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ONTARIO COURT (GENERAL DIVISION) (Southwest Region)
HER MAJESTY THE QUEEN respondent
CHRISTOPHER CLAY and JORDAN KENT PRENTICE Applicants
Heard at London: April 28, 29, and 30, and May 5, 6, 7, 12, 13, 14, 15, 20 and 22, 1997.
McCART J.: (Delivered orally August 14, 1997) The accused were jointly charged that on or about the 17th day of May, 1995 at the City of London did unlawfully traffic in a narcotic, namely cannabis sativa, contrary to s.4(1) of the Narcotic Control Act and further, that on or about the 17th day of May, 1995 at the City of London did unlawfully possess a narcotic, namely cannabis sativa, for the purpose of trafficking contrary to s.4(2) of the Narcotic Control Act. In addition, Clay alone was charged that on the same date he did unlawfully traffic in a narcotic, namely cannabis sativa; that he did unlawfully possess a narcotic, namely cannabis sativa for the purpose of trafficking; and did unlawfully cultivate marijuana contrary to s.6(1) of the Narcotic Control Act.
Further, on or about May 18, 1995 the accused Clay along with Zachary Bassett and Patricia Prescott were charged with (simple) possession of a narcotic: to wit, cannabis sativa.
I made a ruling that these three did not have status or standing to challenge the provisions relating to that offence as it was not before me but in Provincial Court where they had elected to be tried by a Provincial Court Judge. Prior to May 14, 1997 counsel for Clay had expressed a clear intention to re-elect to be tried before me in the Superior Court. However, this reelection did not occur until subsequent to the Controlled Drugs and Substances Act coming into force and which provided that the charge of simple possession was within the exclusive jurisdiction of the Provincial Court where the amount involved was not more than 30 grams of marijuana. Clay had been charged with possession of 6.1 grams. On the authorities cited to me by Mr. Young, but with some reluctance, I am prepared to accept Mr. Clay's re-election and the matter can be dealt with when I give judgment on the constitutional issues.
At the outset of the trial I heard evidence pertaining to the substantive
charges facing Clay and Prentice, set out above in paragraph 1, with respect
to which I made no ruling pending a determination of the constitutional
challenge launched by Mr. Clay who has applied for an order granting a
stay of proceedings on the basis that the offences with which he and Prentice
are charged violate s.7 of the Charter of Rights and Freedoms. Section
7 provides that:
In other words, has there been a deprivation of one or more of these rights, and if so, was the deprivation contrary to the principles of fundamental justice? I think it is clear that the onus is on the applicants; Cunningham v. Canada (1993), 80 C.C.C. (3d) 492 at 496. (S.C.C.).
The constitutional issues which were raised are as follows:
1. Whether it is a violation of the principles of fundamental justice
for Parliament to prohibit, upon threat of criminal sanction, conduct which
is relatively harmless;
3. Whether it is a violation of the principles of fundamental justice for Parliament to provide for a term of imprisonment as a sentence for conduct which results in little or no harm to society;
4. Whether Parliament has constitutional authority under s.91 of the British North America Act to prohibit activity which results in little or no harm to society;
5. Whether it is a violation of the principles of fundamental justice for Parliament to interfere with an individual's right to make autonomous decisions with respect to that individual's bodily integrity in the absence of compelling reasons for the interference;
6. Whether the principles of fundamental justice include a right to privacy with respect to the recreational, medical or sacramental consumption of an intoxicating substance in the privacy of one's home;
7. Whether the inclusion of cannabis sativa in the Schedule of the Narcotic Control Act as a narcotic is an arbitrary classification which violates principles of fundamental justice. Under the new Controlled Drugs and Substances Act, marijuana is no longer classified with the so-called hard drugs and some of the penalties have been eased; this can no longer be an issue.
8. Whether inclusion of cannabis sativa in the Schedule of the Narcotic
Control Act violates the principles of fundamental justice on the basis
of overbreadth in that no meaningful exemptions are provided which allow
for cannabis sativa to be used for legitimate medical purposes, and in
that no meaningful and operative distinction is drawn in the legislation
between conduct relating to or facilitating personal consumption of cannabis
sativa and conduct which forms part and parcel of the commercial trade
in this psychoactive substance.
With respect to the constitutional issues, the relief sought by the accused is:
1. An order declaring that the offences of possession, possession for the purpose, trafficking and cultivation are unconstitutional and of no force and effect as applied to the psychoactive substance, cannabis sativa; or
2. An order declaring that the offence of possession of a narcotic is unconstitutional and of no force and effect as applied to the psychoactive substance, cannabis sativa, and that the offences of trafficking, possession for the purpose and cultivation be read down so that these offences only apply to acts which form part and parcel of the commercial trade in cannabis sativa and not to acts of distribution which only relate to or facilitate personal consumption; or
3. An order declaring that no term of imprisonment can be applied to conduct relating to the consumption and personal possession of cannabis sativa or to conduct which facilitate the consumption and personal possession of cannabis sativa, or
4. An order suspending the operation of the prohibitions contained in the Narcotic Control Act as they relate to cannabis sativa until such time as Parliament has a sound scientific basis for criminalizing conduct relating to the consumption and personal possession of cannabis sativa, or, at least until such time as Parliament conducts sound scientific studies as directed and recommended by the Standing Senate Committee on Legal and Constitutional Affairs.
5. An order granting a stay or proceedings with respect to any offence which this Honourable Court declares is violative of the Charter of Rights and Freedoms and/or The British North America Act.
The applicants further submitted that the sought after declaration of constitutional invalidity should issue for the following reasons.
a) It is a violation of the principles of fundamental justice to criminalize conduct which does not create harm to society that rises above a minimum threshold warranting the imposition of a criminal sanction;
b) It is a violation of the principles of fundamental justice to create an arbitrary and irrational legislative classification in which cannabis sativa is subject to the same legislative regime as the "harder" drugs including the opiate and coca derivatives;
c) It is a violation of the principles of fundamental justice to create an over broad legislation which unnecessarily and unjustifiably overshoots the purported objectives of the legislation. In this case, the constitutional overbreadth of the legislation is found in the fact that cannabis sativa is not legally available for legitimate medical use. In addition, constitutional overbreadth is found in the fact that the Parliament has not drawn a meaningful and operative distinction between conduct relating to personal and private consumption (and acts which facilitate personal consumption) and conduct which forms part and parcel of the illicit black market trade;
d) The criminalization of conduct relating to the personal and private consumption of cannabis sativa violates the constitutional right to privacy which has been recognized as a constituent element of the principles of fundamental justice;
e) The criminalization of conduct relating to the personal and private consumption of cannabis sativa, and the criminalization of small- scale trafficking and small-scale cultivation which is in no way related to the black market drug trade, is ultra vires Parliament of Canada in that it is not a valid exercise of the criminal law power contained in s.91(27) of the British North America Act, nor does it fall within the residual power of "Peace, Order and Good Government".
Aside from the constitutional issues, the accused Clay submitted that the Crown failed to prove beyond a reasonable doubt that the accused was in possession of, trafficked in or cultivated a "narcotic". He submitted that the certificate of analysis which identified the plant substance as cannabis (marijuana) did not sufficiently identify a prohibited narcotic. He submitted that the failure of the certificate of analysis to specify the level of THC found in the plant substance renders the certificate deficient in properly identifying a prohibited narcotic. I have carefully considered both the written and oral submissions of counsel and I am of the view that Perka et al v. The Queen (1984), 14 C.C.C. (3d) 385 is a complete answer to the defence submissions. The Supreme Court of Canada per Dickson J. held at p. 411:
Where, as here, the Legislature has deliberately chosen a specific scientific
or technical term to represent an equally specific and particular class
of things, it would do violence of Parliament's intent to give a new meaning
to that term whenever the taxonomic consensus among members of the relevant
scientific fraternity shifted. It is clear that Parliament intended in
1961, by the phrase cannabis sativa L to prohibit all cannabis. The fact
that some possibly a majority of botanists would now give that phrase a
less expansive reading in the light of studies not undertaken until the
early 1970's, does not alter that intention.
At this point it might be useful to outline the historical background what led up to the inclusion of cannabis sativa as a prohibitive substance. In the course of these reasons I use the terms cannabis, cannabis sativa and marijuana interchangeably.
The first narcotic prohibition legislation was the 1911 Opium and Drug Act and which contained no reference to marijuana. It was not until 1923 that marijuana was added to the schedule of prohibited drugs. Curiously, there was no discussion or debate in the House of Commons about its inclusion other than the bald statement, "There is a new drug in the Schedule". There was no correspondence in the Narcotic Control Division files about the addition of the new drug. One might ask why it was included because until 1937 there were no convictions for possession of marijuana and for the ensuing 20 years the annual conviction rate fluctuated between 0 and 12. There were no significant numbers of recorded offences until the late 1960's. From that time on, there has been an escalation in prosecutions for not only possession of marijuana but for trafficking.
Although there was no evidence of a problem of marijuana use in Canada
in 1923, its inclusion in the Opium and Drug Act may have been influenced
by the writings of Emily Murphy, a crusading Edmonton, Alberta magistrate.
In 1920 she published a series of sensational and racist articles in McLean's
Magazine on the horrible effects of drug use and the deliberate debauching
of the young by evil, often alien, traffickers. The articles were later
expanded into a book, The Black Candle, published in 1922. Her views on
marijuana were derived mainly from correspondence with U.S. enforcement
officials. She quotes, for example, the Chief of Los Angeles Police Department:
There was absolutely no truth to any of those wild and outlandish claims. It was in this climate of irrational fear that the criminal sanctions against marijuana were enacted.
Next, it may also be useful to outline the direction in which other jurisdictions are going. In particular, I will refer to the situations that presently prevail in the Netherlands, Germany, Spain, Italy, some of the United States, and Australia. Of all of the major western countries outside of North America, only France and New Zealand have taken no measures to ease the impact of cannabis laws. The national governments of Canada and the United States appear to be somewhat out of step with most of the rest of the western world.
In 1976 the Opium Act in the Netherlands was amended to draw a clear
distinction between so-called hard drugs on the one hand and cannabis products
on the other. Since that time there has been a policy of non-enforcement
of the law as it relates to marijuana use and possession, although possession
continues to be a criminal offence. In fact, marijuana and hashish can
be openly purchased in hundreds of licensed cafes throughout the country.
Studies have shown that since 1976 the consumption of marijuana and hashish
has not significantly increased.
In Germany, public prosecutors have been given discretion to dismiss minor cases of drug possession unconditionally or on condition that a fine be paid or that community service be completed. Prosecutors have used this discretionary power to dismiss minor drug cases in which the offender purchased or was in possession of drugs for personal use. Each of the German states has developed its own guidelines as to when it would be permissible to dismiss a drug case.
In Spain, a 1995 amendment to the Penal Code stipulates that a criminal offence for drug possession is only established upon proof of a subjective intent to traffic or facilitate drug use by others. Possession of any illicit drug for personal use is no longer subject to any criminal or administrative sanction.
In Italy, there has been a movement towards replacing the criminal sanctions for drug use and possession with an administrative sanction. Essentially, the Italian drug laws put the drug user beyond the reach of the criminal law by creating drug law exemptions for possession, purchase and import of drugs for personal use while still keeping the drug user under administrative controls.
The United States of America
In Alaska it is not against the law to possess marijuana in the privacy of one's residence, but it is still illegal to possession marijuana anywhere else in the State. However, Alaska appears to be moving towards overturning decriminalization. In Alaska, Maine, Minnesota, Mississippi, Nebraska and Oregon, possession of small amounts of marijuana is treated as a "civil violation" rather than a crime, much like minor traffic offences. In California, New York and North Carolina, possession of small amounts is deemed a misdemeanour; in Ohio it is a "minor misdemeanour" and in Colorado it is a "petty offence".
I wish to refer to two American decisions. Ravin v. State of Alaska, 537 Pacific Reporter, 2d series 494, to which I was referred by the applicants, does not assist them. The Alaska court held that possession of marijuana by adults at home for personal use is constitutionally protected. The court based its ruling on a new provision of the state constitution that explicitly guarantees a right of privacy. Without that constitutional provision, no such right would exist.
The respondent referred me to the decision of NORML v. Griffin Bell et aI., 488 F. Supp. 123 (1980), a decision of the United States District Court of the District of Columbia. This case stands essentially for the proposition that the prohibition of the private possession and use of marijuana does not violate the constitutional right of privacy in one's home, since smoking marijuana does not qualify as a fundamental right. Reference may also be had to NORML v. Gain et al, 161 Cal. Rpt. 181 (1979).
Thus, it can be seen that nowhere in the United States has the simple
possession of marijuana been legalized, although, as noted above, in many
of the states the consequences of simple possession have been eased to
a greater or lesser extent.
In 1987, in South Australia, and in 1992, in the Australian Capitol Territory, "expiation" schemes were introduced which effectively de facto de-criminalized the use and possession of cannabis. Under these schemes, the police have the option of issuing an expiation notice to anyone caught with a specified amount of cannabis instead of charging the individual with a criminal offence. The expiation notice allows the offender to pay a small fine and avoid being saddled with a criminal record. Small-scale cannabis possession, cultivation or use remain criminal offences: but they are no longer penalized as though they were. In South Australia, the designated amount allowing for the issuance of an expiation notice in lieu of a criminal charge is 100 grams of cannabis or 20 grams of cannabis resin. In addition, an expiation notice can be used for someone cultivating up to 10 cannabis plants. In the Australian Capital Territory, an expiation notice can be issued for 25 grams of cannabis or up to 5 plants being cultivated.
In most of the so-called "decriminalization" areas, the possession of marijuana remains against the law, although the penalties have been eased. However, in no western country has cultivation, trafficking or possession for the purpose of trafficking been decriminalized, nor have the penalties been reduced.
I wish to turn now to some statistical evidence which was introduced by various of the witnesses and which I accept as valid. I heard from a most impressive number of experts, among whom there was a general consensus about effects of the consumption of marijuana. From an analysis of their evidence I am able to reach the following conclusions:
1. Consumption of marijuana is relatively harmless compared to the so-called
hard drugs and including tobacco and alcohol;
3. That cannabis does cause alteration of mental functions and as such, it would not be prudent to drive a car while intoxicated;
4. There is no hard evidence that cannabis consumption induces psychoses;
5. Cannabis is not an addictive substance;
6. Marijuana is not criminogenic in that there is no evidence of a causal relationship between cannabis use and criminality;
7. That the consumption of marijuana probably does not lead to "hard drug" use for the vast majority of marijuana consumers, although there appears to be a statistical relationship between the use of marijuana and a variety of other psychoactive drugs;
8. Marijuana does not make people more aggressive or violent;
9. There have been no recorded deaths from the consumption of marijuana;
10. There is no evidence that marijuana causes amotivational syndrome;
11. Less than 1% of marijuana consumers are daily users;
12. Consumption in so-called "de-criminalized states" does not increase out of proportion to states where there is no de-criminalization.
13. Health related costs of cannabis use are negligible when compared
to the costs attributable to tobacco and alcohol consumption.
Having said all of this, there was also general consensus among the experts who testified that the consumption of marijuana is not completely harmless. While marijuana may not cause schizophrenia, it may trigger it. Bronchial pulmonary damage is at risk of occurring with heavy use. However, to be fair, there is also general agreement among the experts who testified that moderate use of marijuana causes no physical or psychological harm. Field studies in Greece, Costa Rico and Jamaica generally supported the idea that marijuana was a relatively safe drug - not totally free from potential harm, but unlikely to create serious harm for most individual users or society.
The LeDain Commission found at least four major grounds for social concern: the probably harmful effect of cannabis on the maturing process in adolescence; the implications for safe driving arising from impairment of cognitive functions and psycho motor abilities, from the additive interaction of cannabis and alcohol and from the difficulties of recognizing or detecting cannabis intoxication; the possibility, suggested by reports in other countries and clinical observations on this continent, that the long term, heavy use of cannabis may result in a significant amount of mental deterioration and disorder; and the role played by cannabis in the development and spread of multi-drug use by stimulating a desire for drug experience and lowering inhibitions about drug experimentation. This report went on to state that it did not yet know enough about cannabis to speak with assurance as to what constitutes moderate as opposed to excessive use.
The Report of the National Task Force on Cannabis, Canberra, Australia, was delivered on September 30, 1994. This Task Force concluded in general, that the findings on the health and psychological effects of cannabis suggest that cannabis use is not as dangerous as its opponents might believe, but that its use is not completely without risk, as some of is proponents would argue. As it is most commonly used, occasionally, cannabis presents only minor or subtle risks to the health of the individual. The potential for problems increases with regular heavy use. While the research findings on some potential risks remain equivocal, there is clearly sufficient evidence to conclude that cannabis use should be discouraged, particularly among youth.
Sometime prior to the Canberra Report, the Royal Commission into the non-medical use of drugs in South Australia was released. This Commission concluded that marijuana is not an addictive drug and "is comparatively harmless in moderate doses, although there are effects on skills such as those required for driving, and its effects may be greater if it is taken in combination with other drugs. It is almost certainly harmful to some extent in high doses. The summary of the scientific and medical evidence does not entirely resolve the policy questions, since further value judgments have to be made."
Finally, I would refer to a commentary by Dr. Harold Kalant on three reports which appeared in 1982 respecting the potential health damaging consequences of chronic cannabis use. The one report is that of an expert group appointed by the Advisory Council on the misuse of drugs in the United Kingdom. The second is that resulting from a scientific meeting sponsored jointly by the Addiction Research Foundation of Ontario and the World Health Organization. The third is that of a committee set up by the Institute of Medicine, National Academy of Sciences, of the United States of America. There was general agreement by the three groups after a review of essentially the same body of evidence. In brief, the verdict in each case has been that the available evidence is not nearly complete enough to permit an identification of the full range and frequency of occurrence of adverse effects from cannabis use, but that the practice can certainly not be considered harmless and innocent.
I can only conclude from a review of these reports and the other viva voce evidence which I heard that the jury is still out respecting the actual and potential harm from the consumption of marijuana. It is clear that further research should be carried out. While it is generally agreed that marijuana used in moderation is not a stepping stone to hard drugs, in that it does not usually lead to consumption of the so-called hard drugs, nevertheless approximately 1 in 7 or 8 marijuana users do graduate to cocaine and/or heroin.
There have been a number of studies commissioned with respect to potential harms and benefits of marijuana consumption. I have attached as an addendum to these reasons a digest of the reports prepared for the benefit of the court by the accused Christopher Clay which I accept as accurate, as far as they go.
Neither of the Applicants have alleged that they need to possess marijuana for medical purposes and any finding that I might make about the availability of marijuana for medical use would have to be of some benefit to the applicants or they would not have standing to ask for it. I agree and find that the right to possess marijuana for medical purposes is irrelevant to a consideration of the constitutionality issues. Having said that, it might be useful to outline what is generally agreed to be the therapeutic value of marijuana and I quote in part from Ex. B from the affidavit of Dr. John P. Morgan, Professor of Pharmacology, of the State of New York, who testified during the course of the trial. He had this to say:
A number of studies have shown that marijuana is effective in reducing nausea and vomiting. Lowering intra-ocular pressure associated with glaucoma, and decreasing muscle spasm and spasticity. People undergoing cancer chemotherapy have found smoked marijuana to be an effective anti-nauseant - often more effective than available pharmaceutical medications. Marijuana is also smoked by thousands of Aids patients to treat the nausea and vomiting associated with both the disease and AZT drug therapy. Because it stimulates appetite, marijuana also counters HIV-related wasting allowing Aids patients to gain weight and prolong their lives.
In 1986, a synthetic THC capsule (Marinol) was marketed in the United States and labelled for use as a anti-emetic. Despite some utility, this product has serious drawbacks, including its cost. For example, a patient taking three 5 milligram capsules a day would spend over $5,000 to use Marinol for one year. In comparison to the natural, smokable product, Marinol also has some pharmacological shortcomings. Because THC delivered in oral capsules enters the bloodstream slowly, it yields lower serum concentrations per dose. It more frequently yields unpleasant psycho-active effects. In patients suffering from nausea, the swallowing of capsules may itself promote vomiting. In short, the smoking of crude marijuana is more efficient in delivering THC and, in some cases, it may be more effective.
As an aside, Parliament may wish to take a serious look at easing the restrictions that apply to the use of marijuana for the medical uses as outlined above as well as for alleviating some of the symptoms associated with multiple sclerosis, such as pain and muscle spasm. There appears to be no merit to the widespread claim that marijuana has no therapeutic value whatsoever. In any event, as I understand it, Marinol is not available in Canada.
With respect to the LeDain Commission Report in which there was not consensus, the majority (3) of Commissioners recommended repeal of the prohibition against simple possession. One Commissioner recommended complete removal of cannabis from the Narcotic Control Act and that its sale and use be placed under controls similar to those governing the sale and use of alcohol. However, this Commissioner stated at the outset of her conclusions;
With legalization, there is a strong possibility that the number of regular users will increase and that the effects of cannabis intoxication will be observed in a greater number of people. It is also expected that a certain number of cannabis users would go onto other hallucinogens and would make greater use of barbiturates, tranquilizers and alcohol, as well.
The 5th Commissioner said this:
Cultivation, Trafficking and Possession for the Purpose of Trafficking as they Relate to Marijuana
Counsel for the applicants appear to have abandoned their constitutional
challenge to all but possession of marijuana and cultivation and trafficking
which only relate to or facilitate personal consumption. If there has not
been abandonment, it seems to be they have virtually conceded that they
cannot succeed. In his submissions Mr. Young claimed that Parliament had
overshot the mark, in failing to draw a meaningful distinction between
small scale trafficking and acts which form part and parcel of the illicit
black market trade. Again, in the applicants' memorandum of argument paragraph
34 on pp. 27 and 28 this submission is made:
It may be instructive to note that, with one exception, none of the witnesses who testified recommend legalizing the cultivation, trafficking and possession for the purpose of trafficking. The one exception, Mme. Marie Bertrand who was a member of the LeDain Commission recommended the removal of cannabis from the Narcotic Control Act. She further recommended that the sale and use of cannabis be placed under controls similar to those governing the sale and use of alcohol, including legal prohibition of unauthorized distribution. Thus, even she was opposed to the unrestricted cultivation, trafficking and possession for the purpose of trafficking.
Canada is one of 85 countries which have ratified the United Nations
convention against illicit trafficking in narcotic drugs and psycho-tropic
substances (1988). Article 3(2) of the convention provides:
However, Article 3 and 4(c) provides:
Principles of Fundamental Justice
As stated previously and to paraphrase s. 7 of the Charter of Rights and Freedoms, no one can be deprived of the right to life, liberty and security except in accordance with the principles of fundamental justice. In other words, (a) has there been a deprivation of one or more of these rights, and if so, (b) was the deprivation contrary to the principles of fundamental justice? The onus is on the applicant to establish these two things; Cunningham v. Canada (1993), 80 C.C.C. (3d) 492 at 496 (S.C.C.) (per McLachlin, J.). I am prepared to concede that the applicants, who are facing criminal charges with most serious consequences, have their liberty and security in grave peril. The question is whether the provisions of the Narcotics Control Act under which they are charged violate the principles of fundamental justice.
In attempting to arrive at what is meant by the term "principles of fundamental justice", I have gleaned the following from a review of some of the cases referred to me.
The principles of fundamental justice are concerned not only with the interests of the person who claims his liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests both substantively and procedurally: Cunningham v. Canada (1993), 80 C.C.C. (3d) 492 at 499 per McLachlin J.
A mere common law rule does not suffice to constitute a principle of fundamental justice, rather, as the term implies, principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice are required: Rodriguez v. B. C. (A.G.) (1993), 85 C.C.C. (3d) 15 at 65 per Sopinka J.
Where the deprivation of the right in question does little or nothing to enhance the state's interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out as the individual's rights will have been deprived for no valid purpose: Ibid at p. 68.
It follows that before one can determine that a statutory provision is contrary to fundamental justice, the relationship between the provision and the state interest must be considered. One cannot conclude that a particular limit is arbitrary because (in the words of my colleague McLachlin J.) it bears no relation to or is inconsistent with the objective that lies behind the legislation without considering the state interest and the society concerns which it reflects: Ibid p.69.
Discerning the principles of fundamental justice with which deprivation of life, liberty or security of the person must accord, in order to withstand constitutional scrutiny, is not an easy task... principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice is required. Ibid p. 65.
The principles of fundamental justice cannot be created for the occasion to reflect the court's dislike or distaste of a particular statute. While the principles of fundamental justice are concerned with more than process, reference must be made to principles which are "fundamental" in the sense that they have general acceptance among reasonable people. Ibid p. 78.
Unlike the situation with partial decriminalization of abortion, the decriminalization of attempted suicide cannot be said to represent a consensus by Parliament or by Canadians in general, that the autonomy interest of those wishing to kill themselves is paramount to the state interest in protecting the life of its citizens. Ibid p. 71.
Reviewing legislation for overbreadth as a principle of fundamental justice is simply an example of the balancing of the state interest against that of the individual: R. v. Heywood (1994), 94 C.C.C. (3d) 481 at 516, per Cory J.
Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience. R. v. Big M. Drug Mart Ltd. (1985), 1 S.C.R. 295 at 336-7 per Dickson, J. as he then was.
At this juncture it will be useful to indicate what Canadians think about the laws pertaining to the possession of marijuana. In 1977, a Gallop Poll reported that the majority of Canadians opposed the harsh criminalization of cannabis possession. In particular, 36 percent of Canadians wanted to see cannabis possession sanctioned by a fine at the maximum, whereas 23 percent thought it should not be a full criminal offence, and only 35 percent wanted the offence to be a full criminal offence. More recently, Health Canada released a public opinion poll in 1995 which found that 27 percent of Canadians believed that possession of marijuana should be legal, while 42.1 percent believe it should remain illegal but only be punished by a fine or a non-jail sentence. Therefore, in 1995, it is apparent that 70 percent of Canadians are opposed to the use of incarceration to combat marijuana use. On the other hand, a significant majority of Canadians do not believe that possession of marijuana should be legal.
I will now attempt to address the several issues raised by the applicants.
Fundamental Justice - The Harm Principle
With apparent reliance on the decision of the Supreme Court in Reference Re: s. 94 (2) of the Motor Vehicle Act (1985), 23 C.C.C. (3d) 289, it is the applicants' position that the illegal conduct causes actual harm before Parliament is entitled to legislate against that conduct. I could find no authority for that proposition and in any event I believe I have amply demonstrated that the consumption of marijuana does cause harm, albeit and perhaps not as much harm as was first believed. Reference may also be had to: R. v. Hinchey (1996), 111 C.C.C. (3d) 353; R. v. Audet (1996), 106 C.C.C. (3d) 481; R. v. Butler (1992), 70 C.C.C. (3d) 129; and Irwin Toy Ltd. v. Quebec (Attorney General) (1989), 58 D.L.R. (4th) 577.
Fundamental Justice - Arbitrariness
I believe it is the applicant's submission that it is a violation of
the principles of fundamental justice to create an arbitrary and legislative
classification in which marijuana is subject to the same legislative regime
as the harder drugs is answered by the passage of the Controlled Drugs
and Substances Act. In this Act marijuana is listed in a separate schedule
from the so-called hard drugs and the penalties for simple possession of
small amounts of marijuana have been significantly reduced. Given the actual
and potential harm which results from the consumption of marijuana, there
can hardly be any argument that its prohibition is arbitrary or irrational.
The applicants submit that the prohibition on the use and distribution of marijuana is overbroad in that (a) no meaningful exemptions are provided for legitimate medical use and (b) the legislation fails to make any meaningful distinction between personal and private acts of consumption or distribution and acts which form part and parcel of the illicit drug trade. I have already dealt with (a), finding that the applicants have no standing in that neither of them have need to consume marijuana for therapeutic purposes. With respect to (b) I believe the simple answer is that in certain circumstances the consumption of marijuana is harmful in a variety of respects. Furthermore, as many of the studies have indicated, further research is necessary to determine the long-range effects of marijuana consumption.
Fundamental Justice - Personal Privacy and Autonomy
I quote from a recent decision of the Supreme Court of Canada as follows:
Freedom of the individual to do what he or she wishes must, in any organized
society, be subjected to numerous constraints for the common good. The
state undoubtedly has the right to impose many types of restraints on individual
behaviour, and not all limitations will attract Charter scrutiny. On the
other hand, liberty does not mean mere freedom from physical restraint.
In a free and democratic society, the individual must be left room for
personal autonomy to live his or her own life and to make decisions that
are of fundamental personal importance. In R. v. Morgentaler,  1
S.C.R. 30, Wilson J. noted that the liberty interest was rooted in the
fundamental concepts of human dignity, personal autonomy, privacy and choice
in decisions going to the individual's fundamental being. She stated, at
While I was in dissent in that case, I agree with that statement.
B. (R.) v. Children's Aid, (1995) 1 S.C.R. 315 at 368-9 per Lamer, C.J. In my view, the critical words in the above quotations are "fundamental personal importance", "fundamental concepts of human dignity", "personal autonomy", "privacy and choice in decisions going to the individual's fundamental being". The therapeutic value of marijuana aside, it was generally agreed among the experts that, in the words of Dr. Morgan, marijuana is primarily used for occasional recreation. One might legitimately ask whether this form of recreation qualifies as of "fundamental personal importance" such as to attract Charter attention. In this regard, I quote from the Alaska decision at p. 502:
Few would believe they have been deprived of something of critical importance if deprived of marijuana.
Again, in the Bell decision at p. 133:
Finally, in Cunningham v. Canada, supra, I quote from the judgment of McLachlin J. at p. 498 where she says:
The Charter does not protect against insignificant or 'trivial' limitations
Reference may also be had to R. v. Cholette, a decision of the Supreme Court of British Columbia (Dorgan, J.) released March 23, 1993 and R. v. Hamon, a decision of the Quebec Court of Appeal, (1993), 85 C.C.C. (3d) 490. In both of these cases the prohibition against the cultivation and possession of marijuana was held not to infringe s. 7 of the Canadian Charter of Rights and Freedoms. I adopt the reasoning in both of these cases. For whatever significance it may have, in R. v. Hamon, leave to appeal to the Supreme Court of Canada was refused on January 27, 1994. While I have not referred specifically to all of the submissions and the case law, I have considered everything that was put before me and referred to only what I felt was necessary to reach my decision and explain my reasons.
All of the so-called decriminalized initiatives in the Netherlands, etc. were legislative initiatives, not court imposed. The changes requested by the applicants regarding simple possession and small-scale cultivation would constitute a completely different approach to the question and would in my view amount to an unwarranted intrusion into the legislative domain. Any changes to the Narcotic Control Act should be made by Parliament. The following quote from NORML v. Bell et al., supra, may be instructive:
Congressional action must be upheld as long as a rational basis still exists for the classification. The continuing questions about marijuana and its effects make the classification rational.
Furthermore, judicial deference is appropriate when difficult social, political and medical issues are involved. Courts should not step in when legislators have made policy choices among conflicting alternatives. That this court might resolve the issues differently is immaterial. "When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices." Marshall v. United States, 414 U.S. 417, 427, 94 S.ct. 700, 706, 38 L.Ed. (2d) 618 (1974).
Thus, this court should not substitute its judgment for the reasonable determination made by Congress to include marijuana under the C.S.A.
C.S.A. stands for Controlled Substances Act. In R. v. Heywood, supra, Cory J. says much the same thing at p. 524.
In further response to the submission that I should correct what is perceived by some to be an injustice, i.e. decriminalization of the possession of marijuana, because the Government has taken no action in this regard, I wish to quote from the judgment of McLung, J.A. in Vriend v. Alberta (1996), 132 D.L.R. (4th) 595 at 606:
When considering the assumption of legislative initiatives:
Rodriguez v. British Columbia (Attorney-General) (1993), 107 D.L.R. (4th) 342 at p. 392, 85 C.C.C. (3d) 15,  3 S.C.R. 519 (per Sopinka J.).) While he was addressing the limits of "fundamental justice" as employed in s. 7 of the Charter, Sopinka J.'s curial alert, which I have quoted, should not be artificially distinguished. It applies with equal, if not more, force when legisceptical Canadian judges decide to strike down constitutionally assembled laws in favour of their own, substituting their vision of the ideal statute in place of that which has been democratically endorsed by the electors;
and again at p. 607:
I commend a reading of the entire judgment which, in a brilliant manner,
delineates the relative roles of the legislature and the judiciary in relation
to our Constitution.
As I stated previously, the two questions required to be answered are (a) do the accused or either of them stand at risk of being deprived of their right to life, liberty and security, and, (b) if so, is that deprivation contrary to the principles of fundamental justice? Accepting that answer to (a) is yes, then clearly, for the reasons I have stated, the answer to (b) must be no. In other words, with respect to marijuana, the prohibition against the possession, possession for the purpose of trafficking, trafficking and cultivation do not infringe s. 7 of the Constitution.
The overwhelming weight of the evidence which I heard supports legislative controls over any scheme which might ease or remove the criminal sanctions for simple possession of marijuana. As I have already stated, with one exception, nowhere in the western world has trafficking, possession for the purpose of trafficking and cultivation been decriminalized, nor has there been any recommendation (save for one) that this should take place. As I have already pointed out, easing of restrictions on the possession and use of marijuana is within the domain of the legislative branch of government. I do not believe there is any dispute that this court has power only to declare that the Narcotics Control Act as it pertains to marijuana is either constitutional or it is not.
With the passage of the Controlled Drugs and Substances Act, the consequences of being convicted for possession of a small amount of marijuana has greatly eased. Furthermore, s. 717 of the Criminal Code now provides for "alternative measures" other than judicial proceedings. Thus, Parliament is moving away from the harshness of the penalties for possession of marijuana and perhaps, some day, they may adopt some of the measures which exist, for example, in Australia and which I do not believe would meet with much objection from an informed public.
Having found that the Narcotics Control Act as it pertains to marijuana does not infringe s. 7 of the Constitution, I am prepared to hear further evidence and/or submissions pertaining to the substantive charges.
DELIVERED ORALLY: August 14, 1997
Justice J.F. McCart
R. v. CLAY and PRENTICE
ADDENDUM TO THE JUDGMENT OF McCART J.
DATED AUGUST 14, 1997
CANNABIS COMMISSION REPORTS
A summary of the potential harms & benefits
Prepared by Chris Clay May 17, 1997
Report of the Indian Hemp Drugs Commission (India, 1893 1894)
*The excessive consumers then must be regarded as bearing but
a small proportion to the moderate - certainly
*Cannabis indica must be looked upon as one of the most important drugs of Indian Materia Medica. (p. 175)
*But long-continued smoking, whether of ganja or of any other
substance, doubtless results in the deposition
*The vast majority assert that in some one or other their forms
[cannabis] may produce at least temporarily
*The drugs are said to be cheering in their effects, and to be prized by many on this account. (p. 182)
*[T]here are very few witnesses who even profess to have any experience
of evil effects resulting from
*The truth seems to be that while, no doubt, these drugs are more
commonly consumed merely as stimulants
*The experience of our jails seems clearly to confirm the general
opinion that the opium habit takes a much
*In the absence of all physiological evidence of tissue changes
being produced by these drugs, as they are
*The medical evidence which has thus been analyzed very clearly
indicates in the opinion of the Commission
*The most striking feature of the medical evidence is perhaps
the large number of practitioners of long
*As in long-continued and excessive cigarette smoking considerable
bronchial irritation and chronic catarrhal
*Altogether it is clear that the moderate consumer is as a rule
perfectly inoffensive. There appear to be quite
*[A] majority of eight to one hold that moderate consumption of
these drugs has no connection with crime in
*There seems, therefore, good reason for believing that the connection
between hemp drugs and ordinary crime
*It has been clearly established that the occasional use of hemp
in moderate doses may be beneficial; but this
*In respect to the alleged mental effects of the drugs, the Commission
have come to the conclusion that the
*In regard to the moral effects of the drugs, the Commission are
of the opinion that their moderate use
*Viewing the subject generally, it may be added that the moderate
use of these drugs is the rule, and that the
The Marihuana Problem in the City of New York (The "LaGuardia
Report") (U.S.A., 1944) Reprinted in "The
*The confirmed marihuana smoker ... appears to be quite conscious of
the quantity he requires to reach the
*We have been unable to confirm the opinion expressed by some
investigators that marihuana smoking is the
*During our investigation many law enforcement officers, representing
various federal, state and local police
*The practice of smoking marihuana does not lead to addiction in the medical sense of the word. (p. 259)
*The use of marihuana does not lead to morphine or heroin or cocaine
addiction and no effort is made to create
*The publicity concerning the catastrophic effects of marihuana
smoking in New York City is unfounded. (p.
*[I]t is noteworthy that in none of the descriptions is there
found an expression of antagonism or antisocial
*Indulgence in marihuana does not appear to result in mental deterioration. (p. 312)
*It is important to note that neither the ingestion of marihuana
nor the smoking of marihuana cigarettes affects
*Under the influence of marihuana the basic personality structure
of the individual does not change but some
*Furthermore, those who have been smoking marihuana for a period
of years showed no mental or physical
*From limited observations on addicts undergoing morphine withdrawal
and on certain types of psychopathic
*The typical effects of marihuana on man are ascribed to actions
on the central nervous system. In dogs, the
The President's Commission on Law Enforcement and Administration
of Justice Task Force Report: Narcotics
*Its effects are rather complicated, combining both stimulation
and depression. Much of its effects depends on
*Marihuana is equated in law with the opiates, but the abuse characteristics
of the two have almost nothing in
*It might, but certainly will not necessarily or inevitably, lead
to aggressive behaviour or crime. The response
*The charge that marihuana "leads" to the use of addicting drugs
needs to be critically examined. There is
*In the United States neither cannabis psychoses nor cannabis dependency has been described. (p. 24)
*With regard to crime, other than the violation of law occurring
by virtue of acquiring and possessing
*With regard to traffic accidents, data is lacking. ... Effects
are no doubt related to dosage but no studies on
Cannabis: Report by the Advisory Committee on Drug Dependence (England, 1968)
*Because of the relatively rapid onset when the drug is smoked, experienced
smokers can adjust their dosage to
*The taking of cannabis does not normally result in any characteristic
physical effects except that of redness of
*The effects of cannabis use in moderate amounts are predominantly
psychological. They begin with a sense of
*Having reviewed all the material available to us we find ourselves
in agreement with the conclusion reached
*Witnesses knowledgeable about patterns of use told us that although
some people smoked every day without
*Several medical witnesses speculated that it had appeared to
be beneficial for young patients during
*It was generally agreed that it was dangerous to drive a motor
vehicle under the influence of cannabis not so
*Most observers discount any pharmacological action disposing
the cannabis-smoker to resort to other drugs,
*It can clearly be argued on the world picture that cannabis use does not lead to heroin addiction. (p. 13)
*Published statements on links between cannabis and crime tend
to confuse the consequences of enforcing
*In the United Kingdom the taking of cannabis has not so far been
regarded, even by the severest critics, as a
*Unlike the "hard" drugs, such as heroin, cannabis does not produce
tolerance. Consuming the same,
*An increasing number of people, mainly young, in all classes
of society are experimenting with this drug, and
*[I]n terms of physical harmfulness, cannabis is very much less
dangerous than the opiates, amphetamines and
Marihuana: A Signal of Misunderstanding, Report of the National
Commission on Marihuana and Drug Abuse
*No conclusive evidence exists of any physical damage, disturbances
of bodily processes or proven human
*These few consistently observed transient effects on bodily function
seem to suggest that marihuana is a
*Performance of simple or familiar tasks is at most minimally
impaired, while poor performance is
*When the nature of the drug-taking situation and the characteristics
of the individual are optimal, the user is
*The incidence of psychiatric hospitalizations for acute psychoses
and of use of drugs other than alcohol is not
*Another controversial form of social-mental deterioration allegedly
related to very long-term very heavy
*Looking only at the effects on the individual, there is little
proven danger of physical or psychological harm
*The experimenter and the intermittent users develop little or
no psychological dependence on the drug. No
*Rather than inducing violent or aggressive behaviour through
its purported effects of lowering inhibitions,
*No evidence exists that marihuana use will cause or lead to the
commission of violent or aggressive behaviour
*The Commission's National Survey revealed that 48% of adults
believe that some people have died from
*In all its studies, the Commission found no evidence of chromosome
damage or teratogenic or mutagenic
*From a public health point of view, the immediate effects of
marihuana intoxication on the individual's organs
*Minimal abnormalities in pulmonary function have been observed
in some cases of heavy and very heavy
*No objective evidence of specific pathology in brain tissue has
been documented. This contrasts sharply with
*No outstanding abnormalities in psychological tests, psychiatric
interviews or coping patterns have been
*Whichever interpretation one accepts, the fact is apparent that
the chronic, heavy use of marihuana may
*Marihuana clearly is not in the same chemical category as heroin
insofar as its physiologic and psychological
*Indeed, if any drug is associated with the use of other drugs,
including marihuana, it is tobacco, followed
*[T]he largest number of marihuana users in the United States
today are experimenters or intermittent users,
*We believe that experimental or intermittent use of this drug
carries minimal risk to the public health, and
*In short, aside from his use of marihuana, the adult recreational
user is not generally viewed as a significant
*Scientific evidence has clearly demonstrated that marihuana is
not a narcotic drug, and the law should
Cannabis: A Report of the Commission of Inquiry into the Non-Medical
Use of Drugs (The "Ledain
*Cannabis has been widely used in many cultures for its medicinal
properties. Cannabinoids have been used in
*In all, it would seem likely that under some conditions, cannabis
might have adverse effects on driving, and
*[T]here is no evidence from available experiments for the notion
that social cannabis use produces a
*[S]urveys of hospital admissions and resident patients in North
America have uncovered an almost
*Major governmental inquiries around the world for three-quarters
of a century have come to generally similar
*Cannabis has exceptionally low lethal toxicity. Few, if any,
human deaths have been caused directly by
*Respiratory and bronchial disorders will probably result from
heavy chronic smoking of many crude
*There is little indication ... that that physical dependence
on cannabis is a likely phenomenon under natural
*On the whole, the physical and mental effects of cannabis, at
the levels of use presently attained in North
*We are in general agreement that the regular use of cannabis
by adolescents has, in all probability, a harmful
*There is no evidence that the use of cannabis has been a significant
cause of automobile accidents, but at
*The evidence of "personality change" of the kind referred to
as the "amotivational syndrome" resulting from
*The theory that cannabis leads to heroin because the vast majority
of heroin users are found to have used
*There has been little evidence in Canada to support an association
of cannabis with crimes of violence. Nor is
Cannabis: A discussion paper by the Royal Commission into the
Non-Medical Use of Drugs (South Australia,
*It is now clear that cannabis is not a narcotic. While this misclassification
was not necessarily deliberate,
*Despite earlier evidence, there is now very little doubt that
with sufficient quantities and a regular and
*Physical dependence on a drug can be determined by a withdrawal
syndrome if the drug is no longer
*[T]here is certainly no over-riding compulsion to obtain the
drug, regardless of the cost, as there is with
*There have been no documented cases of human fatality which can
clearly be attributed to the acute effects of
*Pharmacologically, THC has a very wide margin of safety - that
is, there is a huge difference between the
*Unlike alcohol, cannabis is not accompanied by a hangover - there
is no 'morning after' effect other than a
*The general effects of cannabis can be described as producing
a state of well-being, relaxation and sedation.
*To date the most promising avenue for the medical use of cannabis is in the treatment of glaucoma. (p. 116)
*Several researchers have described the effects of THC on dilating
the main respiratory tubes, thus suggesting
*Cannabis has a long history of use as an analgesic and in recent
studies with experimental animals, THC has
*THC has been found to be effective in reducing the incidence
of nausea and vomiting associated with the
*A number of studies have been concerned with the effects of cannabis
on those motor and mental skills
*South (1978) suggests that drivers under the influence of cannabis
can compensate for the drug's decremental
*The use of cannabis by narcotics addicts does not prove a causal
relationship between the use of cannabis and
*The belief that cannabis causes crime emerged in the 1930's.
... It was strengthened by propaganda, new penal
*At present, it can be said that it is perfectly possible to use
cannabis in low doses intermittently without any
*[T]he amotivational syndrome appears to be more of a result of
observer bias than a real entity. ... Attempts to
*To date there is no evidence for an increased incidence in cannabis
users of those diseases that would be
Report of the National Task Force on Cannabis (Australia, 1994)
*While concern has been expressed at the possibility of marijuana
'flashbacks' resulting from the gradual
*The acute toxicity of cannabis is very low, and there are no
confirmed cases of deaths from cannabis overdose
*It is difficult to estimate the magnitude of risk of being involved
in motor vehicle accidents due to cannabis
*At present, there is no conclusive evidence that consumption
of cannabis by humans causes major
*Chronic heavy cannabis smoking may cause symptoms of chronic
bronchitis, such as coughing, sputum and
*Concern has been raised by some case reports of cancers of the
mouth, throat and airways of young adults
*It is uncertain whether its use during pregnancy causes a slightly
increased risk of birth defects, but until this
*Although strong conclusions cannot be drawn, there is suggestive
evidence from some older American studies
*The evidence for the existence of an amotivational syndrome resulting
from chronic heavy cannabis use is
*A cannabis dependence syndrome probably occurs in some chronic
heavy users of cannabis. Tolerance to
*Long term heavy cannabis use does not appear to produce severe impairment of cognitive function. (p. 16)
*There is no reliable evidence suggesting that chronic heavy cannabis
use leads to gross structural changes in
*THC has been shown to be an effective anti-emetic (anti-nausea)
agent for some patients undergoing cancer
*There is reasonable evidence for the efficacy of THC in the treatment
of glaucoma, especially in cases which
*There is suggestive evidence for the value of various cannabinoids
as anti-spasmodic and anti-convulsant
*There is need for further research into the effectiveness of
cannabis and its derivatives in assisting patients
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