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When the Federal Liberal Government introduced Bill C-75 with much fanfare on March 29, 2018, it is doubtful they expected the backlash they received from the legal community and the public at large. The Bill proposes sweeping and significant changes to the criminal justice system, but fails to incorporate promises apparently long-since-forgotten from the campaign trail. There is no reform of mandatory minimum sentences. There is little respect for the Charter or due process.

Stories quickly emerged in every major and minor media outlet, criticizing the Bill for its elimination of preliminary inquiries, reversal of the onus provisions in certain bail hearings, and removal of peremptory challenges in jury selection. Unfortunately, the news media’s focus on these three significant (and by no means unimportant) changes diverted attention away from some of the much more insidious aspects of Bill C-75.

Late in the evening that day, I sat down to take a stab at understanding this omnibus monstrosity. I penned a, perhaps sarcastic, 2400 word piece criticizing the major changes and some more minor ones. But even in 2400 words I could not break down the issues well enough.

So I’m going now to attempt to explain why, in my opinion, the changes in relation to affidavit evidence from police in criminal cases is one of the most deserving of attention and deserving of criticism.

One of the biggest questions that defence lawyers have about marijuana legalization has to do with marijuana amnesty and sentencing. Individuals who possess marijuana for personal use are still being charged in Canada. Their charges are still going to court.
Despite the fact that the Government has announced their intention to legalize marijuana, people are still leaving court with criminal records for marijuana offences, and some are receiving jail sentences.

​Frankly, I find this practice appalling.

In the past, I have written several blog posts about delays in rendering decisions in Immediate Roadside Prohibition review cases. My complaints have been reasonable: drivers are not receiving their Immediate Roadside Prohibition review decisions in a timely manner, and are left in the dark about why the delay is occurring. 

From a lawyer’s perspective, this is frustrating for two reasons. First, I feel that I am doing a disservice to my clients as I am not able to provide them with information they need in their cases. I cannot tell them why there is no decision, or what this means, or whether the extension they’ve been given will be the last extension or the first in a series. Second, it’s frustrating to know that the law requires transparency in decision-making but that drivers who are facing this review process do not receive that. 

I’ve frequently argued that there’s no scientific correlation between blood THC concentration and a person’s ability to drive without being impaired. Often, opponents will respond with a bevy of medical articles suggesting the complete opposite, while supporters will do their own research and respond in kind with contradictory literature.

It’s really a question of who is right. Who is believable. Why are studies contradictory? Since well before marijuana was widely legalized in the United States and certainly before Canada announced its intentions to legalize it, scientists the world over have been busy at work. They were trying to determine, what, if any, correlation having marijuana in the system had to traffic incidents, regardless of whether these incidents caused injury or death.

​As a Métis person I struggle with the recent decisions in the killings of Colten Boushie and Tina Fontaine. I struggle because I know the history of this country, and how the murder or killing of young Indigenous people is not new, and is not going away. I know the history of the apathy of police to the investigation of crimes against Indigenous people, and I understand the systemic factors that impact the investigation, prosecution, and treatment of Indigenous people in the justice system, whether as victims or as accused individuals.

​But I struggle harder with all of this because I am also a criminal defence lawyer. And by virtue of that privilege, I have a particular insight into the frailties of the justice system, as well as the importance of concepts like reasonable doubt and the burden of proof on the Crown. I also know that unless you are sitting in the courtroom through every day of a trial, it’s unlikely that you can form a good picture of the case.

​Yesterday, I read a very disappointing article that summarized an interview with BC MLA Mike Morris about the NDP Government’s commitment to a $50 Million dollar investment in preserving Indigenous languages in British Columbia.

 

As a Metis person, I could not be happier with this commitment. The vast majority of Indigenous languages are endangered. When I was completing my undergraduate degree, I had the privilege of studying the Musqueam language, which sadly lost its last fluent speaker a few years before I took the course. These languages are only preserved as a result of the hard work of scholars and communities, and having provincial funding to make that happen is so refreshing and inspiring.

The NDP Government in conjunction with Victoria’s Capital Regional District Traffic Safety Committee has proposed installing point-to-point speed cameras on the Malahat Highway. What these cameras are, essentially, are cameras set at various points throughout the Malahat drive capturing images of the vehicles that pass by them.

Then, based on the distance between the cameras and the time at which the vehicles pass by, the cameras work together to calculate a speed for any given vehicle. Speed is calculated by measuring the distance the vehicle travelled over time. Those vehicles which are speeding will then be ticketed. Drivers in British Columbia have been asked to provide their opinions to Mike Farnworth by March 1, 2018.

The Canadian and BC governments are facing some difficult legal hurdles if they continue to pursue the notion of punishing people on the basis of having consumed particular qualities of marijuana before driving. 

​Earlier this month, I wrote about how the BC government will be introducing a 90-day Administrative Driving Prohibition for marijuana impaired driving and the flawed options available to how they will determine if someone is driving while impaired. 

And I’ve previously been quoted in articles about how significant an effect these poorly conceived laws will have on medical users. ​

But what does it look like when Criminal courts, which require proof beyond a reasonable doubt, try to handle cases involving marijuana impairment? 

Urine and blood tests can prove a person consumed marijuana. That much is agreed upon and established in the courts. But that’s it.

It can only prove that the person used marijuana in the past. What urine and blood tests cannot do is prove whether a person was impaired as a result of marijuana use.
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​A few years ago, I wrote a blog post on the topic of the second test in an Immediate Roadside Prohibition case. At the time, I discussed how the right to a second test functioned as a double-edged sword. In one sense, it could exonerate you. In another sense, it could become inculpatory evidence.

A lot has changed since that blog post, and I wanted to revisit the question of whether taking a second test is really worthwhile for drivers. My conclusion based on the current state of the law is that taking a second test is a foolhardy idea. It’s a trap.

​Today, the BC Government announced its stance on marijuana legalization. Unsurprisingly, the announcement comes with some indication about how the province intends to tackle the issue of marijuana impaired driving.

Without giving away the details, the Government has announced that it will be introducing a 90-day Administrative Driving Prohibition for marijuana impaired driving. Nothing about this is surprising, as we had long suspected that the so-called success of the Immediate Roadside Prohibition would be translated into drug impaired driving when the time came. However, what is confusing is how the Government expects to administer the law effectively.

If the Government intends to make this a roadside penalty, similar to the IRP scheme, then there are essentially two equally flawed options available to them. If they intend this to be a 90-day prohibition based on a more thorough investigation, then that too holds inherent flaws.

So what are the options?