Marijuana enforcement likely violates charter rights: experts

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.”