Drugs

Supreme Court of Canada Clarifies Entrapment by Police in Dial-a-Dope Cases

Written on Behalf of Affleck & Barrison LLP

Canada’s highest court recently released its written decision in a pair of related cases regarding the issue of entrapment.  Javid Ahmad (“Ahmad”) and Landon Williams (“Williams”) were each charged with drug offences after police purchased cocaine from them. 

The Supreme Court of Canada confirmed that police must form a reasonable suspicion that the individual on the phone is dealing drugs before asking to buy drugs.

WHAT HAPPENED?

Toronto police responded to tips to investigate alleged dial-a-dope schemes.  This type of scheme involves a seller communicating with their customers over cell phones and arranging to purchase drugs at an agreed upon location.  In each case, officers called a particular phone number and following a brief conversation requested drugs and arranged a meeting spot to complete the transaction. 

Ahmad and Williams were each arrested and charged with drug-related offences.  Both accused argued at trial that their proceedings should be stayed on the basis of entrapment.

In the case of Ahmad, the police received a tip that “Romeo” was selling drugs over the phone.  Following a short conversation with “Romeo”, a deal was struck to sell the officer cocaine and a location was agreed upon.  The officer met “Romeo” (Ahmad) in person to sell him the cocaine, at which time he was arrested and searched.  At Ahmad’s trial, he was convicted and the judge concluded that he was not entrapped as police had not offered him an opportunity to traffic drugs until their tip had been corroborated during the course of the phone conversation. 

In the case of Williams, police received a tip that “Jay” was selling cocaine.  The officer called “Jay” and arranged a meeting time and place to buy crack cocaine.  The drug deal took place.  Eleven days later, another drug deal was arranged.  A month later, the police arrested Williams.  At Williams’ trial, the judge concluded that he was entrapped because the officer who contacted him provided him with the option to sell drugs before forming a reasonable suspicion that he was drug trafficking.  Thus resulting in a stay of the drug-related charges.

Both Ahmad’s and Williams’ cases were heard together on appeal.  The majority of the Court of Appeal held that where reasonable suspicion relates to the phone number, the police can provide opportunities to commit a crime even if there is no reasonable suspicion about the person who answers the phone.  Therefore, at their appeals both Ahmad and Williams were convicted of drug offences.

WHAT IS ENTRAPMENT?

Entrapment takes place when the police encourage an individual to commit a crime or provide an individual with the opportunity to commit a crime without having a reasonable suspicion that the individual is involved in that particular criminal activity. 

The Supreme Court of Canada set out two categories for the defence of entrapment in the case of R. v. Mack

  1. The police may present an opportunity to commit a crime only without acting upon a reasonable suspicion that either a specific person is engaged in criminal activity or people are carrying out criminal activity at a specific location;
  2. The police, while having a reasonable suspicion, go beyond providing an opportunity and induce the commission of an offence.

WHAT DID THE SUPREME COURT OF CANADA DECIDE?

On appeal to the Supreme Court of Canada, both Ahmad and Williams argued that the police did not have the required reasonable suspicion that either individual was involved in criminal activity before asking them over the phone to buy drugs.

The majority of the judges of the Supreme Court concluded that Ahmad was not entrapped and that Williams was entrapped by the police.

The court held that police can ask a person during a telephone conversation to commit a crime, but only if there is already reasonable suspicion that the person is involved in criminal activity.  The reasonable suspicion must relate to the specific person committing a crime or a crime occurring in a specific location.  Given the digital world that we live in, a specific location can include a phone number.  Thus, police can have a reasonable suspicion that the phone number is being used for the crime before asking the person who answers the phone to commit a crime.  The court was concerned about the risks to privacy of allowing the location to be expanded to virtual spaces and stated:

…to properly protect these interests, police must have reasonable suspicion over an individual or a well-defined virtual space, like a phone number, before providing an opportunity to commit a crime.

Although in both cases, the police didn’t have reasonable suspicion before calling the phone numbers, the court concluded that the police became reasonably suspicious in Ahmad’s case to suspect he was selling drugs while talking with him on the phone and before asking to buy drugs from him.  In Williams case, the police asked to buy drugs from him prior to having a reasonable suspicion that he was selling drugs during their phone conversation. 

The majority of the court stated:

As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. …

At the same time, police require various investigative techniques to enforce the criminal law.  While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.

Based upon the specific circumstances in each case, Ahmad’s conviction was upheld and the stay of proceedings for Williams was reinstated.

If you have been charged with a drug-related offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise. 

Supreme Court of Canada Rules Bail Conditions Must Be Knowingly Violated

Written on Behalf of Affleck & Barrison LLP

In its unanimous decision last week, the Supreme Court of Canada ordered a new trial for Chaycen Michael Zora (“Zora”), who had been convicted of breaching his bail conditions. 

The highest court in Canada concluded that an individual accused of breaching his/her bail conditions must knowingly or recklessly violate those conditions in order to be found guilty of breaching them.

WHAT HAPPENED?

Zora was charged with several drug offences in British Columbia.  He was released on bail and required to abide by twelve conditions.  These conditions included that he keep the peace and be of good behaviour, report to his bail supervisor, not possess any non-prescribed controlled substances, not possess or have a cell phone, obey a curfew and be present at his front door within five minutes if and when the police or bail supervisor appeared to check on him, amongst other conditions. 

In October 2015, police rang Zora’s doorbell on two occasions and he did not answer.  He was therefore charged with two counts of breaching his curfew and two counts of failing to meet the condition of responding to police at his home during a curfew check.

At his trial, Zora was acquitted of charges of breaching curfew as it could not be proven beyond a reasonable doubt that Zora had been outside of his home after curfew.  However, Zora was fined $920 and found guilty of two counts of failing to appear at the door in response to curfew compliance checks.

Zora argued that he did not hear the doorbell as it was difficult to hear it from where he slept.  Furthermore, he testified that he was undergoing methadone treatment, which made him very tired, and was in the process of withdrawal from his heroin addiction.

Zora also testified that he changed where he slept in his home and set up an audio-visual system at his front door to help alert him to further police checks, which ensured that he was complying with his conditions of bail. 

Zora unsuccessfully appealed the trial judge’s decision.  He then proceeded to take his appeal to the Supreme Court of Canada

THE DECISION OF THE SUPREME COURT

Zora appeals his conviction for failing to comply with his bail conditions by not answering the door when police appeared at his residence to ensure that he was complying with his bail conditions.  In failing to do so, Zora had committed the actus reus of the crime (the physical act of the crime).

The Supreme Court of Canada was asked to determine whether Zora had committed the mental element, also known as the mens rea, of the crime, which also must be present, in order to secure a conviction under section 145(3) of the Criminal Code.

It is a criminal offence, under section 145(3) of the Criminal Code, to breach bail.  This crime carries a maximum penalty of two years in prison.  Therefore, an accused may be subject to imprisonment for breaching conditions of their bail even if he/she is not found guilty of any of the original charges. 

In writing on behalf of the Supreme Court, Justice Martin explained what was required to satisfy the mental element of the crime:

I conclude that the Crown is required to prove subjective mens rea and no lesser form of fault will suffice.  Under s.145(3), the Crown must establish that the accused committed the breach knowingly or recklessly.  Nothing in the text or context of s. 145(3) displaces the presumption that Parliament intended to require a subjective mens rea. 

…The realities of the bail system further support Parliament’s intention to require subjective fault to ensure that the individual characteristics of the accused are considered throughout the bail process.

…Not only is this conclusion consistent with the presumption of subjective fault for crimes like s. 145(3), it is supported by its place and purpose in the overall bail system, the serious consequences which flow from its breach, and how the consideration of individual circumstances is the proper focus both for setting conditions and determining the mental element for their breach.

The Supreme Court held that subjective mens rea can be established when the Crown has proven:

  1. The accused had knowledge of the conditions of the bail order, or they were willfully blind to those conditions; and
  2. The accused knowingly (or were willfully blind to the circumstances) failed to act according to their bail conditions despite the knowledge of them; or
  3. The accused recklessly failed to act in accordance with their bail conditions (i.e. perceived an unjustified risk that their conduct would fail to comply with their bail conditions).

In conclusion, the Supreme Court held that subjective fault is required for a conviction under s. 145(3) of the Criminal Code.  The court found that the lower courts erred in law by applying an objective rather than a subjective standard of fault.  The Supreme Court allowed Zora’s appeal, quashed his convictions and ordered a new trial on the two counts of failing to appear at his door. 

If you have been charged with a bail related offence or have any questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Rising Numbers of Opioid Overdoses in Canada

Written on Behalf of Affleck & Barrison LLP

As our attention focuses on the mounting death toll plaguing our country and the entire world related to COVID-19, the numbers of those overdosing from opioids in Ontario is also on the rise.

Dr. Theresa Tam, Canada’s chief public health officer, has recently brought the frightening nationwide trend to the attention of the public.

According to federal data, more than 14,000 Canadians have died due to opioids in the last four years.

In Ontario, there has been a 25% increase in fatal drug overdoses from March to May 2020 in comparison to the same three month period last year.

Other provinces in Canada have also seen an increase of drug overdoses in the last few months. Alberta has reported an increase in opioid-related EMS calls from 257 in March to 550 in May of this year.

British Columbia has seen a 39% increase in overdose deaths in April of 2020 compared to the same month last year.  B.C. also reported 170 deaths from overdose in May 2020, which was more than the number of COVID-19 deaths that month.  During the three months that government measures of social distancing were put in place, more than 400 deaths due to overdose were recorded in B.C. as well.

CONTRADICTORY MESSAGES FOR DRUG USERS

Although overdose prevention sites continue to operate, physical distancing guidelines result in less individuals being able to use these services.  These sites provide a space for those who use drugs to safely consume them and receive overdose response measures if necessary.

Recently, overdose prevention sites have changed their layouts, installed barriers and served fewer clients at a time or by appointments to ensure physical distancing measures were being employed.  It has been reported that one site of this nature in Toronto that had an average of 100 visits a day is now seeing half of that number.

Staff who work at these supervised consumption sites began using personal protective gear while meeting with clients and during street outreach.  Some clients became upset encountering staff dressed in this manner.  Some felt that staff were sending them a message that they were dirty or that they have a disease. 

The new measures to protect against COVID-19 may also cause difficulty for staff to establish and maintain trust with clients given all the physical barriers now employed. 

These new safety measures are also entirely contradictory to the strategies that staff traditionally use to help drug users.  Typically those that consume drugs are told never to use alone, whereas now they are being told to stay home and physically distance themselves from others.

SOCIAL ISOLATION MAY BE CONTRIBUTING TO THE OPIOID CRISIS

Feelings of stress, uncertainty, social isolation, and loss of access to services may also be contributing to the rising overdoses in Canada. 

Those individuals who were actively using drugs at the beginning of the pandemic may be increasing their consumption.  Those that were in recovery may have begun using drugs again, especially if they have encountered losses related to the pandemic or the loss of supports that they once had as a result of the pandemic.

Another factor to consider in the rising number of overdoses may be the additional access to money through the Canadian Emergency Response Benefit (CERB) offered by the government. 

COVID-19 IMPACTS THE DRUG SUPPLY CHAIN

During COVID-19, it is harder for individuals to access their drug of choice. 

Disruption in international travel and closed borders due to the pandemic has made the unregulated drug supply very unpredictable, and possibly more toxic.  As it has become harder to acquire substances from overseas, dealers and users are using whatever ingredients are available.

According to Guy Felicella, of the British Columbia Centre on Substance Use:

When (drugs become) more challenging to get, the potency goes up, the price goes up, everything goes up, and in that sense it becomes more deadly by the day.

DEMAND FOR MORE FUNDING AND DECRIMINALIZATION OF ILLEGAL DRUGS

Public health officials throughout Canada are pressuring the federal government for more funding for a safe supply of drugs in their provinces and cities. 

A recent report from Dr. Eileen de Villa, Toronto’s medical officer of health, outlines the growing concern in Canada:

The ongoing opioid poisoning crisis in Toronto and across Canada has intensified and been further compounded by the COVID-19 global pandemic.  These dual public health crises are having significant impacts on people who use drugs in our community as well as their families, friends and loved ones.  Services that people rely on, many of them lifesaving, have closed or significantly reduced their service hours and/or capacity.

In addition to extra funding, Dr. Eileen De Villa is requesting that the federal government decriminalize illegal drugs for the duration of the pandemic.  This suggestion is made in an effort to promote a public health approach to the problem and not a criminal justice approach.

According to Nick Boyce, director of the Ontario Harm Reduction Network:

Laws actually incentivize drug dealers and suppliers to come up with new and different drugs.  We learned this lesson in the 1920s with alcohol prohibition where people switched from drinking beer to toxic moonshine.  We’re seeing that with the opioid drug supply now.

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

If you have been charged with a drug related charge or have questions regarding 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. 

Increase In DUI Charges Following Festive R.I.D.E. Campaign in Durham Region

Written on Behalf of Affleck & Barrison LLP

The presents have been unwrapped and the new year’s confetti has been swept away at the same time as Durham Police’s Festive R.I.D.E. campaign has come to an end for 2019.

Durham Police ran their annual seven week R.I.D.E. campaign (Reduce Impaired Driving Everywhere), which concluded on New Year’s Day 2020.  As a result of this campaign, a grand total of 104 motorists were charged with drinking and driving offences, which was an increase from those charged in 2018.

Prior to the commencement of the Festive R.I.D.E. campaign, Durham Police have charged 644 motorists with impaired driving offences in 2019.  This is a 19% increase in charges from 2018.

CHARGES ARISING OUT OF TRAFFIC STOPS IN 2019

This past year, Durham Police stopped more than 19,000 vehicles during the 2019 R.I.D.E. campaign.  During these traffic stops, 787 motorists were given roadside breath tests.  Of those given breath tests, 86 motorists had their driver’s license suspended for three days for registering in the “warn” range.  There were 104 motorists charged with drinking and driving offences. 

In comparison to the 2018 winter holiday season, less vehicles were stopped by Durham Police this year.  In 2018, 25,110 vehicles were stopped during Durham Police’s annual RIDE campaign and 117 motorists were charged with drinking and driving offences in Durham.  During that year’s R.I.D.E. campaign, 111 motorists had their driver’s license suspended for three days after registering in the “waning range” during their roadside test.

Although the number of motorists charged with impaired driving was lower this year than last year, the rate of impaired charges laid increased.  In 2019, one in every 188 motorists stopped by the police was charged with an offence of drinking and driving in comparison to one in every 214 motorists charged with an offence in 2018.

Durham Police also laid 379 charges for various Highway Traffic Act offences during their traffic stops.  Police also charged 4 motorists with drug offences and 7 motorists with offences related to the Cannabis Act.

ALLEGED IMPAIRED DRIVING ACCIDENTS THAT OCCURRED OVER THE HOLIDAYS

Festive R.I.D.E. campaigns ran throughout the Greater Toronto Area this past holiday season.  Despite these efforts, numerous motor vehicle accidents occurred during the holiday season as a result of suspected impaired drivers in the GTA.

On the evening of December 22, 2019, two international students were killed while walking on the sidewalk when a driver lost control of his vehicle, jumped the curb and plowed down the pedestrians in Scarborough.  A third pedestrian was also injured in the accident and was taken to hospital in serious condition.  Michael Johnson of Pickering was arrested at the scene of the collision and is facing nine charges, including two counts of impaired driving causing death and one count of impaired driving causing bodily harm. 

On the evening of December 26, 2019, a four-vehicle collision occurred on the Queen Elizabeth Way in Oakville.  Four individuals were transported to hospital with minor injuries.  One motorist was taken into custody on suspicion of drunk driving.

On December 27, 2019, a man was taken into custody on suspicion of impaired driving after he lost control of his vehicle, veered off the road and slammed into a TTC bus shelter that had people inside of it in the area of Sheppard Avenue and Progress Avenue in Scarborough.   There were no reported injuries as a result of this accident.

On New Year’s Eve, a 68-year-old man died at the scene of a car accident when a suspected impaired driver collided with his Toyota in the area of Elgin Mills Road and Ninth Line in York Region.  Stanley Choy of Whitchurch-Stouffville was charged with impaired driving causing death, operation with a blood alcohol concentration 80 plus causing death, and dangerous operation causing death.

TIPS TO AVOID IMPAIRED DRIVING CHARGES

Impaired driving is a crime under the Criminal Code of Canada and the consequences are very serious.  In Canada, the maximum legal blood alcohol concentration for fully licensed drivers is 80 milligrams of alcohol in 100 millilitres of blood (0.08).  In Ontario, motorists can face serious penalties if their blood alcohol concentration is found to fall between 0.05 and 0.08, considered the “warn” range.

The legal team at Affleck & Barrison LLP would like to provide the following tips to avoid the consequences of an impaired driving charge:

  • Always have a plan to return home safely, either a designated driver, public transit, calling a friend or loved one, a ride share or taxi, or plan to stay overnight and sleep it off;
  • Tell your family and friends about your plan to get home safely;
  • Do not over-indulge in alcohol or cannabis;
  • Be sure to drink plenty of water;
  • Ask your doctor or pharmacist whether there are any side effects related to driving when using prescription medication;
  • Parents should model safe driving behaviours by avoiding driving a vehicle while impaired; and
  • Be aware that fatigue and stress may affect your ability to operate a vehicle safely.

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.

Alberta Court of Appeal Sets Minimum Sentencing for Fentanyl Trafficking

Written on Behalf of Affleck & Barrison LLP

As the country copes with the opioid crisis, the highest court in Alberta has now set a new sentencing starting point for those convicted of fentanyl trafficking.  The court recognized the peril that Alberta is in and stressed that it is up to the courts “to protect the public by imposing sentences that will alter the cost-benefit math performed by high-level fentanyl traffickers”.

A special five-justice panel of the Alberta Court of Appeal heard two appeals by the Crown prosecutor regarding fentanyl trafficking and unanimously ruled that convictions for wholesale fentanyl trafficking should receive a minimum sentence of nine years.

THE APPEAL DECISION REGARDING CAMERON PARRANTO

Last year, Cameron O’Lynn Parranto (“Parranto”), who pleaded guilty, was sentenced to 11 years in prison for trafficking in fentanyl in Edmonton.  Police seized the equivalent of a half-million doses of fentanyl.

Parranto pleaded guilty to possession for the purpose of trafficking in fentanyl and other drugs for two sets of offences. 

After a search warrant was executed at Parranto’s home, police recovered 27.8 grams of fentayl, 182.5 grams of methamphetamine, 82.6 grams of cocaine, 396 morphine pills and 168 oxycodone pills.  They also found $55,575 in cash, a loaded handgun, ammunition, police and sheriff badges, body armour, a dozen cell phones, scales and a cash counter.

Following Parranto’s release for his first set of offences, he was arrested three months later when greater quantities of fentanyl, methamphetamines, cocaine, heroin, oxycodone and the date rape drug GHB were uncovered. 

Parranto pleaded guilty to both sets of offences and was handed an 11-year sentence for eight offences, five years for the March 2016 offences and 6 years for the October 2016 offences. 

The court of appeal increased Parranto’s sentence to 14 years, minus credit of 3 ½ years for pre-sentence custody.

THE APPEAL DECISION REGARDING PATRICK FELIX

Earlier this year, Patrick Felix (“Felix”), a wholesale drug trafficker in Fort McMurray, was sentenced to 7 years in prison for his role in trafficking fentanyl after pleading guilty.  Investigators seized approximately $1 million worth of drugs and 3,000 fentanyl pills.

Felix obtained drugs and stored them at a “stash” location.  He employed “runners” to take orders, retrieve the drugs from the stash location and complete the deals.  “Food bosses” were also used to manage the runners, collect money from the sales and then provide Felix with the proceeds.

In 2015, Felix sold drugs to an undercover police officer on six separate occasions.  Felix provided 2,388 fentanyl pills and 2.5 kilograms of cocaine for a total price of $173,400. 

At trial, Felix pleaded guilty to four counts of trafficking in fentanyl and cocaine.  He was sentenced to seven years for each count of fentanyl trafficking and four years for each count of cocaine trafficking to be served concurrently.  A concurrent sentence occurs when all sentences are served at the same time, with the longest sentence period controlling the length of time in jail. 

The Crown prosecutor appealed the sentence and requested that the appeal court establish a minimum sentence for those convicted of wholesale trafficking in opioids.  On appeal, the Crown also argued that the trial judge made “case-specific errors that affected the fitness of the sentence imposed”. 

At the appeal, Justice Antonio wrote that the sentence imposed by the trial judge was “demonstrably unfit” in part due to the judge’s failure to distinguish between commercial trafficking and wholesale trafficking and failing to take into account Felix’s role in the organization.

Justice Antonio, writing on behalf of all the judges on the bench, stated:

Mr. Felix’s role was at the top of his organization, which is a weighty aggravating factor.  He energetically ran a business that was structured to maximize profit while minimizing the chance of criminal consequences to himself.  He was responsible for pouring poison into his own community and potentially others, jeopardizing the health and lives of untold numbers of end users.

Trafficking in cocaine has a four-and-a-half year starting point for sentencing.  A starting point for sentencing of a low-level commercial dealer of heroin is typically five years. 

The court will take into account the dangerousness of the drug and the scale of the offender’s involvement in the drug operation when establishing a minimum sentence for those convicted.  The court of appeal found that wholesale trafficking is more morally blameworthy than commercial trafficking as it presents a grave danger to individuals, communities and the greater public interest.  The appeal court defined wholesale trafficking as one that traffics large amounts of one or more drugs or distributes drugs on a large scale, possibly for resale.

Given the appeal court’s comments, the Crown was successful on appeal and set a starting point for those found guilty of commercial trafficking at nine years.  Felix’s overall sentence was increased by the court to 10 years.

If you have been charged with a drug related charge or have questions regarding 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. 

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.