By AdvocateDaily.com Staff

With concerns raised already about the proposed marijuana legislation, it’s expected the laws will be amended before they are passed, Toronto criminal lawyer Melanie Webb writes in The Lawyers Daily.

She points to issues around Bill C-45, the proposed Cannabis Act, and Bill C-46, which would create new offences and bring changes to existing provisions surrounding drug- and alcohol-impairment.

Webb, principal of Melanie J. Webb Barrister, says Bill C-45’s imposition of a maximum sentence of 14 years on adults for certain offences, when the Crown proceeds by indictment, has received public scrutiny.

“Some commentators have seized upon the fact that a 14-year sentence could — in theory — be applied to an 18-year-old 'passing a joint' to a younger teen,” she says. “One would presume that the Crown would reasonably elect summarily in such instance, if they chose to pursue a prosecution at all, and that no court would ever impose such a sentence on this type of offender even if the Crown did proceed by indictment.”

Further, Webb says the proposed maximum sentences could have “drastic” immigration consequences.

“For example, any permanent resident or foreign national convicted of an offence that carries a maximum term of “at least 10 years” — even for hybrid offences, irrespective of whether the Crown proceeds summarily or by indictment — would be deemed inadmissible on the basis of ‘serious criminality’ and subject to a removal order,” she says.

“Protected persons would also be deemed inadmissible and could be deported if deemed a danger to the public, while refugee claimants would be deemed inadmissible, with no right of appeal, and any refugee claim terminated.”

Webb questions why Parliament would impose a 14-year maximum sentence for any of these offences.

To put this in perspective, she points to current examples of crimes with lower maximum sentences, including various firearm offences, (five or 10 years, depending on the provision), sexual exploitation of a person with a disability (five years), possessing or accessing child pornography (10 years), obtaining sexual services for consideration from persons under 18 (10 years), trafficking LSD or psilocybin (“mushrooms”) (10 years), and trafficking barbiturates or benzodiazepines (three years).

“Currently, the maximum sentence for trafficking cannabis or possession for the purpose is five years less a day if the amount is 3 kg or less. Over 3 kg, the maximum sentence is life imprisonment,” she says.

Webb also notes the government hasn’t yet provided guidance on how to handle matters that are already before the courts.

“Questions remain as to what to do with charges laid from the time of the government’s confirmation of its intention to decriminalize marijuana, and after the legislation now tabled, up until the passing of the bill into law,” she says. “It would seem to make little sense to continue prosecutions involving small amounts which would no longer be criminal offences under the proposed legislation.”

Webb says Bill C-46, meanwhile, brings new offences and changes to existing provisions surrounding drug- and alcohol-impairment, which invite constitutional challenge, should the bill be passed into law. She says defence lawyers “may view many of these proposed changes as a way of implementing evidentiary shortcuts and curtailing currently available defences, while at the same time infringing individual Charter rights.”

“For example, one area of concern is the proposed implementation of mandatory breath testing, a matter that has come up before in the House of Commons,” she says. “Under the proposed legislation, police would have the ability to demand a breath sample from any driver they stop, without needing reasonable suspicion that the person has alcohol in his or her body.

Roadside testing for drug impairment is another area of contention, Webb says.

“This now promises to open up a whole new area of litigation surrounding the accuracy and reliability of measurements of THC levels — an interesting prospect, considering that we still await a standardized saliva-based roadside device,” she says.