A Vancouver law firm is taking on one of the first legal challenges in B.C. since cannabis legalization two weeks ago, in a case the firm suggests will signal a litany of court and constitutional challenges in the months ahead.
The case stems for a traffic stop in Victoria on the evening Oct. 26, when a man in his late 30s was issued a 24-hour driving prohibition and a violation ticket for operating a vehicle while in possession of cannabis.
The case has since been taken on Vancouver firm Leamon Roudette Law Group. Partner Sarah Leamon asked that her client’s name not be published, but did say he’s held a federal medical cannabis license for five years due to a debilitating case of spinal arthritis.
Leamon says her client was asked if he had consumed, or was in possession of, cannabis or alcohol by the officer and denied both. He did, however, note his medical cannabis license and was then asked to take a field sobriety test, which entails examining the driver’s eyes, observing how they walk and turn, and if they can stand on one leg.
Leamon said her client failed the test not because of impairment, but due to the spinal condition he’s lived with for 10 years. The attending officer also claimed to have found cannabis residue on the dash of the vehicle.
The Courier reached out to the Victoria Police Department to corroborate Leamon’s claims, but did not receive a response.
“[My client] has told me in our conversation that he has difficulties with mobility, he has problems lifting his legs or walking in a straight line because of his condition,” Leamon said “Those standardized field sobriety testing techniques, they’ve been around for decades, they’re accepted by our courts. But we have to remember that those are completely subjective and every person is different. An officer’s interpretation of whether or not a person performing them correctly is also subjective.”
Leamon said her client uses cannabis oil specifically, not dried cannabis flowers, for a condition known as ankylosing spondylitis. She also refutes the claim that any cannabis residue was on the vehicle’s dash, and suggested the law isn’t clear as to what constitutes cannabis in the first place.
“The other question is, what’s cannabis? What’s falling under the definition of cannabis in a vehicle? Is residue cannabis? In my client’s case, this is going to be a live issue when this proceeds to trial, if it does,” Leamon said.
Two difference legal processes are now expected to be in play, according to Leamon. She’ll first look to have her client appear before a justice of the peace to clear up the charge around possession in a vehicle.
The 24-hour suspension is a different animal all together.
“There is no ability for him to dispute this in front of the superintendent of motor vehicles, or any administrative hearing — we don’t have that ability,” Leamon said. “The only thing he’s able to do to get this thing taken off his driving record is to actually apply for a judicial review in the Supreme Court of B.C. That’s a very time consuming, costly process.”
Leamon expects the two issues to drag on anywhere from three months to upwards of a year. Her case is the first she’s heard of in B.C., though Leamon said it’s far from the last.
“Pandora’s box describes this situation perfectly. I think that there is going to be challenge after challenge,” she said. “There’s going to be a lot of uncertainty here in the law and there already is uncertainty in the law. There’s uncertainty as to how officers are enforcing it at the roadside, there’s also going to be uncertainty with respect to how this actually ends up being litigated in terms of what our courts find and how they interpret this legislative scheme.”
@JohnKurucz
