Drugs

Drug Conviction Overturned on Appeal as Police Delayed Access to Lawyer

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has overturned Daniel Marlon Noel’s conviction for drug offences.  The court found that Durham Regional Police breached his Charter rights by not allowing him to promptly speak to a lawyer on the night of his arrest.

WHAT HAPPENED?

On December 21, 2015 at 10:28 p.m., Durham Regional Police entered a residence where Daniel Marlon Noel (“Noel”), his partner and his brother were living pursuant to a search warrant.  All three individuals were suspected of operating a small-scale cocaine trafficking operation, which was under investigation by Durham Regional Police.  That evening, Noel was arrested at gunpoint by Officer Aiello in a bedroom containing his belongings and identification.  Officer Aiello did not advise Noel of his right to counsel.

Noel was taken to a central location in the house and within five minutes of the police’s entry into the residence Officer Gill read him his rights to counsel.  Noel asked to speak to a lawyer, however, no efforts were made to allow for his right to counsel.

The police search of Noel’s bedroom recovered $5,670 Canadian, $71 U.S., 73 grams of cocaine, 55 grams of marijuana and a digital scale.

Noel was transported to the police station at 11:04 p.m. and arrived at the station at 11:10 p.m.  Officer Gill testified that, while being led to the transport vehicle, Noel admitted ownership of the drugs and claimed that his brother was not involved. 

At 12:48 p.m., Officer Capener placed two calls to duty counsel for Noel and his partner, Stacey Long, and left messages requesting a return phone call. 

At 1:25 a.m., Noel learned that his brother had received a call from duty counsel.  Officer Westcott left another message for duty counsel to call Noel.

At his trial, Noel alleged the following Charter breaches:

  • That the entry to his home violated section 8 (right to be secure against unreasonable search and seizure);
  • That his arrest violated section 9 (right not to be arbitrarily detained); and
  • That his right to counsel was breached which violated section 10(b) (right to retain counsel without delay).

The trial judge rejected all arguments regarding Charter violations, except that Noel’s right to counsel without delay was violated.  However, Noel was denied the exclusionary remedy that he sought under the Charter, the evidence was admitted and Noel was convicted of the drug offences.

THE APPEAL

Noel appealed his conviction and argued on appeal that the trial judge erred in failing to find breaches of his Charter rights. 

The appeal court concluded that there was a violation of section 10(b) of the Charter and found that the police had a “cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay”.  Furthermore, the police could not provide a reasonable explanation for the delay. 

The appeal court wrote:

Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide.  … [Noel] asked to speak to counsel promptly but that right was denied. … We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel’s right to counsel without delay.

The appeal court allowed Noel’s appeal, set aside his convictions and substituted a verdict of acquittal. 

RIGHT TO COUNSEL

The right to counsel is one of the most important and recognized rights provided by the Canadian Charter of Rights and Freedoms.  Section 10(b) of the Charter provides:

10.       Everyone has the right on arrest or detention: 

b.         to retain and instruct counsel without delay and to be informed of that right.

The rights afforded under this section are designed to inform a detained individual of the scope of their situation and to ensure that legal advice is available. 

The right to counsel consists of an informational and an implementational component.  Thus, a detained individual must be informed of the right to counsel and this right must be understood by the individual (i.e. an interpreter may be required).  The implementational component involves the obligations and restrictions upon the police in conducting their investigation once the right to counsel has been asserted. 

The right to counsel must be provided without delay.  This is often interpreted to mean immediately in order to protect the detainee from the risk of self-incrimination 

Police must advise the detainee of his/her right to counsel and explain the existence and availability of legal aid and duty counsel if one cannot afford or cannot reach a lawyer.  Thus, the right to counsel also has a corresponding right to retain counsel of one’s choice. 

When a detainee has exercised his/her right to counsel, police must refrain from trying to elicit further evidence and refrain from questioning the individual until he/she has had an opportunity to speak with counsel. 

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Sentencing Hearing Delayed for Man Who Killed His Mother While in ‘Cannabis-Induced Psychosis’

Written on Behalf of Affleck & Barrison LLP

Jason Dickout pleaded guilty to manslaughter last November.  His sentencing hearing was to begin in early September, but has been postponed to early next year pending the completion of a forensic assessment.  Dickout has remained in custody for almost a year since entering his guilty plea.

According to Dickout’s defence lawyer, psychological assessments completed shortly after his client’s arrest indicated underlying mental health issues and therefore the defence was willing to wait for a complete forensic assessment.  Due to a clerical error, the assessment will not be completed until the end of the year. 

WHAT HAPPENED?

In April 2017, Dickout spent the Easter weekend with his parents in northeast Edmonton.  After his father left for work and his mother went grocery shopping on Monday evening, Dickout “smoked two inhalations of dried marijuana” with his sister, Ashley.

Dickout began almost immediately “exhibiting signs of erratic and anxious behaviour, making other animalistic noises and talking nonsensically”.  Hoping to calm her brother down, Ashley gave him some prescribed cannabis oil, which he had never consumed in the past. 

Two hours later, Ashely called 911 to report that her brother was screaming and repeatedly stabbing their mother in the neck with a six-inch knife.

Police arrived to find Dickout naked from the waist down with blood on his face, t-shirt and his bare feet.  A knife covered in blood and a pair of men’s pyjama bottoms lay on the floor beside Dickout’s mother, Kathy Dickout.  Dickout was found behaving erratically and alternating between screams and hysterical laughing.  He said, “this was all for a laugh”.

Kathy Dickout died as a result of knife wounds, which had severed her jugular vein and carotid artery.

EMTs had to sedate Dickout and he was taken to hospital before he was taken into police custody and arrested.  He told officers, “I killed my mom.  She was so beautiful.  She was always thinking of me.  My mom deserves to live.”

Two doctors examined Dickout at Alberta Hospital and determined that he “experienced acute cannabis-induced psychosis, which was both self-induced and transient with the symptoms, with the symptoms abating within  a couple of days”. 

Two doctors examined Dickout and determined that he “experienced acute cannabis-induced psychosis, which was both self-induced and transient with other symptoms, with the symptoms abating within a couple of days”.

WHAT IS CANNABIS-INDUCED PSYCHOSIS?

Cannabis-induced psychosis is a possible side effect of cannabis consumption after recreational or chronic use of the drug.  Symptoms can include anxiety, illusions, visual and auditory hallucinations, impaired thinking, paranoia, an inability to focus, loss of touch with reality, disassociation, loss of motivation, disorganized thoughts, suspiciousness, grandiosity, catatonia, agitation and delusions.

Psychosis triggered by the use of cannabis typically begins suddenly and ceases soon after the psychoactive substances in the drug have left the body.  In some cases, there may be an underlying mental illness present that makes it more likely for the drug to cause psychotic symptoms. 

Research has proven that cannabis may cause a psychosis-like state in those that were already at high risk for psychotic disorders.  There may also be a genetic predisposition to cannabis-induced psychosis.  Researchers have found a gene called catechol-O-methyltransferase, which could make individuals more vulnerable to negative side effects of cannabis consumption.

The use of cannabis may also adversely affect medication compliance in those that are using prescription medication to treat psychotic illnesses. 

Studies have also proven that cannabis use in adolescence can be a factor that worsens the symptoms of serious psychotic mental illnesses, such as schizophrenia.

Most individuals who experience cannabis-induced psychosis are not dangerous.  However, there is a possibility that an individual who has lost touch with reality will engage in risky or paranoid behaviours.  They may also suffer from delusions of grandiosity which can lead to dangerous behaviours, such as reckless driving or jumping from a hazardous height. 

STUDY LINKS VAPED THC TO “DAMPENED” BRAIN ACTIVITY

New research from the University of Guelph found that rats exposed to a single dose of tetrahydrocannabinol, also known as THC (the vapourized psychoactive component of marijuana), experienced dampened brain activity lasting one week, similar to those suffering from schizophrenia and cannabis-induced psychosis.

The research team surgically implanted electrodes into the brains of eight healthy rats that had never been exposed to THC.  In a sealed rat chamber, the rats became exposed to pure vapourized THC or a saline solution.  The rats’ brain activity was then monitored. 

Lead author and assistant professor of neuroscience at the University of Guelph, Jibran Khokhar stated:

We found across all the regions [of the brain] the single exposure of THC changed the individual activities of these brain regions, but also altered how these regions communicate, or jive, with one another. 

Vaporized cannabis is gaining popularity and as more concentrates come on the market, we see an increase in wax and shatter – high concentrate forms of THC – and will probably be vapourized with these vape pens.

We will continue to follow Jason Dickout’s case and will provide updates in this blog when more information becomes available.

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Lifetime Ban For Crossing the U.S. Border with CBD Oil Reversed

Written on Behalf of Affleck & Barrison LLP

The United States Customs and Border Patrol has reversed its decision to ban a Canadian woman entry to their country for her lifetime after United States border protection agents discovered cannabidiol (CBD) oil in her backpack.

WHAT HAPPENED?

According to reports, the woman, a 21-year-old Ontario University student who wants to remain anonymous, was pulled aside for a secondary check when she attempted to cross the border into the U.S. at Blaine, Washington in August, 2019.  She was travelling to a friend’s cabin.  The woman was asked if she had any “leafy greens”, to which she responded “no”.  

The woman told CBC News:

I said no because, to me ‘leafy greens’ is like marijuana, the actual bud, things that you smoke, recreational drugs.  I use CBD daily and it’s not psychoactive, it can’t get me high at the dosage that I’ve been told to take it at.

The woman was searched by border patrol and a bottle of CBD oil was found in her backpack.  She admitted that she knew that joints were prohibited at the border and there were many signs warning travellers not to enter the U.S. with such substances.  However, she believed that it was permissible to travel with CBD oil as she did not realize the same rules applied to it and as the oil is legal in both Washington state and British Columbia.

CBD oil is a non-psychoactive product of the cannabis plant, which is used by many to help regulate bodily functions, including pain.  It has been reported that the woman uses CBD oil to treat the painful side effects of scoliosis (a condition wherein the spine twists and curves to the side). 

The woman received a $500 US fine for not disclosing that she was carrying CBD oil, she was fingerprinted and she was denied access to the U.S.

In order to gain admission into the U.S., the woman must apply for a special waiver through a new online portal called e-SAFE, which will cost $600.  The U.S. government also requires a criminal record check from the RCMP, letters of reference, a letter of remorse for past wrongs, proof of employment and documentation detailing an individual’s residence and work history.

DECISION REVERSED

Late last week, the woman learned that the United States had reversed their order banning her from entering the U.S. for her lifetime and she would not need to apply for a waiver.  No explanation was given to explain this surprising decision.

In an email to CTV News Vancouver, U.S. CBP spokesperson Jason Givens (“Givens”) advised that Customs and Border Patrol management reviews all cases in which “travellers are deemed inadmissible”.  According to Givens:

In this particular case, management determined that it did not meet the terms of inadmissibility.  In some instances, decisions about admissibility may be changed upon further review and presentation of additional information, verification of further evidence, etc.  It is important to note, however, that all cases are unique and travellers are strongly encouraged to not attempt to cross the border with marijuana and products derived from marijuana.

CANADIAN BRETT HEUCHERT ALSO GIVEN A LIFETIME BAN

In early August, 2019, Brett Heuchert, a Canadian citizen living in Japan landed at Seattle’s Sea Tac International Airport from Tokyo.  He was randomly selected for additional screening.  U.S. Customs and Border Protection agents searched his bags and found two bottles of CBD oil.  They suspected that the oil contained tetrahydrocannabinolin (also known as THC, the psychoactive constituent of cannabis)  After testing, it was determined that one of the two bottles had tested positive for THC (the psychoactive agent found in marijuana).  Heuchert believed that he could bring the CBD oil across the border because marijuana was legal in the state of Washington.

Heuchert was given the choice of either being deported back to Japan or to Canada.  The CBD oil was confiscated and he was issued a $500 US fine and a lifetime entry ban to the U.S. 

Heuchert was deported to Canada and the border agents returned the bottle of CBD oil that tested negative for THC.  When he arrived at Vancouver International Airport, Canadian Border Services Agency agents detained him and confiscated his bottle of CBD oil.  However, he was not arrested or charged. 

CONFUSION SURROUNDING CROSSING THE BORDER WITH MARIJUANA

According to CBC News, thousands of Canadians have been denied entry to the U.S. for admitting that they have smoked marijuana once in their lives. 

Although some U.S. states have legalized marijuana, cannabis possession remains a federal criminal offence and a controlled substance under U.S. federal law.  The U.S. border is governed by federal law.  Thus, travellers are prohibited from bringing cannabis or any related products across the border. 

According to Washington state immigration lawyer Len Saunders, who represents both individuals facing a lifetime ban from the U.S.:

There seems to be a lot of confusion with Canadians entering the U.S. with regards to CBD and THC and all the derivatives from marijuana.  From my experience, if anything is coming from the marijuana plant, even it it’s an oil or a gummy candy, it seems to be grounds not only for inadmissibility and fines…but also a lifetime ban. …  Even though she made an honest mistake, if the officers deem that she has a controlled substance with her, and she admitted to it, then she’s inadmissible for the rest of her life.  Even if she gets a waiver approved, she’ll still have to go through a renewal every year, two years or five years.

It is recommended that all travellers leave their cannabis products, including those that contain THC or CBD, at home.  The Canada Border Services Agency has a new cannabis slogan, which reads “Don’t bring it in.  Don’t take it out.” 

If you or a loved one have been charged with a drug related charge or have any questions concerning your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Edibles Will Be Available Mid-December

Written on Behalf of Affleck & Barrison LLP

Health Canada has recently announced that Canadians can anticipate the ability to purchase a “limited variety” of cannabis-infused edibles, cannabis extracts, vaporizable concentrates and cannabis topicals in legal stores no earlier than mid-December 2019.

On October 17, 2019, edibles will become legal in Canada (exactly one year after the first recreational cannabis store opened), however it will take time for these new cannabis products to become available for purchase.

DETAILS REGARDING NEW CANNABIS PRODUCTS AVAILABILITY

According to a new report published by Deloitte entitled “Nurturing New Growth:  Canada Gets Ready for Cannabis 2.0”, it is estimated that the new cannabis products are worth approximately $2.7 billion annually (with edibles accounting for more than half of that amount).  A number of new products, such as beverages infused with cannabidiol, will likely not be available until 2020, with the majority of products making their way to market in 2021.  

According to the law, federal licence holders must provide 60-days notice to Health Canada of their intention to sell new cannabis products. 

According to the Health Canada news release:

…as with any new regulatory framework, federally licensed processors will need time to become familiar with and prepare to comply with the new rules and to produce new products.

The Honourable Bill Blair, Minister of Border Security and Organized Crime Reduction stated:

The amended regulations are the next step in our process to reduce the risks to public health and safety from edible cannabis, cannabis extracts and cannabis topicals and displace the illegal market for these products in Canada.  We are committed to working closely with the provinces and territories as well as industry in the weeks ahead to prepare for effective implementation of these new regulations.

REGULATIONS FOR ADDITIONAL CANNABIS PRODUCTS

The regulations for a single package of edibles, either food or beverage, can have no more than 10 milligrams of THC (the main psychoactive component found in cannabis).  This number is 10 times less than the amount regulated by the states that have legalized marijuana, namely California, Colorado and Washington.

There are many that are complaining that this regulation will result in a lot of packaging waste, as consumers are going to need to purchase more packages of the cannabis product.

The regulations also limits extracts to be capped at 10 mg of THC per capsule or 1,000 mg per package. 

Companies are also prohibited from using sweeteners, colourants or other ingredients that could “increase the appeal” for minors.  Whether a product would be appealing to children will depend upon its shape, colour, flavour, scent, and packaging. 

Products must only use plain packaging that is child-resistant, displays a standardized cannabis symptom and a health warning.  They must not display any claims about health benefits or nutrition.  Whether a product violates the regulations will be decided on a case-by-case basis.

According to the regulations, topicals (such as creams and make-up) will only be allowed 1,000 mg of THC per package.

Edibles and extract products are prohibited from containing nicotine, caffeine or alcohol, and must be safe to consume without refrigeration or freezing.  They must also not be associated with alcoholic beverages, tobacco products or vaping products. 

DANGER TO CHILDREN INGESTING EDIBLES

The Canadian Paediatric Surveillance Program has already reported that there have been 16 cases of “adverse events” affecting children under the age of 18 involving recreational cannabis between September and December, 2018.  One of these cases involved a seven-month old baby.  Of these 16 cases, 6 of them involve children consuming edibles and one case of accidental exposure.  All of the 16 cases involve cannabis products belonging to a parent or caregiver.

The Surveillance Program defines “adverse events” as all cases in which children are harmed by cannabis consumption.  This can include injuries that may arise from the use of cannabis by another individual who is under the influence of the recreational drug.

This paediatric research is a two-year study, which will conclude in October 2020.  It will monitor trends following the legalization of edibles in the fall. 

Christina Grant, a paediatrician and co-principal investigator, stated:

These early results highlight the urgency of prioritizing the needs of children and youth in policy and education initiatives, especially as edibles become legalized later this year.

Last May, the Montreal Children’s Hospital published a warning to parents that cannabis intoxication was on the rise and children who accidentally ingest cannabis may experience more severe symptoms than adults.  Between October 2018 and May 2019, the hospital had admitted 26 children after consuming cannabis.

Debbie Friedman, hospital trauma director, stated:

Just because cannabis is legal doesn’t mean it’s safe for consumption by children and it doesn’t mean it should just be left around where it’s easily accessible to a child who’s curious, who is very attracted to the colour of gummy bears or a chocolate bar or a hash brownie.

We will continue to provide updates regarding the legalization of cannabis in Canada as this information becomes available, and will blog about updates as they arise.

In the meantime, if you are facing a drug-related charge or have any questions concerning your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947.  We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Judges Respond to Opioid Deaths on the Rise in Canada

Written on Behalf of Affleck & Barrison LLP

Canada, amongst other countries, is facing an opioid crisis. Between January 2016 and June 2018 more than 9,000 Canadians died from the use of opioids. The Public Health Agency of Canada reports that opioid overdoses are increasing in our country.

Opioids are medications that can relax the body and help relieve pain, such as fentanyl, morphine, oxycodone, and hydromorphone. Opioids are drugs that can affect your mind, mood, and mental processes, which may bring about the feeling of being euphoric or “high”.

In Canada, the majority of those that have accidentally died as a result of opioids (72%) have involved fentanyl, a highly potent and addictive opioid. Fentanyl is considered up to 100 times stronger than morphine and is often mixed into opioids sold on the street. Therefore, users do not know the potency of the drugs that they are ingesting.

Canadian judges are well aware of the opioid crisis in this country and are therefore handing down harsh sentences to those found to be trafficking and importing fentanyl.

THE CASE OF PHARMACIST WASEEM SHAHEEN

In March, 2018, an Ottawa pharmacist, Waseem Shaheen (“Shaheen”), was sentenced to 14 years in prison for dealing fentanyl out of his pharmacy. Shaheen was found to be responsible for trafficking more than 5,000 fentanyl patches (street value of more than $1,000,000).

Shaheen was involved in an elaborate scheme, which even involved faking a robbery at his own pharmacy. He was found guilty of trafficking fentanyl, public mischief for reporting a fake crime to police, and insurance fraud.

Ottawa Police Detective Guy Seguin stated,

I think the sentence is a clear message…. Hopefully a clear deterrent in the court that the justice system takes this very seriously, and hopefully other professionals like Mr. Shaheen will not be involved in trafficking fentanyl.

Justice Wadden, when handing down this harsh sentence, stated,

Mr. Shaheen is not an addict. None of the fentanyl was for his own use. His only apparent motivation was greed. As a trained professional, he would have been aware of the debilitating and deadly effects of this drug in the hands of addicts. Yet he conducted a drug trafficking scheme worth over a million dollars, profiting on the misery of others.

Shaheen was stripped of his pharmaceutical license and lost all three of his Ottawa pharmacies. However, he has not begun serving his sentence as he is appealing his conviction.

THE CASE OF ASHLEY BRODERICK

Ashley Broderick (“Broderick”), a woman from Kitchener, pleaded guilty to conspiracy to traffic fentanyl. She was one of 14 people arrested as part of a lengthy police investigation called Project Titus, which concluded with the confiscation of 1.5 kilograms of powdered fentanyl found under a bed in her home. The fentanyl had a street value of $450,000 and 398 grams of methadone were also seized, with a street value of $11,500.

Broderick was discovered to be the second in command of an organization that sold fentanyl, methadone, and cocaine throughout southwestern Ontario. When Broderick was arrested, she was found with $2,900 cash, two cellphones, and a debt list. Police also found that she had two hotel room keys, and uncovered 21 grams of fentanyl and debt lists showing hundred of thousands of dollars in drug transactions in one of the hotel rooms.

In April, 2018, Justice Craig Perry sentenced Broderick to 13 years in prison stating that the sentence needed to reflect the seriousness of the crime. He emphasized that the primary principles of sentencing were denunciation and to deter others from committing similar crimes. At the time, this was the stiffest fentanyl sentence for trafficking handed down in Ontario.

THE CASE OF BARNA OLVEDI

The stiffest fentanyl sentence in Ontario was handed down by Justice Petersen in November, 2018. Barna Olvedi (“Olvedi”) was sentenced to 15 years in prison for importing and 12 years concurrent for trafficking fentanyl. Olvedi was found to have imported 499.5 grams of 100% fentanyl from China, which would have a street value of at least $14.9 million.

In his reasons for sentence, Justice Peterson stated:

Mr. Olvdei’s offences are extremely serious. He was not only in possession of a large quantity of pure fentanyl citrate for the purpose of trafficking, he also imported it into Canada from overseas. … I have concluded that a sentence of 15 years imprisonment is proportionate to the gravity of the offence and Mr. Olvedi’s degree of personal responsibility and moral blameworthiness. This sentence satisfies the principle of restraint and achieves parity with sentences imposed on other offenders w ho committed similar crimes in similar circumstances, though there are no other cases in which the circumstances involved importing a large quantity of 100% pure fentanyl citrate.

As both the Canadian government and the judiciary respond to the opioid crisis in Canada, Affleck & Barrison LLP will continue to provide updates through this blog.

If you are facing a drug related charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Bill Tabled to Expunge Cannabis-Related Criminal Records

Written on Behalf of Affleck & Barrison LLP

A new bill has been introduced in the House of Commons to expunge the records of those individuals who have a criminal record for past minor, non-violent marijuana possession convictions.

New Democrat MP Murray Rankin has tabled the private member’s Bill C-415, An Act to establish a procedure for expunging certain cannabis-related convictions. Rankin estimates that more than 500,000 Canadians have a criminal record for personal possession charges for marijuana.

BILL C-415

The new bill proposes to expunge criminal records for those convicted of personal possession crimes that will no longer be considered illegal pursuant to Bill C-45, which comes into effect on October 17, 2018. This bill will also allow those applying for a pardon to not have to wait five to ten years and pay the current $631 fee. Under Rankin’s proposal, the process will be faster and entirely free.

In 2016, 58% of all charges related to the Controlled Drugs and Substances Act were related to cannabis, and approximately three quarters of those offences were for possession.

Supporters of Bill C-415 maintain that it is unreasonable to have individuals continue to be unable to attain jobs, volunteer in the community or coach a child’s sports team for doing something that will no longer be illegal in a weeks time.

MP Rankin notes that a disproportionate number of non-violent cannabis-related convictions belong to marginalized or racialized Canadians. He reports:

In Toronto, black people without a criminal record were three times more likely to be arrested for cannabis possession than white people. In Halifax, five times as likely. In Regina, it’s nine times more often for Indigenous people.

The federal government has made it clear that it will not consider marijuana pardons until after legalization. However, the possibility of doing so has not been ruled out and the government is currently evaluating the legal implications.

RECORD SUSPENSIONS (PARDONS)

A criminal record can be a barrier to attaining a job, volunteering, or going on a vacation out of the country. In order to remove your criminal record from law enforcement databases, you must be granted a Record Suspension (formerly known as a Pardon).

You do not need to apply for a Record Suspension if charges against you were dismissed, stayed or withdrawn, or did not result in a conviction.

Once you have completed your sentence and proven that you are a law-abiding citizen, you may have your record removed from the Canadian Police Information Centre database by being issued a Record Suspension.

Possession of marijuana up to 30 grams is a summary conviction offence. Those convicted of a summary conviction offence (less serious and punishable by shorter prison sentences and smaller fines, without the right to a jury trial) cannot apply for a Record Suspension until at least 5 years have passed since he/she completed his/her imprisonment, paid his/her fines, and completed his/her term of probation.

Canadians convicted of an indictable offence (more serious crimes) cannot apply for a Record Suspension under the Criminal Records Act until at least 10 years have passed since he/she completed his/her term of imprisonment, paid his/her fine, or completed his/her term of probation.

Those who have been convicted of a sexual assault or sexually-related crime or who have been convicted of more than three indictable offences cannot apply for a Record Suspension. The person applying for a Record Suspension also cannot be convicted of a subsequent offence and must prove to the Parole Board that he/she is of good character.

Clearing your criminal record involves three steps and a waiting period. These steps include data collection, data analysis, and the Canadian pardon application.

Prior to submitting your Record Suspension application to the Parole Board of Canada, it can take from 4 to 6 months to prepare the application and obtain the supporting documents.

An application for a record suspension costs $631, and with added fees for documents and records checks, it could cost in excess of $1,600.

If you are granted a Record Suspension, this means that your record is merely sealed. A member of the public cannot check online to see if you have a record, however, certain legal agencies can still access this information under specific legal circumstances.

On October 17, 2018, the Cannabis Act will become law and in Ontario adults who are 19 or older will be permitted to buy, use, possess, and grow recreational cannabis.  However, until legalization comes into effect Canadians will continue to be charged for cannabis offences.

We will continue to provide updates in this blog regarding the proposed bill to expunge criminal records for minor cannabis possession and the legalization of cannabis in Canada as this information becomes available, and will blog about developments as they arise.

In the meantime, if you are facing drug related charges or have any questions concerning your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Study Finds Steep Rise in Opioid-Related Deaths in Ontario

Written on Behalf of Affleck & Barrison LLP

Canada is confronting a national opioid crisis. The increasing number of overdoses and deaths caused by opioids is causing a national public health disaster. In fact, in Ontario the overall rate of opioid-related deaths nearly tripled from 2000 to 2015.

A new study by researchers at St. Michael’s Hospital in Toronto reviewed all deaths in Ontario in which prescribed or illegal opioids were found to be a contributing factor between 2000 to 2015. The study found that there were 7,719 opioid-related deaths during that time period.

In Ontario, researchers found that one out of every six deaths among young adults (aged 25 to 34) was related to opioids in 2015. Research also found that one of nine deaths among those aged 15 to 24 was related to opioids (nearly double that of 2010).

Lead author and scientist, Dr. Tara Gomes, reports that young people need more information about the dangers of illicit drug use and education on how to reach out for help. She also suggested that it is time to be more tolerant to providing access to naloxone (the overdose-reversing drug) in locations where young people can access it (i.e. high schools, universities and music festivals).

Regarding the opioid crisis in Ontario, Dr. Gomes stated:

It is striking to see that despite the efforts put into harm reduction, proper prescribing practices, and education around opioid use, the number of opioid-related deaths continues to rise. The other alarming fact is how this crisis is increasingly impacting our youth and young adults.

Dr. Gomes’ research revealed that a total of 29,410 years of potential life were lost prematurely due to opioid-related causes in 2015, which exceeds the years of life lost prematurely annually from pneumonia, HIV/AIDs and influenza.

Recently, Prime Minister Justin Trudeau spoke in the city of Hamilton, a city which saw 70 opioid-related deaths between January and October in 2017, and declared that situations like theirs were a top priority for his government. The city of Hamilton’s opioid-death rate during 2017 was 78% higher than the provincial rate.

In addressing the opioid crisis, Prime Minister Trudeau stated:

We know that we have to address this. This is getting to be more and more of a problem. We have always put this at the top of our preoccupations as we deal with this public health crisis here in Hamilton and right across the country.

WHAT ARE OPIOIDS?

Opioids are drugs with pain relieving properties that are used primarily to treat pain. Opioids can be purchased at the pharmacy to treat minor aches and pains or prescribed by a doctor to relieve medium to severe pain.

Opioids can produce euphoria, or a high feeling, which leads them to be used improperly. The following are examples of opioids that can be prescribed medications:

  • Codeine;
  • Fentanyl;
  • Morphine;
  • Oxycodone;
  • Hydromorphone; and,
  • Medical heroin.

Dependency, substance use disorder and overdose are serious side effects and risks of using opioids. They have the potential for problematic use because they produce a “high” feeling.

Opioids should only be taken as prescribed, never be used by someone for whom it was not prescribed and never be taken with alcohol or other medication (except as prescribed).

Individuals prescribed with opioids are advised never to share their medication, and are cautioned to store their medication in a safe and secure place and out of reach from children and teenagers. Any unused opioid medication should be returned to a pharmacy for safe disposal to prevent the possibility of illegal use and protect the environment from contamination.

HOW IS THE GOVERNMENT RESPONDING TO THE OPIOID CRISIS?

The Canadian government has reserved $231.4 million to respond to the opioid crisis in Canada, with monies dedicated to strategies such as public health campaigns, data tracking and new equipment and tools to allow border agents to better detect dangerous opioids before they enter Canada.

The Ontario government guaranteed it will spend more than $222 million over three years to address the opioid issue. The money will be used in the following manner:

  • To support health care providers on appropriate pain management and opioid prescribing;
  • To increase addictions treatment in primary care;
  • To add more front line harm reduction outreach workers in communities across the province;
  • For specialized support for indigenous communities and developmentally appropriate care for youth.

Furthermore, Ontario is the first province to provide access to Narcan nasal spray in Ontario pharmacies, free of charge, as part of its Ontario Naloxone Program for Pharmacies. This nasal spray is the only needle-free formulation of naloxone for the emergency treatment of a known or suspected opioid overdose. It does not require assembly or any specialized medical training.

Ontario has also announced that more than 30 communities will receive new or enhanced Rapid Access Addiction Medicine (“RAAM”) clinics. There are currently seven community clinics of this kind, which allow patients to receive medical assisted therapy for their addiction and are then referred to healthcare professionals to begin recovery treatment. Kate Hardy, the manager of the RAAM pilot project in Ontario, stated:

Unlike traditional treatment programs there are no wait times, scheduled appointments, or complicated intake assessments. … RAAM clinics are outpatient to allow patients to continue with their work and family responsibilities, and the service providers are non-judgemental.

As both the federal and provincial governments continue in their efforts to tackle the opioid crisis in Canada, Affleck & Barrison LLP will continue to provide updates through this blog.

If you are facing a drug related charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Fatal Accidents Increase Significantly after 4/20 Celebrations

Written on Behalf of Affleck & Barrison LLP

April 20 has become an international holiday where people gather to celebrate and consume cannabis. These mass marijuana festivities usually begin at 4:20 p.m. and continue well into the night.

A recent study has revealed that there was a slight increase in fatal U.S. car accidents on April 20 following an analysis of 25 years worth of data. Studies such as this one provide important information to the Federal and Provincial governments in deterring marijuana impaired driving in anticipation of the legalization of marijuana this summer in Canada.

WHAT DID THE STUDY ESTABLISH REGARDING THE USE OF MARIJUANA AND DRIVING ON APRIL 20?

Researchers from the University of British Columbia and the University of Toronto compared driver deaths on April 20 with deaths occurring on a day of the week before and the week after during the 25 year study of U.S. data. The study confirmed that fatal car crashes were increased by 12% (142 driver deaths) on the evening of April 20. The study also found that the risk of fatal accidents among young drivers (under the age of 21) increased by 38% in the evening of April 20.

Dr. John Staples, lead author and an internist and researcher at the University of British Columbia in Vancouver, stated,

The simplest explanation is that some drivers are impaired by cannabis use, and these drivers are contributing to fatal crashes. There should be very clear messaging to the public: don’t drive high.

Although the study lacks evidence on whether marijuana was involved in any of the April 20th fatalities (as there was no police data on drug testing to confirm that marijuana was involved), researchers believe that the drug was responsible for some of the crashes.

DOES MARIJUANA USE AFFECT DRIVING?

Although marijuana has the reputation of being a relatively harmless drug, it can have short-term affects on reaction time, motor co-ordination, divided attention, short-term memory and decision-making skills.

Marijuana affects each individual differently based upon factors such as the person’s tolerance, and the strain and potency of the marijuana being used. Some who use marijuana experience a sense of relaxation, while others may experience panic, fear, anxiety or psychosis.

Following alcohol, cannabis is the substance most commonly associated with “driving under the influence”.

In Colorado (one of the first states to legalize marijuana in the U.S.), the number of deaths caused by auto-related accidents involving marijuana increased by 145% from 2013 to 2016. By 2016, 20% of all fatal motor vehicle accidents involved marijuana (in comparison to 10% in 2013).

ONTARIO’S PLAN TO KEEP OUR ROADS SAFE FOLLOWING LEGALIZATION

As we have previously blogged about, Ontario has implemented new measures to keep our roads safe by implementing tougher drug-impaired driving laws.

Ontario has enacted zero tolerance rules prohibiting young (age 21 and under) and novice (G1, G2, M1, M2) drivers from having the presence of a drug in their system. For a first offence, young and novice drivers will face a three-day suspension and a $250 fine. A second offence will result in a seven-day suspension and a $350 fine and all subsequent transgressions will result in a thirty-day suspension and a $450 fine.

Commercial drivers will also be subject to zero tolerance rules prohibiting them from having any alcohol and drugs in their system. For any offence, a commercial driver will face a three-day suspension and a $250 to $450 fine.

Ontario has also introduced escalating monetary penalties to all impaired driving offences starting at $250 for a first offence and increasing up to $450 for third and subsequent occurrences.

RECOMMENDATIONS

As we prepare for the legalization of recreational cannabis in Canada this summer, we should consider ways to avoid driving while impaired and being a passenger with an impaired driver.

We should all be reminded to:

  • Always have a designated driver; or
  • Call a friend or loved one to pick you up; or
  • Call a cab or a ridesharing service; or
  • Stay overnight and sleep it off.

It is also strongly recommended that we have an open dialogue with our children and reinforce the dangers of driving while impaired by alcohol or drugs. It is also recommended that parents model safe driving behaviour by never driving any vehicle while impaired.

If you have been charged with a driving offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Ontario’s Framework for Marijuana Regulation: An Update

Written on Behalf of Affleck & Barrison LLP

As provinces across the country continue to debate the timing of cannabis (i.e. marijuana) legislation in their respective jurisdictions, lawmakers have begun to turn their minds to how the drug will be regulated once it is legalized.

CURRENT STATE OF MARIJUANA LEGISLATION

Marijuana is currently illegal in Canada and is listed under Canada’s Controlled Drugs and Substances Act. Current exceptions exist only for those individuals who have been authorized to use cannabis for medicinal purposes by their health care provider. These individuals can purchase quality-controlled cannabis from a producer who is licensed by Health Canada, or produce a limited amount of cannabis for their own medicinal purposes.

LEGALIZING AND REGULATING CANNABIS IN CANADA

In April 2017, the federal government announced legislation to legalize and regulate recreational cannabis by July 2018. The proposed Cannabis Act, if passed, will establish rules for producing, using, and selling cannabis across Canada. The federal government left the design and implementation of sales and distribution to each province and territory.

Ontario was the first province or territory in Canada to publicly outline a comprehensive plan to sanction federally legalized cannabis. On September 8, 2017, Ontario announced a comprehensive framework outlining the province’s approach to the retail distribution of recreational cannabis.

MINIMUM AGE LIMIT

Ontario proposes to make it illegal for individuals under the age of 19 to buy, sell, possess, share, and grow cannabis. This is comparable to the age limit for the sale of tobacco and alcohol in Ontario.

Police officers will be authorized to confiscate small amounts of marijuana from individuals under the age of 19, but the seizure will not result in a criminal record. The person in possession of the marijuana may be subject to provincial fines.

The province of Ontario is intent on protecting its youth and will focus on “prevention, diversion, and harm reduction without unnecessarily bringing them into contact with the justice system.”

The Ontario government also plans on creating a public education campaign focused on informing young people about potential dangers of marijuana usage.

RETAIL LOCATIONS SELLING MARIJUANA

Ontario is planning for the sale and distribution of recreational marijuana to be overseen by the LCBO. However, marijuana will not be sold in the same stores as alcohol, and edibles or cannabis-infused foods will not be sold online or in retail stores.

The government of Ontario will proceed to work with municipalities, local police services, the OPP, and the federal government to help shut down any marijuana dispensaries that operate outside of the new parameters, once they are in place.

ONLINE MARIJUANA SALES

It has been suggested that online distribution will be available across the Ontario by July 2018 and 150 stand-alone cannabis stores open by the end of 2020 (80 stores to be opened by July 1, 2019).

Ontario will comply with federal requirements that limit advertising and require behind-the-counter sales similar to the way in which tobacco is currently sold. Staff will be required to follow strict requirements for age verification. Staff will also undergo mandatory training and have knowledge of products and how to use cannabis.

Delivery of online sales would require ID checks, signatures upon delivery, and no packages would be left unattended at the door.

PROHIBITED USE IN PUBLIC

Ontario proposes to restrict the places where marijuana can be consumed. It is suggested that cannabis not be used in public, in workplaces, or in motorized vehicles. Individuals will only be permitted to use recreational cannabis in private residences. These restrictions will be similar to those used to control the consumption of alcohol in public spaces and workplaces.

The Ontario government has advised that it will explore the possibility of allowing specific establishments where cannabis could be consumed legally.

LEGAL POSSESSION OF CANNABIS

Under the federal government’s proposal, adults would be allowed to have up to 30 grams of dried legal cannabis and people under 18 years old could have up to five grams. The government of Ontario appears to be in agreement with these possession limits.

We will continue to provide updates regarding the legalization of cannabis in Canada as this information becomes available, and will blog about updates as they arise.

In the meantime, if you are facing a drug related charge or have any questions concerning your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

How the Good Samaritan Drug Overdose Act Can Help Prevent Drug Overdoses and Deaths

Written on Behalf of Affleck & Barrison LLP

There is an increasing number of Canadians overdosing or dying from the use of opioids. The Public Health Agency of Canada has estimated that at least 2,458 Canadians died from an opioid-related overdose in 2016, which amounts to almost seven deaths every day.

On May 4, 2017, the Good Samaritan Drug Overdose Act (“Act”) became law as part of the Government of Canada’s approach to address the growing number of overdoses and deaths caused by opioids (pain relieving drugs, including fentanyl). Many of these deaths are avoidable if medical attention is obtained quickly, but evidence demonstrates that witnesses to an overdose do not call 911 for concern of police involvement.

The Honourable Jane Philpott, Minister of Health, was quoted as saying,

During an overdose, a call to 911 can often be the difference between life and death. We hope that this new law, and the legal protection it offers, will help encourage those who experience or witness an overdose to make that important call, and save a life.

WHAT LEGAL PROTECTION IS GRANTED BY THE ACT?

This Act provides legal protection for individuals who seek emergency help or witness an overdose. An overdose is defined in the Act as a

 physiological event induced by the introduction of a controlled substance into the body of a person that results in a life-threatening situation and that a reasonable person would believe requires emergency medical or law enforcement assistance.

This Act can protect you from charges for possession of a controlled substance, i.e. drugs, under section 4(1) of the Controlled Drugs and Substances Act.

This Act also protects people in breach of the following conditions under section 4(1) of the Controlled Drugs and Substances Act:

  • Parole;
  • Pre-trial release;
  • Probation orders;
  • Simple possession; and,
  • Conditional sentences.

It does not, however, provide legal protection against more serious offences, such as:

  • Outstanding warrants;
  • Production and trafficking of controlled substances; and,
  • All other crimes not outlined within the act.

The Act applies to all people seeking emergency support during an overdose, including the person experiencing the overdose. It also protects anyone who seeks help, whether they stay or leave the overdose scene before help arrives.

WHAT ARE OPIOIDS?

Opioids are drugs with pain relieving properties that are used primarily to treat pain. Over the counter opioids (i.e. Tylenol 1) can be purchased at the pharmacy without visiting a doctor to treat minor aches and pains, like headaches or tooth aches. There are also opioids that are prescribed by a doctor to relieve medium to severe pain, like after surgery.

Fentanyl is an extremely strong opioid that is prescribed for people with extreme pain, like cancer, and should only be used under medical supervision.

This type of drug can produce euphoria, or a high feeling, which leads them to be used improperly. Examples of opioids that can be prescribed medications, such as:

  • Codeine;
  • Fentanyl;
  • Morphine;
  • Oxycodone;
  • Hydromorphone; and,
  • Medical heroin.

Doctors sometimes prescribe opioids for conditions, such as:

  • Acute moderate to severe pain;
  • Chronic pain;
  • Moderate to severe diarrhea; and,
  • Moderate to severe cough.

Dependency, substance use disorder and overdose are serious side effects and risks of using opioids. They have the potential for problematic use because they produce a “high” feeling.

WHAT IS AN OVERDOSE?

An overdose can occur when one has ingested too much of an opioid. Opioids slow down the part of the brain that controls breathing. If you take more opioids than your body can handle, your breathing slows, which can lead to unconsciousness or death. Signs of an overdose include:

  • Person can’t be woken up;
  • Breathing is slow or has stopped;
  • Snoring or gurgling sounds;
  • Fingernails and lips turn blue or purple;
  • Pupils are tiny (pinned) or eyes are rolled back;
  • Body is limp.

WHAT TO DO IN CASE OF A SUSPECTED OVERDOSE

In case of a suspected overdose, the following is recommended:

  • Check to see if the person is breathing. Look, listen and feel.
  • Call 911 immediately. Tell the operator that this is a suspected overdose, so the emergency crew can bring naloxone (a medication that can temporarily stop or reverse an opioid overdose).
  • Do not leave the person alone. Wait until help arrives. If you must leave, turn the person on their side to avoid possible choking.
  • Try to keep the person awake and remind them to take frequent deep breaths.
  • If you are concerned that people you know are using opioids, you can get a naloxone kit from the public health unit or a local pharmacy.

If you are facing a drug related charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.