Not your pot? Could this still be a problem for drivers transporting passengers carrying cannabis?

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A recent court ruling out of Newfoundland and Labrador could have implications elsewhere in the country for those driving or having control of a vehicle in which cannabis is being transported, especially if not theirs and without their knowledge.

While the lower court ruling is not binding in Newfoundland and Labrador or other provinces, it may make it harder for prosecutors across Canada to obtain convictions for provincial cannabis transportation offences where the driver did not know there was cannabis in the vehicle. Canadians charged with such offences now have a persuasive case that their lawyers can point to in order to try to convince a judge to dismiss the charges or at least mitigate their sentence upon conviction.

What the case says

In R. v. Cheeseman, 2019, the Provincial Court of Newfoundland & Labrador dismissed a charge under the Cannabis Control Actagainst a woman accused of having cannabis readily available to a person in a vehicle for which she was the designated driver. In a May 6 ruling, the court determined the driver did not know there was cannabis in the car. “Absent proof of knowledge that the cannabis was in the car, the accused could not be guilty of the alleged offence. The charge is, therefore, dismissed,” the decision reads.

The court found the accused, Alysha Cheeseman, was a designated driver for some friends who were high on cannabis. During a roadside stop, the police smelled cannabis from the car and demanded occupants hand over any cannabis. Cheeseman passed out an empty bong and one passenger produced a jar containing less than three g of cannabis from under his parka.

Cheeseman claimed she didn’t know the passengers were carrying marijuana while in her car, despite her friends being “stoned” on cannabis. Justice Harold Porter of the provincial court accepted her evidence that she did not know one passenger had cannabis and that the passengers smelled of cannabis when they were picked up.

The judge wrote that he does not believe “the intent of the legislation is to require that designated drivers must search their passengers before driving them home.” Short of searching them, he noted, Cheeseman wouldn’t have known that one of the passengers had cannabis.

Given that the act exempts “taxi drivers from liability for paying passengers carrying cannabis, it is curious that the same exemption does not apply to an unpaid ‘designated driver’,” he added.

What the law requires

The case opens the door to questions about existing rules around transporting cannabis in motor vehicles and the demands on drivers. In late May, Iain Hollett, director of prosecutions for Newfoundland and Labrador’s Department of Justice and Public Safety, told The GrowthOp the province does not intend to appeal the acquittal.

In almost every Canadian province and territory, there are provincial-level offences for unlawfully transporting cannabis unless certain precautions are taken, such as keeping the cannabis in its original sealed packaging or in a place inaccessible to drivers and passengers.

One province, Manitoba, even dictates where unsealed cannabis must be stored while driving on a highway, depending on whether or not the vehicle has a trunk, or is a van or hatchback-style.

In a handful of provinces, such as B.C., Manitoba, Ontario and Nova Scotia, cannabis transportation offences penalize the driver of the vehicle in which the substance is found—regardless of the source of the cannabis—while other provincial legislation more broadly targets anyone who “transports” cannabis unlawfully. Only Saskatchewan does not require cannabis to be inaccessible or stowed away, although the province does penalize those who open or allow to be opened a container containing cannabis.

How the courts characterize public welfare offences

As legislation proposed and passed by each province’s respective legislature, these public welfare offences don’t produce the more stigmatized criminal record. With criminal offences, the Crown must show, beyond a reasonable doubt, mens rea—or criminal intent behind it. On the other side of the offence spectrum are absolute liability offences, where an accused has no way to exculpate from fault.

The sort of public welfare offences addressed in the recent Newfoundland case have been difficult for courts to characterize and deal with. In R. v. Sault Ste. Marie, issued in 1978, the Supreme Court of Canada found that public welfare offences were presumptively strict liability offences, putting them squarely in between the two types of offences. While the prosecution need not prove intent, the accused may invoke a due diligence defence, showing that reasonable care was taken in the circumstances.

Still, in the Newfoundland and Labrador ruling, it’s curious that the judge dismissed the charges and concluded “absent proof of knowledge that the cannabis was in the car, the accused could not be guilty of the alleged offence.” That’s a relatively simple way of putting things, considering that the Crown doesn’t need to show mental elements for such strict liability offences.

Exploring law through the lens of recent case

In Libman on Regulatory Offences in Canada, Justice Rick Libman of the Ontario Court of Justice writes that lack of knowledge of the problems making up the violation is “an important factor” in the due diligence inquiry, but it is not wholly determinative. In another part of his book, he advances that willful blindness, sometimes called contrived ignorance, can negate defences premised on due diligence or a mistake of fact.

Cheeseman’s car allegedly reeked of pot. Shouldn’t the driver have known?

Taken together, it is conceivable the case could have gone another way before another judge. Had the case been appealed, appellate courts would then have the legal ammo with which to argue it should be overturned.

That’s why drivers and passengers across the country need to know that despite this decision, provinces and territories, including Newfoundland and Labrador where the case was heard, will continue enforcing applicable laws and charging drivers found to have violated them. In addition, a big part of this case hinged on the accused’s claimed lack of knowledge. Should drivers know their passengers have pot on them, they may find such a defence goes up in smoke.

A search of the case law database, CanLii, reveals no other reported cases involving provincial cannabis transportation offences. That said, one thing is certain: the jurisprudence, or case law, on the matter is only beginning.

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