Law Times

Page 6 March 5, 2018 • Law TiMes www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Post-Hryniak pushback W hen the Supreme Court of Canada delivered its land- mark judgment in Hryniak v. Mauldin in 2014, it marked a massive shift in the way civil litigation was approached. "Our civil justice system is premised upon the value that the pro- cess of adjudication must be fair and just. This cannot be comprom- ised," said the ruling. "However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result." Fast-forward four years to an Ontario case, Isaac Estate v. Ma- tuszynska, that centres on the accidental death of a man involved in a parking lot drug deal gone wrong. Two Ontario Court of Appeal jus- tices upheld an earlier ruling through summary judgment dismissing a claim brought by the estate and mother of the deceased man, Glen Isaac. One justice, however, dissented. Justice Sarah Pepall noted that, in her assessment, summary judgment was not the correct fit due to the specific circumstances of the case. "A major goal of summary judgment is costs savings. However, the goal is not summary judgment at all costs," she said. "There will still be some cases that ought to go to trial. Some cau- tion must be used. This is particularly so in a case such as this that involves a largely unexplored area of the law and which would benefit from the full record that a trial provides." Pepall has a valid point. In the post-Hryniak rush, there is no one-size-fits-all solution for expe- diting civil litigation. One lawyer, for example, told Law Times that there was no opportunity to cross- examine witnesses in Isaac. While improving ac- cess to justice is an admirable goal, not every case is well suited to summary judgment. LT ©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reli- ance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . Jacqueline D'Souza Electronic Production Specialist . . . Derek Welford Provincial pot plans panned BY IAN HARVEY W hile the federal government has delayed the rollout of legalized marijuana, On- tario has passed the Can- nabis Act setting out how it will regulate growth, distribution and consumption of pot when the magic date arrives. It joins the Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017 and the Ontario Retail Cannabis Corporation Act, 2017, a web of rules and regulations regulating who grows and distributes, who sells and who can buy it and how and where it can be consumed and how it must be trans- ported. Toronto criminal lawyer Paul Lewin at Lewin & Sagara LLP sums it up in one word — rotten. It's rotten for medical us- ers, for the poor who want to grow pot and for people who want to ingest rather than smoke it, says Lewin. He bills himself as a "cannabis lawyer" and is also national secretary in Canada of the National Organization for the Re- form of Marijuana Laws. It really seems that the provinces want to shift medical users to become recre- ational users, he says, noting that medi- cal users buy their weed without tax, whereas recreational users pay both an excise tax, HST and whatever markup the Ontario Cannabis Retail Corporation, as a child of the Liquor Control Board of On- tario, decrees. The Cannabis, Smoke- Free Ontario and Road Safety Statute Law Amendment Act sets out how pot is to be trans- ported in boats or vehicles, where it can be consumed and sets penalties for posses- sion and cultivation beyond those allowed by the act. And, of course, it speci- fies where and how it will be sold to those 19 years old and older, through specific stores and, perhaps, through direct mail for medical users. What concerns Lewin is that in for- mulating the rules that bar smoking al- most anywhere — even at home if your landlord objects — the provincial gov- ernment seems to have gone for a more heavy-handed approach. The govern- ment seems like it wants to keep the can- nabis community out of the discussion and that will mean the black market will survive. This, despite the complexities and the severe penalties for contraventions of some sections, with up to 14 years im- prisonment. In places, it just seems mean-spirited and boneheaded, Lewin says, and challenges are guaran- teed to happen. The new provisions al- low only for the cultivation of four plants per household, which is somewhat impracti- cal given the plant's growth cycle and frustrating for those who can't afford to pay market prices, aren't happy with the strength of govern- ment pot, prefer specifically bred strains or want to make edibles because they don't want to smoke. One of the biggest concerns in legal- izing marijuana, of course, is around the issue of impaired driving. While Ontario has set two nanograms of THC per milli- litre, it is a relatively low benchmark. Since THC passes through people's systems differently, you could theoreti- cally smoke a joint a week earlier and be found to have a THC level in your system, but, of course, you wouldn't be stoned or impaired, Lewin says. The lack of science around levels of cannabis impairment compared to the well-established levels for alcohol and the fact that there is no roadside test suggest there will be a f lurry of challenges once charges start progress- ing through the system. Further, Lewin says, the lack of edi- bles and other options for medical users will also likely trigger challenges since it was a federal court decision on choice of drug delivery that prompted the ultimate changes in marijuana laws. The third area ripe for challenge is where people can smoke, since medical users require a steady consumption and will find themselves barred at work and in public and even at home if their land- lord has banned smoking in the build- ing as many are threatening to do. Then there is the issue of enforcement on First Nations reserves where the Ontario Pro- vincial Police have been impotent against untaxed tobacco sold through smoke shacks. The rules seem to note it can bar some First Nations from accessing legal pot from licensed growers but permit deliveries where the band council agrees. Ultimately, this legislation does noth- ing to deter the black market, which will simply adjust until the new regime bet- ter understands the marketplace and re- aligns its strategy. This means that, for the dealers, it is business as usual. LT uIan Harvey has been a journalist for more than 40 years, writing about a di- verse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. Queen's Park Ian Harvey

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