Challenging pot charges
Jonathan Craig Gaudet wants marijuana-related charges thrown out on grounds they are unconstitutional
As the federal government gets ready to legalize marijuana, a man in P.E.I. is trying to have his cannabis-related charges thrown out of court.
Jonathan Craig Gaudet was charged with possessing cannabis resin for the purpose of trafficking and two counts of possessing marijuana for the purpose of trafficking.
However, in a recent decision, P.E.I. Supreme Court Justice Jacqueline Matheson dismissed a motion to have a constitutional challenge heard in the province’s superior court and to stay the charges pending the outcome of that challenge.
Gaudet ’s lawyer Peter Ghiz was in P. E. I. Supreme Court in February arguing there was no pressing societal objective requiring the federal government to enforce the Controlled Drugs and Substances Act as it relates to marijuana.
He also argued penalties associated with a conviction for possession of marijuana for trafficking are disproportionate to the crime and amount to cruel and unusual punishment.
Gaudet’s charges relate to alleged offences from April 2017.
They are before P.E.I.’s provincial court, but he brought the motion to the Supreme Court.
Federal legislation to legalize marijuana is inching closer to becoming law with the Senate set to vote on it later this week.
P.E.I. has been taking steps to prepare for legalization, including passing provincial legislation needed to manage sales and other issues, such as the legal age for consumption. Despite a pledge from the federal Liberals to legalize the drug, it is still illegal to possess or sell, except in approved cases for medicinal use.
In her decision, Matheson wrote that Gaudet stated he possessed and sold marijuana products to people who have a medical need for them.
In referencing Ghiz’s arguments that Parliament can’t invoke its power to enact offences related to cannabis production, use and sale, Matheson wrote that the provincial court has the authority to determine if the relevant sections of the Controlled Drugs and Substances Act violate the Constitution.
With the provincial court having jurisdiction to deal with the charges and to determine the constitutionality issue, Matheson wrote that she declined to exercise her discretion to hear the matter in the Supreme Court.
Matheson also refused to stay the charges, saying the matter should proceed as quickly as possible in the provincial court.
Even if the relevant sections of the Controlled Drugs and Substances Act are changed to remove marijuana, those changes wouldn’t be retroactive for charges prior to that, Matheson wrote.