legislation

Changes to Jury Selection Upheld in Ontario Court

Written on Behalf of Affleck & Barrison LLP

An Ontario Superior Court of Justice has ruled that the changes to peremptory challenges of jurors should be applied to jury selection beginning September 19, 2019. 

The decision in R. v Chouhan upholds the constitutionality of the new legislation found in Bill C-75 that removed the ability for lawyers to challenge potential jurors.

WHAT HAPPENED?

On September 19, 2019, Pardeep Singh Chouhan was scheduled to select a jury for a first-degree murder trial.  This was also the day that Bill C-75 came into force. 

The amendments set out in Bill C-75 reform the procedure for jury selection in the following three ways:

  1. The trial judge will be the one to determine whether the prospective juror is likely to decide the case impartially in the circumstances when either party has challenged the juror for cause.  Previously, the court used lay triers to make this determination.
  2. The ability to challenge prospective jurors by means of peremptory challenges by either party has been eliminated.
  3. The trial judge has been given the discretion to stand aside a juror for the purpose of maintaining public confidence in the administration of justice.

In court, Chouhan’s lawyers argued that the provisions of Bill C-75, specifically the elimination of peremptory challenges, violates sections 7 (the right to life, liberty and security), 11(d) (the right to be presumed innocent until proven guilty) and 11(f) (the right to trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment) of the Charter of Rights and FreedomsChouhan’s lawyers argued that the new procedures would breach their client’s right to an independent and impartial jury by giving the trial judge the discretion to make the determination in circumstances of either party challenging the juror for cause.

Justice John McMahon concluded that Bill C-75 does not violate an individual’s rights under the Charter.  Justice McMahon wrote in his decision:

The ability to exclude a potential juror based simply on their appearance, their look, or a person’s gut feeling, without furnishing a reason, is not transparent.  The elimination of the peremptory challenge does make the justice system more transparent, but without removing either parties’ ability to set aside potential jurors for articulate reasons.  The representativeness of the panel, the randomness of its selection and the ability for either party to challenge the process provide sufficient safeguards.

Justice McMahon held that an accused is not entitled to a jury that “reflects the proportionality of the population” or those of members of the same demographic group.  He concluded that there are safeguards in place to ensure that the jury remains independent and impartial, including the ability to screen prospective jurors for bias and the trial judge’s ability to excuse or reject prospective jurors for specific reasons.  He explained:

It appears that if either party can articulate reasons why a prospective juror would not be impartial, the judge would clearly have the ability to stand aside a prospective juror to maintain public confidence in the administration of justice.

Chouhan’s lawyers also argued that the changes to jury selection should not apply to those whose alleged offence occurred before Bill C-75 came into force.  Justice McMahon dismissed this argument and maintained that the new rules should be applied for every jury selected after they went into force, including Chouhan’s pending trial.

WHAT IS THE NEW LAW REGARDING JURY SELECTION?

Section 634 of the Criminal Code provided the rules for peremptory challenges.  Bill C-75 was established by the government in an effort to make juries more representative following the divisive acquittal of Gerald Stanley.  We have previously written a blog regarding the case of Stanley, who was charged with second-degree murder in the death of an Indigenous man, Colten Boushie.  In this case, there were no Indigenous members sitting in the jury.

Bill C-75 includes the removal of peremptory challenges from the jury selection process.  Peremptory challenges were a means by which lawyers for both the prosecution and defence could dismiss a certain number of prospective jurors, without any explanation.  The number of peremptory challenges allowed to a given party depended upon the seriousness of the crime, the number of jurors and whether there are co-accused.  Some believe that this process was used to ensure a particular composition of the jury.

Under the provisions of Bill C-75, lawyers have the ability to disqualify prospective jurors that they believe cannot be impartial.  However, under the new provisions, the judge makes the final decision.  This change is meant to address a growing concern that the jury selection process may discriminate unfairly against potential jurors. 

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.

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.

New Changes to Animal Cruelty Laws in Canada

Written on Behalf of Affleck & Barrison LLP


A new law has been passed to crack down on animal cruelty in Canada.  Bill C-84, “An Act to Amend the Criminal Code Pertaining to Bestiality and Animal Fighting”, addresses many flaws that are found in the current Criminal Code with respect to animals in Canada.

WHAT IS BESTIALITY?

The new law, Bill C-84, was created partly in response to a 2016 Supreme Court of Canada decision (R. v. D.L.W.) that found a convicted sexual offender not guilty of bestiality related to charges arising out of sexual activity involving one of his stepdaughters and the family dog.

The majority of the justices of the highest court in Canada ruled that the Criminal Code provisions on bestiality did not effectively define which sexual acts with animals are illegal.  They essentially requested that the government revisit the definition.

Justice Thomas Cromwell, on behalf of the majority of the court, wrote:

Penetration has always been understood to be an essential element of bestiality.  Parliament adopted the term without adding a definition of it, and the legislative history and evolution of the relevant provisions show no intent to depart from the well-understood legal meaning of the term.  … Any expansion of criminal liability for his offence is within Parliament’s exclusive domain.

The new law specifically provides an update of the legal definition of bestiality to broaden the definition and include any contact for a sexual purpose between a person and an animal (previously there had to be evidence of penetration before charges could be made).

Anyone convicted of bestiality in Canada will now be added to Canada’s National Sex Offenders Registry and can be banned from owning animals. 

According to the CEO of Humane Canada, Barbara Cartwright:

Many studies have proven a clear link between animal abuse and child abuse, so adding convicted animal abusers to the National Sex Offenders Registry protects children as well as animals.

HOW WILL THE LAW CHANGE REGARDING ANIMAL FIGHTING?

The new legislation will prohibit promoting or profiting from fighting or baiting animals, as well as breeding or training animals to fight.  The law also prohibits the building or maintaining of any arena established for the purpose of animal fighting. 

Furthermore, the new law applies to anyone who “in any manner encourages, aids, promotes, arranges, assists, receives money for or takes part in the fighting or baiting of animals.”

There is currently a growing trend of animal fighting, which occurs covertly and online.  This trend is also increasingly linked to guns and gangs.

One incredibly dreadful activity is called “trunking”, whereby two dogs are sealed together in the trunk of a car.  The car is driven around as the dogs fight to the death.  Eventually the car is stopped, and the results of the dog fight is revealed to an online audience.

There are several other important elements found in Bill C-84 to protect animals in Canada that include:

  • Granting a judge the discretion to make an order banning an offender from owning or living with an animal for a period of time up to a lifetime ban;
  • Granting a judge the ability to order the offender to make financial restitution to a person or organization that cared for an animal which was harmed by an offence;
  • Repealing a section of the Criminal Code that required a peace officer to seize and destroy any animals found fighting in a cockpit.

“FREE WILLY” BILL ALSO PASSES IN CANADA

The government has also passed Bill S-203, “The Ending the Captivity of Whales and Dolphins Act”, often referred to as the “Free Willy Act”.  This law phases out the captivity of cetaceans (i.e. whales, dolphins and porpoises) in Canada, except for rescues, rehabilitation, licensed scientific research or in the cetaceans’ best interests.  

The new law also prohibits the trade, possession, capture and breeding of cetaceans.  Those acting in contravention of the new law may be fined up to $200,000.

The law does provide an exception for those that are taking care of an injured or distressed animal in need of assistance.  Also, researchers must obtain a license from the government in order to hold a cetacean for research purposes.

The Vancouver Aquarium and Marineland in Niagara Falls are the only two facilities in Canada that are allowed to house cetaceans and keep the animals that they have as long as they do not breed them.  The Vancouver Aquarium has a Pacific white-sided dolphin and Marineland has an orca and more than 50 beluga whales.

Lori Marino of the Whale Sanctuary Project wrote in her statement about the new law:

This is a major victory for cetaceans.  They are among the most cognitively complex of all animals.  Confining them to life in a concrete tank is truly unbearable for them.

If you have any questions regarding charges that have been laid against you or 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.

Government Announces Legislation to Pardon Pot Possession

Written on Behalf of Affleck & Barrison LLP

On March 1, 2019, the Minister of Public Safety and Emergency Preparedness Ralph Goodale announced new legislation proposed to allow those previously convicted of simple marijuana possession to be pardoned once their sentence is complete.

The Trudeau government introduced Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, which would amend the Criminal Records Act.

According to Border Security and Organized Crime Reduction Minister Bill Blair, there are approximately 400,000 Canadians with criminal records for simple possession. However, the government expects that there are between 70,000 to 80,000 Canadians eligible to apply for the streamlined pardon process.

WHAT IS BILL C-93?

Bill C-93 proposes to allow those formerly convicted of simple cannabis possession in Canada to apply for a pardon, or record suspension, once their sentence has been served. This proposal will also allow for both the fee ($631) and the five to ten year waiting period to be waived. All individuals would be eligible to apply even if they are not a Canadian citizen or resident of Canada.

The government is hopeful that the elimination of the stigma of a criminal record, in addition to the fee and waiting period for those who have completed their sentence and proven themselves to be law-abiding citizens, will likely increase opportunities for all Canadians.

The Honourable Ralph Goodale describes the proposed legislation as “unique and historic” and stated:

The Cannabis Act’s coming into force marked an important step in the process of legalizing, strictly regulating and restricting access to cannabis in Canada. This proposed legislation will help eliminate what are disproportionate consequences, and reduce barriers to reintegration for Canadians convicted only of simple cannabis possession.

The proposed law would apply to those convicted of simple possession. This refers to those charged with possession of cannabis for personal use, with no intent to traffic (to sell, administer, give, transfer, transport, send or deliver).

The proposed pardon, otherwise known as a record suspension, allows those that have completed their sentence and after they have proven to be law-abiding citizens to have their criminal record removed from the Canadian Police Information Centre database. However, it will not erase the conviction entirely (expungement), but will keep the record separate from other criminal records. The pardon could be reversed if the individual is convicted of new crimes or is “found to no longer be of good conduct”.

A pardon will allow those convicted of simple possession to access educational and employment opportunities, volunteer in their communities, and reintegrate into society.

According to the Honourable Bill Blair, Minister of Border Security and Organized Crime Reduction:

Ensuring timely access to pardons for individuals previously convicted only of simple possession of cannabis will help make things fairer for these Canadians – including visible minority communities, Indigenous communities and those in our most vulnerable neighbourhoods – who should have greater access to employment, volunteering opportunities, educational programs, and housing.

CRITICS ARGUE FOR EXPUNGEMENT

The NDP justice critic Murray Rankin is attempting to improve the proposed bill by pushing for the expungement of cannabis records, rather than the suspension of records for simple possession. An expungement of a criminal record would completely destroy or remove the record of a conviction. Expungement also protects individuals against a future government that may reverse the amnesty proposed by the current government.

MP Rankin had previously tabled a private member’s bill last fall, which we addressed in an earlier blog.

Akwasi Owusu-Bempah, a University of Toronto sociologist, does not believe that the new bill goes far enough. According to Owusu-Bempah, young people over the last 15 years, especially those of colour, have been overrepresented in arrest statistics involving marijuana. However, his research indicates that those that are black, white and Latino in Toronto consume cannabis at approximately the same rate. He believes that destroying cannabis-possession records entirely is the only way to recognize the “profound historical injustices that have stemmed from the war on drugs and cannabis prohibition in particular, especially how those have affected both marginalized and racialized populations”.

MP Goodale defends the government’s position to allow pardons and not expungements by stating that expungements of a criminal record are only applicable for convictions under laws that have been declared unconstitutional, such as the prohibition of same-sex relations. He also maintains that the proposed pardon process is cheaper and faster than expungement.

We will continue to provide updates in this blog regarding the law with respect to criminal records for simple cannabis possession.

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 offer a free consultation. Trust our experienced lawyers to handle your defence with diligence and expertise.

Big Changes Coming to Canada’s Impaired Driving Laws

Written on Behalf of Affleck & Barrison LLP

We are all aware that a significant piece of legislation, the Cannabis Act, has become law. This bill will come into force on October 17, 2018 and it will encompass all the rules regarding the control and regulation of how cannabis is grown, distributed and sold.

There is another piece of legislation, Bill C-46, related to the legalization of marijuana that also received royal assent last week. Bill C-46, also known as the Impaired Driving Act, is an overhaul of Canada’s impaired driving laws.

WHAT IS BILL C-46?

Bill C-46 will reform alcohol-impaired driving and drug-impaired driving and police have been given new tools to detect and prosecute drivers.

The bill is comprised of two parts. Part 1 creates three new offences for driving under the influence of various amounts of drugs and stipulates legal limits of such drugs.  This part also requires drivers not to drive within two hours of being over the legal limits and allows police to conduct tests to screen for drugs using “approved drug screening equipment”.

Part 2 of the bill raises the maximum penalty for impaired driving, reclassifies impaired-driving as a “serious criminality” offence and gives police the power to perform mandatory alcohol screening without reasonable grounds to suspect impairment.

The following are the four major changes to Canada’s impaired driving laws as set out in Bill C-46.

Random Roadside Breath Testing

The new legislation will allow police to request a roadside breath test from any driver. They will not need reasonable suspicion that the person has been drinking (i.e. smell of alcohol on a driver’s breath or slurred speech). Those who refuse the roadside breath test will face a criminal conviction with similar penalties to an impaired driving conviction.

Lawyers and civil liberties groups argue that this change in the law violates the Charter protection against unreasonable search. Furthermore, there is concern that this type of practice will disproportionately affect minorities due to racial profiling.

However, Justice Minister Jody Wilson-Raybould is certain that this directive will survive a court challenge. She referred to mandatory alcohol screening as “minimally intrusive, but the benefits in lives saved will be immeasurable”.

The government equated a mandatory breath sample to the requirement to show a driver’s licence.

Roadside Saliva Testing

The new law would allow police to use roadside screening devices that test saliva for the presence of drugs, including THC (the main psychoactive ingredient in cannabis). However, unlike alcohol breath tests, police will need to have a reasonable suspicion before requiring this test.

It is unclear when this type of testing will be used by the police as there are a number of steps that still need to take place. The government has yet to approve the devices to be used by the police. Justice Minister Wilson-Raybould will then have to make a ministerial order to approve the devices after a 30-day public consultation. Finally, the devices will need to be purchased and officers will need to be trained on how to use them.

THC Blood Levels

The new legislation will allow police to lay an impaired driving charge based solely on blood test results for THC in blood without needing to further prove impairment.

The government has proposed “per se levels” based on nanograms per millimeter of blood as follows:

  • A THC level between 2 and 5 ng would be a lower-level offence with a fine of up to $1,000;
  • A THC level above 5 ng would result in the same penalties as an alcohol-impaired driving conviction, including mandatory minimum penalties of a $1,000 fine on a first offence, 30 days imprisonment on a second offence and 120 days imprisonment on a third offence;
  • A mixture of a THC level above 2.5 ng and a blood alcohol concentration above 50 mg per 100 mL would have the same penalties as above.

10 Years Maximum Sentence for Impaired Driving

Under Bill C-46, impaired driving convictions will be considered “serious criminality” offences and the maximum sentence will be raised from 5 years to 10 years. This change in the law will greater affect those that could potentially lose permanent residence status and face deportation (i.e. foreign students, workers, visitors and permanent residents).

WHAT IS THE CURRENT STATUS OF BILL-46?

Part 1 of the Impaired Driving Act will roll out this summer; however, Part 2 of the bill will not come into force for another 180 days. In the meantime, as the bill comes into force we will report on any developments through this blog.

If you have been charged with a driving offence of any kind or have any questions regarding your legal rights, please contact the experienced and knowledgeable 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.

Proposed Gun Control Laws Aimed at Gun Store Owners

Written on Behalf of Affleck & Barrison LLP

On March 21, 2018, the Liberals introduced Bill C-71 to improve Canada’s existing gun control legislation. This legislation includes measures to broaden background checks for gun owners, toughen rules around the transportation of handguns, and tighten record keeping requirements for the sale of firearms. Bill C-71 proposes to make changes to the Firearms Act, the Criminal Code and repeals changes made by the previous Conservative Government.

In Canada, crimes involving firearms have increased by 30% between 2013 and 2016, with 2,465 offences occurring in 2016. Homicides involving guns have increased by two thirds between 2013 and 2016, with 223 homicides occurring in 2016.

The Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness, stated:

While Canada is one of the safest countries in the world, increased gun crime has caused too much violence and taken too many lives in communities of all kinds. … With this legislation and our other measures, we are taking concrete steps to make our country less vulnerable to the scourge of gun violence, while being fair to responsible, law-abiding firearms owners and businesses.

GUN CONTROL LAWS IN CANADA

Gun control in Canada is governed by the Canadian Firearms Act and the Canadian Criminal Code. This legislation defines different types of weapons and set out rules regarding which weapons are legal in Canada and under what circumstances.

Canadian law classifies firearms as follows:

  • Prohibited:   .32 or .25 caliber handguns or those with a barrel length of 105 mm or less, automatic firearms, short-barrelled long guns;
  • Restricted:   handguns that are not classified as prohibited, semi-automatic long guns with a barrel less than 470 mm;
  • Non-Restricted: those not regulated as either restricted or prohibited.

A Possession and Acquisition Licence (PAL) is required to possess firearms. The eligibility for a PAL includes a background check to determine whether the applicant has been convicted of any of the designated offences, treated for any mental illness associated with actual or threatened violence, or has a history of behaviour that includes violence, or threatened or attempted violence within the previous five years.

Following a background check, an individual must undergo the “Canadian Firearms Safety Course” and pass the corresponding exam. The individual must also fill our forms and provide character references.

PROPOSALS FOR GUN CONTROL

Enhanced Background Checks

Bill C-71 proposes to expand background checks for those who want to buy a firearm. As described above, the current background check looks back on the last five years. It has been proposed that the RCMP examine any relevant information throughout the individual’s lifetime for prospective gun owners and those who have to renew their gun licences. The RCMP will complete an extensive background check looking into criminal, mental health, addiction and domestic violence records before authorizing an individual a licence to possess a firearm.

Once a licence has been issued, background checks will be ongoing to see if a licence holder has become a public safety risk.

Gun Shop Owner Obligations

Bill C-71 proposes changes to the responsibilities placed on gun vendors in Canada.

Under the new legislation, commercial gun shop retailers will be required to keep information about sales and inventory for at least 20 years, including the firearm’s serial number, the licence number of the transferee, the reference number and the day the reference number was issued. This requirement will not apply to private sellers.

Also, anyone selling or gifting a non-restricted firearm will be required to verify that the person they are providing the firearm to holds a valid firearm licence through the Canadian Firearms Program.

Police investigating a firearms crime can trace the owner of a gun through the licence number, but they are required to get a warrant in order to access the records held by gun shop retailers.

Transportation Regulations

Bill C-71 proposes that owners of restricted or prohibited firearms will need to obtain Authorization to Transport (ATT) documents every time they wish to take their guns anywhere other than a shooting club or gun range. Therefore, taking a firearm for servicing by a gunsmith or to a gun show would require separate authorizations to transport the firearm. However, authorizations to transport will not be required for non-restricted firearms.

If you have been charged with a firearm/gun offence or have questions regarding your legal rights, please contact the experienced Oshawa defence 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.

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.

 

Transgender Rights Bill Introduced by Liberals

Written on Behalf of Affleck & Barrison LLP

Justin Trudeau’s Liberal government has introduced new legislation which aims to extend human rights protection to transgender Canadians. The announcement was made on May 17, 2016 –  the International Day Against Homophobia, Transphobia and Biphobia –  and marks a major step forward in the fight to protect the human rights of transgender people across the country.

Justice Minister Jody Wilson-Raybould tabled Bill C-16 which would amend the Canadian Human Rights Act and the hate crime provisions in the Criminal Code include “gender identity” and “gender expression” as prohibited grounds of discrimination. The legislation would amend the Code such that if a crime is motivated by hate based on gender identity, a judge must consider that as an aggravating factor in sentencing.

 

At a press conference, Justice Minister Wilson-Raybould said, “No one should be refused a job, disadvantaged in the workplace, be unable to access services or be the target of harassment and violence because of their gender identity or gender expression.”

But the Bill must still pass through the House of Commons and the Senate before it becomes law. A similar transgender rights bill brought by the NDP was previously passed by the House of Commons during the last session of parliament, but it never made it past the Senate. This is the seventh time such a bill has been introduced in the House of Commons, but the first time it has been introduced by the current government.

Although previous cases of transgender rights discrimination were heard by federal Human Rights tribunals and courts, they did so on the basis of provisions prohibiting discrimination based on sex.

Of Canada’s 13 provinces and territories, eight, including Ontario, already have provisions protecting transgender people under their human rights laws, but only five cover both gender identity and gender expression.

Although it is less controversial in Canada, transgender rights have recently become the subject of heated debate in the United States after North Carolina passed a law that prohibits people from using public washrooms that do not correspond to the gender on their birth certificates.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison online or at 905-404-1947.

The Current State of Canada’s Prostitution Laws

Written on Behalf of Affleck & Barrison LLP

In December 2013, in the infamous Bedford case, the Supreme Court of Canada struck down some of Canada’s prostitution laws. The court suspended its ruling for 12 months, allowing the federal government time to draft new legislation. Bill C-36: the Protection of Communities and Exploited Persons Act, was born and came into effect late last year.

With the introduction of Bill C-36, the buying, but not the selling of sex was explicitly outlawed for the first time in Canada. The legislation also gave the police the power to prosecute people who advertise sex work and people who exploit or otherwise make money off sex workers.  Sex workers can still advertise their own sexual services, as the bill contains an exemption for sex workers themselves.

The government’s stated goal of the legislation was to reduce the demand for prostitution by “discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible”. The intent of the legislation is to make it more difficult for johns and pimps while protecting sex workers. Since the legislation has been enacted, the Toronto Police Service has begun a large-scale crackdown on human trafficking.

The legislation is not without controversy. Amnesty International has long been calling for the decriminalization of sex work involving consenting adults. The human rights group argues that criminalization of any sort makes it more likely that the rights of sex workers will be violated because the practices are pushed underground.

But other groups say that abolishing laws against prostitution lead to more violations of the rights of women and girls, and lead to human trafficking and child rape. Proponents of decriminalization argue that sex workers can be distinguished between women and children who are sold into sexual slavery and that there is a significant difference between coercive and consensual prostitution.

It is believed that Mali Jean, a Quebec man charged in Saskatchewan, was the first person to be charged under the new law on charges dated July 27, 2015.

 For more information and to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Sources:

http://news.nationalpost.com/news/barely-illegal-new-prostitution-laws-may-drive-sex-work-underground-but-can-it-stop-it

Man charged in Saskatoon under new federal prostitution laws