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REGINA vs. SMITH Part 3

By Hempology | February 6, 2006

MR. FOWLER: The Crown has a total of four witnesses, two of those are police officers; one is a retired police officer; the other is a civilian.
THE COURT: What is the Crown’s estimate of leading the evidence in chief?
MR. FOWLER: I would think it would be reasonably brief. I had estimated earlier that I could certainly do it within a day depending, of course, on the length of my friend’s cross-examination.

THE COURT: Right.
MR. MOORE-STEWART: I don’t think my cross-examination is going to be overly lengthy for the Crown witnesses quite frankly.

[RULING RE DEFENCE APPLICATION TO CALL ANALYST]

THE COURT: Now is that going to disrupt any scheduling or planning, Mr. Fowler, that ruling?
MR. FOWLER: I don’t believe so, My Lord. I had canvassed briefly with the analyst in question whether he was available for the trial dates. He said that at the time I spoke with him he saw no conflict. So he hasn’t officially been notified, but I’ll do that as soon as I can today.
THE COURT: All right.
MR. FOWLER: And hopefully that won’t cause any problems.
THE COURT: All right. Mr. Moore-Stewart, that concludes an explanation of my ruling on your application and the reasons therefore.
MR. MOORE-STEWART: Yes.
THE COURT: Is there anything else I need to deal with?
ExMR. MOORE-STEWART: There is the issue of our Constitutional Question ??
THE COURT: No, just on your application?
MR. MOORE-STEWART: No.
THE COURT: All right. That is the ruling.
All right. This seems a convenient time to give Madam Clerk the midmorning recess, gentlemen, and we’ll reconvene in 15 minutes.
Thank you, Sheriff.

(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)

THE COURT: Yes ??
MR. MOORE-STEWART: Yes, Your Honour.
THE COURT: — Mr. Moore-Stewart?
MR. MOORE-STEWART: At this point it would be my intention to call as an expert witness the defendant Leon Edward Smith. Again, I would be seeking to certify him as an expert in the medical and other beneficial effects of cannabis, and an expert in the public opinion on medical marihuana, and the public view of the effect of cannabis laws upon society, and their disproportionality.
MR. FOWLER: My Lord, before we get that far I think it is incumbent upon my friend to provide some foundation, first of all, for the necessity for calling an expert in those areas in the first place.
cerpt (?)MR. MOORE-STEWART: The ??
THE COURT: Just a moment, Mr. Moore-Stewart.
Yes, Mr. Fowler?
Just a moment.
MR. FOWLER: As we had discussed on the telephone conference prior I think the agreed upon method here was going to be to simply ?? for Mr. Moore-Stewart and myself to put forward the facts as we anticipate them to be adduced at trial, and then, of course, argue based upon those assumed facts.
I’m happy if my friend wants to do that and ?? and show why it is that Mr. Smith’s expert evidence would be necessary for this application.
MR. MOORE-STEWART: There is an affidavit of Mr. Smith that ?? has that come to the purview of the court?
THE COURT: Pardon me?
MR. MOORE-STEWART: Do you have before you the affidavit of Mr. Smith?
THE COURT: I do so.
MR. MOORE-STEWART: And it attaches his resume and ??
THE COURT: Okay. Just a minute. Why do we need to hear viva voce testimony?
MR. MOORE-STEWART: I believe that his expertise would enable you to ?? like to rule on issues in the Constitutional Question notice.
First of all, my friend makes reference to, I gather, some agreed statement of facts that I have never seen, and the ??
MR. FOWLER No, I didn’t make reference to an agreed statement of facts ??
THE COURT: No.
MR. FOWLER: — My Lord, I think I said exactly the opposite, my friend and I were free to allege the facts as we anticipate ??
THE COURT: Right.
Post StMR. FOWLER: — they will come out so ??
atus (?)MR. MOORE-STEWART: Okay. Well, my specific instructions are to make no admissions at all, so I ?? I don’t know what I’m going to deal with ?? with that, other than the fact that Mr. Smith wants to come forward to speak to the issues of the Constitutional Question notice, a number of them are issues than an expert in the areas in which I seek to qualify him would be able to speak to as to ?? he talks in his section ?? in the section 7 arguments about the ?? let me just find them.
THE COURT: Now what’s ?? what’s he going to tell me ??
MR. MOORE-STEWART: Paragraph 3.
THE COURT: — that you can’t tell me?
DraftMR. MOORE-STEWART: Well, he is ?? if he’s an expert ?? for example, just ?? I’ll use one example from paragraph 3 of our Constitutional Question notice.
THE COURT: All right.
MR. MOORE-STEWART: Where it states at the beginning of the third sentence [as read in]:

There is general agreement among the medical and scientific experts that [indiscernible/rapid speech] use of cannabis causes no physical or psychological harm.

THE COURT: Just a moment. Where are you? You are at paragraph 3?
PublishMR. MOORE-STEWART: I’m sorry. I’m ?? I’m ?? let me redirect that. Here it is. I’m going to start at the beginning of paragraph 2 ??
THE COURT: Paragraph 2.
MR. MOORE-STEWART: — end of page 1.
THE COURT: All right.
MR. MOORE-STEWART: Yes. [as read in]:

The defendant’s rights under section 7 of the Canadian Charter ??

THE COURT: Yes, I’m looking at the wrong document. You are reading from the ??
MR. MOORE-STEWART: The Constitutional ??
THE COURT: — from the notice?
MR. MOORE-STEWART: — Question notice.
THE COURT: All right.
MR. MOORE-STEWART: [as read in]:

The defendant’s rights under section 7 of the Canadian Charter of Rights and Freedoms have been denied in that the defendant’s “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, has been violated in a manner, which undermines the community’s sense of fair play and decency.

And that statement there, a very important statement about violating the community’s sense of fair play and decency.
Mr. Smith, if you take a look at his resume, which is attached to the affidavit ?? his resume, I need to get it in front of me here. His resume talks about major speaking engagements that he’s made; running for mayor in the past; the number of meetings that he’s attended; the authorship of books on the subject; the fact that he attends every meeting on the subject, that he has available to him, and has for years; his ?? his extensive knowledge from talking to people, because a lot of his experience here on the resume is as a communicator with people, and he has been, as much as anyone, a full-time communicator with the public on the issue of medical marihuana specifically, and marihuana even in a larger context than strictly medical.
THE COURT: But you are telling me that, why do I need to hear from him viva voce?
AlloMR. MOORE-STEWART: Well, if he is allowed to give you viva voce testimony he can ?? he can ?? he can put a lot of meat on the bone in that regard. He can fill in ?? if ?? if that was an issue in your mind as to what the public sentiment on the issue was, it might be persuasive to hear from someone who has spent so much time communicating with the public on the issue. That is my point in that limited regard.
THE COURT: All right. But you’ve already told me that.
MR. MOORE-STEWART: But my telling it to you is not as persuasive as someone telling it to you has been communicating with people on that issue on a daily basis for many years. Communicating in a wide variety of ways.
There are other aspects of the ?? the Constitutional Question notice that he would be able to talk about what he knows of marihuana as a medicine, the beneficial effects of marihuana, which he is well aware of from his extensive experience. He’d be able to talk to you about some of the specific issues in the Constitutional Question notice that deal with some of the things that he has direct evidence of. He could do that either as a witness ?? as an expert or not an expert, but some of the issues in the Constitutional Question notice are things that have to do with he himself personally.
Where at paragraph 4 ??
THE COURT: Of which document?
w CommentsMR. MOORE-STEWART: Of the Constitutional Question notice. He is talking from a personal point of view as well as some significant expertise from working in the area of medical marihuana, but he’s talking from a personal point of view as well as to what ?? the physical and emotional problems that use of cannabis can be beneficial for, for himself as well as for other people. And as well that it is a preventive medicine for himself as well as other people. And either as an expert witness or as a witness who is speaking to the issue in the Constitutional Question notice that he can give direct evidence on, he would be, I would submit, a valuable witness in either event.
There is the issue in paragraph 5 about how he was improperly proceeded [sic] ?? excluded from attendance at two of his court procedural hearings in this matter on January 24th, 2001, and February 20th, 2001, by being excluded after repeated requests to have such hearings in open court, but pretrials in the matter were heard in judge’s chambers with no transcript and no availability of the accused to be there.
I specifically think that his testimony would be of great use in ?? it may be perhaps as well in paragraph 6 of the Constitutional Question notice, the section 15 arguments about how his equality right may have been violated by being a scapegoated individual in this case by the state, and he points out, for example, that his awareness, which is rather extensive, I would think, is that in no other cases has an individual been charged under the Controlled Drugs and Substances Act with possession for the purpose of trafficking by sharing an edible marihuana cookie. This wasn’t a sale. This was a give away.
So there is evidence that he has both ?? as an expert, that I would like to so qualify him as an expert, and as an individual giving direct testimony to issues that are directly stated in the Constitutional Question notice, which defines the relevancy of the proceedings today that he can give evidence to.
So those are my wishes or my reasons for the desire to call him as an ?? as an [indiscernible/overlapping speakers] ??
THE COURT: I’m not persuaded, Mr. Stewart [sic].
What the applicant needs to do is to establish a foundation of facts and you can tell me those facts, and I’ll proceed on the basis of those facts. What you are saying to me is that he wants to argue his case from the witness box. You can do that from counsel’s table.
Now if, in the course of this, it turns out that I can’t make a decision because the foundation of fact isn’t there, I’ll revisit this ruling, but right now I’m not persuaded I need to hear viva voce testimony. You can tell me everything that this man can tell me as a matter of fact, and you can make the argument.
MR. MOORE-STEWART: All right. So be it.
THE COURT: So at this stage there will be no viva voce evidence.
MR. MOORE-STEWART: Yes, My Lord.
I’m going to go through some of the issues in the Constitutional Question notice and at various points I’ll be referring to the Malmo-Levine case from the Supreme Court of Canada, a copy of which I have provided.
I’m going to just go through the Constitutional Question notice. Paragraph 1 of that notice we make references to section 2(a), (b), and ?? (b), (c), and (d) of the Charter of Rights. And make the statement that his rights ?? his ?? his ability to act within his rights upon his conscience and express his opinions and beliefs in peaceful assembly and association with others is infringed in this action by these charges.
It is Mr. Smith’s belief that what he was doing, and ?? was well within his acting out on his right to express his freedom of conscience. I know that I would certainly anticipate that my friend would bring an argument to that argument under section 2 and point to section 1 of the Charter and say that this is subject to the section 1 limitation of whether it can be justified in a free and democratic society as an infringement.
My point is that it is an infringement on what he sees as his rights to act in a conscionable matter together with other people, and my point is that all of these various rights that we are saying were infringed in Mr. Smith’s case are cumulative. If Your Lordship didn’t believe that the section 2 rights were in and of themself [sic] enough to provide the remedy, which we seek in the Constitutional Question notice, a judicial stay of proceedings under section 24(1) of the Charter ?? we say that is an appropriate remedy and we say it is because of the cumulative effect of this combination of violation of a broad range of Charter issues.
I point out another example of that, the ?? the arguments about being excluded from his pretrials. That might not be enough in and of itself for this court to give us the remedy we seek of a judicial stay of proceedings, but if you put it together with the other violations of his Charter rights we do think that it reaches the standhold [sic] ?? the standard and the threshold of ?? of a case that requires or seeks that ?? that remedy.
THE COURT: Okay. Tell ?? tell me about that. What ?? what was he excluded from? This is a long time ago?
MR. MOORE-STEWART: Yes, it was a long time ago.
THE COURT: Is that how long ?? has this case been outstanding that long, Mr. Moore-Stewart?
: (?)MR. MOORE-STEWART: Yes, since ??
THE COURT: When is the charge ??
MR. MOORE-STEWART: — the year 2000.
THE COURT: — when did this happen?
MR. MOORE-STEWART: 2000.
THE COURT: 2000!
MR. MOORE-STEWART: Yes, it’s got mold on it.
THE COURT: All right. So it happened in 2000. Where ?? where is this that he was excluded from his court proceedings?
None MR. MOORE-STEWART: Oh, it was two pretrials in front of your ?? His Honour Judge Smith, where the hearings were held in Judge Smith’s private office, and it was in both cases my stated application to Judge Smith that ?? to relocate the proceedings so that Mr. Smith could be there, and so that there could be a transcript made, on the basis that section 11(d), for example, of the Charter of Rights requires a fair and public hearing.
How could that be a public hearing when it is hidden away from the accused himself, when there is no transcript made? And in both occasions we made that objection and both cases was not acceded to by the court, and we think that that was a denial of public proceedings, and it is both against principles of fundamental justice in section 7 and a denial of a right to a fair and public hearing under section 11(d).
And like I say, it may not be enough on itself [sic] to provide the remedy that we are seeking, a judicial stay of proceedings, but given it is cumulative with the other infringements I believe that we can meet the standard at the end of the day.
THE COURT: Well, just a minute. What happened at the pretrial conferences? What were they held for?
Open CloMR. MOORE-STEWART: They were held ?? they were pretrial proceedings to discuss the amount of time for trial, procedures at trial, it would be what you would call a procedural hearing pretrial.
THE COURT: Well okay, help me with your 11(d) argument. This is a trial.
sedMR. MOORE-STEWART: Oh, and there was a Constitutional Question notice as well I believe that ?? let’s see, the date on the ?? let me just ?? there was a ?? there was an initial Constitutional Question notice, the one before you is an amended one. The initial Constitutional Question notice was dated January 1st, 2001, and so one of the issues ??
THE COURT: [indiscernible/overlapping speakers]
MR. MOORE-STEWART: — at both of those pretrials, if you will, was the Constitutional Question notice, one somewhat similar, but different to the one before you today. So that was another issue.
Allow Pings (?)Text Formatting: (?) None Convert LineTHE COURT: Okay. Well, just a moment. Madam Clerk has handed me a transcript, Mr. Moore-Stewart ??
MR. MOORE-STEWART: Yes.
THE COURT: — proceedings at pretrial conference, 20 February 2001.
MR. MOORE-STEWART: The 20th of February 2001?
THE COURT: Yes. Is that ?? is that what Mr. Smith is complaining about?
Breaks MR. MOORE-STEWART: That’s one of the dates, 8:45 a.m. in private judge’s chambers. I don’t ?? I don’t have that.
THE COURT: Okay. Well just a minute, it apparently was in the courtroom. Just a minute, Mr. Moore-Stewart.
MR. FOWLER: In the courtroom?
THE COURT: You don’t ?? you don’t have a copy of this?
MR. MOORE-STEWART: I ??
THE COURT: Well, I’ve got you at a disadvantage, but let me look at it first?
MR. MOORE-STEWART: Yes please, I haven’t seen that, and it ??
THE COURT: Because that kind of takes some of the steam out of your argument ??
MR. MOORE-STEWART: Well, that would take steam from ??
THE COURT: — if there is ??
URLs to PMR. MOORE-STEWART: Admittedly, I ?? I do remember two private pretrial conferences in Judge Smith’s private chambers where I made that objection, but I ?? that’s ?? I don’t have that transcript.
THE COURT: Oh, you apparently made an objection. I’ve got that far.
All right.
In February of 2001, Mr. Moore-Stewart, was it anticipated that this was going to be a Provincial court trial?
ing (?)MR. MOORE-STEWART: Yes, it was ??
THE COURT: I see.
PreviouMR. MOORE-STEWART: — at that point in time the charge was under the absolute jurisdiction of a magistrate because it was five years less a day was the maximum ?? or well ?? yes, yes, it was. It was a different charge then. At that point in time it related to the substance marihuana under three kilograms.
THE COURT: Well, I don’t know, Mr. Moore-Stewart, there is transcript. It looks to me that all that was done was setting dates. Are you saying that that’s a violation of a constitutional liberty?
MR. MOORE-STEWART: I’m saying that there was at least another portion of whatever went on, and I believe that day, but it certainly went on twice and it was private sessions in judge’s chambers, I believe on those two dates. There may have been a public session on January 20th [sic] as well. We believe that that is what the transcript will show, a public session that followed a private session in judge’s office.
I am not certain, I haven’t read the transcript, but I know that there were two private sessions in the judge’s office that I tried to get my client’s attendance at, and tried to get moved into the courtroom, and I know that there were two significant and somewhat extensive ?? I can’t tell you exactly how many minutes each one took, but they were not trivial, that took place in judge’s chambers over the objection of the defence, the private chambers.
THE COURT: All right.
s pings seMR. MOORE-STEWART: So that is why ??
THE COURT: But your point is that not in and of itself but added to all of the other violations of his liberties ??
MR. MOORE-STEWART: Yes.
THE COURT: — this should be put into the mix that he was excluded from a proceeding involving the prosecution.
MR. MOORE-STEWART: Two of them.
THE COURT: Two of them.
All right, because it looks to me that your argument about not having a transcript to see what happened isn’t going to go very far.
Okay. Has he given me the dates in his affidavit, Mr. Moore-Stewart?
MR. MOORE-STEWART: Yes. The dates are given in paragraph 5.
THE COURT: Paragraph 5.
MR. MOORE-STEWART: January 24th and February 20th.
THE COURT: Just a moment.
MR. MOORE-STEWART: February 20th is specifically stated to be at 8:45 a.m.
THE COURT: January 24.
All right.
MR. MOORE-STEWART: All right. Next I’ll deal with paragraph 2 of the Constitutional Question notice. This is an argument under section 7 of the Charter that the defendant’s rights to liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The history of the Narcotic Control Act is briefly alluded to as there is some historical information as well on the Act in the Malmo-Levine case that I have provided you.
The ??
THE COURT: Just a moment. “Current knowledge of the effects of cannabis do not sustain the earlier belief.” Okay. Where ?? is that ?? is that on the basis of Mr. Smith’s evidence?
nt (?) Customize the display of this page.Version 2.64 Copyright 2001-2003 Six ApartMR. MOORE-STEWART: Well, the only evidence that we would have had on that statement was Mr. Smith, yes. Other than that there is case law, specifically the case law of Malmo-Levine, you ??
THE COURT: All right.
MR. MOORE-STEWART: — can take a look at what that says on the issue.
THE COURT: All right. Go ahead, Mr. Moore-Stewart. I’ve got the point.
. All RighMR. MOORE-STEWART: Okay. One of the issues that we think is important is to ?? if ?? if this case is to be looked at as a case under a purview of medical marihuana or a medical purpose, that that depends on what’s meant by “medical”, that depends on what is meant by “health”, and it’s I think almost a commonly accepted idea in medicine and in society generally that health ?? health is referring to wellness, and that whatever makes you feel well, whatever makes you feel good, positive emotions, lack of pain, anything like this that promotes a feeling of wellness is healthy and medically beneficial. It has a medical purpose in the broad sense of health and wellness and prevention. And that cannabis has these benefits and a number of them are alluded in ?? in ?? by

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