Cannabis Legalization 2018

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On October 17, 2018, which is just 1 short day away, cannabis becomes legal across all of Canada.


Cannabis legalization marks a huge shift in public policy, law, and will propel an industry that has existed in the shadows, into the limelight. While both federal and provincial governments have been candidly saying that legalization will not be perfect right away and will be a work in progress, most Canadians are viewing legalization as a step in the right direction as so many lives have been negatively affected by cannabis prohibition.

So, what will happen on October 17? The naysayers want you to believe that there will be a proliferation of crime in the streets. Stoned zombies walking around town. A dramatic rise in impaired drivers. However those that are educated on the subject know that the sky won’t fall and society will continue to function just as it did today, on October 16. What will change is that the millions of cannabis consumers in Canada won’t have to worry about being arrested (if they stay within the parameters of the new cannabis laws) and communities that allow for retail sales will be able to collect millions in tax dollars that can be pumped right back into public programs and infrastructure.

For a variety of reasons, there remains a considerable stigma associated to cannabis consumption. However as time goes on and people realize the benefits that legalization will bring, I predict that the stigma erodes and that society will regard cannabis favorably.

 

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MEDIA RELEASE – HOPCRAFT, Michael – AKA “The Reptile Guy”

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In early July, the BCSPCA announced charges against Mr. Hopcraft under the Prevention of Cruelty to Animals Act and the Veterinarians Act after viewing a video posted on Mr. Hopcraft’s “Wild Education” Facebook page showing him relieving a blood python of a bowel obstruction.

Contrary to what the BCSPCA has alleged, this procedure did not cause the python any harm, pain, nor discomfort. In fact, the python was relieved of a 6-month build up of excrement in its bowel track, which was surely causing it incredible discomfort.

Today, the python is alive and well, as confirmed by its happy owners.

While Mr. Hopcraft takes these charges very seriously, we take the position that this is nothing more than the BCSPCA’s attempt to, once again, slander Mr. Hopcraft in the Court of Public Opinion and try to put him out of business.

As many of you know, Mr. Hopcraft has considerable knowledge and more than 18-years experience in handling and caring for exotic animals. For years, Mr. Hopcraft has been educating the general public on television, in your children’s schools, and at your community events. Over these years, Mr. Hopcraft has consistently demonstrated that his primary objective is to ensure the well-being of his animals, many of which come to him as neglected or abandoned pets.

Furthermore, since the BCSPCA publicly announced charges against Mr. Hopcraft, numerous veterinarians in British Columbia have reached out and denounced the BCSPCA’s allegations towards him. Their consensus is that the python suffered no harm, and that if the python were to be sedated in any way (which the BCSPCA suggested ought to have happened) that the python could have experienced complications and/or died.

Mr. Hopcraft will meet these charges in a court of law and until his trial date he is to be presumed innocent.

Finally, Mr. Hopcraft, and his Wild Education organization, will proudly continue to care for its animals and he looks forward to continuing to educate you all about them.

Jason Tarnow

Legal Counsel to Michael Hopcraft

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Subjective speculation to sweep across the Nation How Drug Recognition Experts will handle Cannabis on Canadian Roadways

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It seems like a done deal.

Legal cannabis will be in the hands of Canadians before the year is up, if, of course, Bill C-45 (the Cannabis Act) passes through its third and final reading in the Senate on June 7, 2018. Assuming it does, government approved retailers will begin stocking the sticky product sometime in late August or early September. With only a couple months to go, law enforcement officials are finalizing strategies to combat high drivers. While THC impairment screening devices are in the research and development stage, police forces will be relying on specially trained officers to identify drug impaired motorists.


These specially trained officers are known as “Drug Recognition Experts” (“DRE”), receiving the designation after completion of programming offered in jurisdictions spanning North America. Much like the preliminary steps taken in alcohol-impaired driving investigations, DRE’s make findings based whatever limited evidence is available at the time. For example, if a police constable forms reasonable suspicion of impairment by alcohol, the next step is to demand a breath sample on an Approved Screening Device. The result of that screening determines the officer’s next steps. In this context, the officer’s opinion regarding impairment is subjective only until the Approved Screening Device issues a reading. If the result is a “FAIL”, the officer can reasonably conclude that the driver is intoxicated. Discretion then allows the officer to issue an Immediate Roadside Prohibition (in British Columbia), or to continue the investigation with another breath test at the detachment, paving the way for criminal charges. 

In the case of marijuana-impaired drivers, police lack one very important resource: sound, scientific instruments to test for THC levels. Forget the debate over what constitutes “impairment” from marijuana – we can’t make any use of an identifiable range when there is no quantifying tool.

Acknowledging this, the Government of Canada has attempted to soothe concerns by assuring the public that DRE’s are absolutely qualified, that their subjective opinions are sufficient, and that their judgement is sound. But, in reality, police officers are just normal people with a job to do, and are not in any way immune to making mistakes – but in their role, fallacy holds serious consequences for public confidence.

DRE procedure is both standardized and systemic, meaning that the techniques don’t change – regardless of circumstances. Aka, it is a “one size fits all” approach. Observation is the key focus of these investigations – DRE’s making note of a subject’s behavior, attitude, and candour throughout the process. Specific observations relating to blood pressure, pulse, and ocular activity are also recorded. Subjects are asked to perform “field tests” similar to those requested in alcohol impairment investigations – walk a straight line, stand on one leg, touch your nose, etc.

The key concern with this methodology is the blind faith in an officer’s ability to provide a subjective opinion that is free from bias. Interestingly, a blood or urine test to confirm toxicology is only requested after DRE has concluded (decided) that a driver is drug-impaired. So if you’re being investigated for such an offence, your best case scenario is to waste 2-3 hours at the police detachment under observation, plus further invasive testing, before the DRE establishes that you weren’t driving stoned – you were  tired after a long night of work, just like you said.

If the Government chooses to develop an administrative penalty system for high drivers in the same way they did for alcohol impaired drivers, we are likely to see increased praise for police when fines from impounds and prohibitions come pouring in. Criminal lawyers in British Columbia are already cringing at the thought of another regime that strips individuals of their right to make full answer and defence to allegations against them – this time, in relation to drug  offences, which can create significant problems for future travel and employment prospects. 

If law enforcement’s strategy to protect our roadways involves unethical arrests, and even worse, false convictions, public perception of police integrity is sure to be compromised, and our progressive marijuana laws could end up doing more harm than good.

If you’ve been charged with drug impairment offences, it is crucial that you contact an experienced criminal lawyer without delay. We are conveniently located in Richmond, B.C., only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow. Contact our office today for your initial consultation.

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Bill C-75: The bad, the worse, and the ugly

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On March 29, 2018, Bill C-75 had its first reading in the House of Commons, and upon publication, was quick to receive scrutiny from lawyers across the country.

The Bill seeks to amend provisions of several key pieces of legislation, including the Criminal Code and the Youth Criminal Justice Act. However, in doing so, many rights currently afforded to an Accused will become a thing of the past.

The first major concern that stands out is the proposal to abolish the use of peremptory challenges in the jury selection process. When jurors are being selected, an Accused person and his Defence counsel are afforded 12 of these challenges, permitting them to deny a juror without explanation. Crown Counsel also has 12 challenges for their own use. The purpose of peremptory challenges is to provide balance in the adversarial trial process – however, the motivation behind their use differs depending on who you ask. The Bill doesn’t elaborate on how jury selection will be managed without peremptory challenges.

Equally alarming is the proposal to deny Preliminary Hearings for offences that don’t carry a maximum term of life imprisonment upon conviction. It is also being suggested that Justices be given power to limit issues examined and witnesses called during a Prelim. The Preliminary Hearing’s purpose is to determine whether the Crown has enough evidence to commit an Accused person to stand Trial, a valuable tool for the Defence in any given case (even if the offence doesn’t carry a potential life sentence). However, it isn’t beneficial only to the Accused. The evidence heard at a Preliminary Hearing is transcribed, to be recalled upon by parties at Trial. The issues explored at the Prelim can assist in narrowing what issues will be raised at trial, which in return reduces the likelihood of wasted court time on irrelevant issues (especially important in consideration of the impact of delay!). With the ability to seek a Direct Indictment from the Attorney General, the proposal to limit Prelims is wholly unnecessary.

Next up, and not surprisingly, we see this Bill seek to increase punitive measures for Accused persons facing allegations of abuse against an intimate partner. These consequences begin prior to any finding of guilt – in fact, they begin at the onset of proceedings, when an Accused person seeks release on bail. Bill C-75 suggests more “onerous interim release requirements” for individuals facing allegations relating to violence against an intimate partner. This essentially means that the terms of release will be increasingly stringent. On that note, the Bill also proposes to increase the maximum term of imprisonment for repeat intimate abuse offenders, and to have violence against a partner considered an aggravating factor at
sentencing.

Perhaps most disturbing is the revision relating to police powers and written evidence in the form of an Affidavit. Currently, a police officer is required to attend a trial in person to give oral evidence regarding their involvement in the case. They are subjected to cross-examination on that involvement, at which time they must truthfully answer questions posed by the Defence. This is a crucial opportunity for the Defence to raise reasonable doubt (when considering that police officers often offer the most compelling and credible evidence) which is the only reason for taking a matter to trial. Of course, the Defence will still be allowed to apply to cross-examine a police officer on their written evidence – but that application requires additional court time, and one struggles to believe that such an application would be denied in any event. So this proposed amendment will likely result in additional delay and squandered court time.

Many of these amendments strike at the heart of the adversarial process, and an Accused’s person’s right to make full answer and Defence to the charges against them. Numerous changes are procedural, justified by the assertion that too many cases are being thrown out over judicial delay. Systemic flaws, a lack of inquiry and input by judicial staff, and failure to accept and validate the concerns of concerned legal professionals in the private sector are a few of the factors that have resulted in impractical proposals pushed forward in Bill C-75.

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Booze cruise: Drinkin’ and Paddlin’

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Impaired operation of a vehicle/vessel is illegal in British Columbia, the Yukon Territory, and really, across our entire nation. However, you may be surprised to learn that police agencies haven’t always exercised their discretion when determining what constitutes a “vessel”. We all know it is against the law to drive your motor vehicle while under the influence of alcohol, and common sense dictates that this also applies to motorcycles, and motorized boats – but did you know that it is (apparently) just as unlawful to knock back a few and go for a ride in your canoe?


Yes, the word “vessel” does not limit illegality to motorized methods of passage. Police agencies across Canada have been known to charge individuals for tipsy transport via canoe.

If you make the smart choice to ride your bicycle to/from the bar, and your swerving attracts the attention of police, you might be ticketed with public intoxication – but not impaired driving.

If you get caught canoeing down the Fraser River, you could potentially be charged with impaired operation of a vehicle/vessel – and if convicted, you would likely lose your driver’s license.

Even though you don’t need a license to operate a canoe, it probably isn’t smart to be drunk on the water. While you’re unlikely to harm anyone else, open water and alcohol don’t mix very well. You could end up paying big penalties for impaired operation of a canoe, the highest of which would be your life if you happen to fall overboard.

But, if you don’t heed my advice & find yourself being breathalyzed canoe-side – “thar she blows…. over .08”, contact our office to discuss your options.

We are conveniently located in Richmond, B.C. only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow. Contact our office today for your initial consultation.

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High Risk: Marginalizing the Mentally Ill

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A Justice of the BC Supreme Court refused to label    Allan Schoenborn as a “High Risk Offender”, meaning that designation has still not been successfully applied since it was introduced by the Harper Government.

Allan Schoenborn was found guilty, but not criminally responsible for the murders of his 3 young children, whom he believed had become victims of sexual abuse. Psychiatrists who assessed him unanimously agreed that he had been suffering from delusions and other symptoms consistent with a schizoaffective type disorder. As a result, it was determined that he did not bear legal culpability for his actions.

Although he was found to not be responsible for his actions, he was remanded to Colony Farm, a Forensic Psychiatric Hospital, for an indefinite period of time (as is standard with all NCR offenders).

The purpose of the Not Criminally Responsible, High Risk Offender legislation is aimed at designating offenders found not criminally responsible by reason of mental disorder as “high risk” if it can be proven that they pose a serious threat of inflicting grave physical or psychological harm to another person.

This legislation is strictly applicable to offenders found not criminally responsible – in essence, it is punitive legal recourse only available for individuals who have already been deemed as severely mentally ill.  

In her decision, Justice Martha Devlin determined that there was no reason to believe that Schoenborn met the criteria necessary for a High Risk designation. She noted that his current mental condition, along with the opinions of the experts overseeing his care, does not reflect him posing a serious threat to the public.

If the designation had been granted, it would have excluded Schoenborn from receiving escorted outings into the community, and would create a 3 year period between his review board hearings, as opposed to 1 year as is current procedure.

One of the biggest concerns we see in this legislation, is the effect it may have on offenders who should be entering a plea of not criminally responsible. The problem is that if an offender is likely to meet the criteria of a High Risk Offender once being deemed NCR, they may opt to take a determinate jail sentence simply because a High Risk Offender designation could seriously impede their ability to regain freedom from the psychiatric facility where they are being held. If an Accused person is told “plead guilty and you’ll get 10 years in jail” or given the option of “if you establish a NCR defence, there is a risk of a High Offender Designation, and I can’t tell you with any certainty whatsoever when, or if, you will ever be freed”, which option will likely seem more attractive?

Interestingly enough, Mr. Schoenborn’s high profile case was basically singled out by Stephen Harper when the “High Risk Designation for NCR Offenders” legislation was tabled in 2013. The decision by Justice Devlin demonstrates why impartiality and transparency are vital to the survival of judicial process: although the facts related to this case are heinous and disturbing, a path has been carved for Mr. Schoenborn, and Justice Devlin refused to hinder his progress. His NCR designation was not established in haste, and each step of his treatment since that time has been methodical and closely monitored. He requires intensive treatment and rehabilitation in order to, one day, have an opportunity at freedom.

Navigating through the criminal justice system as an Accused person is an intimidating experience. It is compounded when you are dealing with a mental illness. We are experienced in liaising with clients who suffer from severe mental health problems. We understand that compassion, respect and understanding are of fundamental importance when confronting with these issues. We are conveniently located in Richmond, B.C. only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow. Contact our office today for your initial consultation.

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