Mar­i­juana en­force­ment likely vi­o­lates char­ter rights: ex­perts

Calgary Herald - - FRONT PAGE - JAMES WOOD

Ot­tawa is fac­ing big ques­tions as its move to le­gal­ize cannabis use for adults goes hand in hand with stricter laws on drunk and drugged driv­ing and tough sen­tences for those pro­vid­ing mar­i­juana to mi­nors.

While the Al­berta govern­ment is sup­port­ive of new mea­sures around road­side tests, a Uni­ver­sity of Cal­gary law school pro­fes­sor and a prom­i­nent city de­fence lawyer say many of the new fed­eral laws go too far and will al­most cer­tainly be chal­lenged as un­con­sti­tu­tional.

In keep­ing its cam­paign prom­ise on le­gal­iza­tion, the Lib­eral govern­ment last week un­veiled a crack­down on im­paired driv­ing that will no longer re­quire po­lice to sus­pect a driver has al­co­hol in his or her sys­tem to ad­min­is­ter a road­side test.

New leg­is­la­tion will also en­able po­lice to take a saliva sam­ple from a driver they sus­pect of drug use.

U of C pro­fes­sor Lisa Sil­ver, who spe­cial­izes in crim­i­nal law, said elim­i­nat­ing the re­quire­ment that po­lice have rea­son­able and prob­a­ble grounds to test for al­co­hol im­pair­ment would mark a sea change in the Cana­dian le­gal sys­tem.

“There’s a rea­son why we re­quire of­fi­cers to have rea­son­able grounds — be­cause they have such awe­some author­ity … com­pelling peo­ple to give them things that will be used to in­ves­ti­gate them for a crim­i­nal of­fence,” she said in an in­ter­view this week.

“They have to be able to ar­tic­u­late why they’re do­ing that. And that’s a huge pro­tec­tion, and it’s a pro­tec­tion that’s guar­an­teed un­der the char­ter … it’s fun­da­men­tal.”

Sil­ver ex­pects the law will be chal­lenged un­der the Char­ter of Rights and Free­doms, with the case likely to make it to the Supreme Court, be­cause “it en­gages all of our fun­da­men­tal prin­ci­ples of jus­tice un­der the char­ter.”

Ian Sav­age, pres­i­dent of the Cal­gary-based Crim­i­nal De­fence Lawyers’ As­so­ci­a­tion, is also cer­tain the law will be re­viewed — and that the top court will ul­ti­mately knock it down.

Sav­age said the cur­rent sys­tem of road­side screen­ing is un­der­pinned by case law that in­cludes a re­quire­ment of rea­son­able grounds.

“By chang­ing the le­gal author­ity for the po­lice to do what they do as a first step is es­sen­tially the equiv­a­lent of the fed­eral govern­ment try­ing to pull the foun­da­tion stone out of a build­ing,” he said. “It’s go­ing to tip over and crum­ble. Ba­si­cally, it’s not go­ing to sur­vive a con­sti­tu­tional chal­lenge.”

Sav­age also sees “equally trou­bling” is­sues with fed­eral leg­is­la­tion that al­lows po­lice, if they have rea­son­able grounds, to de­mand a saliva sam­ple from driv­ers to test for drugs.

Sav­age said he ex­pects there will also be le­gal chal­lenges to the law be­cause there is no sci­en­tific con­sen­sus on how much THC con­tent, the main mind-al­ter­ing in­gre­di­ent in cannabis, con­sti­tutes im­pair­ment in a per­son.

Fed­eral Jus­tice Min­is­ter Jody Wil­son-Ray­bould has said she is con­fi­dent the new leg­is­la­tion is con­sti­tu­tional.

Ot­tawa’s ap­proach around road­side screen­ing has the back­ing of Al­berta’s NDP govern­ment, though Jus­tice Min­is­ter Kath­leen Gan­ley said last week she wouldn’t spec­u­late about the out­come of any po­ten­tial le­gal chal­lenge.

How­ever, the prov­ince is non­com­mit­tal on one of the as­pects of the fed­eral plan that has drawn the most crit­i­cism — a max­i­mum sen­tence of 14 years in prison for pro­vid­ing or sell­ing mar­i­juana to a mi­nor.

“We share a goal with the fed­eral govern­ment of keep­ing cannabis out of the hands of chil­dren,” said Gan­ley in a state­ment. “How­ever, we are still re­view­ing the fed­eral leg­is­la­tion.”


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