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REGINA vs SMITH Part 6
By Hempology | February 6, 2006
as to prevent the associated harm and to eliminate the market for traffickers. In light of these findings of fact it cannot be said that the prohibition on marihuana possession is arbitrary or irrational, although the wisdom of the prohibition and its related penalties is always open to reconsideration by Parliament itself.
And then continuing on the next page paragraph 139:
. . . if Parliament is otherwise acting within its jurisdiction by enacting a prohibition on the use of marihuana, it does not lose that jurisdiction just because there are other substances whose health and safety effects could arguably justify similar legislative treatment.
So even if my friend is to argue, “Well, why don’t we outlaw cigarettes, they are they have certainly proven to be harmful or alcohol for that matter?” that that argument is answered, in my submission, by that statement of the court that Parliament has the discretion to enact laws as it sees fit in these circumstances and it is not unconstitutional for it to have done so.
And, of course, the court goes into the discussion of the gross proportionality, which we have discussed prior to the lunch break. As I have said, the court goes on to find in this case that there is no gross disproportionality and that is in particular between the the punishment that is prescribed for this offence and the nature of the offence itself. And as I said before, that there are a number of reasons for that, not least of which is of course the there is no mandatory minimum sentence, the prevailing case law, and there are certainly reams of it, My Lord, suggest of course the appropriate sentencing ranges for persons who come before the courts with a background and in circumstances such as Mr. Smith and and indeed as Mr. Malmo-Levine has before the court in that case.
And and of course taking into consideration the prescribed principles of sentencing in the Criminal Code, in particular of course the very principle of proportionality in sentencing, it is very clear that there is really no chance that this person is likely to face a sentence so grossly disproportionate with the offence committed as to warrant interference by the court.
My Lord, with respect I turn next to the argument that my friend raises, and that Your Lordship commented on earlier with respect to, I guess, the 11(d) argument, that is his exclusion from some pretrial conferences that were held in the Provincial court early on relatively in this matter. And first of all, I a review of my file I have had a look at some of the notes that my colleagues have made. I was not the the Crown involved in that pretrial conference. That actually occurred in 2001.
There were, in fact, two pretrial conferences by notes and looking at my the notes on my file the first occurring sorry, on the 24th of January of 2001; and that was before His Honour Judge Smith, the Administrative Provincial court judge in his chambers. My notes indicate, and my friend hasn’t said anything to the contrary, that what was basically canvassed at that pretrial conference were procedural issues. In fact, I believe my friend had indicated there was some some discussion about the number of witnesses to be called, and ultimately that pretrial conference was adjourned so that my friend would have a chance to interview some of the witnesses he anticipated may be required, and have a better idea of exactly how many and, of course, what nature of what nature their evidence would be.
And so that was the reason for the second conference being held. That was held on the 20th of February 2001, again before His Honour Judge Smith, and as Your Honour noted there is a transcript of that that particular conference. It is my understanding that of course my friend had indicated his concerns with respect to the lack of transcription abilities in in Judge Smith’s chambers, and so Judge Smith actually took the unusual step of requiring a transcript to be provided of the second pretrial conference. And that is what was produced. And again the same sort of issues were canvassed I gather in more detail on that occasion.
I also note that my friend indicated that there was a the original I guess constitutional notice Constitutional Question Act notice was provided in around that time frame. I note that the earliest version I have was I believe dated the 31st of December of ’01 or sorry, of 2000, so it would have perhaps been filed just prior to these pretrial conferences, but I’m not sure that any clearly no substantive issues with respect to that notice were ever decided.
My friend hasn’t suggested that there were any decisions affecting the actual innocence or guilt of Mr. Smith were made at those conferences. There has been no indication that any evidence was led; anything was done to advance the Crown’s case whatsoever at at either of those pretrial conferences. And further more, he has not advanced any suggestion or evidence that any prejudice occurred to Mr. Smith as a result of of not being in attendance at those conferences.
And at this point I would draw Your Lordship’s attention to the case I have provided at tab 5 of my book of authorities, that is the again decision of our Court of Appeal in R. v. Quick, from 1993 and leave to appeal to the Supreme Court of Canada was refused on that matter. And this was a case that that essentially involved the similar a very similar issue whether the question before the court, at least at one point, is whether or not a pretrial conference, as it were, is part of a trial in the sense as that term is used in the Code and therefore the Charter.
And at page page 7 of 20 is where the decision with respect to that issue is first brought up, and at that time the presiding justice indicates that:
Notwithstanding the fact that the accused had not yet been put in charge of the jury, I am prepared to assume that the accused’s trial had commenced by the time the discussions in chambers took place.
THE COURT: Where are you?
MR. FOWLER: I am at page 7, My Lord
THE COURT: Seven.
MR. FOWLER: — right at the very top.
THE COURT: Seven, that’s why I can’t find 27.
MR. FOWLER: I beg your pardon, My Lord, if I
THE COURT: Okay. Page 7.
MR. FOWLER: Page 7.
THE COURT: Okay. Where?
MR. FOWLER: The first full paragraph near the top, My Lord.
THE COURT: Notwithstanding?
MR. FOWLER: It starts with “notwithstanding the fact”.
THE COURT: All right. I’m with you now.
MR. FOWLER: Basically the the court is saying that they are prepared to accept at that point, at least for argument’s sake, that the trial had commenced at the time that he was these pretrial conferences occurred.
And then further on down the page, the third paragraph up from the bottom they just confirm:
While no evidence was heard in the absence of appellant the judge listened to and decided an objection that had been made to a question put to him.
And the court found:
This justifies the conclusions that the judge proceeded in appellant’s absence and that appellant was denied the right given him . . .
That is the argument that was put before the court.
Going to page 10. This is where the court actually decides the issue, page 10, the third paragraph down, at about the, I believe, third sentence into that paragraph, the court says:
I am satisfied that the trial judge was not asked to, nor did he make any rulings that would cause the conviction to be quashed under the principle expressed in R. v. Meunier. Nor, to my mind, were there any decisions made by the trial judge that affected the accused’s “vital interests”. The discussions, in essence, involved counsel advising the judge of decisions that they had made as to the conduct of their respective cases and prospective problems as they viewed them at that time. Those discussions did not have any bearing on the accused’s guilt.
Continuing on he says:
. . . the issue is whether the discussions “did anything to advance the case, in the absence of the appellant”. In my judgment, nothing occurred to advance the Crown’s case against the accused. The only advantage or benefit derived was in promoting a more efficient and expeditiously conducted prosecution.
So in my submission, My Lord, there is really again no merit to my friend’s argument that any right was effectively infringed by his the denial of Mr. Smith’s attendance at at least the initial pretrial conference with His Honour Judge Smith. And again, there has been no evidence and no suggestion made that any in any way the Crown’s case was moved forward or that any of his interests vital interests as it is quoted in the case law were affected.
And so in those circumstances, and given the court’s decision in Quick, it is my submission that that ground has failed as well.
And finally my friend makes arguments with respect to section 15 of the Charter, and again in my submission the the arguments there are entirely answered by the decision in Malmo-Levine, and I’ll turn back to that case at again at tab 3, and in particular page at this point page 45 of that decision beginning at paragraph 185. And this is where they under the heading “Section 15 of the Charter” the court, of course, considers those arguments. And at paragraph 185 says:
A taste for marihuana is not a “personal characteristic” in the sense required to trigger s. 15 protection . . . it is a lifestyle choice. It bears no analogy with the personal characteristics listed in s. 15, namely race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It would trivialize this list to say that “pot” smoking is analogous to gender or religion as a “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs . . .
So in my submission, as I say, that that answers the question of whether there can be a breach of section 15, it is clearly not an analogous ground, the use a person’s desire to use marihuana and there is no reason that it should be included as such.
My Lord, I have included at tab 6, the very last case that I’ve I’ve included, a previous decision this is a decision of Her Honour Judge Kay in the Provincial court on an earlier matter in fact involving Mr. Smith. And the reason I include it clearly it is not a binding decision on this court, but the reason I include it is because in essence the very same issues were raised before Her Honour Judge Kay and she was asked to make decisions in the same circumstances essentially.
And in my submission the her reasons for her decision provide a useful guideline for us to examine today. In particular she begins her analysis of the Charter arguments at page 8 of that decision, and I won’t quote at length the entire thing, because I have actually already quoted most of the case law that the learned trial judge did as well.
But suffice to say that with respect to the section 2 argument, again the case of Thompson was before her. She found that based on the reading of that case law, as well as the reading of Malmo-Levine, which confirms that in fact the prohibition against marihuana possession is a validly enacted piece of legislation, it is therefore legitimately legitimately curtails the right the rights as they are defined under section 2.
She went on to find that there was similarly no evidence before her to allow her to come to the conclusion that the rest of the rights claimed under section 2 were infringed.
She also analyzed the arguments with respect to the section 7 arguments, and again quoting much of the same case law from Malmo-Levine came to the same conclusion that his on page 12 now at paragraph 25 she concluded that:
. . . Smith’s use of marihuana is recreational, and while he chooses to smoke marihuana and to devote a great deal of his time and effort to overturning present drug laws, I find that as in Malmo-Levine, this is a lifestyle choice that does not attract Charter protection . . . [and] therefore, [his] section 7 rights [were] not . . . violated.
Again, the same issues with respect to the 11(d) argument were also raised. There were separate pretrial conferences, but I gather that similar circumstances occurred in both cases, in that Mr. Smith was not permitted to attend specifically.
I think this is actually particularly helpful, in the sense that Her Honour Judge Kay gives some detail as to how these pretrial conferences are normally conducted in Provincial court, and of course being a Provincial court judge she has, I would say, significant insight in that area. She goes on to say, in fact, that in describing a pretrial conference on page 13, paragraph 27; I guess the third sentence in with respect to a pretrial conference:
It is a tool regularly used by the courts to deal with procedural, not substantive, matters. Pretrial conferences involve only judges and counsel unless an accused is self represented. If an accused is representing him/herself then such a conference is held in open court with a clerk present to record proceedings.
THE COURT: Just a minute. She is wrong in law there, isn’t she?
MR. FOWLER: Well
THE COURT: In Provincial court if it is proceeding by information the accused is arraigned on one of the first appearances, isn’t he
MR. FOWLER: Yes, My Lord
THE COURT: — or she?
MR. FOWLER: — and that would certainly happen he would he or she would have been arraigned, would have entered a plea at this stage and had a trial date fixed, before a pretrial conference was set.
THE COURT: Right.
Now where is it where is the body of law on this, Mr. Fowler, because it seems to me the trial starts upon the court being ready to proceed. They need an arraignment and a plea and a body ready to decide the case. That is when the trial starts so once you’ve got an arraignment and a plea your trial starts.
So is she right when she says:
. . . a pretrial conference does not form any part of a trial.
MR. FOWLER: Well
THE COURT: I can see that I can see that in a superior court, because the arraignment doesn’t take place until usually until either the jury selection date, or the morning of the trial, but is it what’s the law in the Provincial court?
MR. FOWLER: Well, the case law that I provided Your Lordship with is the Quick decision again at tab 5, and I think it fairly sets it out, and in in fairness the court in that decision did make the assumption without, I think
THE COURT: Yes.
MR. FOWLER: — particularly deciding it one way or the other, and certainly made the assumption for the purposes of this decision
THE COURT: Yes, there is a body
MR. FOWLER: — that
THE COURT: — of law that says that’s right.
MR. FOWLER: Yes.
THE COURT: Yes.
MR. FOWLER: And I don’t I don’t dispute Your Lordship on that point. I’m my submission would simply be that it is probably not terribly relevant at the end of the day even if she is mistaken with respect to the the nature of the pretrial conference as part of the trial.
In my submission given the case law in Quick it is clear that even if it is a trial it’s it’s strictly a procedural tool that is part of that trial, and that the the absence of the accused from it is not necessarily an infringement of his section 11 rights. And that is particularly so when there is only procedural matters at issue and nothing substantive has happened, where the Crown’s case hasn’t been advanced. And that is certainly my submission
THE COURT: Okay. Okay. All right. So we are back to the there is a distinction here. One is the prosecution failed to or the court failed to comply with the provisions of the Criminal Code, which says that an accused is entitled to be present throughout his trial unless otherwise ordered.
MR. FOWLER: Right. And in fact
THE COURT: But but Mr. Moore-Stewart is not complaining about a violation of the Criminal Code, he’s complaining about a Charter violation.
MR. FOWLER: Right. And that is quite correct, My Lord, and insofar as the Charter violation is concerned, I think that the Quick decision is is determinative of that issue.
THE COURT: Yes.
MR. FOWLER: It’s it’s there has to be some evidence that something substantive happened that that “vital interest” is the term used. The vital interest is affected of the accused
THE COURT: Yes.
MR. FOWLER: — at a pretrial conference in order for the actual right to be infringed.
THE COURT: Well, was was Quick a Charter case or was it a “you didn’t follow the procedures”? ’93
MR. FOWLER: It was it was deciding it with respect to to the Charter, as I understand it. The the question was whether or not the
THE COURT: The Canadian Charter of Rights and Freedoms, section 7, 11(d), and 625 of the Code.
You have got to be careful because I have got to get the year, because before this Charter came along if a provision of the Criminal Code wasn’t followed it was fatal to the to the prosecution.
MR. FOWLER: Right.
THE COURT: And then along came the Charter and all that law seemed to go by the way and Parliament came in and and amended the Code saying that “Well, a failure to comply with the law on the part of the prosecution does not vitiate the proceeding unless there is prejudice.”
Is that what Quick is? I’ll have to read it, Mr. Fowler.
MR. FOWLER: That is certainly my submission, My Lord. This is a decision from 1993, so it is certainly well passed the the coming into force of the Charter. The in my submission the same issue was before the court whether or not there was a violation as a result of the accused not being present at a pretrial conference, and in my submission the decision was quite clear, and well frankly appropriate, given that there is no prejudice being done. There is no harm that can be pointed to. Nobody can say, you know, “I’m at a loss because of this”, or “I’m at a disadvantage because of that.”
THE COURT: Right.
MR. FOWLER: It is difficult to imagine staying an entire prosecution for a procedural matter.
THE COURT: Oh, we used to do it. We used to do it.
MR. FOWLER: I have I have no doubt, My Lord.
THE COURT: You didn’t have to prove any prejudice. All you had to do was prove that the Crown didn’t obey the law.
Where is this where what what section of the Code, or is it the Charter, that says an accused is entitled to be present throughout the trial unless otherwise ordered?
MR. FOWLER: I do believe that is part of the Code, My Lord, and unfortunately I don’t have it at my fingertips. I know the there is a section of the Code regarding pre-charge conferences or pretrial conferences.
THE COURT: Is there?
MR. FOWLER: And that’s 650.1, My Lord.
THE COURT: Okay. Let me look at that.
“Accused to be present.” Yes, there it is:
. . . shall be present in court during the whole of his or her trial.
Okay. That deals with the trial. Removed and kept out of court if he misconducts himself; permit him to be out of court if he wants to be; and throw him out if he is having an adverse affect on the proceeding.
All right. Now pretrial 650.1 you say?
MR. FOWLER: I believe so, My Lord, I’ll just
THE COURT: 650.1:
A judge in a jury trial may, before the charge to the jury, confer with the accused or counsel . . .
That is a pre charge conference, but that’s the charge.
MR. MOORE-STEWART: Is it 650(1) that you are referring to?
THE COURT: Which one, Mr. Moore-Stewart?
MR. MOORE-STEWART: 650(1) as opposed to 650.1.
THE COURT: Okay. Let me look at that.
MR. MOORE-STEWART: Well, that is the provision providing a person “shall be present during the whole of his or her trial.”
THE COURT: Yes, I’m looking for the pretrial conference.
MR. MOORE-STEWART: Right.
THE COURT: Where does the Code mandate a pretrial conference? It must because we have them all the time, at least in jury trials. I don’t know. How does that get into Provincial court?
MR. FOWLER: It is 625, My Lord. I apologize, 625
THE COURT: Six two five.
MR. FOWLER: — point one, in fact.
MR. MOORE-STEWART: I’m sorry, what?
MR. FOWLER: 625.1 “pre-hearing conference”.
THE COURT: Oh right. Okay. Well, I’ll hear you [indiscernible/rapid speech] Mr. Moore-Stewart, but look at the wording in 625.1.
. . . a conference between the prosecutor and the accused or counsel for the accused . . .
All right. So it looks like that was 625, was that was that dealt with in Quick, Mr. Fowler?
MR. FOWLER: I I believe
THE COURT: Because I think there was a reference made to that.
MR. FOWLER: — that actually there is a reference to it, in fact, in page 10 in the paragraph the second paragraph on the page, in fact, they
THE COURT: Yes, 625.1.
MR. FOWLER: — they noted that:
The nature and character of those discussions fell within the ambit of the concluding words of . . .
THE COURT: Right. Okay. Well, it looks like there was ample authority so on the one hand we’ve got a body of law that says that an accused is entitled to be present through his or her entire trial, and let’s assume, as the Court of Appeal did, that the trial starts upon arraignment and the court being ready to proceed. Well, that doesn’t make sense.
Then there is another provision in the Code that says that a judge can order counsel for the prosecution and counsel for the accused to appear before her to consider matters that promote a fair and expeditious hearing. So implicitly there is no requirement for the accused to be present.
MR. FOWLER: That is certainly my submission, My Lord.
THE COURT: I wonder if there is another section of the Code that deals with that?
You see the unarticulated major premise in 625.1 is that the trial hasn’t started yet because it says “pre-hearing”, “are to be held”, interesting point, Mr. Fowler. “Are to be held”, so the law relating to when does a trial start obviously is not applicable, because it is talking in the future tense there.
All right. But I think I have the point. Quick referred to 625.1, said that this is a pre-hearing conference, a judge can order it, the accused need not be present, if the judge decides not. And if there is nothing that affects the adversely affects the accused’s right to fair defence, failure to make full answer and defence to the charge, then it is an administrative measure that the Court of Appeal says is perfectly proper. Is that
MR. FOWLER: That that is my submission, my understanding of the case law, My Lord.
THE COURT: All right. Is that what is that what Judge Kay concluded?
MR. FOWLER: That is, I believe, what Judge Kay concluded, My Lord. As she points out, she says:
It is a tool regularly used by the courts to deal with procedural, not substantive, matters.
THE COURT: Okay.
MR. FOWLER: I think she is referring essentially to the common way in which these matters are usually dealt with, and that she says pretrial conferences involve only judges and counsel and although if an accused is unrepresented of course she points out that it is done in open court with a Clerk present.
THE COURT: Well, they do it the same way as we do in Provincial court, do they?
MR. FOWLER: Apparently, My Lord, yes, it’s it’s quite often done literally in the judge’s chambers, in his office, with just counsel present and no actual recording or those types of measures taken.
THE COURT: I think we do them all in court, don’t we, in the Supreme Court?
MR. FOWLER: As far as I understand, My Lord
THE COURT: Yes.
MR. FOWLER: — I’m not aware of it being done differently.
THE COURT: All right.
MR. FOWLER: And, My Lord, just continuing on in Judge Kay’s decision I note she she canvasses, in fact, issues with respect to section 9, which I’m not sure my friend actually raised in his notice, but in any event on this occasion he had made the argument that again he had been arbitrarily detained and essentially singled out by the police in the execution of their duty.
And it was clear in that situation, and in my submission very clear in this situation as well, that Mr. Smith wasn’t singled out by the police. Mr. Smith gave an interview to a newspaper, which subsequently published it, as I’m very much sure he expected they would, and of course should not have been shocked at all that the police were on location when he arrived and and to carry through with his promise to commit the offence as he had described it.
He was in fact found to be in possession of a large quantity of of these marihuana cookies, which were found to have to have the substance tetrahydrocannabinol in them essentially, so there is no no suggestion that he was somehow based on the facts as I assume they will be alleged as I’m saying, obviously this is
THE COURT: Well, that is what the ruling is based on.
MR. FOWLER: Yes, exactly. So based on on that, there is no logical argument that he could be unaware that he was committing this offence, and that he was somehow singled out for any other reason except that the police knew he was doing it. They he had told them he was going to do it effectively, they found him doing it, and they arrested him. That is what the police do. It is not an arbitrary thing. They didn’t single him out for any particular reason except that they knew and expected him to be committing this offence, and in fact he was.
And that is exactly what Judge Kay found in in this the other case, the earlier R. v. Smith decision. That just for a bit of factual background that case arose out of a rally that was held on the UVIC campus where Mr. Smith was present, spoke to a crowd of people about different issues involving marihuana, then produced a marihuana cigarette, lit it, and passed it around, did that two or three times, and effectively trafficked marihuana therefore to the people in the crowd. I suppose to his misfortune one of those people happened to be an undercover police officer, which is how he came to be arrested on that occasion.
THE COURT: Well, is this the one that the Court of Appeal dismissed yesterday?
MR. FOWLER: No, it is not, My Lord, this is a different one. There were
THE COURT: Oh.
MR. FOWLER: — I think as many as well at least those many files outstanding. So this this one, as I understand it, may be I believe it is subject to an appeal, but it has not been overturned.
THE COURT: I see.
MR. FOWLER: And that’s essentially I and then later on Judge Kay goes into an analysis of section 15 of the Charter as I have already described. And again, for the same reasons finds that section 15 is not applicable, that the personal choice to consume marihuana is not a protected right under section 15 and not an analogous ground, and therefore that ground had to fail.
And she goes on then to discuss the actual merits of the case.
So, in my submission, My Lord, it is very clear that my friend has not made out a case under any of the paragraphs that he’s outlined in his notice indicating that his that Mr. Smith’s rights were violated. There is no in my submission, no merit to the claim that any of his rights were violated as described.
Clearly this is not a medical marihuana case, and in any event, the law is very clear from the Supreme Court of Canada on the issue of of marihuana, and whether or not that’s a constitutional a constitutionally valid prohibition, and clearly it is.
Again, Your Honour [sic] has my arguments with respect to the section 11(d) issue, and for all those reasons it is my submission that simply a stay of proceedings is entirely inappropriate, based on the arguments that Your Lordship has heard, and that my friend’s therefore, my friend’s application must fail, and the trial obviously ought to proceed as it is set.
THE COURT: Thank you, Mr. Fowler.
MR. MOORE-STEWART: My Lord, I would like to make comment on a few of Mr. Fowler’s submissions.
THE COURT: Yes, go ahead, Mr. Moore-Stewart.
MR. MOORE-STEWART: First of all, Mr. Smith is claiming that this is a medical case, not a recreational case, and he’s claiming that for the reasons as stated in paragraph 2 of our Constitutional Question notice having to do with the definition of health based on wellness.
THE COURT: Right. I have that point.
MR. MOORE-STEWART: Okay.
The my friend made some just paragraph 141 of the Malmo-Levine case, I just want to
THE COURT: I’m sorry, Mr. Moore-Stewart, which
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