Drugs

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You do not need to apply for a Record Suspension if charges against you were dismissed, stayed or withdrawn, or did not result in a conviction.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

 

 

 

Ontario Announces Zero Tolerance to Prevent Drug-Impaired Driving

Written on Behalf of Affleck & Barrison LLP

We’ve previously blogged about drug-impaired driving, and are now revisiting the topic in light of a recent announcement by the provincial Liberals.

On September 28, 2017, Premier Kathleen Wynne announced that commercial truckers, drivers 21 and under, and novice motorists will face stiff penalties if caught behind the wheel after using cannabis or alcohol.

This announcement was made in advance of the federal government’s plan to legalize recreational cannabis by July 2018.

WHAT IS ZERO TOLERANCE LEGISLATION?

Ontario is the first province or territory to publicize an extensive plan to regulate federally legalized cannabis. These new measures will be in addition to the penalties found under the Criminal Code of Canada for impaired driving convictions (ie. loss of licence, additional fines or incarceration).

Ontario’s zero tolerance legislation will include tougher laws against drug-impaired driving for young drivers aged 21 and under; novice drivers (G1, G2, M1 and M2 licence holders); and all commercial drivers.

Zero tolerance means that drivers should not get behind the wheel if they have any measurable presence of drugs or alcohol in their system as detected by an oral fluid screening device.. The federal government has promised to introduce a screening device and set thresholds for detecting the presence of cannabis in the near future.

PENALTIES, LICENCE SUSPENSIONS, AND OTHER CONSEQUENCES

Ontario’s new legislation will increase monetary penalties for drivers who fail or refuse to perform a sobriety test. It has been proposed that, for a first offence, young drivers and all G1, G2, M1 and M2 licence holders will face a three day suspension and a $250 fine.

For a second offence, these offenders will be subject to a week-long suspension and a $350 fine with all subsequent occurrences facing a 30-day suspension and a $450 fine.

Commercial drivers will also be subject to a zero tolerance policy and could face a three day suspension any time they are caught and fined up to $450.

All other drivers in Ontario who are found to be within the “warn range” with blood alcohol concentration between .05 and .08 or drug impaired and fail a roadside standardized field sobriety test could face up to 30 days licence suspension and up to $450 fines with subsequent occurrences.

Those drivers with blood-alcohol concentrate levels above .08, drug-impaired or who fail or refuse to submit to tests could face a 90-day suspension and $550 fines.

ADDITIONAL PENALTIES ANNOUNCED TO IMPROVE ROAD SAFETY 

Legislation will be introduced this fall in Ontario to improve road safety and deter careless and distracted driving.

A new offence will be added to Ontario’s Highway Traffic Act for careless driving causing death or bodily harm. This conviction would lead to a licence suspension of up to five years, fines of between $2,000 and $50,000, up to two years of incarceration and six demerit points.

Drivers who don’t yield to pedestrians would also see increased fines up to a maximum of $1,000.

In addition, fines for distracted driving (ie. using a cellphone while operating a vehicle) would increase from a maximum of $1,000 to up to $2,000 on a second conviction and up to $3,000 for third or subsequent incidents, as well as six demerit points for multiple offences. The first offence would also result in a three day licence suspension and if convicted for a third time would result in a 30 day licence suspension.

Drivers with a G1, G2, M1 or M2 licence who are convicted of three or more distracted driving offences would have their licence cancelled.

These new penalties will be the toughest consequences for repeated distracted driving offences across Canada.

If you have been charged with a driving offence, please call Affleck & Barrison LLP at 905-404-1947 or contact us online. We offer a free consultation and are available 24 hours a day, seven days a week.

Judge Criticizes Police Officer’s “False Testimony” in Drug Case

Written on Behalf of Affleck & Barrison LLP

Drug charges against three men have been dropped after an Ontario judge found that a Toronto police officer had been “deliberately misleading” in both his testimony and in his notes, as he attempted to “strengthen the case” against one of the men.

What Happened?

In 2014, the three men in question, Jason Jaggernauth, Jordan Davis, and Jimal Nembrand-Walker were charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime, after police found them in a Scarborough apartment that contained multiple types of drugs and drug-related paraphernalia.

At the time of the arrest, police officers found several grams of crack on Davis and crack, powdered cocaine, and several other drugs in Nembrand-Walker’s pockets. No drugs were found on Jaggernauth.

Conflicting Testimony

In a pretrial hearing, the officer, Constable Bradley Trenouth, testified that he saw a large piece of crack fall from Jaggernauth when officers had him stand up from his chair. This testimony was backed up by the notes that the officer said he took at the time of the arrest. During the preliminary hearing, the officer also stated that he had picked up the piece of crack off the floor after forensic officers had taken photos of the scene. However, the photos taken do not include images of that specific piece of crack. When questioned about why the photos taken did not depict the crack, the officer claimed that it might be because the piece of crack had been stepped on or moved before the photos were taken.

In addition, at trial several months later, the officer told the court that he did not see the crack fall from Jaggernauth. Instead, he testified that he had found the piece of crack on the floor near Jaggernauth and “assumed” it had fallen from him.  At this time, the officer’s story about the photos of the crack also changed, and he told the court that there were no photos of the crack because he had already picked it up and put it in his pocket before the photos were taken.

The Decision

In her decision, Justice Katherine Corrick wrote that the officer had not found the crack near Jaggernauth, but rather, had “falsely attributed” the drugs to Jaggernauth. The charges against Jaggernauth were stayed. Because of the officer’s actions, Justice Corrick excluded the evidence gathered by him and other officers. As a result, Jaggernauth’s co-accused’s were also found not guilty.

Justice Corrick wrote, in her decision:

The false attribution of evidence to an accused’s possession, and false testimony by a police officer constitute precisely the type of state misconduct that undermines the integrity of the judicial process.

Justice Corrick further noted that the officer was “deliberately misleading” in both preparing his notes, and in his testimony at the preliminary hearing. She found it “unlikely” that an officer with eight years of police experience would pick up unwrapped drugs and put them in his pocket at a crime scene. Furthermore, if the officer had merely been mistaken during his pretrial testimony, he should have informed prosecutors before the case went to trial.

Justice Corrick criticized the officer’s actions stating:

It is difficult to imagine how public confidence can be maintained in the rule of law when police officers present false evidence against accused person… [o]ur justice system cannot function unless courts can rely on the willingness of witnesses to . . . tell the truth.

Potential Discipline for the Officer

Jaggernauth’s lawyer has recommended that an investigation be immediately opened into the officer’s conduct during the matter:

The bottom line is . . . an officer falsely attributed an exhibit to my client that never was on my client.

A Toronto police spokesperson said that she cannot confirm whether the officer will face any discipline. All police disciplinary matters are kept confidential until the officer in question has appeared before a police services tribunal.

If you have questions about your legal rights, whether during an investigation, arrest, or otherwise contact the criminal lawyers at Affleck & Barrison LLP in Oshawa. Our firm and its predecessors have been protecting clients since 1992 and have significant experience with drug offences. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation.

Man Inadvertently Reveals $500 Million Grow-Op to Police

Written on Behalf of Affleck & Barrison LLP

Police in North Carolina recently made a massive opium bust, after being tipped off by the grower of the opium-producing poppies himself.

“I guess you are here for the opium”

Police visited the property of Cody Xiong as part of a routine, warrantless “knock and talk” after receiving a tip on a matter unrelated to drugs.

When Xiong opened the door and saw the police officer, he said “I guess you are here for the opium”, inadvertently flagging the existence of a massive grow-op to the officer. Following Xiong’s outburst, police discovered approximately $500 million worth of opium-producing poppy plants growing on more than one acre of his property. The crop was planted in neat rows and was obscured by trees.

Had Xiong not spilled the beans, it is unlikely that his grow-op would have been discovered at all. The small town where this drug drama has unfolded is a small rural settlement with a population of roughly 1,400. Xiong himself lived at the dead-end of a remote gravel road in the foothills of the town.

Xiong’s full crop will have to be weighed before authorities can determine the exact dollar value of the plants, but investigators have estimated that there were approximately 2000 pounds of poppy plants, with a value of about $500 million dollars. The investigators believe that the plants were going to be shipped elsewhere to be processed into heroin. The investigation into Xiong’s operation is still ongoing and involves the cooperation of DEA agents.

Xiong has been charged with manufacturing a Schedule II drug, and with trafficking in opium, both of which are felonies. He was arrested and released on $45,000 bail.

Drug Charges in Canada

We’ve blogged about serious drug charges in the past. As in the States, and in most of the world, a number of drugs, including heroin, are illegal in Canada.

Drugs are categorized into various schedules under the federal Controlled Drugs & Substances Act. In Canada, heroin is classified as a Schedule I drug, along with cocaine, morphine, and a number of others.

There are a number of drug offences in Canada, including possession, drug trafficking, and drug importing/exporting. The severity of any charges will depend on the type and quantity of the drug in question, as well as other facts specific to the circumstances.

Beyond just the danger of imprisonment, including life in prison in some cases, a drug conviction can have a significant impact on your life. Every drug conviction, even a minor one, will appear on your criminal record. This can significantly affect your ability to travel outside of Canada, or your ability to get certain jobs.

If you have any questions about drug charges or any other criminal defence matter, please contact Affleck & Barrison online or at 905-404-1947. We have 24-hour phone service for your convenience. Trust our experienced lawyers to handle your drug matter with diligence and expertise.

 

Saskatchewan Court of Appeal Refuses to Consider Pending Changes to Marijuana Legislation when Sentencing

Written on Behalf of Affleck & Barrison LLP

 

The conversation around pending changes to marijuana legislation and how it relates to those tied up in the criminal justice system today continues to provide us with judicial decisions.

The Saskatchewan Court of Appeal recently overturned a trial judge’s decision to issue a suspended sentence to a man, who was convicted of possession for the purpose of trafficking and trafficking over 20 pounds of marijuana.

A Lenient Trial Judge

At the man’s first trial, the judge considered existing sentencing guidelines and whether ordering jail time would violate the man’s rights under Section 12 of the Charter (which protects individuals from cruel and unusual punishment).

The judge stated, “I understand that my task is to approach the debate in a common‑sense way with a view to determining if the sentencing regime created by Parliament manifests itself in a grossly disproportionate punishment.”

The trial judge went on to consider a previous Supreme Court of Canada decision, which had found that “[Courts] should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.”

This left the trial judge to summarize “’Merely excessive’ is tolerable. It is only when the sentencing result reaches the frontier of “cruel and unusual” or “grossly disproportional” that the Charter remedy is triggered.”

The trial judge then examined the man’s history, which did not include any previous criminal activity. In fact, he played an active role in community involvement and was involved in both academic and business pursuits. The trial judge concluded “No larger good is served sentencing [this man] to jail. He poses no danger to the community. He has conducted himself well as a citizen but for this single unfortunate foray in the mire of the drug world. To be certain, as he attempted to engage in a criminal enterprise, his crimes are deserving of denunciation and deterrence. However, facing the reality that the product in which he dealt is to become legal, it should be said that the decibel level of such denunciation and deterrence may be less than it otherwise would be.” The man was ultimately issued a suspended sentence.

On Appeal

Prosecutors appealed the trial judge’s decision to the Saskatchewan Court of Appeal., which reached a much different conclusion.

The Court of Appeal specifically noted the trial judge’s consideration of pending changes to Canada’s marijuana legislation, writing “After observing that the federal government was taking steps to legalize marijuana, he proceeded to sentence [the man]. The trial judge suspended the passing of sentence for two years subject to certain conditions.”

The Court of Appeal went on to state “Judges are bound to apply the law as it exists not as it might be in the future especially when, as here, it is unknown when the law will be changed, what the terms of it will be and how it will affect the offences of trafficking drugs or possession for the purpose.

The Court added “The possible future legalization of possession of marijuana can have no legal effect on the sentencing regime,” and, “it is an irrelevant extraneous factor that could, in this case, play no part in sentencing considerations. The trial judge’s reliance on this factor was an error of law.”

The man was ultimately given a sentence of 15 months.

To speak with an experienced Oshawa criminal defence lawyer about drug trafficking or possession of drug charges, call Affleck & Barrison at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7. Trust our experienced lawyers to handle your defence with diligence and expertise.

 

Police Had No Reason to Search a Home, Drug Conviction Overturned

Written on Behalf of Affleck & Barrison LLP

A man operating a marijuana grow-op in his basement has had his drug conviction thrown out after the Court of Appeal found that the police had no right to enter his home, despite the fact that the man’s four-year old child was found wandering by himself, wearing a diaper, near a busy intersection close to the home.

What Happened?

A passing motorist called 911 to report a child standing alone at the side of a busy road. By the time the police arrived, the child’s mother had intercepted him, and had him safely in her arms. The child’s father arrived shortly thereafter and explained to police that the boy was autistic, “tended to wander”, and had managed to get out of the house despite a special lock on the door.

The man permitted the police to visit his home to inspect the lock. When police arrived, they insisted on going inside the home, claiming that they were entitled to do so in order to check on the boy’s well-being.

Once inside the home, the officers smelled marijuana and began to look around, including inside cupboards and inside the fridge. The officers eventually made it to the basement and found marijuana plants. They arrested the man and charged him with a number of drug-related offences.

The Original Trial Decision

At the original trial, the man argued that the police had violated his constitutional rights when they conducted the search.

Superior Court Justice McIsaac rejected this assertion, finding that the police had been entitled to conduct a “protective sweep” of the home due to their “child-protection concerns.” The judge rejected any suggestion that the police had used the child as a pretext to “insinuate themselves into a suspected drug operation”. The marijuana evidence was admitted, and the man was convicted.

The man appealed the conviction.

The Court of Appeal Decision

On appeal, prosecutors argued that the search had been appropriate and justified. However, the Court of Appeal ultimately disagreed and quashed the conviction. The Court of Appeal found that the police’s actions had amounted to an illegal search and a breach of the man’s rights.

The Court’s decision was based largely on evidence from the lead police investigator who had testified that he had no concerns that the boy was in serious danger in the home, and that there would have been no grounds to obtain a search warrant.

Justice John Laskin, writing on behalf of the court, noted that the police have a duty to investigate 911 calls, as well as a limited right to enter a home without a warrant; however once inside a home, police do not have any additional authority to search a home or intrude on a resident’s privacy or property:

Police can enter a home without a warrant if they have reasonable grounds to believe it is necessary to do so to protect a person’s life or safety…[that] does not give the police sweeping authority to enter a home without a warrant to investigate whether a child’s mother and father are good parents.

Justice Laskin ultimately found that the breaches of the man’s rights in this case were serious enough to merit throwing out the drug evidence. The man was acquitted.

If you have been charged with a drug offence contact one of the Oshawa drug offence lawyers at Affleck & Barrison. You can reach us  online or at 905-404-1947. We maintain a 24-hour phone service and we accept cases by private retainers and Legal Aid. Trust our experienced lawyers to handle your defence with diligence and expertise.