On Friday, March 20, 2015, B.C. lawyer Kirk Tousaw attended the Supreme Court of Canada to argue the encroachment of certain provisions of the Controlled Drugs & Substances Act on a person’s ability to consume medical cannabis.
As it stands, the only way in which medical marijuana can be legally consumed is through smoking or vaping. This posed a huge issue in 2009 for Mr. Owen Smith, a Victoria resident who baked cannabis-infused cookies and produced cannabis-infused cooking oils for members of the local Cannabis Buyers Club. Mr. Smith was charged with trafficking for his production of over 200 cookies and oils after a large volume of paraphernalia was found in his apartment. He was acquitted of all charges after the B.C Supreme Court ruled that the criteria within the annex of Marijuana for Medical Purposes Regulations, part of the Controlled Drugs and Substances Act governing rules of consumption, was indeed unconstitutional.
The B.C. Government appealed the ruling of the Supreme Court in the B.C. Court of Appeal. Unfortunately for the Fed’s, the Court of Appeal upheld the decision in a 2-1 split. Because of the split decision of the Court, the Government was automatically granted Leave to Appeal in the Supreme Court of Canada.
One of the main focuses of the pro-cannabis argument to allow for the consumption of edibles and the like, circles around the fact that not all marijuana users wish to be smoking day in and day out. For those suffering from conditions that include chronic pain or discomfort, the act of smoking can be unpleasant and can result in unwanted side effects. Aside from that, it also allows consumers to dose while being discreet (apparently not everyone loves the smell of freshly burned herb) which should satisfy roommates, neighbors, and landlords.
Furthermore, studies have suggested that edible marijuana products can leave you with a much more desirable high than you get with smoking. The effects also last much longer, which leads to users having to medicate on a less frequent basis.
We still do see people charged with criminal offences that are marijuana-related in Vancouver and its surrounding suburbs of Richmond, Surrey, and beyond. However, this is the first time that a medical marijuana matter of contention has made it to the Supreme Court of Canada. It is, without a doubt, going to be a landmark decision that will impact medical cannabis users, producers, and suppliers.
In British Columbia, and across Canada, we pride ourselves in being known as multicultural, diverse, and tolerant. In particular, we encourage the celebration of our Aboriginal peoples’ heritage and culture – an ideation that has deep roots in our history. The issues surrounding the treatment our First Nations’ peoples are as delicate as they are primary; although we have made great strides over the past decade, we still have a long way to go before we declare success. An area that is often over looked by the general public, however, is how Aboriginal people are handled in our Judiciary system.
For example, Aboriginal people account for approximately 2.8% of the entireCanadian population – a fairly small percentage. Therefore it may be surprising to learn that they account for a whopping 18% of Canada’s federal inmates (according to the Correctional Service of Canada (“CSC”)). The CSC has stated that they are committed to developing a National Strategy that will specifically target the unique considerations that must be taken when dealing with Aboriginal offenders. They place specific importance on interventions for these offenders by developing and implementing care strategies for individuals suffering from substance abuse, and other addiction issues. Unfortunately, this likely means removing individuals from homes on reserves, which are often located in remote communities, without the resources to deal with the serious medical issues that accompany substance abuse problems. It is also an idea that is met with resistance from the First Nation’s people, which is understandable.
The lack of ways and means to address addiction issues early on often leads to “intervention” (i.e. the arrest and detainment of an Aboriginal offender) at the point where there is little that can be done – other than to have the individual slowly manoeuvre their way through our ever-clogged Court system. It is in our sophisticated and couth judicial system, that the unique needs of the Aboriginal offender are often neglected.
So by this point you’re probably wondering what justice-specific initiatives our Government is taking in order to properly deal with this issue. Well, there were a couple of legislative actions taken back in the 90’s, a few Directives from various commissions, and even an Annex or two. But it seems pretty obvious that these attempts can’t be labelled as anything other than futile.
Probably, though, the most noteworthy stride made by the Canadian Government towards respectfully handling the issue of Aboriginal offenders in our penal system, is the creation of Gladue Court.
Essentially, if you meet the specific requirements (Aboriginal Heritage being key, among others) you can have your case directed to Gladue Court, where the sentencing Judge will take into consideration the specific and unique circumstances of you being Aboriginal (discrimination, residential schools, etc).
The name of the Court is derived from the landmark 1999 Supreme Court of Canada case known as R. v. Gladue. The main principle of the case is that other reasonable alternatives should always be considered prior to a custodial (jail) sentence. This could mean serving a sentence in the community, counselling, and rehabilitation in relation to drugs and alcohol abuse. If the sentencing Judge determines that a jail term is necessary due to public interest, he or she must still take the sentencing provisions of Gladue into account, which could result in a lighter custodial sentence.
There are a few flaws, though. One major pitfall is that an individual cannot be considered for Gladue Court if they are in custody. If you’ve been detained without Bail, or can’t obtain the necessary resources to make Bail, you’re considered ineligible. Another disadvantage is that the principles of Gladue are still improperly applied in many instances. It isn’t a system that is necessarily taken advantage of by those who may benefit from it, simply due to a lack of knowledge surrounding its existence.
We are fortunate enough to have a Gladue Court in Vancouver, British Columbia, which is available to residents in Richmond, New Westminster, Surrey, Delta, and so on. There are several other Gladue Courts located in Eastern Canada, for example, in Toronto, Ontario. It is likely that this Court will expand as the demand grows for services – and the demand can only grow, the system can only flourish, through knowledge and education.
If you have been charged with a criminal offence and would like to know if you meet the necessary prerequisites to be considered for Gladue Court, it is important to have an experienced and seasoned criminal defence lawyer there to assist with the process. Please do not hesitate to contact us at Tarnow and Company where we are proud to offer extensive knowledge surrounding Gladue Court procedures.
“Officer, I know my constitutional rights. Firstly, I refuse to speak with you, other than to identify myself. I further refuse to consent for you to search my person, or my residence, or my motor vehicle. I wish to speak to my lawyer immediately. If I am under arrest, please tell me why. If I am not under arrest, I wish to leave.”
