July 2003

Presented at the University of Western Ontario's Summer Conference for Student Legal Clinics.

Disclaimer: This article was written in order to provide information only and should not be relied upon as legal advice. Detailed legal advice should be obtained which will be appropriate for the specific circumstances of your matter. (Copyright and Disclosure).

THE PRESENT STATE OF THE LAW

History

The history of drug legislation in Canada began in 1908 with the passing of the Opium Act, S.C. 1908, c.50. This Act was a reaction to the fear of harm posed by opium to Canadian society. In 1911, Parliament replaced this Act with a second generation Act titled the Opium and Drug Act, S.C. 1911, c.17 which, in addition to opium, also prohibited cocaine, morphine, and eucaine. In 1923, a consolidated version of this Act was passed which added “Cannabis Indica (Indian Hemp) or Hasheesh” to the Schedule of prohibited substances. The addition of Cannabis to the regulations to the 1923 Act occurred apparently without any debate or discussion in the House, beyond a single comment of the Minister of Health which was captured in Hansard: “[t]here is a new drug in the schedule”.

The addition of marijuana to the list of prohibited substances was apparently based on the rising tides of alarmist and reactionary claims about the dangerous nature of marijuana. In particular, Emily F. Murphy, a magistrate from Edmonton wrote a series of articles in Macleans magazine under the pen name of “Janey Canuck”. An example of this judicial officer’s balanced reporting and careful research is found in a collection of her articles:

"The [marijuana] addict loses all sense of moral responsibility. Addicts to this drug, while under its influence, are immune to pain, and could be severely injured without having any realization to their condition. While in this condition they becoming [sic] 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."

The perceived horrors of marijuana use became all the more clear in the 1930’s with what might be viewed as the first American “War on Drugs” which was prosecuted by Mr. H. J. Anslinger, United States Commissioner of Narcotic Drugs. The hot air of American drug rhetoric characteristically rose northward. A review of Hansard from the 1930’s reveals discussions in the House of Commons about the “marijuana menace”.

The apparent danger posed by marijuana was not lost upon the Courts. In a 1937 marijuana possession case, a B.C. trial judge stated:

"This narcotic is now commonly used in the form of cigarettes, being comparatively new to the United States and still rarer in Canada and it is as dangerous to youth as a rattlesnake. [H.J. Anslinger] states that murders, suicides, robberies, criminal sexual assaults, hold-ups, burglaries and deeds of maniacal insanity are yearly being caused by the use of this deadly narcotic drug."

In 1954, the statute was again amended with an emphasis on combating drug trafficking. The prohibition against possession remained. The penalty provisions indicated a mandatory sentence of six months imprisonment for simple possession. The discretionary penalty of hard labour or a whipping was removed.

Again in 1961, the legislation was overhauled. The Parliament passed the first version of the Narcotic Control Act, S.C. 1960-1, c.35. The six month minimum penalty was removed, but the upper end penalty for marijuana possession was increased from 2 to7 years. With an apparent societal attitudinal shift in the 1960’s, the Narcotic Control Act was amended in 1967 to make marijuana possession a hybrid offence, with a maximum penalty of six months imprisonment. Within seven years, the offence was transformed to being one with a minimum sentence of six months imprisonment, to an offence with a maximum sentence of six months imprisonment.

In 1974, the Liberal government of the day introduced legislation which sought to remove the possibility of penal sanction from the offence of simple possession of marijuana. The Bill (Bill S-19) withered on the vine but the policy direction sputtered haltingly forward. The throne speech at the beginning of the 32nd Parliament in 1980 proclaimed the following: “It is time…to move cannabis offences to the Food and Drugs Act and remove the possibility of imprisonment for simple possession.”

Notwithstanding this reasonably clear statement of intention, the government of the 1980’s and 1990’s did not remove the penal sanction associated with marijuana possession. The offence continues carry a maximum 6 month term of imprisonment. Imprisonment for marijuana possession remains a very real possibility. As recently as six months ago, an Ontario Court Justice in Stratford was known to sentence youths without criminal antecedents to sentences of imprisonment for simple possession of small amounts of marijuana.

The Prohibition

The present prohibition against the possession of marijuana is found at s.4 of the Controlled Drugs and Substances Act (“CDSA”). The section is somewhat complex as it incorporates by reference a number of Schedules that are appended to the CDSA.

A summary of the section begins with the simple observation that the possession of marijuana is prohibited. The purpose of the possession and quantity of the substance found in the possession of the accused determines the penalty. Where marijuana is possessed other than for the purpose of trafficking (so called “simple possession”) in a quantity that is under one gram of cannabis resin, or 30 grams of Cannabis (marijuana), the offence is a straight summary conviction offence which carries a maximum sentence of six months imprisonment and/or a fine of $1000.00. Where the possession is in an amount over one gram of resin or 30 grams of marijuana, the offence is a hybrid offence. If the Crown elects to proceed by indictment, the maximum sentence is imprisonment of up to five years less one day. Where the Crown proceeds by summary conviction, the maximum sentence is six months imprisonment and/or a $1000 fine. Where the Court is dealing with a second or subsequent offence, the statutory maximum increases to one year and/or a $2000 fine.

Access to Marijuana for Medical Purposes

As is apparent from recent media reporting, the dyke of legislation holding out the menace of Reefer Madness is leaking heavily. One of the early holes in the ramparts was made by the Ontario Court of Appeal decision in R v. Parker. In this case, Terrence Parker, a person who suffered from a very severe form of epilepsy for over 40 years, brought an application under s.7 of the Charter for a stay of proceedings on the basis that his right to life, liberty and security of the person had been infringed by the absolute prohibition against the possession of marijuana found in s.4 of the CDSA. The trial court stayed the proceedings on the basis of a s.7 infringement, and the state appealed. In a very thorough and well reasoned decision, Rosenberg J.A., speaking for the Ontario Court of Appeal stated, “Using a criminal prohibition to bar access to a drug for a person, such as Parker, who requires it to treat a condition that threatens his life and health, is antithetical to our notions of justice.” In its conclusion the Court indicated the following:

"...the deprivation of Parker’s rights to liberty and security of the person because of the complete prohibition on the possession or cultivation of marijuana in the former Narcotic Control act does little or nothing to enhance the state’s interest. In my view, Parker established that his rights under s.7 were violated by the absolute prohibition on cultivation of marijuana in the Narcotic Control Act…I am also of the view that, subject to the availability of a s.56 exemption, Parker has established that the similar prohibition on possession and cultivation of marijuana in the Controlled Drugs and Substances Act violates his rights under s.7 of the Charter. Again, since, strictly speaking, the possession offence is the only provision at issue under that Act, it is unnecessary to consider the validity of the cultivation offence."

In response to its finding of a s.7 Charter violation which was not saved by s.1, the Court declared s.4 of the CDSA invalid. The court disagreed with the trial judge’s use of the remedy of reading in a medical exemption under the CDSA. Notwithstanding the declaration of invalidity, the Court suspended the declaration of invalidity for a period of 12 months from the release of the reasons to give Parliament the opportunity to “fill the void”.

In response to the Parker decision, Parliament did act to fill the void. Regrettably, however, instead of enacting a new section of the CDSA, the executive, through its regulation making powers, proclaimed the Medical Marijuana Access Regulations (“MMAR”). The MMAR set up a labyrinthine process by which a person with a qualifying illness can apply for an authorization to possess and/or produce marijuana. Among other things, the MMAR designated an official supplier who would be assigned the task of growing marijuana and producing seeds for those licensees who were inclined to grow marijuana themselves. Under a five year, 5.7 million dollar government contract, Prairie Plant Systems Inc. (“PPS”) was contracted to grow marijuana hydroponically in an abandoned mine in Flin Flon, Manitoba. The first shipment to Health Canada was scheduled for January 2002. Much to the amusement of marijuana growers and smokers nation wide, PPS had numerous problems achieving the required consistency of THC production in its plants, and the supply of medicinal marijuana was significantly delayed.
The Parker decision was also important in providing a foundation to a follow on case in the Alberta Court of Appeal. In this case, styled as R. v. Kreiger , the Alberta Court of Appeal adopted the Parker reasoning, and struck down s.7(1) of the CDSA as it related to the unlawful production of marijuana. In making its finding, the Court seized upon the absurdity created by s.56 of the CDSA (granting an exemption to the possession prohibition):

"Obtaining a s.56 exemption from the Minister of Health triggers the absurdity that an individual who has been granted an exemption has the legal right to product, possess, and use cannabis marihuana. However, in order to obtain the product, that individual is required to participate in an illegal act, since whoever sells the exempted person either the raw cannabis marihuana or the seeds to grow their own, does so in breach of s.5(2) of the CDSA."

As in the Parker decision, the declaration of invalidity in Kreiger was suspended for a period of one year. It will expire on December 4, 2003.

Upon their proclamation, the MMAR were immediately attacked on a variety of fronts. In the case of Wakeford v. Canada , the applicant suffered from AIDS and required marijuana to combat wasting syndrome and nausea. In his application, Mr. Wakeford sought an order exempting his caregivers from the trafficking provisions of the CDSA so they might supply him with marijuana without the prospect of criminal charges being laid against them. He also sought an order compelling the government to provide him with a safe and affordable supply of marijuana. The Superior Court denied his application, and he appealed. The Ontario Court of Appeal, for reasons that are somewhat technical in nature, also denied the relief sought on the basis that s.56 of the CDSA contained a provision which allowed Mr. Wakeford to seek an exemption of the nature sought for his caregivers. With respect to his request for an order compelling the government to provide marijuana, the Court reviewed the record below. It seemed to take notice of the efforts made by the government to produce an appropriate supply. The court also noted that Wakeford appeared experienced and knowledgeable about marijuana production and about the potential dangers associated with purchasing marijuana from his suppliers. Ultimately, the Court found no s.7 Charter violation.

The Wakeford case, however, was followed up by the case of Hitzig v. Canada. In this case, the Applicants (including Terrence Parker), sought a declaration that the MMAR were invalid as violating s.7 of the Charter. The essence of the argument was that the MMAR contained so many barriers to gaining access to marijuana for medical use that marijuana effectively remained unavailable to many seriously ill individuals. They also argued that the MMAR effectively forced those who were authorized to possess marijuana to engage in black market and unlawful dealings. In considering these arguments, the court expressly distinguished the earlier Wakeford case on the basis that the case at bar showed a direct and properly constituted attack upon the constitutionality of the MMAR by persons whose own interests were engaged. Ultimately, the court accepted the Applicants’ position concerning the failure of the state to provide an adequate supply:

"Laws which put seriously ill, vulnerable people in a position where they have to deal with the criminal underworld to obtain medicine they have been authorized to take, violate the constitutional right to security of the person. The MMAR expose the applicants, who all have serious medical conditions, to further risk to their personal safety. Not only do they face the risks associated with consorting with criminals, and the possibility of prosecution should they breach the terms of their ATP or production licence, but they have to deal with the uncertain quality of the product they are getting on the street."

In the result, the Court declared the MMAR invalid, but suspended the declaration of invalidity for six months to allow the state sufficient time to secure the supply of marijuana to those approved under the MMAR. This case is presently under appeal. The Ontario Court of Appeal is set to hear the case on July 29, 2003. Notwithstanding the pending appeal, the suspended declaration of invalidity was set to expire on July 10, 2003. On July 9, 2003, the Canadian government became one of the world’s largest traffickers of marijuana when it announced its Interim Policy for the Provision of Marihuana Seeds and Dried Marihuana Product for Medical Purposes in Canada. According to this policy, dried marijuana will be supplied to approved users at a cost of $5 per gram, with 30 seeds being provided at a cost of $20. Dried marijuana will be packaged in 30 gram bags at a cost of $150 each. According to a Health Canada news release, some 370 kilograms of marijuana was produced, with 50 kilograms already packaged and ready for shipping.

The Possession and Cultivation Prohibitions are Invalid

As previously indicated, on the heels of the Parker decision, the federal government set a plan in place to provide medical marijuana. The cornerstone of this plan was the MMAR, which were proclaimed within the 12 month suspension of invalidity that the Ontario Court of Appeal allowed. Much to the chagrin of the government, however, a hard charging young Windsor defence lawyer named Brian McAllister took up the charge against the validity of s.4 of the CDSA on the basis that the federal government’s proclamation of the MMAR was not an appropriate response to the Court of Appeal’s declaration of invalidity. This argument was essentially formed on the basis that Regulations are subordinate legislation, and are enacted by the executive branch, not the legislative branch. Since s.4 was legislation that was itself struck down, the enactment of regulation did not address the legislative gap created by the Court of Appeal.

The matter came before the Ontario Court of Justice during the trial of a young person , J.P., who faced a marijuana possession charge. In a decision dated January 2, 2003, the Ontario Court of Justice in Windsor held that since the federal government failed to enact legislation to replace the invalid s.4 of the CDSA within the 12 month suspension period, there was no prohibition known to law which disallowed the possession of marijuana. The case was immediately appealed by the Crown to the summary conviction appeal court in Windsor. In a decision dated May 16, 2003, the summary conviction appeal court upheld the lower court and declared that the information before it did not disclose an offence known to law. Since the J.P. decision was a decision of the summary conviction appeals court, it is deemed to be binding upon all trial courts in Ontario.

Initially, local courts appeared receptive to the Federal Crown’s application to stay proceedings (presumably with an intention to bring the proceedings back on after a successful appeal of the J.P. decision). The Crown’s argument was generally based on an assertion that the case was being appealed, and that the Crown was seeking a stay of the effect of the summary conviction appeal judgment. This argument wilted upon the decision of Charron J.A. who heard the Crown’s stay application and declined to allow it on the basis that in the application, the Crown was essentially seeking to stay the doctrine of stare decisis. In the face of this decision, it would appear that the general practice at the time of writing is that the Court will quash all s.4 charges presented on the basis that the information contains no offence known to law. The appeal from the summary conviction appeals court to the Court of Appeal in J.P. was expedited, and will be heard later in the summer of 2003.

THE FUTURE OF MARIJUANA POSSESSION IN CANADA

Judicial Recognition of Balance of Harms

It seems likely, on the basis of the direction the law is traveling in Ontario and other jurisdictions that the criminal prohibition against the possession of small amounts of marijuana will soon become a further chapter in the history of this drug’s regulation. Public opinion polling appears to support the notion that a significant percentage of the Canadian population favours decriminalization of marijuana possession.

In her most interesting reasons in the case of R v. Schedel , Justice Southin of the British Columbia Court of Appeal squarely put her views on this topic on the record. The case concerned a constitutional infringement following a raid on a marijuana grow operation in which the police failed to follow appropriate procedures relating to the “knock and notice” process required when executing a search warrant. The evidence was excluded as a result of a serious breach by the police. In that case, Southin J.A. stated:
While at one time I accepted the received wisdom that marihuana offences were serious crimes, I now am of a different opinion…I have not yet abandoned my conviction that Parliament has a constitutional right to be hoodwinked, as it was in the 1920’s and 1930’s by the propaganda against marihuana, and to remain hoodwinked. The growing, trafficking in , and possession of marihuana is the source of much work not only for peace officers but also for lawyers and judges. Whether that work contributes to peace, order and good government is another matter…I have been driven to the conclusion that, in the eyes of those who led not only their own country but also this country into making criminals of those who are no better or worse, morally or physically, than people who like a martini, marijuana was the first weapon of mass destruction.

When a Justice of a Court of Appeal is prepared to put comments of this nature in her judgment, it is probably fair to conclude that we are nearing the point when the collective is prepared to abandon historical misconceptions and move towards a somewhat more rational approach to this issue.

Legislating the Problem Away

Indeed perhaps the best support for the notion that the criminal sanction is not the most appropriate tool to address marijuana possession is found in the Parliament’s recent tabling of Bill C-38. Bill C-38 is titled “An Act to amend the Contraventions Act and the Controlled Drugs and Substances Act”. The Bill has received first reading in the House of Commons.

The essence of the Bill is that it aims to replace s.4 of the CDSA with a new legislative scheme that moves simple possession of small amounts of marijuana from being a “criminal offence” to being an offence under the Contraventions Act.

The proposed legislative scheme provides that for very small possession amounts of cannabis resin (under one gram), the offence will be a summary conviction offence, and the offender will be subject to a maximum $300 fine ($200 if the offender is a young person).

Where the possession relates to marijuana, and the amount of possession is not more than 15 grams, the offence will be a summary conviction offence, and the offender will be subject to a maximum $150 fine ($100 if the offender is a young person).

Where the possession of less than one gram of resin or less than 15 grams of marijuana occurs in three “aggravating” circumstances, the maximum fine amount is elevated to $400 ($250 for a young person). The three aggravating circumstances are:

1. Where the possession occurs when a person is operating a motor vehicle;

2. Where the possession occurs when a person is committing an indictable offence; and

3. Where the possession occurs “in or near” a school that is attended primarily by persons under the age or 18 years, or on or near the grounds of such a school.

In circumstances where the possession is of an amount between 15-30 grams, the proposed legislation creates a hybrid offence in which the Crown can proceed either by summary conviction with a maximum $1000 fine and/or six months in jail, or by way of a contravention under the Contraventions Act.

Subsection 4(9) of the proposed Act provides that the offences set out can be prosecuted as contraventions under the Contraventions Act. The significance of moving these offences under the Contraventions Act is that this Act expressly indicates that it exists for the purpose of recognizing a distinction between criminal offences and regulatory offences, and is intended to abolish the consequences at law of being convicted of a contravention. The Contraventions Act provides the offences prosecuted through the Act are not criminal offences, and that a conviction under the Act is not an offence for the purpose of the Criminal Records Act. Indeed the Contraventions Act makes it an offence to use or authorize the use of an employment application form that requires an applicant to disclose a conviction for a contravention offence. Under this proposed scheme the offence of marijuana possession would not be subject to the stigma of a criminal conviction, nor would such a conviction carry with it the significant negative effects of having a criminal record. Clearly then, the Bill represents an effort on the part of the government to decriminalize marijuana possession. Whether or not decriminalization represents a sufficient solution to the issues presented remains another question for another day.

The Bill also contains new provisions respecting cultivation offences. These provisions are designed to differentiate between a small, personal use marijuana grow operation (not more than three plants), a small grow operation (4-25 plants), a medium grow operation (26-50 plants), and an industrial sized grow operation (over 50 plants). The maximum jail terms are 1 year, 18 mo/5 years (depending on Crown election), 10 years, 14 years respectively. These amendments are intended to align the cultivation section with the possession section and yet at the same time represent a “get tough” approach to large scale marijuana grow operations. By these amendments, the maximum penalty for cultivation is effectively doubled from the presently enacted maximum penalty of seven years.

From a “balance of harms” perspective, however, this proposed amendment is somewhat inconsistent. If one accepts the proposition that “decriminalizing” possession of marijuana is at least in some part a recognition of the pervasive use of the drug, coupled with an acknowledgement of the relatively limited harm associated with marijuana use, the coupling of a potential jail term of one year with the criminal sanction for growing what could only be a personal use amount (i.e. up to 3 plants) seems strange. Instead of recognizing the legitimate distinction between personal use and trafficking for profit, this drafting creates a behaviour optimizing incentive for marijuana users who are intent upon avoiding the criminal sanction to interact with an inherently organized criminal element (i.e. a marijuana grower/trafficker) in order to obtain a source of the drug. In so doing, it concurrently supports those criminals who are sufficiently organized to grow, market, and sell marijuana. One might suggest that the more organization that is required to commit the offence (and the greater profits available), the more likely it is that “organized crime” would be involved in the supply side chain. A more consistent and rational policy aimed at minimizing these deleterious impacts would be to also make the 3 plant maximum cultivation provision found in s.6(2) of the Bill a Contraventions Act offence, while at the same time strengthening penalties for trafficking, possessing for the purpose of trafficking, and cultivating marijuana on a large scale. This would allow a person intent upon merely using marijuana to produce the substance without fear of criminal sanction, and without forcing citizen interaction with the criminal element.

The bottom line is that marijuana consumption in Canadian society is here to stay. The present situation seems to cry out for a legislative solution that is rational, consistent and logical and which aims to minimize the stigma and repercussions associated with marijuana possession while concurrently eliminating incentives for criminal profiteering as a result of trafficking and cultivation. Bill C-39 is an important first step in the right direction – a direction that public opinion and the courts seem increasing motivated to support.