There are a wide variety of remedies available under the law (declarations, damage awards, restitution, specific performance, etc.) Sometimes a Charter remedy could be as simple as a declaration that the government did in fact breach the individual’s Charter rights. In rare cases, the court may order the government to pay the individual damages. However, remedies like this are rarely available in criminal trials. When criminal defence lawyers argue the Charter in the context of a criminal trial, they have a very specific goal: to exclude evidence or obtain a stay of proceedings. Criminal defence lawyers will argue that specific rights have been infringed and apply for a remedy that will advance their client’s position.

There are two main ways a criminal defence lawyer may use the Charter in the context of a criminal trial: (1) to argue that the law his or her client has been charged with breaking is unconstitutional or (2) to argue that the investigation or arrest of his or her client was carried out in an unconstitutional manner. There are various remedies available to the Court that respond to these two lines of argument, and further the defence lawyer’s ultimate goal avoiding a client’s conviction. These remedies can be found in sections 52, 24(1), and 24(2) of the Constitution Act of 1982 (which contains the Charter).

In situations where the criminal defence lawyer is arguing that his or her client was charged with breaking a law that is itself unconstitutional, he or she will seek a remedy under s. 52 of the Constitution Act of 1982. Section 52 states that “the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” If a law is declared “… of no force or effect” by the court, the law is no longer operational and the offence it created no longer exists in Canadian law. Naturally, a court cannot find an individual guilty of an offence that does not exist. Thus, if the criminal defence lawyer successfully convinces the court that the law is unconstitutional and it chooses to render the law inoperable under s. 52, the accused must be acquitted.

The s. 52 remedy is uncommon in criminal proceedings and criminal defence lawyers will only seek it in exceptional circumstances. That said, it has been used successfully in the past. When a remedy is granted under s. 52, it not only ensures that the accused individual goes free, it also changes the state of Canadian law. One famous example is the decision in R. v. Morgantaler. Henry Morgentaler is a Canadian doctor and pro-abortion activist. He was arrested in 1983 for performing illegal abortions. During the course of his trial he argued that the law against performing abortions violated the Charter. In 1988, the Supreme Court of Canada agreed, declaring the law of no force and effect and acquitting Mr. Morgentaler. The decision of the Supreme Court effectively prevented the government from creating any statutory restrictions on abortion in Canadian law. This controversial ruling had a strong and lasting effect on Canadian society.

Generally speaking, criminal cases that deal with s. 52 remedies are lengthy and complicated. Often, if a defendant wishes to pursue a remedy under s. 52, they do so because they feel that more than just their own liberty is at stake. Defendants in these cases are often crusaders who want to change what they perceive to be an unjust law. Other examples of s. 52 cases include R v. Malmo-Lavine where the defendant, a self-proclaimed “marijuana/freedom activist”, successfully argued that the laws against possession of marijuana for medical purposes were unconstitutional, and R. v. Zundel where infamous holocaust denier, Ernst Zundel, successfully argued that the law against “spreading false news” in the Criminal Code was unconstitutional. In both cases the defendants were facing criminal charges (possession of marijuana and “spreading false news” respectively) and were able to avoid criminal conviction by invoking the protection provided in s. 52 of the Charter. However, they also had political motivations for pursuing a s. 52 remedy. Finally, they were accused with crimes which dealt with morally and politically controversial issues  (abortion, legalization of marijuana, freedom of speech). Recently. the prostitution laws have been challenged under the same provision. This recent challenge deconstructs the present anomoly that while it is illegal to solicit sex in a public place it is perfectly legally to advertise escort agencies that offer sexual services.

Unlike the remedy in s. 52, which is available where the defendant seeks to challenge a statute or law, the remedies in s. 24 are available where a defendant seeks to challenge an action taken by the government during the course of an investigation or prosecution. Section 24 creates specific remedies for defendants whose rights have been infringed by a specific act that can be attributed to the state. It is far more common for criminal defence lawyers to apply for a remedy pursuant to s. 24 than attacking the constitutionality of a law. Section 24 of the Charter applies to situations where the investigation or prosecution is manifestly unreasonable or unfair. Section 24 contains two remedies. Under s. 24(1), the defendant can apply to the court for any remedy the judge considers appropriate if his or her Charter rights have been breached. Under s. 24(2) an individual whose rights have been breached can apply to the court to have evidence excluded from his or her trial. Both of these remedies are key tools to aid defence lawyers in securing a successful result for their client.

According to s. 24(1), “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. This provision gives the judge a lot of discretion in deciding what remedy to use. However, for an individual facing criminal charges the most advantageous remedy ordered under s. 24(1) is a “stay in proceedings”. The s. 24(1) “stay” remedy effectively puts an end to the trial against the defendant. Although, technically the prosecution may be reinstituted within a one year period, generally speaking, it rarely is.  The Crown would only reinstate the proceedings if the police found new and extremely compelling evidence against the accused. Otherwise, a stay effectively ends the trial. Though the accused is not technically acquitted, the Supreme Court of Canada stated in R. v. C.I.P. that a stay of proceeding is “for all intents and purposes, an acquittal”. A “stay of proceedings” does not constitute a criminal record and is viewed by  defence lawyers as a successful ending to the prosecution.

A remedy may be granted under s. 24(1) for a breach of the accused’s legal rights found in ss. 7 through 14 of the Charter. Practically speaking, the remedy is only really applicable to breaches of ss. 7, 8, 9, 10 or 11.

If any of these rights have been interfered with to such a degree that the administration of justice would be brought into disrepute if the court were to continue in the proceedings against the defendant, the court will impose a stay of proceedings under s.24(1). Such behaviour on the part of the state constitutes an abuse of process and the courts will not allow the trial against the accused person to continue.

There are several alternate remedies the court may apply under s. 24(1) if the abuse of process does not meet the threshold required for a stay. The nature of the remedy is left to the trial judge to determine. The judge must consider the following factors when crafting an appropriate remedy.

The judge must fashion a remedy that promotes both the purpose of the right being protected and the purpose of s. 24(1).

Section 24(2) follows some of the same principles as s. 24(1); however, it applies specifically to Charter breaches that occur during the collection of evidence. If evidence is collected in a manner that infringes the Charter, the defendant can apply to the court to have that evidence excluded from the trial under this section. Section 24(2) does not contain an automatic exclusionary rule corresponding to every Charter breach. The court will only exclude evidence under s. 24(2) where, to do otherwise, would bring the administration of justice into disrepute. When evidence is excluded from trial, it cannot be used by the Crown to prove the accused guilty. It will not be shown to the jury (if there is one) and the trial judge cannot consider it when making his or her decision.

Generally speaking, there is no need for a causal connection between the Charter infringing conduct and the discovery of the evidence. In other words, the defence does not have to prove that the Crown could not have obtained the evidence without breaching the Charter. It is sufficient for the defence to prove that there is a temporal connection between the collecting of the evidence and the Charter breach.

Section 24(2) states that “where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.  Once the defence has established that the Charter was breached and that the breach was temporally connected to the piece of evidence in question, the defence lawyer must argue that the evidence ought to be excluded under s. 24(2). Generally speaking, the court must be satisfied that admitting the evidence at trial would undermine the reputation of the justice system in the mind of a reasonable member of the community who is dispassionate and fully apprised of all the circumstances.

Recently, in R. v. Grant, the Supreme Court of Canada set out a test to determine whether to admit the evidence at trial. According to the court, when a judge is faced with a Charter application for exclusion under s. 24(2) the court must consider and balance the following factors:

1. The seriousness of the Charter-infringing state conduct

2. The impact of the breach on the Charter-protected interests of the accused, and

3. Society’s interest in the adjudication of the case on its merits.

At the first stage, the court must ensure that the admission of the evidence does not send the message that the justice system condones serious state misconduct. At stage two, the court must be sure not to admit the evidence if it will send the message that the court will countenance police conduct which deliberately ignores individual rights and liberties. At the final stage the court is asked to consider society’s interest in having the trier of fact consider all of the evidence in determining an individual’s culpability.

The section 24(2) remedy is often used to exclude physical evidence, confessions, and bodily samples (DNA, fingerprints). The purpose of the remedy is to maintain the reputation of the administration of justice in the eyes of the Canadian community. It is imperative that the justice system actually upholds the principles underlying the Charter and protects the specific rights enshrined in the Charter. Through application of the s. 24(2) remedy, the court ensures that individuals are not convicted of a crime in a situation where the government or their agents has deliberately ignored the principles enshrined in the Charter.

At Kostman and Pyzer, Barristers we have made successful applications for Charter remedies available pursuant to sections 24(1) and (2). Proceedings have been stayed and evidence excluded on the basis that our client’s rights have been infringed.

The focus is not on the legal status of the drug, but on its effects. Drugs that impair depth perception, attention span, concentration, decision-making, and reaction time are all considered to be “impairing”. This would include street drugs such as cocaine and marijuana and also a wide variety of prescription drugs such as morphine, oxycodone, valium and other painkillers. Obviously, drugs that cause hallucinations, distort the user’s perception of time and distance, cause confusion or make it hard to distinguish between fantasy and reality are extremely impairing. This would include a variety of hallucinogenic street drugs such as magic mushrooms, LSD, acid, and also amphetamines such as ecstasy, crystal meth, methylenedioxymethamphetamine (MDMA), dexamphetamine.

If a driver is stopped by a roadside spot check (such as Toronto’s RIDE program) or spotted driving erratically by the police, and the police suspect that he or she is currently impaired by drugs, they will investigate. The police have many resources available to them to test whether an individual is driving under the influence of drugs.

If the police officer has a reasonable suspicion that a suspect is impaired by drugs, he or she may administer a Standardized Field Sobriety Test (SFST). This SFST consists of a series of three tests. The first test is known as the “horizontal gaze nystagmus test”. “Horizontal gaze mystagmus” is the technical terms for the natural involuntary jerking of the eyeball that occurs as the eyes gaze to the side. When an individual is impaired, this jerking becomes exaggerated and occurs earlier. The officer will likely ask the suspect to watch his hand as he moves it from side to side to see if your eyes react abnormally. Moreover, individuals impaired by drugs have difficulty concentrating on a moving object, and so this is also a factor the officer will look for when applying the first test.

The second and third tests in the SFST are known as “divided attention tests”. These test require that the suspect listen and follow instructions while performing simple physical movements. The first is the walk and turn test. The suspect will be instructed to walk nine steps, heel to toe, along a straight line, and then turn on one leg and walk back. The second test is the one leg stand where the suspect is asked to stand on one leg with the other foot about six feet off the ground and count by thousands (“one thousand, two thousand, etc.). Though these tasks would be extremely easy for a sober person to perform, an impaired individual will often have trouble performing these tasks. Impaired individuals often have trouble performing tasks that require them to pay attention to instruction, perform simple mental actions (such as counting in thousands) or performing simple physical acts (such as balancing on one foot). During the “walk and turn test” the officer will watch for seven factors: if the suspect has trouble balancing while listening to the instructions, begins before the instructions are finished, stops while walking to regain his or her balance, does not touch heel-to-toe, uses his or her arms to balance, loses his or her balance while turning, or takes an incorrect number of steps, these will be considered signs of impairment. During the “one leg stand”, the officer will watch to see if the individual has trouble balancing on one foot. If the suspect sways, uses his or her arms for balance, hops on one foot to maintain his or her balance, or looses his or her balance, the officer will view that as a sign of impairment.

The SFSTs are entirely voluntary in every Canadian province except Quebec. In Toronto and the rest of Ontario you are not legally obliged to comply with the SFSTs. There are a variety of reasons why you should not comply with these tests. Though the tests have been studied and shown to be 60-80% accurate when performed properly in ideal conditions, criminal defence lawyers know from experience that, in practice, these test are almost always performed incorrectly in conditions that skew the results. For example, if a suspect is asked to perform these tests on an incline or if the ground is wet, this may interfere with the quality of the results. Moreover, police officers often give poor instructions, causing suspects to misunderstand and subsequently fail the test. Moreover, these skewed results can be used to detain the suspect and transport him or her to the police station for further testing.

If the suspect is detained and taken to the police station, he or she will be evaluated by a Drug Recognition Expert (DRE). If the drug recognition expert is able to evaluate the individual and determine that a specific family of drugs caused the suspect to be impaired, the suspect will be forced to submit to a saliva, urine or blood test. This will be tested for drugs to determine whether or not the individual is impaired.

The new testing regime described above, most notably the mandatory fluid samples, is a relatively new process in Ontario law. It was introduced in July 2008 under Bill C-2: the Tackling Violent Crime Act. There are many reasons why criminal defence lawyers feel that this new legislation is unlikely to be effective. First, unlike alcohol impairment, which is quite obvious, individuals under the influence of marijuana and other similar drugs display few obvious signs of impairment. Though individuals on amphetamines and opiates may display more symptoms of impairment there is very little evidence that these drugs are actually linked to car accidents in any significant way. It seems that most people voluntarily refrain from driving while under the influence of these drugs. Thus, it will be hard to officers to identify correctly suspects to undergo this new process. Second, there is very little evidence that saliva or urine tests provide any accurate information about levels of drugs in the body. The technology for saliva testing of THC (the active drug in marijuana) levels is rudimentary at best. Moreover, urine testing only tells us if the suspect has consumed drugs in the recent past (30 days for marijuana); however, it cannot conclusively link the ingestion of the drug with the time of driving. Only a blood plasma test has the ability to show current levels of drugs in the body. However, since up until now Canadian law has espoused a zero tolerance policy with respect to drugs, there is very little research indicating what levels of each drug in the blood actually leads to “impairment”. Since impairment is a necessary component of the offence of “driving while impaired”, this is an important deficiency in the law. Finally, since a blood test is an invasive procedure and because our law recognizes that individual’s have the right to protect their bodily integrity and make important decisions about their body, mandatory testing – which is unlikely to show conclusive results – it is almost certainly unconstitutional. If you are charged under the new regime, your criminal defence lawyer will certainly challenge the constitutionality of the test. Thus, it is very unlikely that the new process will lead to an increase in convictions of individuals driving while under the influence of drugs.

Recently, in the case of R. v. B., although the Drug Recognition Expert concluded that B was impaired by drug (most likely marijuana), a urine sample taken by the police definitely showed that there was no active drug in B’s bloodstream.

Medical Marijuana

In the 2000 decision, R. v. Parker, the Supreme Court of Canada declared that the law against possession of marijuana violated the Canadian Charter of Rights and Freedoms insofar as it failed to create an exception for medicinal marijuana use. The defendant, Terrance Parker, suffered from severe epilepsy. He tried to control his seizures through conventional medicine and surgery but found that neither improved his condition as much as smoking marijuana. He grew his own marijuana plants since there was no place where he could legally obtain the drug. Twice, the police raided his home, confiscated his marijuana and he was charged with production of marijuana. At trial, he argued that the law prohibiting marijuana possession infringed his s. 7 Charter of Rights right to “life, liberty, and security of the person”. The Ontario Court of Appeal considered both the harmful and therapeutic effects of marijuana and came to the conclusion that the law against possession of marijuana for therapeutic/ medical purposes was unconstitutional. The Court declared that Parker should be able to make choices about his medical treatment as those decisions would greatly affect his overall health. The law against possession interfered with Parker’s security of the person by depriving him of the ability to make decisions that would affect his physical and psychological integrity without fear of criminal prosecution. Moreover, the court found that the “blanket provision” on marijuana possession, without an exception for medical use, did not enhance the interests of the state and therefore there was no justification for interfering with Parker’s right to make decisions over his own healthcare. However, the Court also found that the prohibition on marijuana for recreational use did enhance state interests by preventing the harms associated with marijuana. The court concluded that s. 4 of the Controlled Drugs and Substances Act, the prohibition against possession of marijuana, was too broad in that it did not contain an exception for medicinal use of marijuana. The court declared the section invalid, but suspended the declaration of invalidity for one year to allow Parliament an opportunity to draft a new prohibition that included in it an exception for medicinal use.

The government of Canada responded swiftly to the decision in R. v. Parker. In July of 2001, Health Canada issued a set of regulations giving individuals access to marijuana for medical purposes. The Medical Marijuana Access Regulations, which went into effect July 31st, 2002, outlined two categories of individuals who may legally access marijuana prescribed by their doctor. Category 1 patients include:

·      Individuals suffering severe pain from multiple sclerosis, spinal cord injury, or spinal cord disease,

·      Individuals suffering severe pain, cachexia (loss of body mass that cannot be reversed nutritionally), anorexia,            weight loss, and/or severe nausea from AIDS or cancer,

·      Individuals suffering severe pain from arthritis, and

·      Individuals suffering seizures from epilepsy.

Category 2 allows individuals suffering from debilitating symptoms from medical conditions (most commonly severe pain), other than those described in category 1, to apply to Health Canada for access to medicinal marijuana. Category 2 individuals must have the support of a medical practitioner. Individuals who have a condition described in category 1 or who are approved under category 2 can legally obtain medicinal marijuana distributed by the company CannaMed or can grow their own for personal consumption. It is also possible to become a licensed grower for others with medicinal need.

Thus, it is possible to have legal access to marijuana for medical purposes in Canada. More controversial is recent legal opinion on the legality of recreational use of marijuana.

Recreational Use

Ever since marijuana was criminalized in Canada in 1923 there has a strong opposition movement that continuously advocates for legalization or decriminalization of the drug. As early as 1972 Canada’s Le Dain Commission recommended the decriminalization of cannabis. Legalization advocates often point out that the drug is no more harmful than alcohol or tobacco and should therefore be regulated in a similar fashion.

Activists and litigants usually make one of two constitutional arguments in favor of cannabis legalization.  First, many marijuana activists claim that smoking marijuana is not really an act of a criminal nature and as such the federal government does not have the authority to ban it under the criminal law power. The Constitutional Act of 1867, divides law-making power between the federal government and the various provincial governments. The federal government has jurisdiction over all matters of criminal law, whereas the Provincial governments have law-making power over issues dealing with property and civil rights. Many marijuana activists claim that banning marijuana is not actually a matter of criminal law since smoking marijuana is neither harmful nor immoral. They further argue that regulating marijuana is rightly a property issue and that as such only the province has the power to regulate the use, distribution, and sale of marijuana. This argument would equate marijuana with alcohol, which is also regulated independently by the governments of each province.

Courts have, for the most part, rejected this argument and concentrated on the harmful effects of marijuana such as health effects for users, international effects of drug trafficking around the world, and issues with production and trafficking and their relationship to terrorism and organized crime both in and outside of Canada, to continue to view marijuana as a criminal issue.

Nonetheless, there has been some support from government sources for the view that marijuana is not harmful and should be treated on par with tobacco and alcohol, rather than under the matrix of the Controlled Drugs and Substances Act. For example, in September of 2002, the Special Senate Committee on Illegal Drugs reviewed Canada’s anti-drug law and concluded that marijuana is not a gateway drug and should be treated more like tobacco or alcohol than harder drugs such as cocaine or heroin.  Their report stated that, “the continued prohibition of cannabis jeopardizes the health and well-being of Canadians much more than does the substance itself.” In response, the House of Commons Special Committee on the Non-Medical Use of Drugs did an overall audit of Canada’s drug strategy and concluded that though marijuana is unhealthy, the criminal penalties for possession and use of small amounts of cannabis at the time were disproportionately harsh. The Committee recommended that the Canadian Minister of Justice and Minister of Health create a strategy to decriminalize possession and cultivation of a specified amount of marijuana (less than 30 grams for personal use).

Following the Committee’s recommendations, the Chrétien government introduced several versions of a bill to decriminalize simple possession of marijuana from 2002 to 2003. This effort was originally geared towards decriminalization, but as time moved on, the focus shifted to prescribing alternative penalties; fines rather than criminal charges would be prescribed when individuals were found with small amounts of marijuana. To date, the federal government has not followed through with Bill C-17. The current Harper administration has instead proposed Bill C-15, which proposes to create mandatory minimum sentences for production of marijuana. If Bill C-15 passes into law, individuals convicted of growing even one marijuana plant would face a mandatory minimum of six months imprisonment. Bill C-15 has been passed in the House of Commons and is currently under review in the Senate. Bill C-15 seems to indicate a sharp change in the Canadian government’s attitude towards small-scale marijuana use.

The second common argument legalization activists make is that the law against simple possession of marijuana violates the Canadian Charter of Rights and Freedoms in some way. During the last 5-10 years, there have been judicial decision decisions both affirming and rejecting the argument that the law against recreational use of marijuana violates the Charter. This has led to some confusion over the legal status of marijuana.

In January 2003, an Ontario provincial court judge, Justice Douglas Phillips, declared in R. v. J.P. that, based on the ruling in R. v. Parker, s. 4 of the Controlled Drugs and Substances Act [CDSA] dealing with simple possession of marijuana was invalid. As mentioned above, in the Parker case, the Ontario Court of Appeal declared that s. 4 of the CDSA was invalid in that it did not create an exception for medicinal marijuana. The court then suspended the declaration of invalidity for one year to give the government a chance to draft an alternative provision. In response to Parker, the Canadian government enacted the Medicinal Marijuana Access Regulations; however, it never enacted an amended version of s. 4. Justice Phillips concluded that, as of July 31st, 2001 – when the one-year suspension on the declaration of invalidity ended – s. 4 was officially declared invalid and therefore no longer had any legal effect. Just nine months later in October 2003, the Ontario Court of Appeal reversed Justice Phillips decision in R. v. J.P. The court said that, while the medicinal marijuana regime needed to be improved, the law against recreational marijuana was constitutional despite the defendant’s argument that it violated s. 7 of the Charter.

In December 2003 the s. 7 question finally came before the Supreme Court of Canada in R. v. Malmo-Levine. Section 7 of the Charter of Rights declares that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The defence argued that, by attaching a criminal penalty of imprisonment to simple possession of marijuana, s. 4 of the CDSA deprived him of liberty in a manner that is not in accordance with the principles of fundamental justice. The defence suggested that it is a principle of fundamental justice that the criminal law can only prohibit activities that cause some sort of harm. The court disagreed, concluding that while the “harm principle” may be one consideration legislators take into account when enacting laws, it does not constitute a “principle of fundamental justice”. Moreover, the court said that while arbitrary or irrational laws could be quashed under s. 7, the prohibition against simple possession of marijuana was neither irrational nor arbitrary. Malmo-Levine also failed to convince the court that the penalties associated with marijuana were unconstitutional pursuant to s. 12 of the Charter (the prohibition against “cruel and unusual punishment”) or s. 15 of the Charter (the equality provision). The court unanimously ruled that the law against recreational use of marijuana did not violate the Charter in any of the ways suggested by the defence in Malmo-Levine.

Barely four years later, in 2007, the constitutionality of the law against simple possession came before the court again in R. v. Long. A judge of the Ontario Provincial Court found that the law against simple possession was unconstitutional in that it did not contain a specific exemption for medicinal marijuana. Like in R. v. J.P., the judge in Long believed that the policy remedies introduced by the government through the Medical Marijuana Access Regulations, the Interim Supply Policy, and the Policy on the Supply of Marihuana Seeds and Dry Marihuana, did not address the specific problems in the wording of s. 4 of the CDSA. However, in 2008, the Ontario Superior Court of Justice reversed the decision saying that the circumstances resulting in s. 4 being found unconstitutional in Parker had been remedied by the Regulations and Policies mentioned above.  As a result, the Court held, the current s. 4 provision is constitutional.

Thus, the law against simple possession seems to be continuously evolving. Different judges have different interpretations of the law and criminal defence lawyers are constantly advancing new and creative arguments attacking the constitutionality of the law. Nonetheless, for the time being, simple possession of marijuana remains illegal.