November 2022

The Supreme Court of Canada’s 5-4 decision in Sharma has left many in the legal community disappointed with its interpretation of Section 15 Charter rights and in addressing the impact of mandatory minimum sentences on Indigenous people, women in particular. Still, there is reason for optimism that the federal government’s Bill C-5, currently before the Senate, will mark an extra step towards removing some of them from the Criminal Code.

“The outcome is really frustrating,” says Kyla Lee, a criminal defence lawyer with Acumen Law Corporation and the vice-chair of the CBA’s criminal justice section. “There is obviously a significant conflict between Sharma and previous Section 15 decisions, which talks about where the burden lies in proving that something is discriminatory.”

In Sharma, the majority allowed an appeal by the Crown that restored the accused’s sentence of imprisonment, thereby affirming the constitutionality of provisions that restrict the availability of conditional sentences for certain Criminal Code offences — in the case at hand, for importing cocaine. 

Lee takes issue with the majority’s view that it needs statistical and academic evidence showing that eliminating conditional sentencing orders contributes to the over-incarceration of Indigenous people. It should have been able to draw the inference, she says.

Read the full story here.

A 21-year-old Prince Edward Island man has been banned from driving for a year and sentenced to 10 days in prison after he was caught high behind the wheel.

Additionally, the man has been ordered to pay $2,600 in fines and surcharges, reports SaltWire.

Initially pulled over for speeding, the responding officer noted the smell of cannabis emanating from the vehicle and possible signs of impairment from the driver, who handed over an expired licence and vehicle registration.

The driver then failed a SoToxa roadside screening test, a device that uses a saliva sample to test for the presence of drugs. A blood sample also revealed the man had a blood-drug concentration of 20 nanograms (ng) of THC in one millilitre of blood, four times the legal limit of 5 ng.

“It can lead to people being arrested who are actually innocent,” Kyla Lee, a lawyer based in Vancouver, told The Canadian Press. “The technology just doesn’t exist yet to allow police to make a determination of impairment via drugs using physical equipment,” Lee added.

Read the full story here.Post navigation

The wrongful arrest of a woman falsely accused of driving while high shines a light on the pitfalls of policing cannabis-impaired driving, say legal experts.

Pam Staples-Wilkinson was arrested in March 2021 after getting in a car accident and later failing a standard field sobriety test conducted by a Fredericton police officer.

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However, “serious problems” remain with how officers conduct the two physical tests, said Kyla Lee, a Vancouver defence lawyer who focuses on driving offences.

“Particularly in cases involving collisions, individuals exhibit symptoms when performing the physical tests that police make you do, that are consistent with being in a collision, but also consistent with the consumption of a drug,” she said.

Balance problems, fumbling and slurred speech can all be the symptoms of shock and head injury suffered in a collision.

But they can also be interpreted by a police officer as impairment, giving them grounds to pursue charges, Lee said.

Read the full story here.

More than six months after province-wide COVID-19 restrictions were lifted, new data from ICBC shows less than one third of fines issued for violating pandemic health orders have been paid. Kristen Robinson reports.

“Beyond restricting someone’s ability to purchase car insurance or renew their driver’s licence, the government really has no method of collecting unpaid fine revenue”

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“The law has no longer been in effect for quite sometime and so people don’t really see the point of it anymore.” – Kyla Lee

Watch the full story here.