Can I be Criminalized or given a Custodial Sentence for Possessing or Using ‘Legal’ Cannabis? The answer to the above question is really dependent on how someone obtains their cannabis and what one then does with their legal cannabis. Bill C-45 has now become law and in a previous post we spoke about the use of recreational cannabis and its legalization on October 17, 2018, by the federal government. In response, the Ontario Government did enact legislation which put stipulations in place to keep possession of the drug away from children and youth, keep our roads safe and regulate the sale of cannabis. However, a significant amount of time has now passed and there may still be some confusion over what constitutes criminal or illegal activity where cannabis is concerned. For those who choose to possess and/or enjoy what is now their ‘lawful right’, they should be aware that there are still potential criminal and/or quasi-criminal consequences. As we indicated in our earlier post, operating a motor vehicle while impaired by drug or with a certain level of drug within your system is a criminal offence under the Criminal Code. As we also indicated, under the Ontario Cannabis Control Act, it is an offence to sell cannabis unless you are a licensed retailer. However, for cannabis retailers as well as the general public in Ontario, there are a number of other cannabis offences with quasi-criminal consequences under the Cannabis Control Act. These include the following: Section 7(1) of the Cannabis Control Act prohibits any person from knowingly selling or distributing cannabis to a person under 19 years of age. Section 8 of the Act prohibits any person from knowingly selling or distributing cannabis to a person who appears intoxicated. Section 9 (1) prohibits anyone form buying cannabis from anyone or anywhere other than an authorized cannabis retailer. In other words, it is still illegal to buy cannabis if you do not buy it from a retailer authorized and regulated by the Ontario government. Sections 10 (1) and (2) make it illegal for any person under 19 years of age to possess, consume, attempt to purchase, purchase, distribute, cultivate, propagate, harvest or offer to cultivate, propagate or harvest cannabis. Section 12 of the Act prohibits anyone from driving or having care and control of a vehicle or boat while any cannabis is contained in the vehicle or boat. However this section does not apply if the cannabis is packaged and unopened or is otherwise not readily available to any person in the vehicle or boat. In addition, under s. 12, if the police are reasonably suspicious that cannabis is in your vehicle they can stop and search the vehicle, the driver and its passengers, without a warrant. There are various potential consequences if an individual (or corporation) is convicted of an offence under the Cannabis Control Act. Section 23 outlines that an individual convicted of an offence under the Act is liable to a fine of not more than $100,000 or to imprisonment for a term of not more than one year or both. The fines and potential imprisonment penalties go up if an individual (or corporation) is convicted of the unauthorized sale of cannabis (contrary to section 6) or the sale of cannabis to someone under 19 years of age (section 7). So you see, the regulation within Ontario’s Cannabis Control Act certainly restricts and heavily regulates that which has been recently “legalized”. The view that cannabis drug use is now completely legal is inaccurate when one considers the numerous prohibitions contained within this Ontario legislation. Devry Smith Frank LLP has been and will continue to monitor the provinces efforts to enforce the Cannabis Control Act in Ontario. If you have questions about cannabis laws or need advice understanding how the recent legislation will impact you both professionally and personally, please contact criminal defence lawyer, David Schell of Devry Smith Frank LLP directly at (416) 446-5096, or alternatively, at david.schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawFebruary 22, 2019June 14, 2020
What Are the Consequences of Filing a False Police Report In Canada? By now we have all been subjected to the tragic details of television star Jussie Smollett’s alleged attack in Chicago. When the news broke initially, it seemed as though Smollett was a survivor of what appeared to be a hate crime and his colleagues within the entertainment business did not hesitate to express their support and vocalise the need for change. It was and still is a media frenzy. However, as the evidence unfolded, it quickly became apparent that the crime itself could have been fabricated and orchestrated by Smollett himself. Subsequently, the actor now faces charges for filing a false police report and the story has raised an all-important question about the repercussions of such actions. What are the offences someone can be charged with under the Criminal Code of Canada for filing a false police report or lying to the police? The offence under the Criminal Code which would be most applicable is committing public mischief under section 140. That section states: 140 (1) Everyone commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by (a) making a false statement that accuses some other person of having committed an offence; (b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself; (c) reporting that an offence has been committed when it has not been committed; or (d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died. The purpose of the law is to discourage and punish false reporting and of course to prohibit people from falsely accusing others. Making a false statement transpires when the person makes the statement with the intention of misleading justice. One cannot be convicted if it is determined that they genuinely believed the statement to be true at the time it was made. The penalties for committing public mischief are outlined at section 140(2) of the Criminal Code. If the Crown Attorney perceives the case as serious and elects to proceed by indictment, then an accused who is found guilty is potentially liable to imprisonment for a term not exceeding five years. If the Crown decides to proceed summarily (less serious case) and an accused is found guilty then they are liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both. The actual punishment imposed for those convicted will vary according to the facts of each case and the circumstances of each offender. In addition to public mischief, there are several other offences under the Criminal Code that a person could find themselves charged with if they file a false police report or lie to the police. These include the following: Perjury under section 131 of the Code if the person, with intent to mislead, knowingly gives a false statement under oath, affirmation, by affidavit, solemn declaration or deposition; Fabricating Evidence under section 137 of the Code if the person, with intent to mislead, fabricates anything (such as a police report) with the intent that it shall be used as evidence in a judicial proceeding; and Obstructing Justice under section 139 (2) of the Code if the person wilfully attempts to obstruct, pervert or defeat the course of justice. These offences involving the misleading of justice and which include lying to the authorities are taken very seriously. This is clear when looking at the potential and maximum penalties under the Code. Perjury and fabricating evidence are indictable offences with potential prison terms of up to 14 years while obstructing justice under 139 (2) of the Criminal Code is an indictable offence with a maximum sentence of imprisonment for 10 years. If you have been charged with a criminal offence, or have questions pertaining to a similar situation, contact criminal defence lawyer David Schell of Devry Smith Frank LLP directly at (416) 446-5096, or alternatively, at david.schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawFebruary 11, 2019May 20, 2023
Can I Claim Compensation from a Distracted Driver and How Will The New Distracted Driving Laws in Ontario Affect Road Users? In a recent blog post, we discussed the legalities surrounding the operation of motor vehicles while impaired by alcohol or drugs, under the Criminal Code of Canada. Accompanying the fairly new Cannabis legislation, are further stringencies concerning Ontario drivers, which are expected to come into effect on January 1st, 2019. Any driver convicted of distracted driving will now be sanctioned with demerit points and have their driving licence suspended for up to a maximum of thirty days. However, the period given is determined by the number of times the culprit has been apprehended and convicted for the prohibited act. Drivers who are caught conversing on their mobile phones, texting, dialling or emailing from any electronic handheld device can also be fined up to $3000 in addition to the suspension of their driving licence. – Evidently, the initiative is to encourage safer driving and to dissuade drivers from driving carelessly. However, while it will be interesting to observe whether the rollout of stricter laws that impose harsher penalties are successful, it would be advisable for drivers to put away their devices before they start their journey. Does this mean that drivers aren’t getting the message? Arguably, this could very well be the case. However, once implemented, Ontario will undoubtedly have the toughest penalties for drivers that repeatedly disobey road rules and find themselves convicted of distracted driving. That said if you find yourself less worried about the prospect of having to pay a fine. Keep in mind that you may be subjected to what may seem an excessively increased car insurance premium also. Moreover, distracted driving is more than just using your handheld devices while at the wheel of the car. For instance, according to the official Government of Ontario website, there are a number of activities that are deemed distracting driving, stating ‘when you aren’t focused on the roads, things happen fast’. Activities such as: – Eating or smoking – Reading (books, maps, newspapers) – Playing extremely loud music – Personal grooming Just to name a few. Nevertheless, it is always important to stay abreast of driving laws within your province, as enhanced restrictions may actually be on the horizon and as one can imagine having a suspended licence can really interfere with everyday life. Distracted driving accidents are often preventable. Drivers have a responsibility to drive responsibly and with others in mind. If you or a loved one has suffered an injury as a result of a distracted driver, contact experienced personal injury lawyer, Marc Spivak, of Devry Smith Frank LLP, directly at (416) 446-5855. Lawyers will work diligently to secure the compensation you deserve. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Personal InjuryDecember 27, 2018June 15, 2020
Upcoming Liberal Changes to Mandatory Minimum Sentences It’s not often that political party leaders will keep the promises they have made to the public. However, in the case of mandatory minimum sentences, Prime Minister Trudeau and the Liberal party seem to have kept their promise for reform. Although some legal experts argue that the delivery of the promise is long overdue, it’s important to remember that slow progress is better than no progress. It is indisputable that changes to the criminal justice system and sentencing reforms are necessary. When the Conservatives were in power, they imposed and increased mandatory minimum penalties for dozens of criminal offences, thus taking away the discretionary powers of Canadian judges and thereby contradicting section 718.1 of the Criminal Code (section 718.1 instructs the court to take the degree of responsibility of the offender into account when handing down a sentence). In addition to a clear. 718.1 violation, mandatory minimum sentences are also constitutionally deficient, as they do not allow for an individualized response to sentencing and are therefore disproportionate when applied to intellectually disabled persons for instance. It is a fundamental principle that sentences remain proportionate to the gravity of the offence and the degree of responsibility of the offender. Yvon Dandurand, a criminologist at the University of the Fraser Valley, hypothesizes that the new legislation introduced by the Liberals will again provide flexibility to judges by creating special exceptions to some mandatory minimum penalties, while abolishing others. Of course, the Conservatives will oppose any changes to mandatory minimums, as it is contrary to their agenda to “get tough on crime.” According to one MP, “If some [mandatory minimum sentences] are going to be getting a break in the next couple of weeks here, … obviously we’ll oppose that.” Though any opposition is likely to be baseless, as the Supreme Court has already struck down two of the Conservative sentencing reforms last year. Ultimately, the changes brought in by the previous Conservative government—in an effort to “get tough” on crime—are unjust, socially harmful, unconstitutional in some cases, and are overall bad public policy. Furthermore, they fail to achieve their stated purpose of reducing crime. Change to the system is therefore necessary, and will likely be accepted by Judges across Canada, including those at the Supreme Court. Change to the system is also necessary in order to address the worsening problem of backlogs in the courts. This is a problem Canadians are very aware of following the Supreme Court’s ruling that imposed limits on the length of time an accused person can wait to stand trial. For more information on court delays, check out our previous blog posts by personal injury & criminal lawyer David Schell: Delays in our Ontario Civil Courts Solving Ontario Court Delays: Is Limiting Preliminary Hearings The Answer? As mentioned above, slow progress is better than no progress, and the changes to be introduced by the Liberal government this spring are both highly anticipated and essential. Though there are some concerns as to how cautious an approach the Liberals will take regarding mandatory minimum reform (note the cautious approach being taken in medically-assisted dying for instance), in the long run, it is hoped that Canada will once again return to being a system that emphasizes discretion, rather than one that emphasizes rules. If you are in need of a lawyer, please visit our website and contact one of our many lawyers today. If you have any questions you may also contact us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawMay 9, 2017June 22, 2020
