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REGINA vs. SMITH Part 4
By Hempology | February 6, 2006
the very fact that Canada itself recognizes medical marihuana and provides a regime for it. It is recognized as part of the pharmacopoeia. It is recognized that it is a wellness promoter, at least for certain classes of people.
Excerpt (?) And the Supreme Court of Canada in Malmo-Levine seems to think that maybe except for a very limited class of potentially vulnerable people that they seem to agree with the findings of both the Crown and the defence experts in that case that it’s ?? with the exception of potentially being a problem to a limited class of vulnerable groups it doesn’t cause serious problems, and it is also recognized as medically beneficial for at least certain conditions and certain people.
But generally that class of people that it is beneficial for if you consider preventative medicine, and if you consider a wellness based definition of what is medically good for someone if it makes you feel better, if it reduces your pain, if it promotes positive feelings, it’s good for you, it is medically beneficial. And the accused seeks to be viewed in that light in these proceedings.
Paragraph 3 here ?? of the Constitutional Question notice; here we emphasize the fact that the substance we are dealing with here is cookies, not smoked marihuana. The Supreme Court of Canada in the Malmo-Levine case found that the really ?? if there was a demonstrable effect of marihuana that was harmful that could probably be ?? a group of scientists could agree, it would probably be that chronic smoking can cause bronchial damage. That was a finding the Supreme Court of Canada noted. If you chronically smoke marihuana, perhaps if you chronically smoke anything, that method of ingestion can cause, with chronic use, bronchial damage.
And that is not applicable here. We have no general agreement among medical or scientific experts that moderate use of eating a marihuana cookie would cause either physical or psychological harm to anyone. And so the risks of smoking are absent and I think that is a critical issue when we deal with the live issues that are still alive after the Malmo-Levine case.
Paragraph 4 of the Constitutional Question notice at the beginning of that paragraph the defendant is making a personal statement that he, as an individual human being, finds relief from minor physical and emotional problems from the use of cannabis, and that he uses it as a preventative medicine as well as to improve his mental and physical health, and he hoped that same thing for the participants at the meeting at the library in 2000. And he was doing nothing that would be expected to cause any form of harm to anyone, and on the au contraire was perceived by the individuals there presumably to be of benefit and presumed by Mr. Smith, who is something of an expert in these areas, to be of benefit to them, and no risk of harm whatsoever.
Paragraph 5 I have mentioned.
THE COURT: Just a moment, please.
Okay. Paragraph 5, that ?? this was the ??
MR. MOORE-STEWART: That we’ve dealt with.
THE COURT: — pretrial matters?
MR. MOORE-STEWART: Yes. That was the pretrial matters.
THE COURT: All right.
MR. MOORE-STEWART: So I’ll skip to paragraph 6 then and I’m going to take up the Malmo-Levine case with some gusto hopefully.
Paragraph 15, or rather section 15 of the Charter of Rights is equality rights. Well, first of all, it is stated in there that he has been stigmatized and scapegoated by the state, both as an individual in this case, and also by the inclusion of cannabis as a proscribed substance in the Controlled Drugs and Substances Act. The argument there is simply that this is basically bullying behaviour by the state. Without any sound medical or scientific reason, a large percentage of the population of Canada is stigmatized and scapegoated and made criminals for no apparent purpose other than perhaps social disruption. But there ?? there is ?? well, I’ll ?? the last comment I’ll drop, the social disruption, but for no apparent purpose.
It is our ?? our statement that really this criminalization causes more harm than it does good. That certainly is something that we will certainly allege. The ?? singled out as a marihuana activist, well the defendant says that that happened on this day, and in particular that there are no other cases that certainly we’ve become aware of, or the defendant is aware of, that there have been charges under the Controlled Drugs and Substances Act for sharing of edible marihuana cookies.
And I’m not aware of charges in regards to THC in that regard either, and that is a critical, critical point because when ?? and in terms of targeting, because when we target someone, or when someone is charged with possession for the purpose of trafficking THC instead of marihuana or cannabis resin, you go from a potential sentence of five years less a day to a potential sentence of life in prison. And that this has occurred in this case. And that is unique as well. That’s a form of targeting. A form of section 15 equality rights violation because he’s treated at least potentially here much more severely than anyone else for a charge that no one else has been charged with. And that indeed this is another factor that differentiates this case from Malmo-Levine. Not only is it the ?? a case of edible marihuana products which differentiates it, but it is case of THC where the Crown is now potentially seeking a life sentence, or at least that’s ?? that’s the jeopardy to which my client is ?? is open to in the Criminal Code, a life sentence.
So that effects things like proportionality that ?? and I’m going to turn to issues of proportionality as discussed in the Malmo-Levine case. I’m just going to go through the references to gross disproportionality that the majority judgment deals with.
First at paragraph [sic] 48 and paragraph 133 at ?? at the end, the last sentence in that paragraph, and just going through the ?? the statements about gross disproportionality in the Malmo-Levine case. So last sentence in paragraph 133:
The relevant constitutional control is not micromanagement but the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected, as will be discussed.
That is the first reference to gross disproportionality that I ?? I caught here. The next one is in paragraph 135 on that same ?? paragraph 135, and the last sentence in paragraph 135 reads:
These findings of fact disclose a sufficient state interest to support Parliament’s intervention should Parliament decide that it is wise to continue to do so, subject to a constitutional standard of gross disproportionality, discussed below.
Now at page one ?? at paragraph 141, the heading there is titled “The Allegation of Disproportionality”, and I’m going to read some of the sections in that heading under “The Allegation of Disproportionality”. Section [sic] 141:
Having rejected the appellants’ contention that Parliament is without authority to criminalize conduct unless it causes harm to others, as well as their claim that criminalization of marihuana is arbitrary and irrational, we proceed to the next level of their argument, namely that even if it is not arbitrary and irrational, criminalization is nevertheless disproportionate to any threat posed by marihuana use.
And then the next paragraph:
In Suresh v. Canada . . . the Court accepted that the means taken to achieve an objective can be so disproportionate to the desired end so as to offend the principles of fundamental justice . . .
And they carry on, but at paragraph 143:
In short, after it is determined that Parliament acted pursuant to a legitimate state interest, the question can still be posed under s. 7 whether the government’s legislative measures in response to the use of marihuana were, in the language of Suresh, “so extreme that they are per se disproportionate to any legitimate government interest”. As we explain below, the applicable standard is one of gross disproportionality, the proof of which rests on the claimant.
The aspect of proportionality of interest to the appellants is the alleged lack of proportionality between the contribution of the marihuana prohibition to public health and safety (the appellants say the prohibition is so ineffective that it contributes little) and the adverse effects on persons subject to the prohibition, including those who are charged and convicted of the offence (the appellants say the adverse effects are severe and lasting). The relevant effects include those that relate to the life, liberty or security of an individual, and that are the product of the state action complained of.
In the next paragraphs, 159 ??
THE COURT: One five nine?
MR. MOORE-STEWART: Yes, 159.
THE COURT: Thank you.
MR. MOORE-STEWART: The section there ?? now they are discussing at this point ?? they have moved from discussing gross disproportionality under section 7 to now the court is discussing gross disproportionality under section 12 of the Charter. And at paragraph 159, the second part of that paragraph reads:
Where a punishment is merely disproportionate, no remedy can be found under s. 12. Rather, the court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable.
It is certainly my submission that Canadians would find the punishment abhorrent and intolerable if they even knew that someone like Mr. Smith was subject to life imprisonment, and if they even knew the facts of the case, and that it was cookies, and that ?? the facts of what science and medicine have actually found about marihuana as opposed to fear mongers.
The ?? paragraphs 161 and 162, still under that section and regarding gross disproportionality, but I’ll read 161 and 162:
Accordingly, even if we were persuaded by our colleague Arbour J. that punishment should be considered under s. 7 instead of s. 12, the result would remain the same. In both cases, the constitutional standard is gross disproportionality. In neither case is the standard met.
One sixty-two:
Further, even if the penalty of imprisonment were found to violate the gross disproportionality standard, the constitutional remedy would have to address the range of available penalties rather than the decriminalization of the underlying conduct of marihuana possession.
Post Status (?)DraftPublishAllow Comments: (?) Now the standard remains gross disproportionality. The Supreme Court of Canada found in the Malmo-Levine case that the ?? that it wasn’t grossly disproportional, but that was a six to three decision of the Supreme Court of Canada.
THE COURT: Can I interrupt you just for a moment here ??
MR. MOORE-STEWART: Yes.
THE COURT: — Mr. Moore-Stewart?
What ?? what does he mean there in that 162 ??
None Open ClosedMR. MOORE-STEWART: One sixty-two ??
THE COURT: — when he says:
. . . the constitutional remedy would have to address the range of available penalties rather than the decriminalization of the underlying conduct of marihuana possession.
What is he talking about?
MR. MOORE-STEWART: That’s ??
THE COURT: What was the maximum disposition allowed in Malmo-Levine?
Allow Pings (?)MR. MOORE-STEWART: In Malmo-Levine it would have been ?? this was six months in jail. Or ?? am I correct on that?
It was I believe treated summarily.
THE COURT: So what is he talking about? Is he talking about the court would have to ??
MR. MOORE-STEWART: Good question.
Text FormaTHE COURT: — find ?? well, you are seeking a stay?
MR. MOORE-STEWART: Yes, we are seeking a remedy of judicial stay of proceedings.
We are not asking you to decriminalize, just to judicially stay. I think ??
THE COURT: I wonder what he means “the range of available penalties”? The range of available penalties surely are an absolute discharge right up to life imprisonment.
tting: (?MR. MOORE-STEWART: Apparently ??
THE COURT: Is there a minimum?
MR. MOORE-STEWART: No.
THE COURT: So that would be right, wouldn’t it?
MR. MOORE-STEWART: Yes.
THE COURT: From absolute discharge to life imprisonment?
MR. MOORE-STEWART: Yes.
THE COURT: I wonder what he means?
MR. MOORE-STEWART: I find that a little obtuse as well.
THE COURT: All right. Go ahead.
) NonMR. MOORE-STEWART: The Supreme Court of Canada divided six to three, there were three judges including ?? well, I don’t want to claim one is more distinguished than the other, but Louise Arbour is now an internationally acclaimed jurist, not that she wasn’t before, but it was six to three on this. Three judges of the Supreme Court of Canada agreed with the defence that the law was disproportionate; that there was no harm that would justify criminalization in these conducts; that it was arbitrary, disproportional, to do this to a huge swath of the Canadian population, to criminalize conduct that didn’t seem to have any medical or scientific harm proven.
So three judges decided that way. There is two major distinguishing differences between Mr. Smith’s present case, and the Malmo-Levine case, and both of those affect the call about disproportionality. A very close call as the Supreme Court of Canada decided in their six to three decision.
And those two factors are that we are dealing with cookies, not smoked marihuana, so there is obviously less possibility of harm, perhaps even more possibility of benefit, but certainly less possibility of harm. That affects the measurement of disproportionality, which was a close call in Malmo-Levine.
e Convert Line Breaks URL The second thing that I think really differentiates this case from Malmo-Levine is the increase in jeopardy to which the accused has been put by amending the charges from charging possession for the purpose of trafficking marihuana under three kilograms, with its maximum sentence of five years less a day ?? by amending to charge the more serious charge of THC. They have increased the jeopardy to life imprisonment and I believe that that as well influences any finding of gross disproportionality.
So that is the way that I would distinguish the Malmo-Levine case on those two factors, and say that the Malmo-Levine case was obviously a close call, six to three, three judges of the Supreme Court of Canada said the law should be struck, and with these additional factors in viewing what would be gross disproportionality that Mr. Smith meets the standard that would be, and should be required, to have a judicial stay of proceedings.
And those, My Lord, are my arguments.
THE COURT: Thank you, Mr. Moore-Stewart.
Mr. Fowler?
MR FOWLER: Thank you, My Lord.
And I’ll address each of my friend’s issues as raised in this Constitutional Question notice in just one ?? while it is fresh in my mind I’m just going to turn my attention to that question you had asked my friend about paragraph, I believe, 162 of the Malmo-Levine decision, and the interpretation thereof, particularly when the learned justices ?? the constitutional remedy would have to address the range of available penalties.
Just to give you some background, My Lord, the original charge in this case was one of possession of cannabis marihuana for the purpose of trafficking. That would have been an absolute jurisdiction offence and would have had a maximum penalty of five years, no minimum penalty.
THE COURT: Mr. Smith was charged originally with ??
s to Ping (?)PrevioMR. FOWLER: No, I’m sorry, Mr. Malmo-Levine ??
THE COURT: Malmo-Levine.
us pings sent MR. FOWLER: — in the ?? in the decision before the court ?? the court in that case.
THE COURT: Okay. Just a minute. Okay. So Malmo [sic] was possession of marihuana for the purpose ??
MR. FOWLER: Yes, cannabis (marihuana) for the purpose of trafficking, that is how it is particularized in that decision.
THE COURT: And the ?? and it was a five year max ??
MR. FOWLER: Five year ??
THE COURT: — by indictment?
(?)MR. FOWLER: — maximum, Your Honour ?? My Lord, no minimum penalty.
THE COURT: Okay. By indictment or summarily?
MR. FOWLER: It is by indictment, but an absolute jurisdiction offence, and the absolute jurisdiction would be Provincial court.
THE COURT: I see. All right. So Mr. ?? is it mister or Ms. ??
MR. FOWLER: I believe it is mister ??
THE COURT: — Malmo-Levine?
MR. FOWLER: I’m not entirely sure ??
MR. MOORE-STEWART: Mister.
MR. FOWLER: — but I believe it is mister.
THE COURT: What is it, mister ??
MR. MOORE-STEWART: Mister.
THE COURT: Mister. So he went to trial in the Provincial court?
MR. FOWLER: I ?? I would assume so and eventually appealed.
THE COURT: Or the equivalent? And where did this come from, Ontario?
MR. FOWLER: I believe it was Ontario ??
MR. MOORE-STEWART: No, British Columbia.
MR. FOWLER: Oh British Columbia, he is quite right.
THE COURT: On appeal from the Court of Appeal of British Columbia.
MR. FOWLER: Yes, that’s correct.
THE COURT: All right. So he went to trial in the Provincial court of British Columbia on a charge of possession of cannabis (marihuana) for the purpose of trafficking?
MR. FOWLER: Indeed. And of course the section my friend is referring to, that paragraph falls under, is where the Supreme Court was discussing the issue of section 12 and the gross disproportionality with respect to the provisions respecting unusual punishment, cruel and unusual punishment under the Charter.
THE COURT: Yes.
MR. FOWLER: So in my submission what the justice is referring to in that paragraph is simply that in this case, if that were found to be ?? if ?? if as a result of the possible penalty that Mr. Malmo-Levine was facing ?? if that were found to be a breach of his section 12 Charter rights to be free from unusual ?? cruel or unusual punishment, then the remedy he would be entitled to would not be have the provisions of the Controlled Drugs and Substances Act struck down, but to have them either read down or I suppose amended to include a lower maximum sentence to address that range of sentence that is available for that particular offence. I think that is what the justice is ?? is attempting to say in that paragraph. That rather just having the entire thing struck altogether, the appropriate remedy would simply be to address that issue. If the penalty is disproportionate, make it proportionate and lower it.
Now I think it is also important to note that when the court goes on and discusses this issue of course they find that there is no gross disproportionality in this case.
THE COURT: Sorry, Mr. Fowler, let me just think about this.
It is giving the judicial branch legislative powers?
MR. FOWLER: Well, I don’t ?? I don’t mean to read too much into what you ?? what the justice was suggesting. I don’t think he was suggesting that the court should have done that, but that the remedy would have been perhaps either a declaration that that particular section
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