marijuana

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

Written on Behalf of Affleck & Barrison LLP

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

WHAT HAPPENED?

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

The woman told CBC News:

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

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

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

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

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

DECISION REVERSED

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

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

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

CANADIAN BRETT HEUCHERT ALSO GIVEN A LIFETIME BAN

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

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

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

CONFUSION SURROUNDING CROSSING THE BORDER WITH MARIJUANA

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

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

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

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

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

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

Edibles Will Be Available Mid-December

Written on Behalf of Affleck & Barrison LLP

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

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

DETAILS REGARDING NEW CANNABIS PRODUCTS AVAILABILITY

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

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

According to the Health Canada news release:

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

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

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

REGULATIONS FOR ADDITIONAL CANNABIS PRODUCTS

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

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

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

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

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

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

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

DANGER TO CHILDREN INGESTING EDIBLES

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

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

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

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

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

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

Debbie Friedman, hospital trauma director, stated:

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

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

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

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.

Legal Challenges Expected for Drug-Impaired Driving Charges

Written on Behalf of Affleck & Barrison LLP

Now that cannabis has become legal in Canada, there are still many questions that remain unanswered. Impaired driving is one of those murky subjects.

Impaired driving is the leading criminal cause of death and injury in Canada. Drivers that are killed in car accidents that test positive for drugs (40%) now exceed the number of those who test positive for alcohol (33%).

Cannabis can impair everyone differently depending on the method of consumption (smoked, inhaled, ingested), quantity of cannabis consumed, and the variety of cannabis and its THC levels. Therefore, there is no direction as to how much cannabis can be consumed before you are considered an “impaired” driver or how long a driver should wait to drive after consuming cannabis. The Government of Canada is therefore recommending that you should not drive high.

Justice Minister Jody Wilson-Raybould recommends:

For the sake of safety on the roads, we recommend people not get behind the wheels of their car if they’ve consumed any alcohol or drugs.

TRAINED OFFICERS

The Government of Canada reports that they have trained police officers, also known as Drug Recognition Experts, to determine if you are under the influence of drugs while driving.

Durham Police Services has trained 130 officers in standardized field sobriety testing, and an additional 6 officers are trained in drug impairment recognition.

According to the Government of Canada’s website, there are over 13,000 trained Standardized Field Sobriety Test officers across Canada and 833 certified Drug Recognition Experts. As the federal, provincial, and territorial governments continue to invest money into training, these numbers will continue to increase.

THE OFFENCE OF IMPAIRED DRIVING

New impaired driving offences came into force at the end of June setting limits on how much THC (the primary psychoactive element in marijuana) a person can legally have in their system while driving before facing penalties.

According to the new rules, police can lay a summary conviction charge against a person driving with between two and five nanograms of THC per milliliter of blood (subject to a maximum fine of $1,000). Charges may be laid either as a summary or indictable offence for those who have more than five nanograms of THC per milliliter of blood. The latter is a more serious crime with fines and jail time as penalties.

DETECTING DRUG-IMPAIRED DRIVING

Drivers who are suspected of driving high will be asked to take a field sobriety test, this includes an assessment of how the individual’s eyes react to light and movement, and their ability to perform a series of activities designed to gauge their physical co-ordination.

If an officer forms grounds to believe a driver is impaired, they may place the driver under arrest and demand a more extensive examination by a drug recognition officer. This test is conducted at a police station and relies upon physiological evidence, such as blood pressure, pulse rate, and the examination of muscle tone and eye reactions. This examination will also involve the extraction of bodily fluids, in most cases urine, which will be sent to the Centre of Forensic Sciences for analysis.

It is a criminal offence to refuse to submit to the drug recognition officer examination, similar to the refusal to submit to a breathalyzer test during a drunk driving investigation.

ROADSIDE DRUG-SCREENING EQUIPMENT

Durham Police are anticipating that they will be equipped with devices to test saliva samples for the presence of drugs, but they are not currently available.

The Ontario Provincial Police force has confirmed that it will be purchasing federally approved roadside drug-screening equipment to identify impaired drivers. However, it is uncertain at this time how many of these devices will be purchased or when they will become available.

The device is known as the Drager DrugTest 5000, which has the ability to test saliva for cocaine and THC (the main psychoactive agent in cannabis). Canada’s Department of Justice approved this device this past August.

If a driver is suspected of being high, an officer would ask the driver to provide a saliva sample, using a cassette. The cassette is then inserted into the analyzer to be tested. Within approximately four minutes, the results of the test will determine whether the driver is over the nanogram limit (positive or negative). If so, the driver will then proceed to the police station for a blood test.

LEGAL CHALLENGES AHEAD

Government officials have acknowledged that although they are prepared for cannabis legalization, it is expected that the courts will set clearer interpretations of the new impaired driving laws as charges are laid and cases move through the criminal legal system.

It is particularly complicated to measure the concentration of THC in someone’s blood and determine when it came from. Thus, the problem arises when determining how the police can prove that the amount of THC in the blood was impairing the driver or whether the THC was lingering in the driver’s blood from consumption days earlier as THC can be detected several days after someone has smoked.

Justice Minister Jody Wilson-Raybould has said that officers will have to make a decision on a “case-by-case” basis when determining whether a driver will face a charge for drug impaired driving.

Many are concerned that there is no conclusive way to determine that someone is driving high. The roadside saliva drug tests approved by the government have also been criticized for being an unreliable testing method. Furthermore, some criminal defence lawyers have suggested that these tests could face challenges under Canada’s Charter of Rights and Freedoms.

We will continue to provide updates and developments following the legalization of marijuana in Canada in this blog as they become available.

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

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.

Canada Has Approved Roadside Saliva Tests

Written on Behalf of Affleck & Barrison LLP

Canada’s Attorney General Jody Wilson-Raybould has approved roadside swab tests as a new approach to attack drug use and driving. This will be the first test of its kind in Canada. Police officers will instantly be able to check saliva for traces of THS (the psychoactive component in marijuana).

Currently, there is no accurate way for police officers to assess if an individual is driving under the influence while using cannabis products. Police officers use sobriety tests to check impairments of drivers they suspect are high. In the very near future, Canadian police will have a new tool to use to accurately confirm intoxication – the cannabis roadside saliva drug test.

The roadside saliva test is part of Canada’s revamp to its impaired driving laws. This test is part of Bill C-46, legislation that we have previously blogged about, which will come into force on October 17, 2018.

Wilson-Raybould approved the saliva test device after an independent panel of traffic safety experts and toxicologists evaluated and critiqued the test’s effectiveness.

HOW DOES THE SALIVA TEST WORK?

The saliva testing device will be able to immediately detect traces of cocaine and THC use within the last six hours. Police officers will use a small and portable machine to swab a driver’s mouth and receive results in real time. This testing device will provide a more accurate and reliable upgrade to the current field sobriety tests used by police officers (i.e. walking a straight line or standing on one foot). A failed test gives police reasonable grounds to bring a driver in for further testing, including a blood test or an examination by a drug recognition expert.

It has been reported that the government will be investing $81 million over a five-year period to buy screening devices and provide officers with comprehensive training on drug-impaired driving.

The federal government is considering using the Draeger DrugTest 5000. This is a German-made mobile drug screening system that uses oral fluid to detect seven types of commonly used drugs. This device has already been approved for use in the United Kingdom and Germany.

This particular device may require modifications in order to operate in Canada’s tough winter climate. Early tests of this device in Northwest Territories and Saskatchewan found that “there were some temperature-related issues that arose when the devices were used in extremely cold temperatures”.

LEGAL CHALLENGES TO ROADSIDE SALIVA DRUG TEST RESULTS

Although the Canadian government is confident in the validity of the roadside saliva tests, the results of these tests will likely face multiple legal challenges from defence lawyers.

Bill C-46 allows the police to charge a driver with drug-impaired driving based solely on the presence of THC. There is no requirement for officers to prove actual impairment. However, unlike alcohol, the presence of THC does not always indicate intoxication.

We can expect that in the future many court cases will shed light on how individual tolerance of THC affects a person’s motor skills and how long cannabis can stay in an individual’s body.

BILL C-46 DRUG-IMPAIRED DRIVING

At the present time, the federal government has released a draft of its planned drug concentration levels and associated offences.

Three new offences for drug-impaired driving have been created under the drafted legislation of Bill C-46:

Drivers who have a blood drug concentration of more than two nanograms of THC (per milliliter of blood) but less than five nanograms could be found guilty of impaired driving under the proposed summary offence, which has a maximum fine of $1,000;
Drivers who have a blood drug concentration of more than five nanograms of THC in their blood could be found guilty of impaired driving similar to 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;
Drivers who have a mixture of a THC level above 2.5 nanograms of THC in their blood and a blood alcohol concentration above 50 mg per 100 mL would be subject to the same penalties as above.

In addition, each province has the right to implement their own drug-impaired driving rules.

TIPS TO AVOID IMPAIRED DRIVING

Here are a few simple tips to avoid driving while you are impaired by drugs and/or alcohol:

Always have a plan to get home safely (a designated driver, use public transportation, call a friend or family member, call a taxi or ride share, or stay overnight);
Ask your doctor about side effects that may occur when using prescription medication;
Read the information on the package of your prescription or over-the-counter medication;
Ask your doctor or pharmacist about how a prescription drug can affect you when using alcohol or drugs of any nature; and
Remember that fatigue and stress will also affect your ability to drive safely.

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

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 20^th 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.

Provinces Discuss Delaying Marijuana Legalization

Written on Behalf of Affleck & Barrison LLP

Premiers from across Canada are meeting in Edmonton this week to promote interprovincial-territorial cooperation and address issues, challenges, and needs of Canadians. One of the topics at issue is the planned legalization of marijuana, which is currently scheduled for July 1, 2018.

A Potential One Year Delay

Manitoba’s Premier, Brian Pallister, is attempting to persuade his fellow Premiers to ask the Prime Minister to delay marijuana legalization by one year (making it effective July 1, 2019). Pallister raised several concerns that he hopes can be addressed through delaying any official legal changes to marijuana’s status in Canada.

Firstly, Pallister wants to learn from the regulation of beer, wine, and spirits and believes that the delay would avoid the problems associated what he has called a “hodge-podge” of the different ages of majority across the country. Both the age of majority and regulations around things like where pot could be sold are the responsibility of each province.

Secondly, Pallister wants more information and additional research into the health impacts of marijuana, including ways of measuring cannabis impairment for drivers. He believes that:

“There are too many unanswered questions, too many issues that have not been addressed for us to rush into what is an historic change.”

Pallister also hopes that extending the deadline will allow for the creation of stronger and more effective campaigns to ensure that driving under the influence becomes as socially unacceptable as drinking and driving currently is. He believes that this has not yet been properly or fully addressed.

Current Positions of Various Premiers

Other Premiers, including Saskachewan’s Brad Wall and Nova Scotia’s Stephen McNeil, have indicated that their provinces are working towards the original July 1, 2018 deadline. However, Wall has stated that he likewise wouldn’t mind an extension, as there are a “lot of moving parts” to making such a big change, and McNeil has noted that it is important for all Premiers to be on the same page.

Ontario is not counting on any extension, and is currently conducting public consultations on marijuana in advance of the original deadline; however, Kathleen Wynne has noted that work is still being undertaken to develop policies on public and traffic safety, on protecting youth, and on determining where pot will be sold.

Quebec’s Premier, Philippe Couillard says that he is likewise not expecting a delay and the province is also working under the assumption that the date of any legislative change will continue to be July 1, 2018.

The Federal Government Plans to Stick to Their Original Deadline

Earlier this summer, the federal government stated that it would stay “firm” on its plan to legalize marijuana by next year, even if it has to “backstop” any provinces that are not ready to tax or distribute the drug by that time. Prime Minister Trudeau noted that the federal government had given provinces and municipalities “lots of time” to comply with pending changes and that it was “time to move on”.

That announcement came in the wake of concerns from federal and provincial finance ministers about whether Canada was ready for legalization after a meeting between the ministers ended with no consensus on a coordinated strategy to tax cannabis.

The Federal Finance Minister, Bill Morneau, stated that tax rates on marijuana should be kept low to prevent marijuana users from potentially seeking out cheaper, illicit sources for pot. He noted that his department had begun to do research into possible tax rates, and what price levels could deter a black market for weed, but that no conclusion had been reached.

However, Ontario’s Finance Minister, Charles Sousa, noted that the provinces will want to ensure that any tax revenue from marijuana will cover what he calls the “substantive costs” that provinces will have to face to prepare for legalization (including law enforcement, public health, education, and distribution).

Morneau was firm that marijuana will be legal by the original deadline, even if Ottawa has to “backstop” provinces that will not be ready with distribution networks, by providing alternate options, such as delivery of marijuana via mail. He noted that he intends to meet with his provincial counterparts again in December and hopes to make significant progress.

We will continue to monitor developments in this area, and will provide updates as they become available. In the meantime, if you have any questions about drug offences, including possession or trafficking, or any other criminal defence matter, please contact Affleck & Barrison LLP online or at 905-404-1947.

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.