Law Times

November 20, 2017

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Page 2 November 20, 2017 • Law Times of a habitual marijuana user to come down to a level that is deemed appropriate, whether they smoked recently or not, she says. "Sometimes, the science can seem determinative when in fact it's not and we're not at that stage yet," she says. Harrison Jordan, an articling student in cannabis law at Lew- in & Sagara LLP, organized the letter as he felt the offence was overbroad. More than 50 law- yers from across the country have signed the letter. Jordan says that the two-ng threshold will criminalize many Canadians who are not impaired and should not be charged. "We think that if the gov- ernment takes out the two ng, the sky won't fall, just as the sky hasn't fallen in Colorado and Washington, where they have the presumptive five-ng thresh- old," he says. In a backgrounder on the regulation, the government ac- knowledged that the proposed summary conviction offence "is not directly linked to impair- ment, but [it] is, rather, based on a precautionary or crime pre- vention approach." Criminal defence lawyer Mi- chael Spratt, who also signed the letter, says a criminal record for this offence could prevent international travel, limit em- ployment opportunities and preclude full participation in society. "This is especially true given that we know there will be a dis- proportionate impact on visible minorities and marginalized members of society. This is a shocking and unprecedented use of criminal law power." He adds that the law is "ir- rational, not based on evidence and overly broad." Ian McLeod, a spokesman for the Department of Justice, said the government has received the letter and will review it along with other comments submitted during a 30-day consultation period that ended Nov. 13. McLeod said the bill that pro- posed new offences would be set by regulations rather than the Criminal Code. "Setting the levels by regu- lations would ensure that the levels can be quickly adjusted to respond to scientific develop- ments or to add new drugs," he said in an email. "The proposed level of having at least two ng but less than five ng of THC per millilitre of blood is a precautionary approach that takes into account the best avail- able scientific evidence related to cannabis and driving." Going forward, the regula- tions will not be finalized until Parliament passes bill C-46. LT NEWS lence including one for murder and had a "deplorable institu- tional history," wrote Price in his ruling. The attack took place alleg- edly because of a verbal dispute at a time when there were on- going inmate protests. They included propping open cell doors, which was not permit- ted, and activating emergency alarms. The court heard that the alarm in Fontenelle's cell had gone off about an hour before the attack, but it was not reac- tivated, so if pressed during the beating, it would not be noticed by the staff. Security video showed one inmate going into Fontenelle's cell while the other two held the door open. Guards patrolled the area twice after the attack with- out noticing anything. More than two hours after the beating, guards looked inside the cell and Fontenelle was taken to hospital with a severe head injury and spent more than a week in the intensive care unit. "The only reason that Mr. Fontenelle's assailants were able to gain access to him in his cell, where he was out of range of the security cameras, was that the CSC failed to enforce its own policies and procedures," Price states. The correctional service ar- gued unsuccessfully that the attack was a result of the verbal dispute and occurred so quickly that staff could not have antici- pated it or prevented the beating. Paul Champ, a lawyer who frequently acts for inmates in ac- tions related to their treatment in correctional facilities, says he is not surprised by the position of the federal government. "Previously, courts have said that prisons are inherently dan- gerous places and correctional staff cannot be held to a stan- dard of perfection," explains Champ, who heads Champ & Associates in Ottawa. However, this decision shows that it will not necessarily be required to show that there was specific information about an imminent attack against an in- mate for liability to be found against the institution, he sug- gests. "Even in maximum security, you have a number of units," says Champ, when determin- ing where an inmate should be housed. "At a minimum, they have to follow their own [security] pro- tocols," he notes. Price also concluded that, under amendments to the Rules of Civil Procedure that were en- acted in 2010, he could bifurcate the proceeding and order a trial on damages. The factual circumstances of the Fontenelle case supports this procedural decision and follows the goals outlined in the Supreme Court of Canada in its 2014 rul- ing in Hryniak v. Mauldin, Sayce suggests. "This is a scenario where bifurcation can lead to greater efficiency," he says. Mel Sater, a lawyer for Cor- rectional Service Canada, says it is still reviewing the decision by Price to determine whether to file an appeal. Doug Wright, the lawyer for Fontenelle, declined comment as the action is still ongoing. LT Continued from page 1 Summary judgment motion rejected Regulation affects medical users Continued from page 1 5 TH ANNUAL CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS COURSE HIGHLIGHTS • Developments since Bill 132 • Investigation of Serious Allegations • Privilege and Investigations • Effective Report Writing DATE & LOCATION Toronto: December 14, 2017 Vantage Venues 150 King St West, 27th Floor Toronto, ON M5H 1J9 *Discount applies to in-class only FOR QUESTIONS AND GROUP RATES, PLEASE CONTACT: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: Email: Register online at USE PROMO CODE EARLYBIRD2017 & SAVE OVER $300* EARLY BIRD EXTENDED TO NOV. 27 COURSE LEADER: SARAH GRAVES, PARTNER, FASKEN MARTINEAU DUMOULIN LLP Toronto • Webinar | December 14, 2017 Untitled-1 1 2017-11-16 1:50 PM

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