April 2018

The Court ordered a pre-sentence report, and the matter was adjourned for that to occur and for the submissions of counsel. Prior to the pleas being formally entered, the court was asked to canvass certain provisions of the Criminal Code with Fisher. The judge seized of the matter warned him that he would not be bound by the position of Crown and defence.

With this in mind, the case raises very interesting issues relating to the law of joint submissions.

In Canadian criminal law, a longstanding tradition has been that agreements between the Crown and Defence are to be followed by judges, unless there is good reason to depart from the joint position. However, until recently there was no hard and fast rule about this. In late 2016, the Supreme Court of Canada released its decision in R. v. Anthony-Cook, a decision addressing joint submissions. The Court ruled that judges should not depart from a joint submission unless the administration of justice would be brought into disrepute or the proposed sentence would be contrary to the public interest.

The Government has not anticipated the host of problems that legalization will pose for cross-border travellers. And while use of marijuana is a ground to exclude entry into the United States, my greater concern is how driving-related marijuana offences recorded on the driving record will impact those seeking entry into the United States.

Currently, every province is considering how it will address the problem of drug-impaired driving once legalization is complete. In British Columbia, the Government has hinted at the likelihood of a further roadside prohibition scheme to address the so-called problem of drug-impaired driving. Leaving aside the fact that drug-impaired driving is both already an issue and already addressed in legislation, making all of this really a non-issue, an expanded roadside prohibition scheme will have devastating consequences of the type the alcohol-impaired schemes do not.