Charter challenge likely if police chiefs get their way with cannabis laws

(© Can Stock Photo / cendeced)

The Ontario Association of Chiefs of Police (OACP) is calling on governments to make some changes to the country’s cannabis laws, but at least one defence lawyer suspects the changes would be challenged under the Charter of Rights and Freedoms.

The OACP wants to see the law altered to make it easier to crackdown on illegal online sales and personal over-production of cannabis.

“These illegal online sites range from small local operations to sophisticated organized criminal networks operating locally in Ontario, nationally, and internationally,” the association said in a news release last week.

According to the OACP, the number of illegal online sites has grown from approximately 800 sites in January 2020 to over 2,600 sites in the first part of 2021.

Now the association wants to address this by introducing legislative or regulatory provisions under the Cannabis Control Act to allow for a reverse onus to easily remove online cannabis sites not licensed by the Alcohol and Gaming Commission of Ontario.

A reverse onus wouldn’t change how an officer charges a person, but it would change how the charge is dealt with once the police are no longer involved.

Defense lawyer Greg McGivern said the proposed legislation would shift the burden from the Crown having to prove a person’s guilt to the accused having to prove their innocence.

“You would see immediate charter applications,” said McGivern. “If the change was made and a charge was laid, you would see lawyers on behalf of their clients filing charter applications, essentially saying ‘the law itself is improper and it violates the charter rights, therefore the charge should be thrown out on that basis.'”

McGivern said the change in legislation could also make a lawyer’s job a lot more challenging.

“It would change everything in how you prepare for a case,” said McGiven. “Rather than approaching the case as you normally would, a lawyer would now have to look at each case differently. I think it will remain to be seen if it [the recommendations] gets passed, I’m skeptical, but stranger things have happened.”

According to the OACP, police services are also being challenged by loopholes in the Access to Cannabis for Medical Purposes Regulations (ACMPR).

The OACP would also like to see the government revoke part two of the ACMPR, which allows licensed individuals to produce a limited amount of cannabis for their own medical purposes. The licence also gives a person the ability to sell an interim supply to other registered individuals while they wait for their plants to grow.

If the changes were to be passed, McGivern said it would only take a matter of time before the courts struck them down.