Toronto Criminal Lawyers Blog

Many individuals with criminal records opt to apply for a pardon in order to negate the detrimental effect a criminal record can have on daily life. The ability to get a job, apply for a loan or mortgage, volunteer, and even gaining child custody can all be directly influenced by the existence of criminal records. Until recently, being granted a pardon by the National Parole Board was almost guaranteed, but public uproar over the knowledge that individuals such as Graham James and Karla Homolka are able to get pardons has prompted the Conservative party to create bill C-23, The Eliminating Pardons for Serious Crimes Act. The goal of the proposed amendments to the criminal records act is to make it far more difficult and even impossible for many individuals to get a pardon.
On Thursday June 17, Federal MP’s voted to approve a portion of the proposed criminal records legislation. Federal MP’s decided to split the original bill C-23 into two separate bills, with bill C-23A, An Act to Amend Criminal Records Act, passing the vote. Discussion and debate regarding the remainder of the original bill (now identified as Bill C-23B), The Eliminating Pardons for Serious Crimes Act, will be deferred until parliament reconvenes in September.
What effect will bill C-23A have on criminal records legislation?
Once the criminal records legislation is brought into force, some individuals with criminal records will immediately find it more difficult to obtain a pardon. Bill C-23A contained three major clauses:
1. The National Parole Board will be given the power to reject a pardon application if granting one would bring the administration of justice into disrepute
2. Individuals convicted of violent crimes will be required to complete a conviction free period of at least ten years before they become eligible to apply for a pardon
3. The term ‘pardon’ will remain; the term ‘record suspensions’ was placed into bill C-23B and will be discussed in September.
The Act to Amend the Criminal Records Act was given to the Senate on June 17 after passing the parliamentary vote, where it is currently in its second reading. Once the bill has been approved at the Senatorial level, it will be passed on to the Governor General to give her Royal Assent, and as a result bring the criminal records legislation into force as a new law. Once Royal Assent is granted, the National Parole Board will immediately process all newly submitted pardon applications under the new criminal records legislation. If you would like to learn more about criminal records, pardons, and the new criminal records legislation, please visit Pardons.ca.

Keyword Criminal Records: 14

If a guilty plea is entered or if a person is convicted after trial, the focus of the Court shifts to sentencing. If you are entering a guilty plea it is vital that you contact counsel so that all the factors which affect the nature of the sentence may be canvassed.  Unique background factors can influence the type and/or length of sentence a conviction attracts. In R v Gladue (1999) the Supreme Court of Canada dramatically changed the way aboriginals are sentenced and detained. In that case the Court interpreted section 781.2(e) of the Canadian Criminal Code which provides,
All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The interpretation was an attempt to remedy the courts’ over-reliance on incarceration as a response to criminal activity by First Nations individuals. After canvassing numerous studies, commissions and reports on Aboriginal people and the criminal justice system, the Court concluded:  
These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it.  The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system.  The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.  It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree.  The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. (para 64) 
When a defendant has aboriginal lineage the court is required to conduct a background assessment and consider alternative sanctions- This is known as the Gladue approach to sentencing, and occur in special Gladue courts. In fact, all judges in all courts are duty bound to consider the implications of the Gladue decision prior to sentencing an aboriginal defendant: The court must consider the following;  
1. The unique systemic and background factors which played a part in bringing that particular aboriginal before the courts; and,
 
2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances because of the defendant’s Aboriginal heritage or connection.
The Gladue approach does not apply to the whole trial process.  It applies at bail hearings before the trial, and again at sentencing after conviction. The trial process of an aboriginal offender does not differ in any respect from the trial process of a non-aboriginal offender- The same rules of evidence apply. The degree of aboriginal influence necessary to warrant the Gladue approach will vary from person to person. Residence or connection to a reserve is not a requirement.  In some circumstances the Galdue approach will be used when a defendant was not aware of his aboriginal heritage. This is because “aboriginal community” must be defined broadly to include any network of support and interaction that may be available, including in an urban centre. Residence in an urban centre lacking support does not remove the court’s obligation to consider alternative punishment other than incarceration.  
The first step in the Gladue approach is an assessment of the defendant’s background and community experiences, known as a Gladue report. Statistically, the aboriginal community has a greater incidence of poverty, discrimination, family dislocation, sexual abuse, domestic abuse and addiction.  These experiences play a major role in the disproportionate representation of aboriginals in prison. At this stage the court is interested in determining whether the accused has suffered as a result of systemic or direct discrimination. It is not necessary that the accused themselves suffer discrimination provided they have suffered its effects.  For example, aboriginal children may live in poverty as a result of discrimination or addiction suffered by their parent(s). In order to aid the court in their assessment the accused will be required to supply information relating to 
• Personal history (address, employment, education)
• Circumstances leading up to the offence
• Their family home experience
• Their parents history
• How they are supported financially
This is not an exhaustive list. The accused may be asked very personal questions relating to the types of schools he/she attended, his/her experience with adoption and child welfare as well as his/her experience with abuse, addiction and mental illness. 
After the court has identified the particular background factors affecting the defendant, they will then consider alternatives to incarceration. For example, substance abuse programs and/or counseling programs can be used to replace of a custodial sentence. The Gladue sentencing approach may be used to lessen a sentence in circumstances where the nature of the offence requires that a custodial sentence is served.  It is important to tell counsel about all possible programs as well as their dates, locations and entry requirements. The court will consider all possible programs both inside and outside the aboriginal community. Aboriginal descent does not create an automatic sentence reduction. The courts goal is to expand the use of restorative justice measures and to reduce the overrepresentation of aboriginals in prisons. This different approach to sentencing does not always mean that the ultimate result is different result.  
The more serious the crime, the more likely the sentences of aboriginal and non-aboriginal offenders will coincide.

The second part of our continuing look at the interaction between World Cup celebrations and the criminal justice system relates to driving motor vehicles. To recap, during the World Cup it is common to see people hanging off of cars, waving flags and honking their horns. It is important to exercise caution when you take that celebratory tour around town. The driver remains responsible for the care and control of the vehicle during World Cup. The driving rules are not suspended during the World Cup celebrations. The police have the authority to charge drivers caught driving dangerously or carelessly. Whether the police choose to lay a dangerous driving or careless driving charge will depend on the nature of the unlawful driving. The spectrum of unlawful driving ranges from the more serious, such as speeding through red lights, to the less serious, such as incomplete stops.  Are you wondering what kind of World Cup driving practices can lead to these kinds of charges? Before driving off with your flag hanging out of the car window, you should familiarize yourself with the dangerous driving and careless driving laws.  Under the Canadian Criminal Code “dangerous driving” is a criminal offence. According to section 249 of the Code:

249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

This section makes it an offence to drive a motor vehicle in a manner that is dangerous to the public. A conviction under this section results in a criminal record and an automatic 1 year driving suspension. This is a hybrid offence. The prosecutor has the discretion to proceed either by indictment or summarily depending on the actual driving. In practice, unless someone suffers significant bodily harm or the offender has a severe previous record for similar offences, the Prosecutor will elect to proceed summarily. If the prosecutor elects to proceed by way of indictment, the maximum punishment for the offence is five years imprisonment. The basis of liability for a dangerous driving charge is negligence.  That means the court is not concerned with whether the driver intended to drive dangerously but rather they are concerned with whether objectively the driver exercised a reasonable standard of care.

Dangerous Driving under the Criminal Code is a separate offence from Careless Driving under the Highway Traffic Act. According to section 130 of the Highway Traffic Act;

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years

This is a Provincial offence. A conviction for careless driving will not result in a criminal record.  A careless driving conviction will result in demerit points, a minimum fine of $400 and increased insurance premiums.  A conviction can also lead to imprisonment for up to six months and a license suspension for up to two years. The standard of driving which will attract a careless driving charge is less severe than driving which attracts a dangerous driving charge. The Ontario Court of Appeal has stated that driving is deemed careless when it is seen as a “breach of the duty to the public and deserving of punishment”.  The Court will consider whether, in light of the circumstances, the driver failed to use care or failed to give others using the highway the consideration that an ordinary driver would have given.  “Highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between lateral property lines. The degree of care drivers are expected to exercise depends on the prevailing circumstances.

During the World Cup finals, the streets are filled with fans and passengers of motor vehicles enjoy hanging out windows with flags in hand.  Drivers will be expected to exercise caution in these circumstances in spite of the fact that their favourite team has won an important game. Drivers should ensure that passenger conduct does not inhibit their ability to exercise care when driving through fan filled streets.

In the spectrum of unlawful driving, where does the division between careless and dangerous driving fall? The Supreme Court of Canada interpreted the meaning of “dangerous” driving in R v Hundal [1993] S.C.J. No. 29. In that case the Court clarified three important points.  First, the level of negligence the prosecutor must prove to secure a conviction is “a marked departure from the standard of care that a reasonable driver would observe under the circumstances”.  The offensive driving must be so out of the ordinary that a reasonable person would consider the operation of the vehicle dangerous. Therefore, minor mistakes and accidents that could have happened to anyone exercising care, will not amount to dangerous driving. In practice, a dangerous driving charge is likely to be laid in circumstances where it appears that the driver was driving recklessly. If you are the driver of a vehicle celebrating a World Cup win you should refrain from hanging out the window as you drive, and be reminded that the ordinary traffic rules are still in force.  The bar may be somewhat lowered to allow for jubilant expression during the World Cup. However, where the celebration puts other motorists or passengers in the driver’s car at risk, a Court is likely to consider such conduct as a marked departure from that of a reasonable driver exercising care. In these circumstances, charges of Dangerous Driving under the Criminal Code, or Careless Driving under the Highway Traffic Act, may be laid.

In deciding whether “driving” is dangerous contrary to the Criminal Code, a Court will consider the nature of the location including, the driving conditions, the way the location is being used and any other prevalent factors. These considerations are particularly important for drivers trying to get through World Cup traffic. During game celebrations, especially during the finals, the streets are filled with cars, pedestrians, bicycles, motorcycles, etc.  Drivers are expected to exercise more caution when driving in these circumstances.  A dangerous driving charge is more likely to result in situations where the unlawful driving lead to serious consequences, such as serious injury or death. When the unlawful driving does not cause injury or death but nevertheless fall outside the scope of reasonable care, a careless driving charge is more likely. In the event of a charge of “dangerous driving” or “careless driving”, the accused can offer an explanation for his/her abnormal driving.  For example, the driver may have experienced a sudden onset of illness. In order to accept an explanation as a justification, the court must be satisfied that a reasonable person in the accused circumstances would have acted in a similar way. During World Cup season many passengers and drivers will be celebrated excitedly inside their moving vehicles.  The driver of a vehicle is responsible for the behaviour of their passengers, especially if it affects the driver’s ability to drive safely or puts their passengers at risk. Celebrate responsibly.  If you have been charged with Dangerous Driving or Careless Driving, contact Kostman and Pyzer, Barristers for the best defence.

Bill C-55, which came into force on August 1^st, 1997, made significant changes to Canada’s Dangerous Offender legislation. This legislation allows the government of Canada to detain indefinitely those offenders found by the court to qualify as “dangerous”. The 1997 reforms made it much easier for the Crown Attorney’s Office to secure a dangerous offender designation. At the same time, Bill C-55 introduced a new legislative designation known as the Long Term Offender Designation.  This designation gave Crown Attorneys a more moderate option for dealing with the special concerns raised by long term offenders without resorting to the serious measures imposed by a dangerous offender designation. This also gave criminal defence lawyers an alternative option to suggest to the court as a compromise to avoid dangerous offender designations in the most serious of cases. In the majority of cases, however, criminal defence lawyers will do their upmost to avoid both dangerous offender and long term offender designations for their clients.

The long-term offender designation may only be made following the individual’s conviction for a serious personal injury offence. The term “serious personal injury offence” is defined in s. 752 of the Code as an offence that endangers, or could potentially endanger, another person’s life, safety, or psychological well-being. This category would include aggravated assault, sexual assault, aggravated sexual assault, sexual assault with a weapon, or sexual assault of a minor. The Crown may apply for a long-term offender designation after an individual is found guilty of a personal injury offence but before he or she is sentenced. In addition, according to s. 753(5) of the Criminal Code of Canada, if an application for dangerous offender designation is denied, the court may consider imposing a long term offender designation at that time (in the alternative, they may choose to impose a traditional determinate sentence). A dangerous offender application made be made up to six months following the sentencing of an individual for a serious personal injury crime.

Though long term offenders cannot be given indeterminate sentences as dangerous offenders are, the designation requires that the individual be under long-term supervision and allows the court to return the individual to prison following their release if certain conditions are not met. Section 753.1(3) creates a sentencing regime for long-term offender. Upon designating an individual a long-term offender, the court must impose a sentence for the offence for which the offender has been convicted of a minimum of two years duration and order that the offender be subject to long-term community supervision for up to ten years after his or her release. If the long-term offender breaks his or her order of supervision, he or she will be liable to a term of imprisonment not exceeding ten years.

Section 753.1(1) lists the requirements for a long-term offender designation. The Crown must prove all of the following requirements before the court will designate the individual a long-term offender:

• A sentence of two years or more would be appropriate for the crime committed,
• The offender is likely to reoffend, and
• There is a “reasonable possibility of eventual control of the risk to the community”.

Likelihood to reoffend is assumed pursuant to s. 753.1(2) for all those offenders who are convicted of an offence of a sexual nature or offenders whose records disclose a pattern of violent behaviour.

An application for long-term offender designation must be approved by the Attorney General of the province. The offender is given seven days notice of the application during which the offender and his or her criminal defence lawyer must prepare a defence to the allegation that the individual is a long-term offender. The application will be determined in a special proceeding heard by judge alone without a jury. Character evidence, usually excluded at trial because of its inherent unreliability, is allowed if the court deems it relevant to establishing whether or not the individual qualifies as a long-term offender. Under section 758, the accused must be present at the hearing unless exceptional circumstances make his or her attendance impossible (for example, the accused may be expelled from the courtroom because of violent or uncontrollable behaviour). The accused individual and his or her criminal defence lawyer will have the opportunity to defend against the charge that the accused should be labeled a long-term offender. If found to be a long-term offender, the accused may appeal his designation pursuant to s. 759 of the Code.

By-line:

This guest post is contributed by Stephanie DiGiuseppe. She can be reached at stephaniedigiuseppe@gmail.com.

Entrapment

Entrapment is one of the many defences available in the criminal justice system. However, criminal defence lawyers will only pursue a defence of entrapment if the facts suggest that this defence may be successful. Only rarely will the facts of the case support a defence of entrapment.

All defences are split into two categories: excuses and justifications. Justification defences are defences the accused can raise to show that he or she did the right thing in the circumstances and should therefore not be punished. The best example of this is self-defence. Defendants who raise an excuse defence, on the other hand, admit that they committed a crime and acted immorally, but assert that they have an excuse for the way they acted. A good example of an excuse defence is mental illness. Entrapment is also an example of an excuse defence. This means that when a defendant raises a defence of entrapment, they admit to committing the crime in question, however, they argue that they have a reasonable excuse for their conduct.

The idea behind entrapment is that the individual was enticed or provoked into committing a crime by the police. When the police overstep their duty to investigate crime and instead initiate or create a crime, the defence may arise. The rationale behind the defence is that it constitutes abuse of process on the part of the Crown prosecute an individual, if his or her crime was motivated by police instigation. As a result, if the defence can establish entrapment, the court will stay the proceedings against you. The result of a stay is that the case against you cannot proceed, no guilty conviction is entered against you and the incident will not appear on your criminal record.

A defence of entrapment tends to be available on charges relating to drugs or prostitution. The general scenario is that the police will have an undercover agent approach an individual soliciting sex or trying to buy drugs. If the individual agrees to purchase sex or sell drugs, the police will then arrest them on charges of solicitation for the purposes of prostitution or trafficking in narcotics. If the police conduct reached the point that they are actively encouraging an individual who would not ordinarily have committed a crime to commit an illegal act, the defence of entrapment may become available.

The defence of entrapment was successfully raised in the case of R. v. Mack. Mack was a former drug addict who had reformed and given up drugs with the help of yoga. Nonetheless, police officers decided to target Mack in an undercover operation to search for evidence of drug trafficking. The police enlisted two confidential informants to contact Mack. The informants approached Mack asking for drugs, but he refused to sell them. Later, the informants followed Mack to a yoga retreat while still undercover and harassed him to arrange a drug deal for them. Mack still refused to be involved in any form of drug transaction. Finally, the confidential informants took Mack on a walk in the woods, where they told him that their “people” were coming into town today and needed drugs. The informants told Mack that their people would be very “upset” if Mack could not get them the drugs. Then, the confidential informants showed Mack a pistol and said, “someone could really get lost out here in the woods”. Following that threatening statement, Mack relented and agreed to procure a large amount of cocaine for them. Mack showed up at the arranged transaction spot, was shown a suitcase of money, and made the exchange. Unbeknownst to Mack, the two men he was making the drug exchange with were undercover police officers. Following the exchange, Mack was arrested.

The Supreme Court of Canada allowed the defence of entrapment to succeed in Mack and stayed the proceedings against him. The court emphatically explained that the police should not engage in “random virtue testing” of the population. By this the court meant that the police should not test the virtue of individual citizens by offering them the opportunity to commit a crime at random. When the police do this, they seem to create crime and then arrest people for the crimes they create. The individual arrested may never have committed a crime in his or her life if not for his or her interactions with the police. Such conduct on the part of the police offends our justice system’s fundamental values of justice and fairness.

In Mack the Supreme Court laid down a test to determine when entrapment has occurred. At the first stage of the test, the court asks whether the police have targeted individuals based on a reasonable suspicion that the individual is involved in crime or through involvement in a bona fide investigation. According to the court, anything short of reasonable suspicion or a bona fide investigation would constitute random virtue testing. A bona fide investigation is an authorized investigation in a targeted area. For example, the police can target a particular area if they have reasonable grounds to believe criminal activity is prevalent there; however, they cannot walk the streets at random posing as civilians and trying to encourage individuals to commit crimes. If the police target an individual who they do not have reasonable grounds to suspect is involved in criminal activity or they target random people outside the context of a bona fide investigation, the defence of entrapment will operate to stay the proceedings against the defendant.

Even if the first part of the test is not met, the defence of entrapment may still be available to the defendant under step two of the test from Mack. At step two, the court must consider a number of factors to determine whether the police manipulated or directed the defendant to commit the crime. The court refers to this as “planting the seed of crime” within the individual. The idea is that, by “planting the seed of crime”, the police cause a person who may never have committed a crime to engage in criminal activity. In the case of Mack, the court determined that even though the police had reasonable grounds to suspect that Mack may be involved in criminal activity, they went so far as to “plant the seed of crime within him”; thus, the court allowed the defence of entrapment under the second branch of the test.
In Mack the court lists a number of factors to help determine whether the police crossed the line and “planted the seed of crime”.

The list of factors for the court to consider are as follows:
• the type of crime being investigated and the availability of other techniques for police detection of its commission;
• whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
• the persistence and number of attempts made by the police before the accused agreed to committing the offence;
• the type of inducement used by the police including: deceit, fraud, trickery or reward;
• the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
• whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
• whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
• the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
• the existence of any threats, implied or express, made to the accused by the police or their agents; and
• whether the police conduct is directed at undermining other constitutional values.

The court will look at these factors to determine whether or not to stay the proceedings due to entrapment.

Make sure that you are represented by competent criminal defence lawyers. Call Kostman and Pyzer, Barristers.

A paralegal is a individual who is not a lawyer, but who is licensed to undertake specific forms of legal work.  For example, paralegals often assist lawyers. In addition, paralegals are licensed to perform certain types of legal work without the direction or supervision of a lawyer.

Paralegals operating in Ontario must be licensed by the Law Society of Upper Canada. Once licensed, a paralegal may practice in specific areas of law. According to Law Society By-Law 4, a paralegal can represent an individual:

• • In Small Claims Court,
• • In the Ontario Court of Justice in respect of a charge under the Provincial Offences Act (e.g., a speeding ticket or traffic ticket),
• • On a summary conviction charge under the Criminal Code for which the maximum penalty does not exceed 6 months imprisonment, and
• • Before administrative tribunals (e.g., Financial Services Commission of Ontario which deals with Pension and Insurance cases)

However, the powers of a paralegal representing a person in one of the above-mentioned proceedings are limited. The paralegal cannot do all the things that a criminal defence lawyer operating in the same proceeding would be capable of doing. The scope of the paralegals powers allow the paralegal to:

• • Give legal advice concerning legal interests, rights or responsibilities with respect to a proceeding or on the subject matter of a proceeding,
• • Draft or assist with drafting of documents for use in the proceeding, and
• • Negotiate on behalf of a person who is a party to a proceeding.

Though a paralegal can give advice or draft documents, they may do so only with respect to a specific proceeding. A paralegal cannot give general legal advice or draft general legal documents (such as a will or contract).

To become a licensed paralegal, an individual must have graduated from a legal services program approved by the Ministry of Training, Colleges and Universities within the three years prior to the date that they apply to be licensed. The legal services program must have included a minimum of 18 courses on legal services with the permitted scope of the practice of a paralegal, a course of ethics and professional responsibility, and a internship/ field placement in a legal environment (such as a courthouse or law firm) for a minimum of 120 hours. Qualifying legal services programs are the “court and tribunal agent” programs offered at community colleges and the “paralegal” programs often offered at private career colleges. After June 2010, all applicants will be required to have graduated from an accredited legal services program. To date, the law society has accredited ten college paralegal programs. All applicants must write a licensing examination in order to become a licensed paralegal.

To become a paralegal, applicants must also satisfy a “good character requirement”.  Generally, you can satisfy this requirement by providing the Law Society with a police clearance check or reference.

Paralegals tend to specialize in a legal niche whereas lawyers are given a more holistic training. As a result, lawyers tend to analyze facts and develop legal strategies, whereas paralegals are generally responsible for carrying out specific tasks required to put those strategies into action. The most important difference between a lawyer and a paralegal is that a lawyer can give legal advice. A paralegal, on the other hand, can give advice pertaining to the specific task at hand (“I suggest you fill out this form”) but not general advice (“if you do this, you will not be liable”).

If you are charged with a criminal offence, retain a criminal defence lawyer from Kostman and Pyzer, Barristers, for effective legal representation.

Under Canadian law it is illegal to drive when impaired. Usually when we hear about impaired driving in the media, the focus is on drinking and driving. However, it is also illegal to drive while under the influence of drugs. This law applies both to illegal drugs and to prescription drugs which affect the user’s ability to drive.

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.

In the controversy surrounding Tiger Wood’s recent driving accident, it has been rumored that Mr. Wood’s blood tests from the hospital revealed that he had consumed alcohol, prescription drugs and sleeping pills before his now-infamous car crash. However, because the police did not request a breathalyzer at the scene of the accident, the media speculates that the blood samples taken from Tiger at the hospital will not be admissible against him in a court of law, should he be charged with an offence arising out of the accident.

If the same thing were to happen in Toronto, would the blood samples be admissible against Tiger Woods assuming he was charged with impaired driving? According to Canadian law, the blood samples obtained from Tiger at the hospital would be admissible in a Canadian court if and only if certain preconditions are met.

Section 8 of the Canadian Charter of Rights and Freedoms guarantees that every individual has the right to be free from unreasonable search and seizure. The testing of an individual’s breath, urine, or blood constitutes “search or seizure” under the law. In order for the police to obtain the sample without violating section 8 of the Charter, they must establish that the search/seizure is reasonable under the law and obtain a search warrant.

The police would have to obtain a search warrant in order to lawfully obtain the samples. A search warrant must be obtained from a judge. A judge will grant a search warrant if he or she finds that, based on the information contained in an application known as a “sworn information”, the officer has reasonable grounds to believe that the individual was impaired at the time of the accident. Thus, one of officers investigating the Woods collision would have to file a “sworn information” stating that he or she had reasonable grounds to believe that Tiger Woods was impaired at the time of the accident. The officer would also have to include a description of the evidence on which he or she formed that belief. The information cannot be based on the results of the blood, urine or breath test. It would be unfair if the police could use the results of the test in order to obtain permission to obtain those results. Thus, the officer must provide independent grounds on which he or she suspects that alcohol or a drug was involved in the collision. For example, if the officer or any witness smelled alcohol on Mr. Wood’s breath, if the hospital or ambulance staff reported smelling alcohol on Mr. Woods, if empty alcohol containers were found in Mr. Wood’s car, if witnesses described Mr. Wood’s behaviour as indicative of intoxication, etc., these factors would provide evidence to support a search warrant request. The judge would then determine whether the sworn information contained sufficient reliable evidence to issue a warrant.

Even if the officer obtains a warrant, the bodily samples taken from the accused will be inadmissible under s. 8 of the Charter if the defence can prove that they were taken without the accused’s consent, prior to the issuing of the warrant, for no purpose other than evidence collecting. If the samples were taken for legitimate health reasons, the police can obtain them after-the-fact pursuant to a warrant without breaching the Charter. However, the police cannot ask the doctor to take the samples and then go get a warrant. This would constitute a breach of the accused’s Charter rights. In the recent case of R. v. Grant the Supreme Court of Canada explicitly stated that “forcible taking of blood samples” will almost always breach the Charter. If the police were to have a nurse or doctor take the samples from the accused for police purposes, this would likely constitute a forcible taking (as the accused is tricked into giving the sample) and the sample would not be admissible at trial. However, if the samples are taken for legitimate health reasons, there is no reason that they would not be admissible after the fact, so long as the officer can persuade a judge that there are reasonable grounds to believe that the accused was impaired, and obtain a search warrant.

Once the Crown has established that the taking of the samples did not breach section 8 of the Charter, the Crown must prove that the samples are a true representation of Tiger’s Blood Alcohol Concentration (BAC) at the time of the accident. To do this, they must establish timing and continuity of the samples.

Under normal circumstances, the Crown benefits from a presumption that the BAC measured in the samples corresponds to the accused individual’s BAC at the time of the offence. In order to benefit from this presumption, the Crown must prove a number of things. For example, two samples must be taken, they must be taken within two hours of the offence, they must be taken “as soon as practicable”, there must not be any unreasonable time delay between the samples, the samples must have been taken by a qualified medical practitioner or qualified technician under the supervision of a doctor, and the samples must be placed directly in approved containers. A number of these conditions may have been lacking in the Woods case. For example, there may have been unreasonable delay between the accident and the taking of the samples, they may not have been taken within the two-hour window, and they may not have been secured directly into an approved container. For this reason, it is unlikely that the Crown will benefit from the presumption. Therefore, the Crown will have to prove that Mr. Wood’s BAC at the time the samples were taken was the same as Mr. Wood’s BAC at the time of the offence. For example, Tiger Wood’s defence lawyer could argue that Mr. Woods consumed the impairing substances right before driving, and that there was not enough time between consumption and driving for the effects of the substances to set in. The Crown will have the burden of disproving this argument.

Proving continuity means proving that the particular bodily samples being entered into evidence did, in fact, come from Mr. Wood’s body and that they have not been tampered with. Under usual circumstances, continuity is presumed because the samples are taken in the police station and immediately sealed and taken to the Center for Forensic Science where they are tested. However, since hospital samples may not have been officially sealed, continuity will be more difficult to prove. The Crown will have to call every individual who handled the samples prior to their collection by the police, as witnesses. In R. v. Katsigiorgis, the court ruled that it is not a violation of s. 8 for the police to seal the samples prior to obtaining a search warrant, in order to preserve continuity. However, there is no evidence that the police did this in the Tiger Wood’s case.

If the Tiger Woods incident occurred in Toronto and the police were able to prove reasonable grounds, obtain a search warrant, establish that the samples were taken for legitimate medical reasons, and establish timing and continuity, the samples would be admissible in a court of law. As the case played out in Florida, the Florida police released a statement saying that they did not suspect any foul play before the rumors about Tiger’s blood samples began to circulate. Assuming the exact same facts occurred in Toronto, this press release would make it extremely unlikely that the Toronto police could obtain a search warrant and seize the samples. This is because, by admitting that they did not suspect foul play, the police admitted that they did not suspect that Tiger was impaired. In other words, they admitted that they did not have reasonable and probable grounds to obtain a search warrant. Thus, if Tiger was indeed impaired at the time of the accident, the evidence of impairment would not be admissible at trial, whether that trial occurred in Florida or Toronto.

Sexual assault is a criminal offence under s. 271 of the Criminal Code. Sexual assault is defined as any form of sexual contact without the consent of either party involved in the “sexual” activity.

Consent is a defence to sexual assault. If the accused and their criminal defence lawyer can satisfy the court that the complainant actually consented to the sexual act, the accused will not be found guilty of sexual assault.

According to s. 273.1(1), “consent” is defined as the voluntary agreement of the complainant to engage in the sexual activity in question. To constitute consent for legal purposes, the complainant must have consented voluntarily; thus, consent is meaningless if it is obtained through threats. Moreover, the complainant must have consented to the specific sexual activity the court is considering. Thus, it is not a defence that the complainant consented to sexual activity with the accused in the past. He or she must have consented to the specific sexual act that is alleged to be objectionable.

Moreover, there are several situations in which the court deems that consent is “vitiated” – in other words, though it may seem that the complainant consented, his or her consent “doesn’t count” as a defence to sexual assault where the “consent” in not voluntary and with full knowledge of the nature of the sexual act. Under s. 273.2, consent is “vitiated” in a number of ways:

(1)  If the complainant is “incapable” of consenting because he or she is not old enough, or unable to understand due to extreme mental or physical disability, consent is vitiated by law. However, there are other special sections of the Criminal Code dealing with sexual assault against minors or the disabled, so the issue of consent would have to be considered in the context of the special rules associated with those offences, and the specific ages of the alleged offender and the complainant.

According to legal precedent, a complainant is “incapable” of consenting to sex if he or she is so intoxicated that his or her consent is meaningless. Thus, if the Court determines that the complainant was so intoxicated that he or she could not possibly have comprehended the significance of giving consent – even if it seemed to the accused at the time that the complainant was consenting – the consent will not count as a defence to sexual assault. However, where the accused has a mistaken but honest belief in consent and that belief is held on reasonable grounds, they cannot be convicted, since there is a lack of mens rea or criminal intent.

(2)  Consent is also vitiated if the accused is (a) in a position of trust, power, or authority, and (b) he or she uses that position to induce the complainant to perform sexual activity. This section applies to teachers, bosses, psychiatrists, doctors, and other individuals who have a relationship of power, control, or dominance over the complainant. The person must not only be in a position of power, but must abuse that power to convince the complainant to consent to sex.

(3) Consent can also be vitiated by conduct. Thus, even if the complainant says the word “yes”, but expresses somehow by words or actions that he or she actually means “no”, the consent will not count at law. Moreover, if part way through the sexual act, the complainant expresses through words or conduct, that he or she did not wish to continue, any sexual activity after that point will be considered non-consensual.

(4)  The court must also consider the accused’s own mental state to determine whether consent is a valid defence. The defendant cannot claim that the complainant indicated consent through words or actions if the accused’s belief in consent arose from his or her own self-induced intoxication or recklessness or willful blindness. In other words, if the accused went through with the sexual activity without any regard to whether the complainant was consenting (recklessness), or purposefully ignoring any signs that the complainant might not be consenting (willful blindness), then consent is vitiated. Moreover, if the accused was so drunk that they didn’t pay attention to whether the complainant was consenting, this is not a defence to sexual assault. If, however, the accused became intoxicated through no fault of their own, for example, if their drink was drugged at a party, the court may take this into account when deciding whether to accept the defence.

As a general rule, under s. 272.2(b), the accused is under a legal obligation to take steps, in the circumstances known the accused at the time, to ensure that the complainant consents to the sexual act.

Finally, under s. 265(2), consent is vitiated if the complainant only consented to sexual activity because of fraudulent representations made by the accused. Thus, if the accused committed fraud in order to obtain consent, the complainant’s consent would not “count”. However, only certain types of fraud vitiate consent. These are fraud as to the actual nature of the act or any bodily harm that might result from the act.  For example, if a doctor told his patient that he was performing a medical procedure to obtain her consent and then actually committed a sexual assault, that would constitute fraud as to the nature of the act, and the patient’s consent would be vitiated. Or, if the accused told the complainant that the sexual activity they were going to engage in would not be violent, and then proceeded to act violently, the complainant’s consent would be vitiated due to fraud. However, if the accused simply lied about their name, age, marital status, job, or other personal details, this would not constitute fraud for the purpose of vitiating consent.

There is some case law supporting the argument that lying about your HIV status constitutes a form of fraud which can vitiate consent. Thus, if the complainant consented to sex based on the accused’s statement that he or she was not HIV positive, consent would be vitiated due to fraud and the accused would likely be found guilty of sexual assault. Recently, there have been prosecutions of individuals for sexual assault and criminal negligence causing harm or death, where the accused was HIV positive and did not disclose that fact to his partner prior to unprotected sexual activity.

There is confusion amongst members of the public as to whether or not simple possession of marijuana is illegal. This confusion has been caused by various court decisions and a policy of discretionary enforcement by the police. Simple possession of marijuana, possession for the purpose of trafficking, and production of marijuana are illegal in Canada. The law as it relates to simple possession of cannabis (less than 30 grams for personal use) is contentious in some areas. It is important to note that, in 2007 Toronto Police spokesman Mark Pugash said that, despite some discrepancies in the law, nothing will change about how the police deal with marijuana for the time being. Thus, while this article provides a helpful summary of the evolution of the law with regards to marijuana in Canada, we suggest that you do not change your personal practices based on the information contained in this article. One should remember that although even the various police associations have recommended decriminalization, possession is still illegal, and a finding of guilt in relation to simple possession of marijuana can have far reaching consequences.

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.