Countdown to 2018: Why the courts might not allow prosecutions for pot?

By Justin Ling April 10, 201710 April 2017

Countdown to 2018: Why the courts might not allow prosecutions for pot?


Justin Trudeau’s plan to legalize marijuana is coming down the pipes, as soon as this week.

You could be forgiven for wondering what, exactly, took the prime minister so long — he’s had a set of clear recommendations since December — but, if reports are to be believed, it will be more than a year before the actual legislation comes into force.

That leaves Canada with more than 12 months before the arrests and prosecutions of marijuana users and dealers comes to an end. Stuck, in other words, with a system that “does not work,” according to Trudeau’s own campaign document: A system which “does not prevent young people from using marijuana and too many Canadians end up with criminal records for possessing small amounts of the drug.”

So the question now is: Will the courts allow it?

Over the last year, the Trudeau government have called for police to enforce the possession and trafficking provisions in the Criminal Code or Controlled Drugs and Substances Act, even as they moved to drop the criminal prohibitions. Justice Minister Jody Wilson-Raybould has defended her government’s decision to keep up with arrests and prosecutions for the drug.

“Simply decriminalizing it would not achieve the objectives that we have put forward in a concrete way, in terms of keeping it out of the hands of children and the proceeds out of the hands of criminals,” Wilson-Raybould told the House of Commons last week.

Even so, it was her party that admitted that the current provisions have not achieved the purpose of keeping it out of the hands of children, or deprived criminals of their profits.

But, in, Attorney General v. Bedford the top court wrote that the principles of fundamental justice that guide a section 7 test under the Canadian Charter of Rights and Freedoms “compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness.”

And it was in 2003, in R. v. Malmo-Levine, that the same court upheld the criminal prohibitions on marijuana, with the majority concluding that the harm to vulnerable populations, and the effect on general order, are sufficient reasons to use criminal law to enforce the restrictions on the drug. “The effects on the accused of enforcement of the prohibition are not so grossly disproportionate that they render the prohibition on marihuana possession contrary to s. 7,” it wrote.

Thing, of course, have changed since. It was in Bedford that the court reversed its earlier conclusion in the Prostitution Reference, finding that new jurisprudence can be entered where “a new legal issue is raised, or if there is a significant change in the circumstances or evidence.”

Between the new stated objectives of the government, the advancement in research regarding marijuana, and the significant expansion in how s. 7 cases as tried — that is decidedly within the realm of possibility.

There’s a chance now, with the government saying it’s going to legalize, to revisit Malmo-Levine,” says Jack Lloyd, a private practitioner in Toronto who has experience in arguing marijuana cases.

“They definitely should. There’s a huge number of young Canadians every day who are being saddled with the charge of simple possession of cannabis,” he says, adding that the legislative branch of government ought to be alive to the fact that those cases are “clogging up” the courts.

There, they found that the objective of “preventing public nuisance” to be an insufficiently serious objective to warrant the infringement on the security of the person. In R. v. Safarzadeh-Markhali, even the objective of enhancing public safety was an insufficient purpose to deprive the accused of the liberty that the presentence custody credit guaranteed them.

The question may now be whether Parliament can really justify another 12 months of arrests, prosecutions, and sentences for marijuana possession and trafficking as a trade-off for those stated purposes of the criminal prohibitions on cannabis.

In 2015 alone — the last year for which there are statistics — there were nearly 50,000 charges filed for cannabis possession, with nearly 10,000 more being applied for cannabis trafficking. Cannabis is, after all, listed — depending on the quantity — as either a schedule II, VII, or VIII drug. The former of the three is the second most serious, a schedule higher than LSD.

This, for a drug that is already being mailed through Canada Post to thousands of homes, legally, through a Health Canada-administered medical marijuana program.

This comes as the Prime Minister is encouraging arrests under the Criminal Code.

“When was the last time you heard a sitting prime minister urge the police to arrest for simple cannabis?” adds Lloyd.

Of course, with the clock ticking down to the July 1, 2018 deadline for legalization that has been touted in Ottawa, there appears to be little time — and, indeed, little need — to mount a challenge that will reach the Supreme Court.

However, provincial courts might be more inclined to step in.

After all, it was the Ontario Court of Appeal, in a landmark decision that ushered in same-sex marriage in Ontario, that opted to ignore the Attorney General’s insistence that, should the court declare the common law definition of marriage to be invalid, it give Parliament a chance to bring in its own remedy.

As the court pointed out in that case, citing the Supreme Court in Schachter v. Canada, that “suspending a declaration of invalidity is warranted only in limited circumstances, such as where striking down the law poses a potential danger to the public, threatens the rule of law, or would have the effect of denying deserving persons of benefits under the impugned law.”

And if someone were to mount a case, they have plenty of recent case law to lean on.

“I think that’s very possible,” says Lloyd of a provincial court of appeal stepping in to axe the law.

In the 2016 case R. v Lloyd, a split Supreme Court found that a one-year mandatory minimum for marijuana trafficking was unconstitutional. And while the majority did decide that “Parliament’s objective — to combat the distribution of illicit drugs — is unquestionably an important objective,” it pushes back against the notion that Parliament enjoys total deference when it comes to using the criminal justice system to administer drug policy.

But once legalization finally comes into force, for Canada Day 2018, the fight won’t necessarily be over. Trudeau has implied that some criminal prohibitions will exist, beyond the regulatory scheme.

It could be there that the Supreme Court will kick the tires of the “rational connection” of the government’s objectives to the “statute’s stated aims” as they did in R. v. Safarzadeh-Markhali in 2016, where the minister’s own statements about the law came into play.

In that case, the court struck down federal legislation that removes presentence custody credits for offenders, relying on a freshly popularized s. 7 to determine that the arbitrariness, over-breadth, and gross disproportionality of the provisions were unconstitutional.

“Statements of purpose in the legislative record may be rhetorical and imprecise. Yet providing information and explanations of proposed legislation is an important ministerial responsibility, and courts rightly look to it in determining the purpose of a challenged provision,” Chief Justice Beverley McLachlin wrote for the court.

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