« REGINA vs. SMITH Part 4 | Main | REGINA vs SMITH Part 6 »
REGINA vs. SMITH Part 5
By Hempology | February 6, 2006
describing the penalty might not be of any force and effect, and allow Parliament to make amendments to it to bring it back within the confines of the Constitution and the Charter.
In any event, he doesn’t go into details about how that could be effected, but my ?? my submission is simply this is ?? this is the direction he was going with his thinking.
THE COURT: Well, what did they do with the ?? remember there used to be a minimum of seven years for importing, and ?? and the Supreme Court of Canada says “No, no, no, that is cruel and unusual”, what did they do with that? They just struck it out, didn’t they?
MR. FOWLER: To be honest, My Lord, I couldn’t answer that truthfully, but my understanding is typically ?? they are having situations, for example, recently where there were issues with respect to the access to medical marihuana under the regulations that have been prescribed, and when those have been found to still not meet the constitutional standard the remedy that the court has imposed is that those particular regulations are suspended for a period of time such that Parliament has the opportunity to react, propose amendments, and pass them appropriately if that is Parliament’s wish.
It ?? it I suppose is ?? is leaving in Parliament’s hands ultimately ??
THE COURT: I see.
MR. FOWLER: — as to what the ultimate decision should be.
THE COURT: What happens to the accused or the offender?
MR. FOWLER: Well, in those situations I believe they were certainly either acquitted or the ?? the ?? the provisions were read to include that that particular applicant in the regulations ?? I think what ?? mechanically the way it works is I believe the courts have made a decision saying, “This is unconstitutional. We are suspending the effect of this sentence for a period of 12 months so that Parliament can address that.” So that there is not a flood of other applicants coming before the courts saying, “Well, now that this is unconstitutional I’m in the same boat”, or having that continue over the next 12 months, but giving Parliament an opportunity before that occurs to actually make amendments to address those issues.
THE COURT: I’m having trouble with this concept.
X is found guilty at a trial level of committing offence A ??
MR. FOWLER: Correct.
THE COURT: — X appeals, the Supreme Court of Canada says, “Offence A is not an offence that will withstand scrutiny under Canadian constitutional law, there is no such offence.”
MR. FOWLER: That’s correct. My understanding is ?? is a stay would be a likely outcome for that individual ??
THE COURT: So we stay the proceedings.
MR. FOWLER: And then finding that the ??
THE COURT: All right. Now the ?? B through M were found guilty under the same statute why can’t they come and stay, “Well, the same law should apply to me”?
MR. FOWLER: Well, I think you are quite right, My Lord, I think realistically they could. I think, as I understand it, the way that the ?? the courts have framed this remedy is that the decision with respect to the constitutionality of the provisions are suspended so there is a ??
THE COURT: Oh the decision is suspended?
MR. FOWLER: Yes. There is a decision that the ?? the particular provision is unconstitutional, but that however, is suspended until Parliament has a reasonable opportunity to actually bring it in line with what the court says would be constitutional.
So I ?? I can tell Your Lordship that for example there were some issues with respect to ?? for a period of time because of a similar decision such as this, there was an issue with respect to possession of marihuana, which we were directed, quite frankly, from the Department of Justice that charges simply wouldn’t be approved for that time period, because this decision had been in place and there was no act on behalf of Parliament to remedy that for the period of time that would have affected the individuals whose charges were brought to our attention during that time.
I think this is a pretty fine point and it is probably not terribly relevant at the end of the day, My Lord, to the overall argument in any event. I ?? I simply wished to bring it up while it was fresh in my mind so I don’t know if it is worth belabouring it much further.
THE COURT: Well, if I understood what he was talking about I would probably have a better understanding of whether or not you should pursue it, Mr. Fowler.
MR. FOWLER: Fair enough, My Lord.
THE COURT: But I ?? Mr. ?? Mr. Moore-Stewart says the remedy in this case is a stay of this proceeding.
MR. FOWLER: Yes, My Lord, that is certainly what he is asking Your Lordship to ?? to do.
THE COURT: All right.
MR. FOWLER: And ??
THE COURT: Now if I ?? if I substitute the words “stay of proceedings” for the word “decriminalization” in paragraph 162 is it the same notion applicable?
MR. FOWLER: I think that is a very different notion, My Lord. I think ?? he’s not asking, and nor has he indicated in his notice as he would be required to do, that he’s seeking to have any piece of legislation declared unconstitutional and therefore of no force and effect. He is simply requesting a constitutional remedy pursuant to section 24 of the Charter.
THE COURT: Namely a stay?
MR. FOWLER: Namely a stay. Which would not have the effect of necessarily obviating the rest of the ?? the legislation.
THE COURT: No, but I take it the jurisprudence surrounding the granting of a stay is ?? is there some other way, is that what he’s talking about? Is I say to Mr. Moore-Stewart, “No, I’m not persuaded that this is one of those unique cases where a stay is appropriate, but I am persuaded that I can suppress evidence that was gathered as a result of this constitutional violation.”
MR. FOWLER: I think that’s probably more in line with what the justice was indicating in that paragraph. That he wouldn’t be persuaded that ?? the law to be struck in its entirety, but it would be possible that he may be persuaded that the range of sentences ought to be reduced, that the range itself is ?? is an issue and not the entire legislation.
THE COURT: All right. Thank you. Carry on, Mr. Fowler.
MR. FOWLER: In any event, My Lord, as I was going to point out, the court of course finds that there was no gross disproportionality in this case, that the mere fact that he faced a maximum of five years in custody was not enough and the court points to a couple of reasons for that. One, the governing case law, there is ample case law, and I’m sure Your Lordship is ?? is amply aware of cases from this jurisdiction dealing with sentencing for similar types of offences. Given that case law it would be ?? which of course the courts are ?? are in some cases bound to follow if they are lower courts, and they are upper court decisions, and certainly are bound to accord a certain amount of respect to.
Based on those decisions this person would not be likely facing the high end of that sentencing range whatsoever, and I would say that the same submission applies very equally to Mr. Smith. This is not a person who based on his background, based on the nature of this offence, would be facing a life time prison sentence by any stretch given the predominate case law that is out there. That is just not realistic in my submission.
The court also went on to consider the actual Criminal Code provisions regarding sentence, and in particular the principle of proportionality, and it notes that of course it’s ?? it’s mandated right in the Criminal Code that the court shall consider that ?? shall ensure that any sentence passed is proportional to the offence committed. And given that legislative mandate, in my submission, of course it adds more weight to the ?? the submission that Mr. Smith is going to face not the most severe penalty allowable under the law for this kind of offence, but more one that would be proportional to the offence that was committed.
So in order to meet that threshold of gross disproportionality there would have to be, in my submission, much more than what my friend has presented in any event in ?? in ??
THE COURT: Just ?? sorry, Mr. Fowler. Did the ?? did the minority find gross or just disproportionality?
MR. FOWLER: It would appear that ?? at least Madam Justice Arbour’s reasons indicated that she felt that it would be disproportionate and she would not have ?? or she would have, I believe, granted a stay, or not granted the ?? the same result as the majority did.
THE COURT: All right.
MR. FOWLER: But ?? and as ?? as the court points out in this case, this is a largely section 12 Charter issue, and that is not one my friend particularly raised in his notice. He has made reference, obviously, to this passage in the ?? in the case law, and so I presume he is relying on that, but in any event I’ll turn now to ??
THE COURT: Well, are you going to turn to something new?
MR. FOWLER: Unless Your Lordship has some further concerns in that area.
THE COURT: Well, I was going to suggest we give the Sheriff and Madam Clerk their lunch hour.
MR. FOWLER: Oh, absolutely. Good.
THE COURT: Shall we do that?
MR. FOWLER: By all means, My Lord.
THE COURT: Is this a convenient time?
MR. FOWLER: It is.
THE COURT: All right. We’ll take the luncheon recess and reconvene at two.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
THE COURT: Mr. Fowler?
MR. FOWLER: Thank you, My Lord.
As I indicated before we took the lunch break, I was going to go back and go through my friend’s argument in a little more detail and, of course, my reply to it.
Perhaps first I’ll just draw Your Lordship’s attention to the book of authorities that I provided to Your Lordship yesterday.
THE COURT: I have it.
MR. FOWLER: Now as I indicated at the outset this was a ?? certainly as I understood it this was to be an application based, of course, on evidence that was ?? well, not so much evidence, but a recitation, I suppose, of the facts that we expected to be called at trial.
To that end at tab 1 of the book of authorities I’ve provided a brief written outline of the facts as the Crown expects that they will come out from the Crown’s case. It’s ?? in my submission is ?? on this type of application, of course, extremely important that the court have some sort of factual basis upon which to ?? to start its analysis with respect to the constitutional question. I think it is very clear from all the ?? the leading case law that, of course, any constitutional question shouldn’t be decided in a vacuum, but with at least some factual underpinning behind the entire process.
And again, to that end I have provided my summary of ?? of the anticipated evidence I would expect at trial. Just very briefly without reading through the entire thing the ?? the essential facts are this, that this all began on the 8th of November of 2000. There was an article printed at that time in the local newspaper that indicated a person identified as Ted Smith was planning to give away five to 600 free marihuana cookies at the Greater Victoria Public Library downtown branch. That was to begin at 12 noon on November the 15th, 2000 according to the article.
Now that article was read by members of the Victoria City Police, and in fact, a member did attend on the 15th of November at the appointed time and place, and in fact observed the person he later arrested and identified as Mr. Smith exit a vehicle, remove two brief ?? backpacks as well as a large silver pot, which the officer was able to see the contents of, and he was able to recognize that the pot contained cookies. All this, of course, was in keeping with the information in the article, and as a result the officer arrested Mr. Smith for possession of marihuana for the purpose of trafficking.
The cookies were seized and eventually sent for analysis as Your Lordship has heard this morning, and they came back indicating that they were ?? tested positive for tetrahydrocannabinol, which of course is a controlled substance under the Controlled Drugs and Substances Act.
Now after his arrest Mr. Smith was provided access to his counsel, he was given the phone number, a telephone, a telephone book I should say, privacy, and was able to access his counsel. After that the investigating officer returned to the interview room he was in and asked him if he would like to answer a few questions about the incident from that day. Mr. Smith apparently responded, “Sure I have nothing to hide”, or words to that effect, and went on to answer some questions put to him by the investigating officer.
Essentially he in answering those questions indicated he himself, Mr. Smith that is, had spent the past day and a half baking the cookies. That in doing so he had used approximately 2 ounces of marihuana to make the cookies and he further indicated that each cookie would contain about one gram of leaf marihuana. When he was asked he ?? Mr. Smith went on to indicate that while it would depend on a number of factors, a person would feel high from one cookie, although he said that it takes a little longer when you eat marihuana due to the fact that the THC needs to be absorbed through the stomach.
Mr. Smith also indicated that he would have sold the cookies for two dollars each, however, it had been his intent to give the cookies away in order to draw attention to the issue of medicinal use of marihuana. He apparently indicated to the officer what better way to do this than to give away free marihuana cookies.
And those are basically the facts, My Lord, that the Crown expects will ?? that the jury will hear at trial.
MR. MOORE-STEWART: My Lord, just one thing for clarification. I know that, in fact, we’ll be objecting at trial to the statements, the admissibility of the statements allegedly made by Mr. Smith in paragraph 15 that has just been read.
Excerpt (?)THE COURT: Thank you, Mr. Moore-Stewart. I don’t think it is necessary for the purposes of this ?? this hearing.
MR. FOWLER: Certainly and ?? and I allege these facts obviously just for the purpose ??
THE COURT: Yes.
MR. FOWLER: — of this hearing at this time.
Based on those facts, and ?? and then considering my friend’s argument in light of those, there are a number of; of course, important factors that I think come to light right away.
First of all, what’s clear from the facts as I have outlined them, and I think what is very clear, in fact, from my friend’s Constitutional Question notice, particularly paragraph 4, the very first line [as read in]:
The defendant does not suffer from a serious medical infirmity; rather he finds relief from minor physical and emotional problems from the use of cannabis.
So in my submission what is very clear right off the bat in this situation is this is not a case about medical marihuana.
There is no suggestion that anyone involved ?? no ?? certainly my friend hasn’t made any suggestion that this was for anyone with any particular diagnosed condition for which marihuana has been recognized as any sort of treatment. There has been no suggestion any doctors have been involved and had suggested this or prescribed marihuana as a treatment. And indeed, by his own application, Mr. Smith has indicated that he himself is not somebody who suffers from any serious medical conditions that require the use of marihuana.
So given that, it is my submission that essentially the ?? the large part of my friend’s submissions with respect to that issue are ?? are moot in this case. There is no merit in the suggestion that the provisions or any of the arguments with respect to medicinal marihuana apply to this case. It is simply not a case of medicinal marihuana.
Mr. Smith, quite frankly, as I understand it, certainly views himself as an activist, somebody who ?? who is firmly of the belief that marihuana is a beneficial thing, and there is no question, obviously he has the right to his views, and to express those, however, the question here is his method, I suppose, for drawing attention to those views.
Now just starting with the arguments that my friend made, I’ll go through them in the order that they are presented in his ?? in his Constitutional Question notice. He makes arguments in the first paragraph with respect to section 2 of the Charter claiming that ?? there his rights to I suppose act within the ?? upon his conscience to express his opinions and beliefs have been violated.
With respect to that argument, My Lord, I would draw your attention to the case at tab 2 of my authorities, that is R. v. Thompson, it is a decision of our Court of Appeal from September of 1986, and certainly the facts are somewhat different, in that this case actually originated with a person actually receiving a ticket for not wearing a seat belt under the Motor Vehicle Act.
THE COURT: Was it a seat belt or a helmet?
MR. FOWLER: I believe it was a seat belt, My Lord.
THE COURT: Oh, okay.
MR. FOWLER: Under section 217(4) of the Motor Vehicle Act. He appeared before a Provincial court judge to dispute that allegation, and claimed that his right ?? basically his freedom of religion and freedom of conscience had been ?? conscience was violated by that law, because in his words, or at least to quote the words quoted in the case, on page 2 right at the top he stated ?? the accused that is:
. . . stated that he believes in free will and is of the conviction that he “creates his own reality”.
And:
His submission, therefore, was that the Motor Vehicle Act provision infringes his religious freedom because it suggests . . . “the universe is unsafe to him personally”, a proposition which he does not accept.
And obviously that is a very different scenario than what we are facing here, however, I think what is of some value is the ?? the statement made by the court, in fact by I believe it was the Chief Justice at the time, Justice Nemetz, in ?? and unfortunately these paragraphs aren’t numbered, but it appears to be the third paragraph from the bottom, second line in starting:
While I doubt that the philosophy of the applicant can in any sense be considered as a religion within the meaning of s. 2 of the Charter, I am of the opinion that even if the philosophy of the applicant could be so considered, the ‘freedom of religion’ espoused by the applicant is subject to the laws of the province relating to public safety. I take judicial notice of the fact that the seatbelt laws of this province are based on the reasonable legislative premise that such laws were necessary in the public interest to protect drivers and passengers from injury.”
He went on to find:
“I would also hold that the alleged infringement is so insubstantial so as not to be considered as a breach of s. 2 of the Charter.”
Now in my submission the same logic applies in this case, in fact, if anything perhaps the argument in this case is even stronger. The issue there was simply whether or not somebody should be compelled to wear a seat belt. One could argue, of course, that there is not much harm to be done beyond the individual that makes that choice. In the situation we are faced with here we have a person who is claiming that the use of a particular controlled substance, in this case marihuana, is I suppose akin to that kind of philosophical or conscientious belief. And in my submission even if that belief ?? and there is no reason to doubt it is not sincere, but presuming that it is the legally and validly prescribed laws of the country certainly act as a, in my submission, reasonable limit on those freedoms.
In this case the same, if not greater public safety concerns can be expressed in a sense that any controlled substance is ?? and in particular when we look at the Malmo-Levine case, in particular marihuana itself has been held by the courts to be something that is appropriate for Parliament to be legislating with respect to. There is an acceptance in that case, of course, that there are some harms that ?? that can arise from it and certainly not the least of which they point out are of course persons who operate motor vehicles, for example, while under the influence of marihuana.
That is, of course, a concern not dissimilar to the same concerns we have with respect to people who drink and drive. It does create a public harm. There are other people who are put at risk by individuals who engage in that behaviour, and in my submission that same logic therefore should apply to this situation. While there may be some aspect of a philosophy or ?? or as I say conscientious belief on the part of Mr. Smith with respect to his use of marihuana, in my submission it is very clear that a reasonable interpretation of the case law suggests that that right is properly curtailed, as it were, in a situation where a public safety concern is in place such as what we have here.
He’s also enumerated in his ?? in his argument, of course, that he has ?? in fact all the ?? the rights variously listed under section 2 have been infringed; freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication. There has been no ?? my friend has not made any suggestion, in my submission, that any of those rights were engaged, let alone infringed, in respect of the current situation.
There is no suggestion in any way he was prevented from speaking his mind about the topic in question. There is no suggestion he was prevented from printing any material or publishing any articles in a newspaper or anything of that sort. Nor is there any suggestion that his freedom of peaceful assembly was in any way infringed. There is no suggestion whatsoever that he was prevented from assembling with people of ?? or anyone that he chose to and similarly therefore the freedom of association. There is no evidence before this court that any of those rights have been engaged, let alone infringed.
Now my friend may point, may argue or may have argued, that of course by the very nature of being arrested at such a I suppose anticipated gathering or anticipated event, that he was effectively prevented from assembling with people on that occasion or from association with persons unknown at that situation, but in my submission, that is a very different situation than the Charter under section 2 contemplates.
This was a person who was arrested for a criminal offence. In my submission there is nothing that brings this within the scrutiny of the Charter. Anyone who committed an offence in public would be arrested, the fact they are then prevented from meeting with someone on that specific occasion is a necessary, if unfortunate, consequence of their actions quite frankly.
But there is no suggestion that Mr. Smith was ever prevented following that from going back and peacefully associating with anyone, from speaking to any group, from meeting up with any particular people. He was never placed on conditions that prevented him with meeting with any particular people, no no contact orders, or anything of that sort, so in my submission there is no merit to those arguments under that section.
Perhaps the largest part of my friend’s argument is the section 7 argument, that that ?? that those rights were violated. Again, from my understanding of his arguments this morning, and my reading of ?? of the Constitutional Question Act notice, this hinges primarily on the issue of whether or not marihuana is in fact a harmful substance. Whether it is something that ought to be prohibited under the Controlled Drugs and Substances Act. And in my submission that question is answered entirely by the Supreme Court of Canada in the Malmo-Levine decision and quite respectfully I say it is, of course, binding on this court.
In my submission there is ?? it is not open to my friend ?? well, he can certainly make the argument, but in my submission it’s ?? it’s essentially a moot one in ?? in the circumstances. The court considered at great length many different aspects of the medicinal aspect of marihuana, if you will. My friend touched on a few of them and if I can summarize, I think there is a few useful passages from that case, and I’ll draw Your Lordship’s attention first to page 29 of the Malmo-Levine decision, it is at tab 3 of my book.
And particularly to paragraph 86 on that page and I think this perhaps is a very accurate summary of the decision in this case. The second ?? we are starting with that first sentence part way in:
. . . the Constitution cannot be stretched to afford protection to whatever activity an individual chooses to define as central to his or her lifestyle. One individual chooses to smoke marihuana; another has an obsessive interest in golf; a third is addicted to gambling. The appellant Caine invokes a taste for fatty foods. A society that extended constitutional protection to any and all such lifestyles would be ungovernable. Lifestyle choices of this order are not, we think, “basic choices going to the core of what it means to enjoy individual dignity and independence” . . .
Further on in the next paragraph, in fact, they go on to say:
In our view, with respect, Malmo-Levine’s desire to build a lifestyle around the recreational use of marihuana does not attract Charter protection. There is no free-standing constitutional right to smoke “pot” for recreational purposes.
Again ?? and I ?? I point out at this point that there is simply no indication put before this court that this was anything other than a non-medicinal use of ?? of marihuana. There is no indication that any particular persons were targeted, no indication that any attempts were at all made to distribute this to persons with medical need. This was simply open to all comers, whoever read the paper.
Beyond that the decision, as I have indicated, is in my submission, a very thorough one examining all aspects of the medicinal use of marihuana, or the possible use of marihuana, and its proper place under the Controlled Drugs and Substances Act. There is ?? the court engages in an analysis of the balancing of societal and individual interests under section 7 at page 30, paragraph 96. The court has reviewed some authorities on the case and says:
We do not think that these authorities should be taken as suggesting that courts engage in a free-standing inquiry under s. 7 into whether a particular legislative measure “strikes the right balance” between individual and societal interests in general, or that achieving the right balance is itself an overarching principle of fundamental justice. Such a general undertaking to balance individual and societal interests, independent of any identified principle of fundamental justice, would entirely collapse the s. 1 inquiry into s. 7.
So in my submission the court is rejecting, of course, any sort of as it says “free-standing inquiry” into a balance between individual and societal benefits as it applies to a Charter issue of this nature.
The court also goes into length at ?? to discuss the so called harm principle and counters the argument made that because there is little or no substantial harm demonstrated that therefore it is unconstitutional for Parliament to legislate as it has. And the court says, “Well, that’s not the governing principle. That is not how things are done”, and quite frankly finds that in fact it’s ?? it’s appropriate for Parliament to legislate as it has.
Now there is a ?? of course the court leaves open the discretion of Parliament to decide if it should, but certainly there is no question that it can if it so desires legislate in the area. And in fact again I draw Your Lordship’s attention to page 37 of the decision, paragraph 136; the second full sentence of that paragraph begins:
The prohibition is not arbitrary but is rationally connected to a reasonable apprehension of harm. In particular, criminalization seeks to take marihuana out of the hands of users and potential users, so
Topics: Articles | Comments Off
Comments are closed.