The Prosecution System of Canada - Case Study Example

The Prosecution System of Canada Introduction These following cases follow the protocols of the legal framework that is found around the country of Canada. The first case is demonstrative of how the laws of the MMAR govern the interactions of the use of marijuana and how it affects those who are not legally members of this program. However, it is found that even those who are not direct members of this program still can be found to have legal protection for using the substance known as cannabis or more familiarly termed, ‘marijuana’. Also, what is understood in both of these cases is the fact that law enforcement can be aware of problems arising but don’t directly enforce any laws in a concrete manner, at all times. This is especially true when it is something that is involving one from the police force’s on brotherhood. They are hesitant to act right away, which is evidently obvious in the subsequent case being discussed in this research. In the first case it can be safely assumed that law enforcement is quite aware of interactions involving the distribution of this drug in many areas of Canada yet when they find that it is being carried out for the betterment of those with health issues they often step aside unless unabashed behaviors are found to be quite heavy. The reasons for this are many since the Constitution plays an integral part in how all of this comes into being. The Constitutional rights and the new Charter, of the individual in this first case plays a definitive role in the prosecution process sometimes hindering it and leading to dismissals while at other times assisting the prosecution. There are a number of variables that affect this legal process and none really have the solidity that law enforcement would like. Also, many similar ramifications of this new Charter have an affect on the secondary case in this research as well because this mans Constitutional rights have not been wholly upheld, and promises for treatment of his depression not kept totally intact. He has somewhat slipped through the cracks and been looked over. Perhaps this could be due to the fact he has a history of working in the police department and no one assumed his actions would go as far as they did in the case. Chapter 7 of the Constitution protects the rights of those who are very ill, either mentally (such as with severe depression) or with a medical reason so it is seen how this Charter plays a part in both of these cases. There are cases that can provide validity into both of these scenarios, and that can also give the solid reasoning needed to find the answer as to why it is imperative to have a legal understanding of how these types of cases should be handled. In this way an appropriate legal definition can be understood as to how and why legal actions should or should not be carried out. Reverting back to the case involving the usage and distribution of cannabis, Mr. Smith’s case is not so different from many others and on these grounds he will more than likely not be held liable for any criminal intent in his business activities so it would be somewhat useless to even attempt to take the case to court based on the concrete evidence that is available. That is, unless it can be proven that his motives are promoting recreational usage as well. The case with the prior police officer is a little more complicated and the following research will show how disregard for treatment of depression, for anyone, can lead to more complications than first perceived. This is even with regard to those who are normally upstanding and law abiding citizens. The Smith Case This case is openly situated around the idea that the distribution of marijuana or cannabis is solely regulated by the MMAR but there remain some restrictions in this area. In this case, as in many others in the past, law enforcement is aware of the transactions going on outside of the regulations of this program yet they do not always enforce any legal penalties, not unless there is a specified; or at times, undefined reason to do so. There have been many times where charges have been made which seem inappropriate, such as in Mr. Smith’s case where his business is not the only one operating outside the realm of the MMAR. Even though his particular situation has been brought to the legal authorities’ attention the fact remains that he is only providing cannabis for medical purposes and in that regard is not intentionally breaking any laws. The idea of this particular case is focused around what the correct distribution of marijuana should be and if those operating outside of the MMAR program should be legally prosecuted, with regard to Mr. Smith in particular. To prosecute this case would not be the ideal solution since the selling of the drug is for alleviating pain and suffering, quite opposite from recreational purposes. How this case is going to be avoided from a court proceeding entirely is in how the defense will be negotiating with the prosecution before it even goes to trial. There are always pre-sentencing, and pre-trial reports done by both legal sides. Once the prosecution is faced with enough evidence that Mr. Smith’s actions were purely of a medical reasoning, and not trafficking marijuana for any immoral means then it will be the unbiased acknowledgment by the prosecutor to withdraw any charges and dismiss the idea of even stepping into a court room. Another good explanation for not following through on prosecuting this case is the fact that Officer Friendly himself perceives the case to be associated more with compassion for those that are sick, making it a justifiable reason for the distribution of the cannabis. Further, Unit 51 was fully aware of all the interactions going on at Mr. Smith’s compassion center. They did not move to make any legal charges against him and he was carrying out these actions for over three years. Prosecution will not be able to deny this fact and will have a hard time in trying to surmise why suddenly Mr. Smith was charged when for three years he was carrying out the exact same type of interactions. This would not be very convincing in court so the point of going to that extreme, when openly faced with these questions and admissible doubt would create questions about even having the ability to prosecute the case effectively, in a winning manner. Since it seems this is highly unlikely then obviously it is a waste of time to take in front of the superior court system. Since Mr. Smith is not selling the marijuana to make personal gain then the general assumption is that he really is not committing any crime. Furthermore, Mr. Smith in no way try’s to conceal his activities, nor does he behave in an irrational or deviant manner towards officer Friendly. This in itself shows that Mr. Smith, nor those he is selling marijuana too perceive these actions as being associative with the distribution of the drug in an illegal manner. Mr. Smith is not representative of a criminal attitude either and is wholly respective to officer Friendly, further showing his case to be one more of a noble cause than anything else. Any attempt to take this to court would indeed prove to be futile since the perception of the jury would more than likely view this case as it had others in the past. The point for this statement being made is the fact that there are many facilities in Canada operating in the same way as Mr. Smith is, so on that note, why single his particular business out? As was said, cases similar to his have been dismissed of any illegal charges in the past, especially when signs of purely recreational reasons for the selling of the drug were absent, the same as in Mr. Smiths case. The case of Wakeford v. Canada1 is a perfect example to use in order to facilitate the reasons why taking Mr. Smith to court would fail. This case involved a youth, who although did not have the legitimate paperwork to allow for his usage of cannabis, did have medical reasons that gave prudence to his case. Ultimately his specific case was dismissed due to the fact that the laws were imposing infringements upon his bodily rights to be able to control the symptoms of his illness. It was found that he had a legitimate and medical reason for having marijuana in his possession and was utilizing it for detrimental reasons associative with his health. The court found that this individual’s medical state was more important than any laws laid down by the body of the state itself2 (Goetz 2001). These are absolutely the same reasons that Mr. Smith is carrying out the activities that he is, not to promote any form of a criminal intent but to help others and to place their health and well being above the natural statures of the state law. Mr. Smith believes that his clients deserve to have relief from the various symptoms of their illnesses and his clientele is quite large, and again legal officials were aware of his program from the get go. So for them to go ahead and try and prosecute someone who had not even been warned of changes that were taking place in the legal aspect of this situation would be wrong? When you look at the fact that Mr. Smiths activities were not being concealed in any way and that he was open and honest and only serving those who had medical authorization from their doctors, then the generalized perception of any jury is going to be, ‘how can the prosecution of such a case be fair?’ Another good assumption is the fact that Mr. Smith is not marketing this drug for people who just want it to feel good. Although he might not be inside the ring of the MMAR, he is still abiding by those rules and regulations in an attempt to keep his actions in a legal standing. In this regard, he is a help to society, to those suffering from incurable illnesses and who are dealing with pain on a daily basis, he poses no malicious or criminal threat. Honestly, there are more drug interactions that are occurring illegally that prosecution could be focusing on instead of this innocent man’s way of providing aid to those who are unwell. Furthermore, to offer more solidity into this way of thinking, section 7 of the Constitution has been briefly mentioned but to provide more of an idea into how it actually would affect this case the paragraph of it is below, and a following summary is also shown to provide the validity of why it has such an impact with these types of cases. Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice3 This new charter stipulates that people are suppose to be guaranteed the unalienable right to have freedom to live their life peacefully and in a way that is most beneficial to their personal interests, including their health. Of course, this is met with what the state law sets as reasonable limits unless otherwise legally justified. This is what is equivalent to a free and democratic society and intrusion onto these rights is found to be a violation of this charter4 (The Constitution Act 1982, Part I). So when this is weighed against the case of Mr. Smith it can be logically found and assumed that he is not breaking any real legal structure and in fact is following along the lines of this new charter of the Constitution. Though this program is not fool proof nor anywhere close to being perfect, it has changed the idea of many legal mentalities, one of those being the use of cannabis to provide medical remedies for illnesses that otherwise would be more difficult to live with. This has a good deal to do with why there are so many Kafe’s that are providing marijuana to clients who have serious medical conditions. It would be very different if they were selling this drug to minors who simply wanted to get high, or for anyone just wanted that good laid back feeling without a legitimate reason. The laws surrounding cannabis in Canada are not wholly supported by the general population which again comes down to the reasoning in behind why Mr. Smith’s case would be so hard to justify taking into court for prosecution. Though he has a past record his intent again is not criminal but honorable. How many saints have been prosecuted in the past for doing what is right but according to the laws is wrong? This author claims quite a few have and historical data can validate this as well. So in that regard, Mr. Smith would be looked upon as something of a saint by the jury. The reason is because he is making life more bearable for those who might otherwise suffer considerably. There is not a crime being committed due to him promoting a better existence for people in pain. As was said earlier, there are other cases that can provide even more support to show that he would, in all high probability win in court. Another of the issues to consider in these types of cases is where the medical practitioners stand and what their view points are. One point to contemplate is whether or not they wholly agree with the statures found within the MMAR. Furthermore do they consider those who conduct the selling of cannabis outside of the MMAR guidelines to be interacting in an illegal fashion or are they looking at this as a good way to provide aid in order to better assist those who are ill? Also, what are the Crowns screening process in deciding whether or not these cases should be prosecuted, and does the medical realm agree with this? These are very fundamental questions and the first part is easily discernible. Also, the Crowns’ decisions are normally always situated around the specific evidence that is entailed. If these cases are screened and found to be within moral and medical values then often there is no prosecution carried out. Mr. Smith seems to be in this minority category and will not suffer any legal penalties from his actions, if indeed his case does go to court. Furthermore, current medical providers feel for diseases such as multiple sclerosis, spinal cord injury, spinal cord disease, cancer, Aids/HIV, severe arthritis, and epilepsy; there are legitimate reasons to give pause and allow for the unrestricted use of cannabis for patients who suffer with these maladies (Capler 2005). However, many practitioners are aware that there have been many legal technicalities for a great deal of patients, preventing them from gaining the unobtrusive right to use this drug freely. Some have difficulties even getting into the MMAR program and therefore turned to distributors like Mr. Smith to assist them in getting a drug that will better control their pain and symptoms. With this knowledge, the medical profession is aware that many black markets have cropped up, selling large quantities of cannabis to those with medical validations but for whatever reason have been denied entrance into the MMAR program. Although they know of the legal ramifications of these interactions, many medical practitioners feel the ethical and morally just insinuations play a much larger role in this dilemma than simply the state laws do. The question is, ‘why should someone suffer if there is a drug available that can adequately alleviate their pain?’ Be it illegal or legal? So, for Mr. Smith, his case is based more on an ethical dilemma than a legal one, which is why many police officers in fact, have turned a blind eye to the dealings of many of the compassion centers that are set up in Canada. In the courts themselves, Health Canada has declared that, Compassion clubs historically provide a safe source of marijuana to those with a medical need and that the unlicensed suppliers (such as Mr. Smith) should continue to serve as the source of supply for those with a medical exemption (Capler 2005). Mr. Smith is therefore only contributing to a better cause for those ill in society; one which has historic precedence over any governing state law of Canada, it seems. Finally, the question of whether or not prosecution of Mr. Smith would lead to any punitive or standing allegations against him in a criminal manner seem to have been answered with the looming evidence. No jury will find any criminal intent in his actions and therefore, again it is stated that prosecution of this man would be futile and worthless, not to mention a waste of taxpayers time and money. This is especially true considering some of the new changes that have taken place within the MMAR, which the courts have ruled on some of the issues in the following manner: The need for secondary physician approval to endorse a patients application for the use of medical marijuana is no longer mandatory The court states that this previous requirement, noted above, is of little consequence to the primary application process and does very little to promote public health and safety (Kirk 2003). The feelings from the Appeals court, on many cases that are extremely similar to Mr. Smith’s, are depicted in the following statement by the ruling authorities: “Some of these people are terminally ill, to suspend our remedy if they may die in the meantime is, in our view, inconsistent with the fundamental charter values” (Kirk 2003). The Jones Case Mr. Jones fits the profile of many police officers who find their lives becoming haphazardly on the edge. The only difference here is they are able to keep their scruples about them and don’t fall prey to any addictive behaviors, that are obviously prevalent in a cops line of work. Perhaps the over exposure of violence and craziness is what drove Mr. Jones to the tendency of gambling, quite possibly for an outlet to relieve his anxiety and stress. What happened though, apparently, is it became more of an addiction than a recreational past time to ease his mind. Sadly, it is evident that it took over his life in a very destructive manner, but still this is not uncommon in police work and many police officers go through periods where they feel out of control and need help. Mr. Jones assumed gambling was the way to lose his troubles but he was pitifully wrong as it only lead to more of them, along with the down fall of his own personal life. The worst part of this scenario is not the fact that his wife left him, not that he is saddled with bills he can not pay, what it is, is the fact that he has now gotten himself into a legal predicament by breaking into an elderly lady’s home and threatening her in order to obtain money and jewelry to pay off his gambling debt. Even though he was once full time on the police force, this does not change the fact he did break the law, due to his medical depression or not, a crime is a crime but this particular case is far more extensive than simply breaking and entering. The fact that Mr. Jones was drunk when he carried out this act is one reason that the case is more complex, because he was not in his right frame of mind, and he was battling depression already as well. Though Mr. Jones case shows that he has great remorse for his actions, and even has returned the stolen property to the victim, he still could face stiff penalties and possibly even time in jail for his actions. He has also been working to change is destructive behavior and is actively participating in his own treatment regimen to battle his severe depression. His physician is supportive of his changing character and believes him to be making positive progress in his rehabilitation. Even so, the victim wants to see Mr. Jones face legal punishment and is not willing to drop the charges against him and it is also uncertain whether she would be willing to agree to him accepting a plea of a lesser charge either. In order to find a logical solution and legal and fair judgment to both parties involved in this case, several other cases and statures, such as pre-sentencing reports can be examined that are somewhat similar to what Mr. Jones is currently up against himself. Before Mr. Jones case will actually go to court, what is likely to happen is a PSR report will be done in order to give the court an idea into Mr. Jones character now compared to what it was at the time of the offense. Also, his role in the community will be included in the report as well. Judges rely heavily on these reports in order to assist them in giving the most applicable of sentencing in order to fit the crime that was committed. There are factors that are taken into consideration concerning the individual who is charged with a crime as well. In this case this would be Mr. Jones, of course. Some of this will be beneficial to Mr. Jones when he appears in out and some of it might not be so positive. Some of the most precise information about an offender that is looked at and is considered when sentencing in Canada is as follows: The offenders age, maturity, character, behavior, attitude, and willingness to make amends for his crime History of any alternative measures used to deal with the offender, and the offenders response to those measures Any matter required by any regulation made under a subsection that is included in the report (Bonta et. al. 2005). Furthermore, the courts of Canada also pay considerable attention to any statement or view that is made by the accused; be it in a negative manner or a positive one. It plays a part in the sentencing process either way. Since Mr. Jones lawyer is seeking a lesser charge and a conditional sentencing such as house arrest, instead of jail time, there are a number of issues for the court to ponder. There are an innumerable amount of facts that the courts must undoubtedly look at when deciding whether or not a case, such as Mr. Jones should receive a conditional sentence or not. In one particular case, R. v. Proulx 5, this specific case was concerning dangerous driving charges that lead to the subsequent death of the victim. The circumstances in this case were looked upon in a negative manner, with the fault being solely the driver who was the cause for the victims’ death. This case came about due to the driver being charged for having been driving while consuming alcohol and erratic behavior in-behind the wheel. Though this case should have been passed a heavy sentence it was not and through several appeals it received a conditional sentencing of a custodial caliber instead of any jail time having to be served. The Crown was found to concur with the sentencing passed down as well (Alberta Government Justice 2001). So, when comparing this case to Mr. Jones charges it is easily assumed that there should be no problem in him being placed under house arrest instead of having to serve any jail time. This is especially true when the facts are considered more closely. The previous case resulted in death of the victim where as in Mr. Jones case there was no serious injury but some bruises and lacerations on the victim. Certainly there was nothing in his case that could be equivalent to the outcome being death as in the other case. Also, even though Mr. Jones wielded a weapon, the case being compared to his could be said that the car was the lethal and dangerous weapon that was utilized, so therefore it is just as dangerous as a gun is. Both can kill, period. Also, Mr. Jones should be given a clean record and have this scenario taken off of him as it is currently appearing as a permanent negative mark on his character which can prevent him from being able to join the police force again. If it is taken away he will have that opportunity once more to do something for society in a positive manner and he seems ready to take back up the role as a police officer with his current demeanor and attitude he is presenting to those around him. Even though the victim in Mr. Jones case would prefer to see him do jail time, the sentencing judge is going to consider more than just her feelings in the situation. Some considerations have previously been mentioned but there are a myriad of other moral issues to look into as well. Conditional sentencing developed in Canada to gain more of a restorative type of justice in the country instead of slamming offenders of various criminal actions with constant jail time and no alternative means. What the judge will look into in regards to Mr. Jones legal predicament is whether or not he poses a threat to the community, and the offense for which he is being charged with; must show that it cannot carry a minimum sentence (John Howard Society of Alberta 2000). Of course it is obvious Mr. Jones is not a danger to society and his offence also could not fairly be one that could be charged with any form of minimum sentencing either. Therefore, based on the case that was compared to Mr. Jones and this additional legal information, it is becoming more evident that Mr. Jones will more than likely get passed a sentence that is conditional. However, if the judgment does turn out to be a conditional sentencing arrangement, then he will be looking at a custodial sentence of two years or a little less. Still, this is a far cry better than him having to serve jail time for his offence which was done out of character for him. So, it is the implied belief here that Mr. Jones will be passed down the conditional sentencing judgment his lawyer is asking for since he is no danger to the community and the court judging him with a conditional sentence will not interfere with upholding the principles of safety within the community. In concluding, there is no doubt Mr. Jones would follow the rules imposed on him by whatever sentencing he might receive. However, just to bring solidity into how this case might end, the mandatory rulings of the court in a conditional sentencing of Mr. Jones would be as follows: He would be expected to keep the peace and be of good behavior Appear in court whenever required to do so Report to a supervisor when directed Remain within the jurisdiction of residence unless written permission is obtained from the court or the supervisor Promptly notify supervisor of any changes in employment or occupation Provide advance notice of any change of address (Ministry of Community Safety and Corrective Services 2003). Finally, this prosecutor is certain that Mr. Jones would be willing to comply with all of these above listed terms without complaint. He also would show character of an upstanding and law abiding citizen and possibly be able to rejoin the police force for his employment. Works Cited 1. Alberta Government Justice (2001). Criminal Prosecutions. [online] Available from: http://www.justice.gov.ab.ca/criminal_pros/briefcase_cases.aspx?year=2000 2. Bonta, James & Bourgon, Guy & Jesseman, Rebecca & Yessine, Annie (2005). Pre-Sentence Reports in Canada. [online] Available from: http://ww2.psepc-sppcc.gc.ca/publications/Corrections/user_reports_e.asp 3. Capler, Rielle (2005). Canadian Med-Pot Regulations Change. [online] Available from: < http://www.cannabisculture.com/articles/4423.html> 4. Goetz, David (2001). Drug Prohibition and the Constitution. [online] Available from: http://www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/ille-e/library-e/drugs-e.htm#3.%20Section%207%20and%20the%20Medical%20Use%20of%20Marijuana 5. John Howard Society of Alberta (2000). Conditional Sentences. [online] Available from: http://www.johnhoward.ab.ca/PUB/A1.htm 6. Makin, Kirk (2003). Ottawa’s Pot Rules Unconstitutional, Court Rules. Globe and Mail [online] Available from: < http://www.medicalmarihuana.ca/amendments.html> 7. Ministry of Community Safety and Correctional Services (2003). Conditional Sentences. [online] Available from: http://www.mpss.jus.gov.on.ca/english/corr_serv/comm_corr/conditional_sent.html 8. The Constitution Act 1982, Part I (1982). [online] Available from: http://www.solon.org/Constitutions/Canada/English/ca_1982.html Read More