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March 20, 2017

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Law Times • march 20, 2017 Page 5 www.lawtimesnews.com NEWS Lawyer questions enforcement of pot laws BY ALEX ROBINSON Law Times O ne of the lawyers who represented Jodie and Marc Emery in bail hearings after their recent arrest is question- ing the police's enforcement of marijuana laws, when the federal government is set to legalize rec- reational pot. Toronto criminal defence lawyer Dan Stein says the Emery case is ripe for a Charter chal- lenge, as popular opinion has shifted against marijuana laws. Stein says the Emerys, who were recently arrested and charged with drug traffick- ing, conspiracy and possession, could file a challenge under s. 7 of the Charter. Toronto police also raided the Emerys' chain of marijuana dispensaries — Cannabis Cul- ture — and arrested three others, who were franchise owners. "We have a criminal frame- work that doesn't have any popu- lar support and, potentially, any constitutional support," he says. "So, in the meantime, we can depend on self regulation, which is what people who were running Cannabis Culture were doing." As the federal government has toiled away on its proposals to legalize recreational mari- juana, police have continued to shut down illegal dispensaries that have popped up across the country. The Toronto lawyer com- pared the police enforcement of marijuana laws to the bathhouse raids in 1981, when police arrest- ed more then 250 gay men and charged them with being found in a bawdy house. Stein says a challenge of mari- juana laws could be successful based on arguments plucked from Canada (AG) v. Bedford, a Supreme Court decision in 2013 that found that the coun- try's prostitution laws were un- constitutional. In that decision, the SCC ruled it could overturn itself if the parameters of debate had fundamentally changed. Stein says this same argument could be applied to the criminalization of marijuana, as public opinion has shifted from where it was when the Supreme Court ruled on the criminalization of mari- juana possession in R v. Mal- mo-Levine in 2003. Stein says this shift can be shown by the fact that polling shows a majority of Canadians are in favour of legalizing recre- ational marijuana and the gov- ernment's mandate to move it from a criminal framework into a regulatory one. "This fundamentally shifts the nature of the debate," he says. He says a possible Charter challenge could also be based on the argument that marijuana use causes trivial or insignificant harm, and that its criminalizing is an improper and arbitrary use of criminal law. Giving some- one a criminal record for selling marijuana is a disproportion- ate response to an insignificant harm, he says. Stein says the Emerys' B.C.- based lawyer, Kirk Tousaw, ex- pects to bring a challenge against the use of criminal laws in this context. He added that there is a good chance a challenge to the law based on recreational use of marijuana will be successful. "We all know that medicinal use of marijuana is a right and that under the Charter you can't limit reasonable access to medi- cine, but the recreational aspect has been underplayed and it has a very good chance of success in a trial court today," he says. Toronto criminal defence lawyer Edward Prutschi does not agree. Prutschi says that while he agrees that popular opinion has turned solidly against marijua- na laws, it would be difficult to bring a successful challenge on the facts of these types of cases. "The reality is you can dis- agree with the law for all sorts of good reasons, but the law re- mains the law," he says. "And even stupid laws remain the law. One can challenge them in a variety of ways and certainly we've got a healthy history in Canada of people challenging laws that they believe to be un- just or unfair." Prutschi says the argument that the principles of Bedford may apply in this case is novel, but that the decision is different in many respects. What was be- ing challenged in that case was a law that dealt with "community decency standards," which gave the court an opening to revisit the decision as society's percep- tion of what is a vague definition may have shifted. He says that the Controlled Drugs and Substances Act, how- ever, lacks that vagueness. The federal government is expected to introduce a bill to legalize ma- rijuana some time in the spring. Prutschi says that there likely will be a difference of opinion when it comes to the question of who is allowed to sell and culti- vate marijuana, and whether it should be sold in storefronts, as was alleged in the Emerys' case. Even if storefront sale in the end is allowed, it will likely be heavily regulated, he says. A statement from Anthony Moustacalis, president of the Criminal Lawyers' Association, said the association's "position is that the Federal government has promised an ambitious, evidenced-based social policy agenda including reform of marihuana laws, mandatory minimums, appointing judges, and other social justice improve- ments." "While I know the govern- ment has been working hard to advance its agenda, including public consultations, it must act quickly now to implement changes to maintain public con- fidence, and to avoid confusion," said the statement. LT Dan Stein questions police enforcement of marijuana-related laws at a time when popular opinion has shifted. 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