbia, which is available to residents in Richmond, New Westminster, Surrey, Delta, and so on. There are several other Gladue Courts located in Eastern Canada, for example, in Toronto, Ontario. It is likely that this Court will expand as the demand grows for services – and the demand can only grow, the system can only flourish, through knowledge and education.
If you have been charged with a criminal offence and would like to know if you meet the necessary prerequisites to be considered for Gladue Court, it is important to have an experienced and seasoned criminal defence lawyer there to assist with the process. Please do not hesitate to contact us at Tarnow and Company where we are proud to offer extensive knowledge surrounding Gladue Court procedures.
As mentioned in previous posts on our site, David Tarnow is qualified to engage in the practice of law in the Territory of the Yukon. Over the past year, Mr. Tarnow has successfully argued a number of cases in the Territorial Court. More often than not, the cases have either resulted in an acquittal of the Accused, or have been resolved by way of a Stay of Proceedings – both of which are optimal results for the Defence in any criminal case.
Since the beginning of September 2013, Mr. Tarnow has been conducting a Jury Trial in Yukon’s Supreme Court, in which our client has been charged with the Attempted Murder of a Police Officer. It goes without saying that this charge is one of most serious offences in the Criminal Code of Canada. The Whitehorse Star, a local paper in Whitehorse, Yukon, released an article surrounding the circumstances of the alleged offence and the Trial, and can be read here:
In recent months, we’ve seen an alarming rise in the number of reported animal cruelty cases in British Columbia. The most high profile of these cases is, without a doubt, the shocking carnage inflicted on the 100 sled dogs at a dog compound in Pemberton, B.C. This took place in April of 2010, following the Winter Olympics in Vancouver. The dogs were property of the Whistler based company, Howling Dog Tours Inc (now owned by Great Adventures Whistler). After the influx of tourism and demand for their services dwindled following the Olympics, an employee of the company, Robert Fawcett, slaughtered 100 of the canines “execution style” – either shooting them at point blank range, or slitting their throats. After they were killed, their bodies were disposed of in a mass grave.
It was not just the massacre of the dogs that infuriated the public; it was the fact that Mr. Fawcett filed a claim with the Worker’s Compensation Board, claiming to be suffering from Post Traumatic Stress disorder. Communities all over British Columbia demanded that justice be served in memory of the 100 dogs whose lives were viciously cut short. The B.C. S.P.C.A responded by hiring a team of forensic experts, at a cost of $225,000.00, half of which would be funded by the B.C. Government.
In May of 2011, an excavation team recovered the bodies of 56 of the animals. It has been noted as one of the Canada’s largest animal cruelty investigations.
The question that remained was how would Mr. Fawcett be held accountable for his actions? In May of 2011, new legislation was brought into effect in British Columbia, pertaining to the Prevention of Cruelty to Animals Act. The new legislation was introduced as a direct result of the Sled Dog Massacre. Monetary penalties under the act increased from $10,000 to $75,000. Periods of incarceration for those found guilty of such an offence were raised to 24 months, from 6 months. Furthermore, the legislation extended the statute of limitations for prosecution from 6 months, to 3 years. Unfortunately, under the previous legislation, which applied to Mr. Fawcett’s case, time had run out, and no charges could be pressed under the Act. Charges approved under the Criminal Code were filed against Mr. Fawcett, and, in August of 2012, he pled guilty to one count of causing unnecessary suffering to an animal. His sentencing has been set for November 22nd, 2012 and he will undergo a psychological assessment prior to the sentencing hearing.
The new amendments to the <em “mso-bidi-font-style:=”” normal”=””>Prevention of Cruelty to Animals Act were made in hopes of deterring people from inflicting abuse upon animals, including service animals such as horses, sleigh dogs, and guide dogs. The only problem is that unless directly caught in the Act, these cases will be difficult to prosecute. The victims of these offences are unable to speak for themselves, and as their masters are usually the cause of the abuse, many cases go unreported. It is often too little too late, as was the case in the Sled Dog Massacre.
Animal advocates, and those who are passionate about the comfort of our furry comrades, will continue to battle for the ethical treatment of animals abused at the hands of their protectors. Only time will tell if the new legislation is effective in the deterrence of animal cruelty.
British Columbia is a Province famous for its natural beauty, multiculturalism, and its expensive real estate. It has also recently become well known for its tough laws on those caught drinking and driving. In September 2010, the new Immediate Roadside Prohibition (IRP) scheme was unveiled. We all remember the controversy surrounding the strict legislation – severe consequences were handed down to those caught driving with a BAC (Blood Alcohol Content) of over .05. The citizens of B.C. were assured that these strict rules would, over time, greatly decrease the number of alcohol related deaths on our roads. What they weren’t told, was that this decrease in alcohol related fatalities, would cause an increase in unjust, unfair, and even fraudulent prohibitions for drivers caught in the crosshairs of the IRP regime. It wasn’t long after these laws were put into effect that British Columbians started to question the fairness of it all. The case of R. v. Sivia would eventually make its way to the Supreme Court of Canada, to be reviewed by The Honourable Mr. Justice Sigurdson. After months of review, Sigurdson agreed that parts of the IRP scheme were in fact unconstitutional. This led to an amendment of the B.C. Motor Vehicle Act. These amendments increased the onus on the police to follow proper procedure, and added an “adequate appeal process” for drivers who had been issued IRP’s. One of the most important amendments to the Motor Vehicle Act is Section 94.3, which relates to the duties of a Peace Officer when issuing an IRP:
94.3 A peace officer who serves a notice of driving prohibition on a
person under section 94.1 must promptly forward to the superintendent
(a) the person’s licence or permit to operate a motor vehicle, if the peace officer took the licence or permit into possession,
(b) a copy of the notice of driving prohibition,
(c) a certificate of service, in the form established by the superintendent, showing that the notice of driving prohibition was personally served on the person subject to the driving prohibition,
(d) a report, in the form established by the superintendent, sworn or solemnly affirmed by the peace officer, and
(e) a copy of any certificate of analysis under section 258 of the Criminal Code with respect to the person.
These amendments at first glance seem to provide relief to the issues previously noted in Sivia. However, continue scrolling through the Motor Vehicle Act, and you will find an absurd and blatant contradiction in regard to 94.3 (d). Section 94.5 of the Act reads as follows:
94.5 (1) In a review of a driving prohibition under section 94.4, the superintendent must consider
(a) any relevant sworn or solemnly affirmed statements and any other relevant information,
(b) the report of the peace officer forwarded under section 94.3 (d),
(c) a copy of any certificate of analysis under section 258 of the Criminal Code with respect to the person served with the notice of driving prohibition,
(c.1) any other relevant documents and information forwarded to the superintendent, including peace officers’ reports that have not been sworn or solemnly affirmed and the copy of the notice of prohibition.
Section 94.3 (d) and Section 94.5 (c.1) are clearly hypocritical of each other. The purpose of amending the Motor Vehicle Act was to provide a remedy to the unconstitutional parts of the IRP scheme. Legislators seem to have either made a careless mistake, or, more likely, they had crafted Section 94.5 (c.1) as a safety net for individuals appealing their IRP under the basis of a technicality, such as not having the officer properly swear or solemnly affirm their Report to Superintendent.
This is an issue that my office recently faced with a client who had received an IRP. In her case, the investigating officer who submitted the Report to Superintendent failed to have the Report properly sworn or affirmed. The Commissioner had mistakenly signed in the area designated to indicate whether the Officer was swearing or solemnly affirming, instead of signing the jurat provided for his or her signature. After reviewing the new sections of the Motor Vehicle Act, it seemed as though this client could have her prohibition overturned on the basis that the report was not in proper form, as per Section 94.3 (d). This was clearly argued in her written submissions done by our office. When the Adjudicator from OSMV (Office of the Superintendent of Motor Vehicles) rendered his decision on her Prohibition, he simply stated that there was “intent” to sign in the correct area; the Commissioner had simply been mistaken. The Adjudicator made no reference to the new legislation, even though it was provided right to him.
In my opinion, the Adjudicator’s ruling was unfair, unreasonable, and sent the message that if the police “intend” to do their jobs properly, they cannot be held responsible for making a procedural mistake. It makes me wonder what the point was of even amending the legislation. It almost seems like in this case, the legislation regarding duties of a peace officer was treated as a guideline to proper police work, rather than what it really is – a law.
The client has now made the decision to take her matter in front of a Supreme Court Judge for the purpose of a Judicial Review. The outcome of that hearing will be posted on our blog in the near future.
