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A short while ago, I was thinking about how driving-related cases, impaired driving or driving while prohibited or Immediate Roadside Prohibitions, or whatever the case may be actually drive the law. Driving law drives the development of the law. And so I decided to create a podcast that focuses on this issue, and ways in which driving law is driving change in other areas of the law.

Today, I released the first episode. I hope everyone takes a listen.

On the first episode we discuss Bill C-75 and its very sneaky changes to impaired driving law, saliva testing for marijuana impairment, and distracted driving penalties.

Last week, disgraced former Vancouver Police Department Detective Constable Jim Fisher pleaded guilty to three charges of abuse of trust and sexual exploitation of a minor. He had been facing a slew of charges, which had slowly been whittled away by the Crown and ultimately pleas were entered on three of them. Each of the three charges refers to his interactions with minors who were also witnesses in cases that he was managing.

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.

This weekend, an opinion piece in CBC got me thinking: what happens to Canadians who want to seek entry into the United States but are marijuana users, after marijuana is legal?

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.

In a deliberately-timed move, the Liberal Government has introduced yet another phase of its absurd legislation, aimed at chipping away what fundamental principles of justice remained intact after Bills C-45, C-46, and C-51. Bill C-75, introduced on Thursday, is an omnibus bill that is comprised of numerous sweeping and devastating changes to the justice system.

Oh, sure, there are some nice things in the Bill. There is the ability restored to judges to use discretion in imposing a victim fine surcharge. And there are additional provisions to allow for judges to consider Indigenous ancestry or marginalization for other reasons in sentencing accused individuals. There are provisions that allow for easier changes to bail or probation conditions where they are not manageable for an individual. Well, those changes are fraught with problems best suited for another blog post.

The purpose of the Bill, as touted by Jody Wilson-Raybould, is to address issues that contribute to delay in our justice system and to provide needed assistance to the most vulnerable people in our population.

For the reasons I outline in this blog post, the Bill fails in those goals.

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.