Hundreds of drug cases before Canadian courts could be affected by a mistake made by the federal government when it updated Canada’s drug laws and legalized cannabis several years ago, CBC has learned.
The government and police are downplaying the potential impact of the error. They maintain it has not affected any drug investigations and say they are not aware of it affecting any cases before the courts.
At the heart of the problem are regulations designed to protect police officers who are required to commit crimes in the course of undercover investigations. Exemptions were adopted in the late 1990s to protect police from criminal liability when they are required to do things like buy or sell drugs as part of an investigation.
But when the Liberal government updated the Controlled Drugs and Substances Act in 2017 and then legalized cannabis in 2018, it failed to update those regulations.
As a result, during the period from 2017 to just a few weeks ago — when the government moved to correct its mistake — undercover police officers across Canada weren’t legally protected from criminal liability for some things they might have been called upon to do as part of an investigation.
In a notice published in the Canada Gazette on Aug. 3, the government warned that new regulations had to be adopted because the error “may jeopardize law enforcement operations and the successful prosecution of criminal offences committed under these Acts.”
“In light of the missing exemptions, a number of criminal investigations involving Canadian citizens or Canadian companies operating on Canadian soil could not be conducted by the RCMP,” the government wrote.
Police activities put on hold by error
It said police investigation activities affected by the oversight “may have occurred in the past but are not currently being performed and will not be performed in the absence of the regulatory proposal.”
The notice said drug investigations were still being carried out.
“However, law enforcement members working undercover cannot provide anything related to the possession, production, selling or importing of anything intended to be used to traffic in controlled substances (eg: encrypted cell phones, cars with hidden compartments, or a pill press) to further their investigations as this would result in potential criminal liability,” the government wrote.
“Nothing currently prevents law enforcement from bringing drug-related cases to trial. However, the quality of evidence that can be obtained is limited by the inability to use these additional tools that would afford the best evidence.”
The regulations proposed to fix the mistake also would help Canadian police officers work with police in other countries that don’t face the same limitation, the government added.
The updated regulations are now in effect.
‘No negative implications’ for court cases: government
According to Statistics Canada, 143,892 people were charged with various drug-related offences between 2018 and 2021.
It is not known how many of those cases may have involved undercover police officers committing offences in the course of an investigation — offences which would have been affected by the government’s error. It is also not known whether any of those charges resulted from undercover police investigations that took place before the oversight was discovered.
Nic Defalco, spokesperson for Public Safety Canada, said the problem was identified “during the course of the Public Prosecution Service of Canada (PPSC) regular engagement on police investigations” and has “not had negative implications for drug investigation cases before the courts.”
The PPSC refuses to say when the error was identified or how it came about.
Lawyer Jack Lloyd, who specializes in drug cases, said the legal community hadn’t been aware of the federal government’s mistake. He said it could affect a lot of cases investigated during that period.
“Hundreds, if not thousands of cases … I have dozens,” said Lloyd.
Error could lead to lighter sentences: lawyer
Lloyd said the error could complicate cases for Crown prosecutors and likely will be used by defence lawyers to get their clients better deals.
“It’s a pretty serious problem and so they’re going to be motivated to resolve things in a manner that all parties can agree to,” Lloyd said. “And so that may involve no jail, that may involve no criminal record, things of this nature.”
Lawyer Jack Lloyd says the government’s mistake could affect hundreds or thousands of drug cases before the courts. (Martin Trainor/CBC)
Eugene Oscapella, a professor at the University of Ottawa and an expert on drug legislation, said some defence lawyers may try to use the government’s mistake to get cases thrown out.
“I suspect that some defence lawyers will try to use it to get the case thrown out as an abuse of process. But I don’t think they’ll be all that successful,” he said. “I think what may happen is … [judges] may just ship it back to the trial court to rehear the case.”
University of Ottawa professor Eugene Oscapella says defence lawyers may try to get drug charges thrown out because of the government’s mistake but he’s not convinced they would succeed. (Radio-Canada)
Rachel Huggins, deputy director of the Ontario Provincial Police and co-chair of the Canadian Association of Chiefs of Police Drug Advisory Committee, said she doesn’t think the federal government’s mistake will have much of an impact because the investigative techniques affected by the error are only some of the techniques open to police.
“Police officers have (many) tools and investigative techniques, not just one,” she said. “So there was very little impact of this unintended omission and, in fact, I think it’s beneficial that it was recognized that there was this omission and that now it’s addressed in the police enforcement regulations.”
RCMP spokesperson Camille Boily-Lavoie said the force “is not aware of any prosecutions impacted by the language of the former regulations.”
EDMONTON – RCMP say a second suspect has been arrested in the killing of an Alberta county worker.
Mounties say 28-year-old Elijah Strawberry was taken into custody Friday at a house on O’Chiese First Nation.
Colin Hough, a worker with Rocky View County, was shot and killed while on the job on a rural road east of Calgary on Aug. 6.
Another man who worked for Fortis Alberta was shot and wounded, and RCMP said the suspects fled in a Rocky View County work truck.
Police later arrested Arthur Wayne Penner, 35, and charged him with first-degree murder and attempted murder, and a warrant was issued for Strawberry’s arrest.
RCMP also said there was a $10,000 reward for information leading to the arrest of Strawberry, describing him as armed and dangerous.
Chief Supt. Roberta McKale, told a news conference in Edmonton that officers had received tips and information over the last few weeks.
“I don’t know of many members that when were stopped, fuelling up our vehicles, we weren’t keeping an eye out, looking for him,” she said.
But officers had been investigating other cases when they found Strawberry.
“Our investigators were in O’Chiese First Nation at a residence on another matter and the major crimes unit was there working another file and ended up locating him hiding in the residence,” McKale said.
While an investigation is still underway, RCMP say they’re confident both suspects in the case are in police custody.
This report by The Canadian Press was first published Sept. 13, 2024.
RICHMOND, B.C. – The Integrated Homicide Investigation Team says the 26-year-old son of a man found dead on British Columbia’s Sunshine Coast has been charged with his murder.
Police say 58-year-old Henry Doyle was found badly injured on a forest service road in Egmont last September and died of his injuries.
The homicide team took over when the BC Coroners Service said the man’s death was suspicious.
It says in a statement that the BC Prosecution Service has approved one count of first-degree murder against the man’s son, Jackson Doyle.
Police say the accused will remain in custody until at least his next court appearance.
The homicide team says investigators remained committed to solving the case with the help of the community of Egmont, the RCMP on the Sunshine Coast and in Richmond, and the Vancouver Police Department.
This report by The Canadian Press was first published Sept. 13, 2024.
VANCOUVER – Mediated talks between the union representing HandyDART workers in Metro Vancouver and its employer, Transdev, have broken off without an agreement following 15 hours of talks.
Joe McCann, president of Amalgamated Transit Union Local 1724, says they stayed at the bargaining table with help from a mediator until 2 a.m. Friday and made “some progress.”
However, he says the union negotiators didn’t get an offer that they could recommend to the membership.
McCann says that in some ways they are close to an agreement, but in other areas they are “miles apart.”
About 600 employees of the door-to-door transit service for people who can’t navigate the conventional transit system have been on strike since last week, pausing service for all but essential medical trips.
McCann asks HandyDART users to be “patient,” since they are trying to get not only a fair contract for workers but also a better service for customers.
He says it’s unclear when the talks will resume, but he hopes next week at the latest.
The employer, Transdev, didn’t reply to an interview request before publication.
This report by The Canadian Press was first published Sept. 13, 2024.
