Pubdate: 14 Aug 1997
Source: Canadian Foundation for Drug Policy
Author: J.F. McCart, Justice
Note: MAP is archiving  the lower court ruling in the Chris Clay 
Constitutional Challenge to preserve this important documents.
Bookmark: (Clay, Chris)





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 

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 

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 

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% 


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;

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 

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 

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 

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 

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 

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 

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 

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 

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