Are Constitutional Challenges the Future of Canadian Cannabis Litigation?

When Ottawa police raided a handful of marijuana dispensaries in November, they arrested nine people, including a 21-year-old woman who was working behind the counter in one of them. Tessa Giberson was charged with possession of an illegal substance for the purposes of trafficking and possession of proceeds of crime under $5,000. Six months later, her lawyer, Yavar Hameed, announced that his defense would include a constitutional challenge to Canada’s medical cannabis laws.

Lawyers in other cannabis cases have also been taking aim at the constitution, and many legal experts believe this is just the beginning. As soon as Bill C-45, the Cannabis Act, and Bill C-46, which creates new offences in the Criminal Code and changes provisions related to drug-impaired and alcohol-impaired driving, are passed into law next summer, lawyers predict a slew of constitutional challenges will follow.

If so, Canada’s marijuana laws could ultimately look very different from the way they do now and the way they will on the day the new legislation is enacted.

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When asked about the pending constitutional challenge in Giberson’s case, which will be heard in May 2018, Hameed said he was still formulating his case, but indicated that it would likely include some arguments that had been used in successful challenges in the past. Those constitutional challenges led to the legalization of medical cannabis in 2001 and to the continued broadening of regulations governing its use.

Last year, for example, federal court Justice Michael Phelan ruled that some cannabis patients’ constitutional right to “life, liberty and security of the person” had been violated because they didn’t have “reasonable access” to their medicine. In response, the federal government changed the law so that Canadians were no longer required to obtain medical cannabis only from corporations licensed to grow and sell it, but could instead grow small amounts of medical cannabis for themselves or designate someone else to grow it for them.The judge didn’t rule on the constitutionality of the marijuana dispensaries such as the one Giberson worked at, but his ruling noted that dispensaries are at the “heart” of patient access.

“If you’re arrested in a dispensary, a constitutional challenge under the Charter of Rights and Freedoms is your only real option for a defense right now,” Toronto criminal lawyer Jack Lloyd told Leafly. He points to Section 7 of the Charter, which guarantees life, liberty, and security of person (as noted in Justice Phelan’s ruling) and Section 15, which guarantees every person is equal under the law.

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A week after Yavar Hameed announced his plan for a constitutional challenge, a provincial court in New Brunswick granted lawyer Rod MacDonald more time to build a defense for his client, Terrence Flecknell, who had pled guilty to possession of marijuana for the purpose of trafficking and to growing more than 200 plants. MacDonald had already stated his position that the mandatory sentence of at least one year in prison would violate Flecknell’s Charter rights to be free from cruel and unusual punishment. (Earlier this month, the B.C. Court of Appeal struck down a six-month mandatory jail sentence for growing between six and 200 marijuana plants for the purposes of trafficking on those very grounds.)

In an interview with Now Magazine in May, lawyer Kirk Tousaw spoke about his high-profile clients Marc and Jodie Emery—activists and dispensary owners who were arrested by Toronto police last March and charged with a long list of cannabis offences. Noting that the activists were facing life in prison for selling recreational marijuana, even though the federal government was planning to pass legislation (i.e. the Cannabis Act) allowing others to do that, the Now reporter asked if such a thing were constitutional.

“Well, I think it’s up to a judge to determine that,” replied Tousaw, who won the constitutional challenge at the center of Justice Phelan’s landmark ruling last year. “I would anticipate making an argument that it is grossly disproportionate to impose consequences—up to and including life in prison—on people that sell cannabis, when other people that are engaged in exactly the same behavior are getting a license to do it. Those battles have yet to be fought. I expect they will be fought.”

Future Challenges 

The Cannabis Act mandates prison sentences of up to 14 years for those convicted of providing marijuana to individuals 17 or under—even though selling tobacco or alcohol to minors is punishable by a fine for first-time offenders. Marijuana activist Marc-Boris St-Maurice, who owns a Montreal dispensary, has wondered aloud if that provision would survive a constitutional challenge. “They’re creating a whole new category of criminals in the process of legalizing weed,” he told The Montreal Gazette.  “For example, a 19 year old passes a joint to a 17 year old. Is that a 14-year jail sentence you could be facing? The law doesn’t just say selling to minors is illegal. Giving is also included.”

Bill C-46 has drawn even more criticism, as it would drop the requirement for police to have a reasonable suspicion a driver is drunk before demanding a breath test. Also, under the proposed law, police would be able to demand a saliva sample from any driver they suspect has drugs in their body. Police suspicion could be based on the driver having red eyes and abnormal speech patterns, or the scent of marijuana. Such a sample would help create reasonable grounds to deduce a crime has been committed, allowing police to conduct further testing.

Canadian Minister of Justice Jody Wilson-Raybould has justified the proposed law by saying current laws allow many impaired drivers to escape detection at check stops. She says the new legislation is consistent with the Charter but many lawyers disagree, insisting that a law allowing police to engage in random testing without reasonable suspicion would not be enforceable under the Charter, which says “everyone has the right to be secure against unreasonable search or seizure.”

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Vancouver-based lawyer Sarah Leamon stated in The Georgia Straight that she anticipates a constitutional challenge being launched the day after the law is enacted. Such a challenge would go all the way to the Supreme Court, said Lisa Silver, a law professor at the University of Calgary, to the Calgary Sun, noting that “it engages all of Canada’s fundamental principles of justice under the Charter.” Ian Savage, president of the Defence Lawyers’ Association in Calgary, believes the Supreme Court would strike down the law allowing random testing. He says the proposed law “is essentially the equivalent of the federal government trying to pull the foundation stone out of a building.”

Also under Bill C-46, a person would be legally impaired if they had in his system two nanograms of THC per millilitre of blood. Many lawyers take issue with this stipulation because there is no scientific consensus on how much THC constitutes impairment. As a result, they say, the test for THC could produce evidence that is not relevant to the crime of driving while impaired.

“When you have something that encroaches on people’s freedom and privacy in a significant way, that yields no relevant evidence to the underlying question, ‘Was that person impaired while driving?’, it just looks like a real mess that can’t survive the first set of challenges,” Tousaw told Now Magazine. He added that the limit is “so shockingly low” a person could exceed it a week or two weeks after ingesting cannabis. Legal experts also anticipate that drivers who are visible minorities will launch constitutional challenges claiming they have been singled out by police for the roadside tests. “You are almost guaranteed to have more of these challenges once the law is enacted,” says Lloyd, adding that many of them will likely be related to Section 7 of the Charter.

Montreal criminal lawyer Eric Sutton believes the laws surrounding both medicinal and recreational cannabis could be simpler and says the proposed legislation doesn’t make things clearer. “I don’t think it will be easy to challenge the new legislation but that doesn’t mean it’s fair-minded,” he told Leafly. “It’s certainly not as progressive or as realistic as it should be.”

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