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May 09, 2019
Section 11(e) of the Canadian Charter of Rights and Freedoms confers the right not to be denied reasonable bail without just cause. As such, the detention of accused individuals is intended to be the exception, while pre-trial release is the rule. Additionally, the presumption of innocence enshrined in section 11(d) of the Charter provides that one’s liberty should not be taken away prior to conviction, unless justified under section 515(10) of the Criminal Code. Therefore, release with the least onerous conditions is generally favoured over pre-trial detention.
Section 525 of the Criminal Code requires a judicial review of an accused’s detention if the trial has not begun within 90 days. The purpose of this section is to avoid accused persons languishing in pre-trial custody for extended periods of time while awaiting their trial.
There are sound reasons for this. It is more difficult for accused individuals held in pre-trial custody to access legal advice and effectively instruct their counsel. Section 525 provides the opportunity to have a judge reconsider whether the continued detention of an accused person is justified when a trial is not held within 90 days. It is a safeguard that protects an accused’s liberty and is consistent with the presumption of innocence enshrined in section 11(e) of the Charter.
However, until recently, there were two competing lines of authority in British Columbia about how to interpret section 525 detention review hearings. One line of authority ruled that section 525 required a two-step process. The first step required the accused to establish unreasonable Crown delay in bringing the case to trial. If established, the accused then had the burden to show a material change in circumstances under the normal section 515(10) bail provision of the Criminal Code. The other line of authority favoured a one-step process that did not place an onus on the accused to prove unreasonable delay prior to their bail review under section 525. Guidance was needed to determine which of these two competing lines of authority were correct.
Corey Myers’ Experience
On March 28, 2019 the Supreme Court of Canada handed down a unanimous decision of nine Justices in R v. Myers 2019 SCC 18 that effects accused persons in pre-trial custody. The Court unanimously ruled that an accused does not need to establish unreasonable delay in bringing him to trial in order to justify his release under section 525 of the Code. In other words, the Court ruled that section 525 is a one-step, and not a two-step, process.
Corey Myers was arrested and charged with multiple firearm offences in January of 2016. He first sought bail after completing a prior sentence in November 2016, but his application was dismissed as the suggested terms of his bail did not sufficiently address the risk that Myers might commit further offences.
In March 2017, the Crown began a review hearing under section 525 as the 90-day detention period had expired. The British Columbia Supreme Court determined that the test for a section 525 hearing was a two-step process. This provided no recourse for Myers to challenge his detention order as there had been no unreasonable delay in bringing him to trial.
In January 2018, Myers pled guilty to reduced charges and was sentenced to 30 months in prison. However, Myers appealed the British Columbia Supreme Court’s decision that a section 525 bail review hearing required him to show there was unreasonable delay in getting him to trial before he could successfully get bail under that section. Although the appeal was moot since Myers was no longer in pre-trial custody, the Supreme Court of Canada exercised its discretion to hear the appeal anyway.
The New Approach
In Myers, the Court unanimously set forth a new procedure for detention review hearings. The Court ruled that section 525 is an automatic provision laying mandatory obligations on the jailer and judge. Now, the jailer must apply for the hearing immediately after the 90-day period has expired and a judge must set a date and give notice of the hearing to the accused. The accused is not required to prove unreasonable delay in getting to trial to get such a review.
The Court found that Parliament created section 525 to allow a judicial assessment of whether the continued detention of the accused is justified under section 515(10) of the Criminal Code. That section sets out three possible grounds to justify the detention of an accused: where it is necessary to ensure the accused attends court; where it is necessary to protect the safety of the public; and where it is necessary to maintain public confidence in the administration of justice. The Court found that the right to a section 525 review is automatically triggered after 90 days. The Court further ruled that there is no additional requirement to also prove unreasonable delay in getting to trial beyond 90 days in order to succeed and be released from custody.
The judge in a detention review hearing may consider new evidence, changes in the accused’s circumstances, unreasonable delay, and the rationale for the original detention order, in addition to the evidence and submissions in prior bail hearings. Finally, the judge has the discretion under sections 525(9) and 526 to expedite the trial of a detained accused, giving consideration to the risk of unconstitutional delay.
The Myers decision represents a significant change in the law and process surrounding pre-trial detention which will no doubt impact the number of accused persons who seek their release from custody after an initial detention order.
Nov 17, 2018
Many people charged with criminal offences decide to plead guilty for a variety of reasons. The Crown may have offered them a lighter sentence if they plead guilty; they might have wanted to spare their loved ones from having to testify; they may not have been able to afford a lawyer or qualified for legal aid and therefore not felt they were in a position to have a trial; or most commonly, they may have simply been guilty and wanted to take responsibility. However, often after a guilty plea is entered in court, there is some delay (of weeks or even months), before the person is sentenced. It is during that delay between guilty plea and sentencing that an accused will often second guess their decision.
This blog is for those individuals wondering: is it too late to change my plea?
If you are one of those people, you will recall when you entered your guilty plea, your lawyer and/or the court would have asked you the following questions:
- Do you understand the charges against you? You would have answered, “Yes.”
- Do you understand that by pleading guilty, you are waiving your right to a trial? You would have answered, “Yes.”
- Is anybody forcing you to plead guilty? You would have answered “No.”
- Do you understand that regardless of the sentence being recommended by Crown and/or defence, it will ultimately be up to the judge what sentence you receive? You would have answered, “Yes.”
By going through those questions with you, your lawyer and/or the court were making sure that your guilty plea was voluntary, informed, and unequivocal. If the court had any concerns about your plea being pressured, uninformed, or fickle, you would not have been permitted to plead guilty.
So, what if you change your mind? In order to successfully apply to withdraw your guilty plea, you must prove to the court that your plea was either involuntary, uninformed, or equivocal. In my 5 short years of practice, I have seen each of those three arguments be successful. And there is new law as of 2018 which is binding on all courts which tends to lower the bar. So, while a guilty plea is supposed to be final, and you have no doubt been warned many times that you cannot change your mind once the plea is in, that isn’t exactly true in practice.
1. The Plea Was Not Voluntary
I was involved in a Manitoba Queen’s Bench case where this argument was made on an application to withdraw a guilty plea to 2nd degree murder. The applicant in that case took the stand and testified that he was threatened by rival gang members while in custody, and forced to plead guilty under the threat of violence. The court accepted his evidence and allowed him to withdraw the plea. He proceeded to a trial.
2. The Plea Was Not Informed
I am currently involved in a BC Provincial Court case where we are making this argument. My client entered a guilty plea to sexual interference and the sentencing was put over several months. Several witnesses came forward between the time of the plea and the sentencing and provided new statements to police including new information. My client will be testifying to the court that had she had all the evidence to consider before she entered her plea, she would have proceeded to trial. The new case law in this area supports our position.
3. The Plea Was Equivocal
This argument is appropriate in a case where you can point to the court record to show that when you entered your guilty plea, you did not fully commit to being guilty of the charges. There is recent BC case law considering this argument in which the applicant was successful in withdrawing his guilty plea because he explained that he was suffering from depression and suicidal ideations when he entered his guilty plea, and that when you read the transcript, it was clear that he was not fully committing to being guilty but was conveying a tone of having given up on fighting. His plea was found to have been equivocal.
You will notice that in none of these scenarios was the accused asserting they were not guilty. You do not have to be innocent in order to apply to withdraw your plea. You may in fact be totally guilty of the charges laid. That is not the point. The point is that you have the right to understand the case against you, make full answer and defence, and determine whether or not the Crown can prove their case before you commit to a plea. You have these rights regardless of your guilt or innocence.
In most cases, you will have to find a new lawyer to assist you with any of these three applications to withdraw your plea. The reason is that the court will want to question your lawyer about whether your lawyer believed, based on your discussions with him or her about the plea, that your plea was voluntary, informed, and unequivocal. In fact, you may have a basis to withdraw your plea if your lawyer did not adequately assist you in the process. For example, if your lawyer pressured you into pleading guilty, your plea might be involuntary. Or, if your lawyer did not tell you about important evidence or consequences in your case, your plea may have been uninformed.
Accordingly, the short answer is no; it is not necessarily too late. While you are not allowed to simply “change your mind,” your guilty plea may fall into one of the three categories described. Skillful counsel will be able to assess your situation and help you understand your rights regarding your plea. With extensive experience dealing with these types of applications, our lawyers are happy to assist. If you have entered a guilty plea but are having second thoughts as your sentencing date approaches, do not hesitate to give us a call.
Oct 13, 2018
These days in BC and the lower mainland in particular, the “opioid crisis” is no secret. I don’t believe anyone would disagree that we as a society are in the throes of an unprecedented health crisis.
Fentanyl was synthesized in 1960. It is 50-100 times more potent than morphine but considered significantly safer due to the decreased risk of respiratory depression in patients. Therefore, it quickly became the preferred anesthetic for cardiac surgery. When it began being available by prescription to treat pain, people of course began abusing it.
Fentanyl was much cheaper than heroin so dealers often cut heroin or other drugs with small amounts of fentanyl. The unintentional fatalities by overdose where fentanyl was detected date back to the early 2000s, however, the problem skyrocketed in Canada beginning in about 2014-2015. People are not just unwittingly consuming drugs laced with fentanyl now; it has become a drug of choice and a profitable commodity along with its much more potent analogues.
In 2013-2014, fentanyl overdoses began claiming lives at staggering rates, and those rates have steadily increased. In 2017, over 600 people in BC died from fentanyl-related overdoses, and 84% of all drug overdose deaths in BC included fentanyl or its analogues. In Canada, opioid related deaths increased by 34% between 2016 and 2017. The rate for non-opioid related overdose deaths however, remains stable, with no significant increase, which has been interpreted (I think naively) by the authorities to mean this is a problem with a specific drug rather than with addiction. Public awareness of the dangers of fentanyl followed shortly thereafter, and the criminal justice system responded accordingly.
In March of 2017, the BC Court of Appeal in R. v. Smith increased the sentencing range for first time, street-level fentanyl traffickers to 18-36 months, making sentencing 3-6 times harsher for fentanyl than for other Schedule I substances.
Smith is the leading case for street-level fentanyl dealers. For higher-street-level to mid-level traffickers, sentences in the range of 2 years less a day to 8 years have been recently been handed down. For higher-mid-level to “king pin” type fentanyl dealers, recent sentences in the range of 8 – 16 years have been given.
To put this into context for a moment, consider that in 2014, almost 1300 people in Canada were killed in car accidents caused by impaired drivers. That is well over 50% of all car accident fatalities. These numbers are comparable to recent opioid/drug overdose fatalities in BC and Canada. The BC Coroners Service estimates that 3.5 people die everyday in BC from illicit drug overdoses, while MADD estimates that 3.5 people die everyday in Canada from accidents caused by impaired drivers.
If we are sentencing offenders based on the level of risk they knowingly take on with respect to the safety of the public, then these two types of offences should yield comparable sentences. The high level of risk to the public is well-known for both impaired driving and the sale of fentanyl.
Impaired driving causing death can yield sentences in the range of 18 months to 8 years. However, simple impaired driving (NOT causing death) cases almost never result in jail or even a criminal record for a first-time offence. Yet, fentanyl trafficking NOT causing death still leads to the pen.
What we are seeing is a misguided, panicked response by the courts, who, along with the government, are under great pressure to solve a health crisis. The result is a legal landscape which is highly unfriendly to the accused.
The Crown approaches fentanyl sentencing with a lack of discretion to negotiate. They may not give an accused credit for pleading guilty. They may seek consecutive jail sentences on each charge. They base their sentencing positions on Crown policy, not on case law. They have even reserved the right to charge fentanyl dealers with manslaughter. While it hasn’t happened in BC yet, is has in Ontario and Alberta. The outcomes of those cases are not yet determined. The approach taken by the Crown can be summarized as aggressive and unsympathetic. This can and needs to be countered by defence counsel.
While the courts have increased sentences, they have also left room for certain arguments in favor of a lower sentence. These arguments range from emphasizing certain mitigating factors to relying on specific cases to seek concurrent sentences for different offences. There are also well-supported arguments to be made about the effectiveness of jail in achieving deterrence and whether deterrence actually works on drug traffickers. Charter arguments can also be made at the sentencing stage; establishing a Charter breach in the investigation can result in a reduction of sentence.
The existence of the fentanyl crisis is not a matter of debate. The solution, however, is. The response of the courts has been swift and harsh, but is still being refined. In time, the voices of reason (mental health and addictions experts) will prevail. In time, courts will be forced to rethink their approach. In time, it will become clear that harsh sentences have been given, but fentanyl hasn’t gone away and addiction hasn’t been cured. Until that time comes, as defence counsel, I will continue putting the information before the courts and advocating zealously for fair sentences for my clients. If you have are facing a fentanyl charge please contact us for assistance with your case.
Sep 18, 2018
What is Legalese? – Legalese refers to “legal English” or language that is full of legal terminology, phrases, terms or academic words. It is a traditional style of legal writing, but it is often reader unfriendly. Therefore, we have set out many common terms used in Criminal Law/Courts to assist in understanding legal terminology in plain language.
If you have a legal matter and require further information, feel free to contact our office. One of our experienced criminal lawyers would be happy to assist.
1. Accusation – a claim that a person has committed a crime.
2. Accused – a person who is alleged to have committed a crime.
3. Acquittal – when the court finds the accused person not guilty of committing the alleged crime.
4. Adjournment – to reschedule a court hearing to another day.
5. Affidavit – a formal written statement made under oath.
6. Allegation – a formal accusation made against a person for alleged wrongdoing however, it is not yet proven to be true.
7. Appeal – When either the accused or Crown Counsel ask a higher court to review the decision of the lower court because they believe there was an error. In Criminal Law, an accused can appeal a conviction or sentence.
8. Arraignment – a proceeding in criminal court where the accused, informed of the charges in an information, is asked to plead guilty or not guilty to the charges against him/her.
9. Arrest Warrant – a court order giving police (or other officers) permission to arrest a person and bring them before the court.
10. Bail/Judicial Interim Release – the release of a person accused of a crime, prior to trial, under specific conditions designed to ensure that the accused attends court and faces the charges against him/her.
11. Beyond a Reasonable Doubt – the standard of proof in criminal law which has to be established before there can be a finding of guilt.
12. Complainant – (i.e. the victim) – the person who made a formal police complaint against the accused person.
13. Conviction – When the charge(s) against an accused person is proven beyond a reasonable doubt and a guilty finding is entered.
14. Criminal Code of Canada – Federal legislation (law) that governs crime and punishment in Canada.
15. Criminal Record – A record/information about a person’s involvement (if any) with the criminal justice system.
16. Crown Counsel – A lawyer employed by the Provincial or Federal government to prosecute persons accused of committing a crime under the Criminal Code or other federal or provincial law.
17. Custody – when a person is held by police at the station or is in a correctional institution (provincial or federal).
18. Disclosure – the documents provided by Crown Counsel to the accused (or his/her lawyer) relating to the evidence or circumstances of the case against the accused. The Crown must share all relevant information gathered during the investigation with the accused.
19. Disposition – (i.e. sentencing) – a hearing at which the accused has plead guilty to the charges against them and faces punishment.
20. First Appearance – the first time an accused person appears in court.
21. Guilty – when an accused person admits (i.e. pleads guilty) or is found guilty after trial to have committed the offence(s) for which s/he is charged.
22. Incarceration/Imprisonment – to be kept in custody in a correctional institution for a specified period of time after being found guilty of committing a crime.
23. Indictment – a document containing the formal list of charges for indictable offences (more serious offences under the Criminal Code).
24. Information – a formal accusation by Crown Counsel that the accused committed a crime under the Criminal Code or other federal or provincial statues.
25. Intent – refers to a person’s state of mind with which the act is done. Intent in criminal law is separated into two concepts: “specific intent” and “general intent”. Specific intent refers to a state of mind where the accused intents a certain consequence. General intent refers to the intent to do an act that the law prohibits (whether a specific consequence was intended or not).
26. Mens Rea – “guilty mind” – those without sufficient mental capability cannot be judged guilty of a crime.
27. Peace Bond – a court order (with conditions) made by a judge for the purpose of protecting a person (most often the complainant) from the accused.
28. Plea – The accused person’s statement pleading “guilty” or “not guilty” in answer to the charges.
29. Promise to Appear – A notice issued by the police and signed the accused promising to appear in court a specific time, day and place to respond to the criminal charge.
30. Sentence – the punishment ordered by the court after an accused person has been found guilty of the offence for which they are charged.
31. Stay of Proceedings – an action taken by Crown Counsel to drop the charges against the accused, ending the prosecution.
32. Summons – a formal notice issued to the accused ordering them to appear in court at a specific time and place.
33. Trial – a court proceedings where the Crown presents in case against the accused. Then trier of fact (judge or jury) determined if the accused person is guilty or not guilty of the crime they are alleged to have committed.
Aug 08, 2018
A 19-year old boy, David, has bought tickets to a music festival. He is excited to go with his friends from school. They’ve all just finished their first year of university and want to celebrate during the summer. Someone in David’s group chat suggests they pick up some MDMA (Molly) to try. None of the group has done any drugs before, but they are considering experimenting. One of David’s friends buys the drugs and brings them to the festival.
At the festival, David’s friend leaves him with the drugs and goes to the washroom. David is left on his own. He relaxes and enjoys the weather. David looks around and sees an attractive girl around his age smiling at him. She walks over and starts talking to him. After some small talk, she asks David if he has any Molly. David is slightly put off, but he replies that he does. The girl says she forgot to bring hers and asks if she can buy a couple of tablets for herself and her friend. David says maybe later and looks to see where his friend went. The girl is insistent that she wants to feel good now and persists in asking for the drugs. David doesn’t put up a fight and agrees: he produces two tablets of Molly. The girl takes the drugs, gives David some money, and leaves. A couple of minutes later, David is arrested for the possession of drugs and the possessing drugs for the purpose of trafficking.
David was clearly not a drug dealer or trying to sell drugs for any commercial gain. David was 19-years old. He had never used drugs in his life. He had no intention of selling drugs. He wanted to have a good time with his friends at the music festival. The attractive girl was one of several undercover cops who were approaching young boys to buy drugs. Even though he didn’t plan on selling drugs, David sold some drugs to her. As a result, he is now facing a criminal record for drug charges for the rest of his life.
BC is home to an impressive amount of music festivals: Breakout, FVDED in the Park, Basscoast, Shambhala, Squamish, SKOOKUM. Every year, there are dozens of people like David who are arrested at music festivals. They generally fall prey to substantial undercover operations planned and executed by the police.
On the one hand, it is important to be careful and avoid putting yourself in such a situation. On the other hand, it may seem offensive that the police are using their extensive training and resources to approach and arrest kids at music festivals for selling drugs. What can David do now that he has been charged? Is the undercover operation legal?
What is Entrapment?
Entrapment, broadly speaking, is a defence available when a law enforcement officer induces someone to commit a criminal act, when that person would not have otherwise committed that act. Canada has adopted its definition from a US Supreme Court Case called Sorrells v United States (1932), where it defined entrapment as follows:
The conception and planning of an offence by an officer, and his or her procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer.
Entrapment is not a substantive defence, but rather is related to preventing the abuse of process. Courts have the jurisdiction to “withhold its processes from the prosecution on the basis that such would bring the administration of justice into disrepute” (R v Amato,  CarswellBC 661 (SCC) at para 68; R v Mack,  CarswellBC 701 (SCC) at para 73). According to the Supreme Court of Canada, the concern is that the executive branch of government, through the deception and trickery of its officers, are abusing the legal process and the judiciary to obtain convictions. Allowing cases to be prosecuted based on evidence that was obtained in this manner would undermine the public’s confidence and faith in the criminal justice system. As a result, the remedy is generally a stay of proceedings.
The leading case on entrapment is the Supreme Court of Canada decision in R v Mack,  CarswellBC 701. Mack establishes the defence of entrapment in Canadian law. Procedurally, entrapment is only raised as an issue after the Crown has proved its case beyond a reasonable doubt. This gives the accused a chance to be acquitted before raising the defence of entrapment. If the Crown does prove its case, then the burden of proof falls on the accused to prove entrapment on a balance of probabilities (Mack at para 166).
When Can the Police Entrap You?
First, the general rule from Mack is that the police can only provide an opportunity to a person to commit a crime when the officer has a reasonable suspicion that the person is already engaged in a particular criminal activity. In other words, officers cannot engage in “random virtue testing”. This is where an undercover officer—with no reasonable suspicion of criminal activity—will “test” a person’s virtue by giving them a clear opportunity to commit a criminal act, such as selling drugs. Without an existing and reasonable suspicion that you are engaged in selling drugs, for example, this testing is impermissible.
However, the exception is when the police are involved in a bona fide investigation where they reasonably suspect criminal activity is occuring (Mack at para 122; R v Barnes,  CarswellBC 11 (SCC) at para 23). When there is such an investigation, the police can approach any person in the area with the opportunity to commit the particular offence being investigated. Moreover, BC Provincial Court has held that statistical evidence is not required to establish reasonable suspicion (R v Chu, 2009 BCPC 76 at para 28).
The police can therefore engage in random virtue testing in two situations:
The person is reasonably suspected to already be engaged in criminal activity.
The physical location is reasonably suspected to be a place where criminal activity is occurring.
However, even if either of these situations are met, a police officer still cannot go beyond providing an opportunity to commit a criminal act (Mack at paras 122-123). That is, they cannot go so far as to induce the criminal act. The SCC identifies several factors that can assist in determining when the police have crossed the line into inducing criminal acts. For example, the type of crime, the type of inducement used, the timing, the persistence, exploitation, proportionality, and whether an average person would be induced (Mack at paras 139-148).
Case law generally does not analytically go through every factor, but the factors in Mack underpin a judge’s decision. For instance, in R v El-Sheikh-Ali,  CarswellOnt 4337 (Ont Ct J), the judge held that the undercover officer went too far in trying to lure the accused with a sexual relationship and deliberately presenting herself as a “sex object” (El-Sheikh-Ali at para 20). The timing of the inducement here was before the drugs were sold, the inducement used was clearly sexual, and there was persistence. Additionally, the accused was a vulnerable immigrant who had been divorced for six years. His ex-wife and two children were also barred from entering Canada from Lebanon, he therefore admitted to being lonely and looking for female companionship.
Despite the decision in El-Sheikh-Ali, suggestive or flirty behaviour by an undercover officer is generally permissible and not sufficient to constitute an inducement.
Another case in Ontario provides some clarification of when police go beyond providing an opportunity to commit a crime and into inducing the criminal act itself. In R v S (J),  CarswellOnt 68 (Ont CA), some undercover officers approached some young concertgoers at a restaurant near the venue. The targeted youth was found to be naive, hesitant, and not selling for profit. He was hesitant and unsure of what to do with the requests to buy marijuana. He looked to his friends for support. He was found to have sold the drugs out of goodwill to a fellow concertgoer. It was found that he would not have sold the drugs if not for the officers’ persistent requests. The court held that the actions of the officers went beyond providing an opportunity to commit an offence and into inducing the commission of the offence.
Entrapment at Music Festivals
The case law on entrapment at music festivals is limited. In R v MacLeod, 2011 BCSC 1812, the BC Supreme Court held that a music festival could be the subject of a bona fide inquiry. In other words, a music festival could be reasonably suspected of being a place where criminal activity is occurring, namely drug trafficking. In support of their decision, the court made an analogy to raves. They cited prior cases where sting operations were held at Pacific Coliseum during raves (R v Yee, 2009 BCPC 369; R v Chu, 2009 BCPC 76). In both those cases, the defence of entrapment was raised, and in both cases it was dismissed because the location was held to be the subject of a bona fide investigation.
The current law is not favourable to accused persons caught by these undercover operations. While entrapment is available as a legal defence, it is exceedingly difficult to prove. Generally, the police set up an investigation for criminal activity prior to executing their undercover operations. Since statistical evidence is not required, it can be easy for the Crown to prove that there is a bona fide investigation of criminal activity in a particular location.
Once an investigation has begun in a particular location, the police may legally pursue random virtue testing of any person in that location. The only limit remaining on the police is the grey area between presenting an opportunity to commit a crime and actually inducing the person to commit a crime. Case law suggests that only the more egregious examples of police conduct will result in the defence of entrapment being successful, such as offering sexual relations or browbeating a naive youth who had no prior intention to sell. It is unlikely that this breaches will be found in most cases, such as David’s above. In R v Chu, 2009 BCPC 76, the judge cited two cases where the officer’s persistence and dress, as well as the accused’s reluctance and lack of desire to sell were “not sufficient to support the claim of entrapment” (Chu at para 34). In these two cases, the undercover officers were at raves asking for ecstasy. In both cases, the accused acquiesced, sold to the officers, and the defence of entrapment was dismissed.
It may be helpful to try and distinguish a music festival from a rave, but MacLeod has held that a music festival can also be the subject of a reasonable suspicion of drug trafficking.
Of course, an individual’s circumstances may be so severe that the defence of entrapment becomes available. The Mack factors of when an officer’s conduct goes beyond providing an opportunity will have to be examined with respect to each case. However, in general, entrapment is a defence that will rarely be successful unless there is a substantial error by the police.
If you feel you have been entrapped by a police investigation please contact us for assistance.
Jun 15, 2018
Cannabis legalization is on the horizon for Canada. There have been many announcements regarding the distribution and possession of marijuana but an additional matter is the impact that this will have on impaired driving. There are pending changes on the federal level but the BC government is proposing to introduce a whole new scheme creating Immediate Roadside Prohibitions for driving while impaired by marijuana and other drugs.
There is much uncertainty about this as there is no established system or method for detecting impairment by marijuana. There are indications that there may be technology in the future that will allow for the presence of marijuana via a saliva test but it is unknown how effective this will be. This leaves police officers with limited options roadside to deal with drivers that they believe are high. Previously, it was common for police officers to issue a 24-hour prohibition for drugs in cases where the officer had reasonable and probable grounds to believe that a drivers ability to operate a vehicle was impaired by drugs. This did not have a review procedure in place. Oftentimes it involved the administration of the Standard Field Sobriety Test or the Drug Recognition Exam by an officer trained in these techniques. Both tests have their issues in that they often can result in false positives. Even blood tests can make it difficult to determine if someone is impaired by marijuana as there is little scientific information available on how much THC needs to be detected in someone’s blood before they are actually impaired. THC can linger in someone’s blood for days or weeks, long after someone is no longer affected by it. This is especially true for medical marijuana users.
The proposed changes create two new driving prohibitions in BC. They will expand upon the 12-hour prohibition for N and L drivers (Class 7 and 7L licenses). Currently, Class 7 drivers cannot have any alcohol in their system while driving. The proposed legislation will expand that to include drugs as well, detected by a “drug screening device”. There is no indication of what these devices will be. This is concerning as 12-hour prohibitions have no review procedure in place. The recourse to dispute one is via judicial review in the Supreme Court of British Columbia, something that is not accessible to the average person and expensive to retain legal counsel for. 12-hour prohibitions also result in RoadSafetyBC prohibiting a Class 7 driver for a longer period, usually by several months. If a driver refuses to comply with a demand to provide a sample for a “drug screening device” they will also receive a 12-hour prohibition. It is concerning that a lengthy driving prohibition in the length of months will result from a prohibition with no established review procedure.
The more serious offence that is being created is a 90-day immediate roadside prohibition for drugs, similar to the current roadside prohibition available for alcohol. This provides three ways for a police officer to issue you a 90-day prohibition; a blood test showing above a specified level in your blood within 2 hours of driving, or having a combination of a specified level of alcohol and drugs in your blood.
These 90-day reviews will have specified grounds of review. These include consuming the drugs after ceasing operation of the vehicle (and that the driver had no reasonable expectation that they would be required to provide a sample of blood), that the person was not impaired by drugs or a combination of drugs and alcohol and the results of the evaluation were due to a medical condition. Much alike the 90-day alcohol immediate roadside prohibitions for alcohol, the demands and testing will mirror the provisions in the Criminal Code. Given the forthcoming changes to the Criminal Code on impaired driving regarding alcohol and drugs, these are likely going to be contested in court. The taking of blood samples is an intrusive means and not easily accomplished roadside by police officers. Furthermore, current drug impairment testing procedures have many options for false positives and inaccurate results.
This will be an interesting development in driving law and will likely result in extensive legal disputes. The tests that are yet to be established will be fundamental to this regime, and its fairness as there is no current effective manner to detect drug impairment. As we are familiar and successful in both criminal impaired driving and the existing IRP scheme, we look forward to assisting our clients with defending charges under this pending regime