ONTARIO COURT (GENERAL DIVISION) (Southwest Region)

HER MAJESTY THE QUEEN respondent

and

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:

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 justice.

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;

2. Whether it is a violation of the principles of fundamental justice for
Parliament to maintain an existing criminal sanction in the face of calls
for reform from the majority of Canadians and from a Commission of Inquiry
established by Parliament to examine and assess the various claims which
have been made respecting the social and medical harms associated with the
consumption of cannabis sativa;

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.

During the course of the trial, on May 14, 1997 the Narcotic Control Act
was repealed and was replaced by the Controlled Drugs and Substances Act.
It is interesting to note that sativa L no longer appears in the Schedule
to that Act. Accordingly, I find no merit in the argument of the accused
and find that the Crown has proved the charge beyond a reasonable doubt.

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:

Persons using this narcotic [marihuana], smoke the dried leaves of the
plant, which has the effect of driving them completely insane. The addict
loses all sense of moral responsibility. Addicts to this drug, while under
its influence, are immune to pain, and could be injured without having any
realization of their condition. While in this condition they become raving
maniacs and are liable to kill or indulge in any form of violence to other
persons, using the most savage methods of cruelty without, as said before,
any sense of moral responsibility .... If this drug is indulged in to any
great extent, it ends in the untimely death of its addict.

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.

The Netherlands

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.

The consumption of marijuana in The Netherlands is substantially lower than
that in the United States. Current use by high school students in The
Netherlands is much lower than use in the United States (5.4% vs. 29%
respectively).

Germany

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.

Spain

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.

Italy

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.

Australia

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;

2. There exists no hard evidence demonstrating any irreversible organic or
mental damage from the consumption of marijuana;

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.

Harmful Effects of Marijuana and the Need for More Research

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:

I must dissent from the recommendation of the majority of my colleagues and
recommend that the prohibition on the possession of cannabis be maintained,
for the time being at least. Possession of cannabis should be punishable,
upon summary conviction, by a fine of $25 for the first offence and by a
fine of $100 for any subsequent offence. This recommendation is not too
dissimilar from the present law under the ControlIed Drugs and Substances Act.

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 is respectively submitted that the failure to draw a meaningful and
operative distinction with the Narcotic Control Act between private "vice"
and the business of encouraging, promoting and profiting from the activity
for commercial purposes is inconsistent with the modern legislative
approach to consensual crime and does not serve a valid legal objective, By
widening the net this broadly, the offences contained in the Narcotic
Control Act go well beyond serving a valid state objective (i.e. combatting
the social evils of the black market drug trade) and serve to promote a
form of "legal moralism" which has been frowned upon by the Supreme Court
of Canada.

Furthermore, in his submissions Mr. Young agreed that Parliament has a
right to intervene in the commercial trade and the black market trade in
marijuana.

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:

Subject to its constitutional principles and the basic concepts of its
legal system, each party shall adopt such measures as may be necessary to
establish as a criminal offence under its domestic law, when committed
intentionally, the possession, purchase or cultivation of narcotic drugs or
psycho-tropic substances for personal consumption contrary to the
provisions of the 1961 convention, the 1961 convention as amended, or the
1971 convention.

However, Article 3 and 4(c) provides:

Notwithstanding the preceding paragraphs, in appropriate cases of a minor
nature, the parties may provide, as alternatives to conviction or
punishment, measures such as education, rehabilitation or social
re-integration, as well as, when the offender is a drug abusers, treatment
and after care.

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.

Fundamental Justice - Overbreadth

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, [1988] 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 p. 166:

Thus, an aspect of the respect for human dignity on which the Charter is
founded is the right to make fundamental personal decisions without
interference from the state. This right is a critical component of the
right to liberty. Liberty, as was noted in Singh, is a phrase capable of a
broad range of meaning. In my view, this right properly construed, grants
the individual a degree of autonomy in making decisions of fundamental
personal importance.

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:

Private possession of marijuana....cannot be deemed fundamental.

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
of rights.

On the basis of my findings, there can be no doubt that the Narcotic
Control Act addresses a concern which is national in scope and in my view
it falls within the competence of the Parliament of Canada as affecting the
peace, order and good government of Canada.

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:

...the court must be conscious of its proper role in the constitutional
makeup of our form of democratic government and not seek to make
fundamental changes to long-standing policy on the basis of general
constitutional principles and its own view of the wisdom of legislation. On
the other hand, the court has not only the power but the duty to deal with
this question if it appears that the Charter has been violated... The
principles of fundamental justice leave a great deal of scope for personal
judgment and the court must be careful that they do not become principles
which are of fundamental justice in the eye of the beholder only.

Rodriguez v. British Columbia (Attorney-General) (1993), 107 D.L.R. (4th)
342 at p. 392, 85 C.C.C. (3d) 15, [1993] 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:

While any legislative product touching governmental activity is, of course,
now subject to Charter scrutiny under its ss. 32 and 52 [Constitution Act,
1982], the practice of judicially upgrading that product should be strictly
disciplined. This is because of the spectre of constitutionally hyperactive
judges in the future pronouncing all of our emerging rights laws and
according to their own values; judicial appetites, too, grow with the
eating. Equally undesirable is the prospect of Canada's legislators,
painfully aware of later electoral rejection for backing the wrong
political horses, further acquiescing in the growing (and painless)
expedient of shipping awkward political questions to the judiciary for
decision, thus reserving to themselves the privilege of possible later
disclaimer.

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.

Conclusions

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