Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 5 41 These are decisions where crime related amendments enacted by the Conservative government under Stephen Harper were later found to be unconstitutional by the Supreme Court of Canada. marijuana for medical purposes regulations R. v. Smith: Restrictions within the Controlled Drugs and Substances Act and the medical marijuana regulations that restricted the right to possess only dried marijuana, violated s. 7 of the Charter. The court found in a decision released in June, that individuals allowed to pos- sess marijuana for medical reasons, should be allowed to consume it in ways other than just smoking. tackling Violent Crime Act In its decision in R. v. Nur this spring, increases in the mandatory minimum penalty of three years in prison for a first conviction for possession of an illegal firearm and five years for a subsequent conviction, were found to be unconstitutional. truth in Sentencing Act Amendments related to pre-trial custody did not require exceptional cir- cumstances for a judge to award 1.5:1 credit for time served in jail before sentencing. The decision in R. v. Summers, noted that since pre-trial custo- dy does not count toward parole eligibility, enhanced credit is so that equal offenders serve roughly the same time before they can apply for parole. abolition of Early Parole Act Provisions that eliminated the chance of accelerated parole for non- violent offenders who were already serving sentences at the time the amendments were enacted, violated the Charter right against being "pun- ished again," the court found in Canada v. Whaling. The presumption that new penal legislation does not apply retroactively was first described as a "well-established" principle of law by the court in a 1979 case. — SK this country, police officers put their lives and safety at risk in order to preserve and protect the lives and safety of others," began a concurring decision written by justices Michael Moldaver and Richard Wagner in R. v. MacDonald last year. (Since 2009, 26 officers have died while on duty in Canada, of which 12 were a homicide. The other 14 cases involved automobile accidents, natural causes, and a drowning incident.) In writing the majority decision in R. v. Fearon last year, Justice Thomas Cromwell talked about the importance of prompt "cell phone" searches and how this is a necessary tool for law enforcement. "Cell phones are used to facilitate criminal activity. For example, cell phones are the 'bread and butter' of the drug trade," added Cromwell in explain- ing why the common law search powers of police incident to arrest, include that of a smartphone, without a warrant. The majority decision in Fearon is a clear example "of the generally conservative bent of the court on criminal justice issues," says Dineen. The deference to police on this issue was even greater than that of the United States Supreme Court, he notes. In a rare unanimous deci- sion, issued six months before Fearon, the U.S. Supreme Court ruled in Riley v. California in exactly the opposite fashion and found that warrants are needed to search smartphones upon arrest. In contrast to the comments of Cromwell, Chief Justice John Roberts had this to say about the balance between police powers and civil liberties. "A cell phone search would typically expose to the government, far more than the most exhaustive search of a house. The warrant requirement is an important working part of our machinery of government, not merely an inconvenience to be somehow weighed against the claims of police efficiency." Criminal law changes struck down by the SCC als allowed to p owed to consume it in n the rison for a first nd five years for a stitutional. ph ar in i

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