An interesting twist to the Sivia decision is that BC municipalities may be able to decriminalize marijuana relying on this precedent.
UPDATE: The BC Court of Appeal has confirmed the approach taken by the Court in Sivia. Is this the back-door to marihuana decriminalization?
In Sivia one of the major issues was whether the BC Government could pass legislation which would have the effect of stopping the police from conducting criminal investigations of drinking-driving offences. The Court said the province had the power to do this.
An Immediate Roadside Prohibition in BC begins with a criminal investigation for drinking and driving. Criminal law is the responsibility of the federal government pursuant to s.91 of the Constitution Act of 1867. The police lie to people and say that they must provide a sample into an ASD as part of a criminal investigation. Then they give them an IRP pursuant to provincial legislation. In reality there is no criminal investigation because the province has written a law and come up with guidelines for the police directing them not to apply the federal criminal law.
It’s absurd to us that the provincial government would be allowed to write a law that directs the police to ignore a federal law. After all, we have the doctrine of federal paramountcy meaning that where there is a conflict, the federal legislation is applied.
But in Sivia the Court allowed the province to write a law in direct conflict with federal law and within that framework the provincial Government could then direct the police not to apply the federal law. So what’s stopping BC municipalities from doing the same with the criminal prohibition of marijuana? Nothing if you accept the reasoning in Sivia.
So, on the basis of Sivia, a city such as Vancouver could pass a law that directs the police to deal with marijuana investigations by applying their own law. A person could be investigated using criminal law powers, and then the police could, for example, compel the person to acquire a license to sell or possess marijuana. This would allow them both to decriminalize marijuana and tax the possession and sale of the substance.
Bearing in mind that B.C. municipal politicians just voted in favour of marijuana decriminalization, the next step is for the municipal governments, relying on the decision of our Superior Court in Sivia, to go ahead and decriminalize marijuana on their own.
We dare them.