legislation

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