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REGINA vs. SMITH Part 7
By Hempology | February 6, 2006
aragraph?
MR. MOORE-STEWART: One forty-one.
That just simply reads:
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.
p
My friend made reference to that he believed in his submissions that the arrest of Mr. Smith was not arbitrary or irrational. My point there is that even if it is not arbitrary or irrational it can nevertheless be disproportional and the Supreme Court of Canada seems to be affirming that in paragraph 141.
As to the issue of the pretrial conferences, first of all, it got clarified for me that Judge Smith did order the transcript on in the second pretrial conference on February 20th. The transcript of what took place in his private office without Mr. Smith being allowed to be present. That still doesn’t meet the standard as required in section 11(d) of the Charter of Rights, which reads:
Any person charged with an offence has the right
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
Now that is a requirement for a public hearing. It is certainly our contention that the trial has begun and a hearing as defined or as as referred to in section 11(d) of the Charter a hearing is begun after the arraignment, and that those pretrial conferences are indeed part of the hearing that is required by section 11(d) to be public.
My friend says that there was no prejudice to the accused. Well, we’ll never know. We don’t have a public hearing to make reference to, and certainly in regards to the first of those hearings we have no transcript. All
THE COURT: Okay. But just a minute, that was involving this very indictment that I’m dealing with.
MR. MOORE-STEWART: It was involving the information that alleged possession for the purpose of trafficking under three kilograms of marihuana.
That is what it was at that time.
THE COURT: All right. But wait a minute, help me with this, Mr. Moore-Stewart, I’m missing something. He wasn’t tried on that information, was he?
MR. MOORE-STEWART: The information no, the information was set to be tried
THE COURT: Yes.
MR. MOORE-STEWART: — it was set to be tried
THE COURT: Right.
MR. MOORE-STEWART: — but indeed before any trial of the action the the Crown amended the charges against Mr. Smith.
THE COURT: Yes.
MR. MOORE-STEWART: They got a new series of of test results. The first series of test results were just came back that everything tested cannabis
THE COURT: What did they come back, Mr. Fowler?
MR. MOORE-STEWART: — resin?
THE COURT: What did what did the first were there two were there two series of tests?
MR. FOWLER: I wasn’t aware that there were two, My Lord. The one the certificate that I showed Your Lordship earlier this morning was one dated November of 2000.
THE COURT: Yes.
MR. FOWLER: I don’t I wasn’t aware that anything
MR. MOORE-STEWART: Oh.
MR. FOWLER: — had done been done before that on this particular file.
MR. MOORE-STEWART: That one said THC?
MR. FOWLER: In yes, it does.
MR. MOORE-STEWART: Oh okay. All right. All right. I I will stand corrected on that, whether there were an earlier set of but the charges clearly were possession of marihuana for the purpose of trafficking
THE COURT: All right.
MR. MOORE-STEWART: — at the time Judge Smith was dealing with the issue.
THE COURT: All right. And the anticipated as I understood, the expectation at that time was that there would be a trial in the Provincial court on that information?
MR. MOORE-STEWART: That’s right, because it was
THE COURT: So he was dealing
MR. MOORE-STEWART: — it was five five years less
THE COURT: — with he was dealing with
MR. MOORE-STEWART: — a day and absolute jurisdiction.
THE COURT: Right. All right. But there never was a trial?
MR. MOORE-STEWART: No, there wasn’t.
THE COURT: So Mr. Smith has not suffered an adverse result so that you can say, “Well, but for what took place in the private chambers of the judge that never would have happened.”
MR. MOORE-STEWART: It’s
THE COURT: That is my first question. The second question is, you were there?
MR. MOORE-STEWART: Yes.
THE COURT: You must have known what happened, if there was something to complain about wouldn’t you have raised it?
MR. MOORE-STEWART: There there were it’s basically I don’t have a transcript of it. I do remember that there were things that I took exception to
THE COURT: Yes, but that’s
MR. MOORE-STEWART: — but I
THE COURT: — that’s clear on the one transcript we do have.
MR. MOORE-STEWART: And, you know, there were some hard thought issues there. It’s been, you know, almost five years ago, and I don’t even know where my notes of that are at this point in time, quite frankly.
I do know that it was, and continues to be, a significant issue for us, and that we thought that that you can get a very different type of justice in the back room versus in an open court, and it is always been a continuing concern that I can’t I can’t put more details of the prejudice before you because it has been so long and my notes are not available to me on this. I don’t know where they are
THE COURT: See the thing that troubles me, Mr. Moore-Stewart, is that if something had happened and this procedure may no longer be available, I’m getting too old, but if something had happened in the judge’s private chambers that was adverse to the interests of the accused, then I would have expected that there would be an application to this court to immediately prohibit that judge from carrying on with that prosecution.
MR. MOORE-STEWART: Perhaps I I was slow on the draw in doing just that, perhaps.
THE COURT: Because the onus is on the onus under that procedure is that still available? Can you still bring on an application action to prohibit a judge from
MR. FOWLER: I believe you can, My Lord, although it is not something I have looked into recently
THE COURT: Yes.
MR. FOWLER: — so I couldn’t tell you exactly how that works.
THE COURT: See the onus is on the the onus is on the applicant to prohibit the judge from carrying on, and establishing that this judge has done something that is adverse to the interests of the accused person, or may be perceived to be adverse to the interests of the accused person. I’ve forgotten what it’s a it’s a prohibition writ and it used to be done.
MR. MOORE-STEWART: Yes.
THE COURT: All right. So in this case in this case now that we are under the Charter, and not under the old rules of law, the onus is on you to show me that, “Here’s what happened in there and this is the consequence.” Now we haven’t even started Mr. Smith’s trial. How can you tell me that he may suffer an adverse reaction an adverse problem? I didn’t I didn’t meet with you and Mr. Fowler in private in the in the to the exclusion of Mr. Smith. I didn’t do anything. I am going to be the one that is going to run this trial. How can how can what Judge Smith may or may not have done in 2000 have anything to do with the trial you and I are going to be involved in?
MR. MOORE-STEWART: Well, the way I take the meaning of the words in section 11(d) about a public hearing, a fair and public hearing, I take the “hearing” aspect of things and and I’m perhaps adding my own interpretation and definition, but I think the hearing that it is referring to in section 11(d) is the whole process, certainly the whole process that carries on after an arraignment.
The definition
THE COURT: But he hasn’t been arraigned yet. You see that is why I wanted to have this discussion with Mr. Fowler, because in this court that’s that argument has no legs, because the trial hasn’t started. And the trial in this court won’t start until we’ve got a jury, we’ve got a judge, we’ve got counsel, we’ve got a plea, and we are all ready to go. Then a trial starts.
MR. MOORE-STEWART: But I think a hearing as contemplated in section 11(d) is a broader concept than the trial concept that Your Lordship is referring to. I think a hearing takes place or that it is it is hearing time, if you will, certainly after the accused has has is basically before the courts really. The matter of at every step in the criminal procedure really the accused is invited to be publicly there and that certainly takes place even even in matters in courtroom 126, arraignment hearings. I think the definition of hearing is broader than the definition of trial, and I think that the hearing in question, the pretrial hearing, is a hearing within the sense of 11(d). That is my submission.
THE COURT: Yes, but the hearings you and I are talking about do have nothing to do with the determination of guilt or not guilt.
MR. MOORE-STEWART: I the it I would take issue with that. I mean
THE COURT: We are still here.
MR. MOORE-STEWART: — the procedural issues all the way along have everything to do with whether the accused is going to be found guilty or not guilty at the end of the day, and they are as much a part of the hearing process as the trial itself.
THE COURT: All right. So you want me to read “hearings” as plural, or “hearing” as plural, only as a result of a series of public hearings?
MR. MOORE-STEWART: Yes, hearings hearing is is
THE COURT: Every hearing involving the liberty of this accused must be in public?
MR. MOORE-STEWART: That’s right. Certainly with the accused being allowed to be present, yes. I would certainly say that 11(d) should imply that much.
THE COURT: All right. I have one more question. Maybe it is a question to both of you.
I don’t know how long ago this was, but I think it was Judge Millward, and I think it goes back to when we had to move down to St. Ann’s Academy to do the trials because they were working on this building, but Judge Millward met with counsel in his chambers in in the absence of the accused. And I think my recollection is it was a procedural matter, but that went to the Court of Appeal, and I have forgotten what the Court of Appeal did in the substance of the case, but after that decision there was no more meeting in private chambers in the superior courts I can tell you that.
MR. MOORE-STEWART: Mm-hmm.
THE COURT: Now are you familiar with that case, either one of you?
MR. MOORE-STEWART: No, I’m not.
MR. FOWLER: Afraid not.
It’s certainly something I would be happy to look into on a break.
MR. MOORE-STEWART: It is certainly something that sounds germane indeed.
THE COURT: Yes, it is, I think it is, but but it’s not got nothing to do with I don’t think it had anything to do with the Charter. We were just dealing with current current procedure.
But this is I want to know about this, so if you can dig up the law for me, see if you can find that case, and I don’t know what the Court of Appeal did, but I do remember that they chastised the judge for what he did.
MR. MOORE-STEWART: Do you have any idea of the time period of the case?
THE COURT: I I don’t. When did Judge Millward retire?
MR. MOORE-STEWART: It’s been ten years.
MR. FOWLER: That would be well before my time, I’m afraid, My Lord.
THE COURT: Yes, you are all so young. Of course everybody looks young to me except the late George Burns.
Well, see if you can find it.
MR. MOORE-STEWART: All right.
THE COURT: Maybe maybe somebody is there everybody in the Crown office is all young too, I don’t remember any of them being there. Is Nick Lang still around?
MR. MOORE-STEWART: Yes, but he’s defence though.
THE COURT: Nick may remember.
MR. MOORE-STEWART: Yes, but he’s around. Yes.
THE COURT: Because I don’t even know I don’t remember what the man was charged with, but you might be able to find it in some kind of an index dealing with judicial conduct.
Anyway, let’s look at that. I don’t know if that is going to be of any assistance to me or not, but I’d like to review that case and see what the Court of Appeal said about this, because there are some neat issues here.
MR. MOORE-STEWART: Mm-hmm. I’m yes, just I a very, very brief couple of comments to conclude.
I think the violation of the accused’s Criminal Code rights under section 650 at least gives extreme succour to the defence that there has been a violation of his Charter rights as well. It would be an unusual situation where the Criminal Code rights were violated in regard to the accused’s rights to be present and under section 650 of the Criminal Code and not his Charter rights.
Just finally in regard to section 15, my friend’s arguments there, he says that the police didn’t single out Smith because there was this newspaper article that he alleges. Well even if the police didn’t single out Smith, the Crown with in our submissions has singled out Smith for their approval of these charges, for the change from marihuana to THC with the life imprisonment potential. That that would be a singling out by the Crown, and is scapegoating pursuant to section 15 in our arguments. And also for the novelty of the charge, both of THC and the idea that the sharing of a marihuana cookie could bring these consequences down of a life sentence.
And just for clarification the Kay decision is under appeal to the Court of Appeal.
Those are my points.
THE COURT: All right, counsel, I’m going to ask you if you could see if you can find in your research that decision of the Court of Appeal. I don’t even know if it was ever reported. I remember as a kid reading it, as a lawyer, to be sure that you never went into a judge’s because it used to be done all the time.
MR. MOORE-STEWART: Mm-hmm.
THE COURT: And now we used to go into the judge’s chambers when the jury went out. We’d all go back in there and rehash the case in the absence of the accused. He had a lawyer for the Crown, a lawyer for the accused, the judge sitting there waiting for the jury. That stopped.
MR. MOORE-STEWART: Yes.
THE COURT: No more of that.
So see if you can find that. If you can find that would you simply let the registrar know
MR. MOORE-STEWART: All right.
THE COURT: — and I’ll and I’ll dig it up and read it. In the meantime there is nothing pressing, we’ve got tomorrow reserved, right?
MR. MOORE-STEWART: Yes.
THE COURT: All right. I want to read all this material, and we’ll reconvene again at ten o’clock tomorrow morning, and if you’ve got any further submissions as a result of finding the decision involving Judge Millward I’ll hear them then, if not, I’ll give you my ruling.
MR. MOORE-STEWART: Very good.
THE COURT: Tomorrow morning.
MR. FOWLER: Thank you, My Lord.
MR. MOORE-STEWART: Thank you, My Lord.
THE COURT: Thank you.
(PROCEEDINGS ADJOURNED TO SEPTEMBER 30, 2005, AT 10:00 A.M.)
Victoria, B.C.
September 30, 2005
THE CLERK: In the Supreme Court of British Columbia, Friday, this 30th day of September 2005, Her Majesty The Queen against Leon Edward Smith at bar, My Lord.
THE COURT: Thank you.
MR. FOWLER: Again, My Lord, Richard Fowler on behalf of the Federal Crown.
MR. MOORE-STEWART: And Robert Moore-Stewart on behalf of Mr. Smith.
THE COURT: Thank you.
Now, Mr. Fowler, I I got your message that the case may have been Breckner?
MR. FOWLER: That’s the one I could find, My Lord
THE COURT: Yes, and I think you are right.
MR. FOWLER: — that seemed to fit the criteria.
THE COURT: Did you read that, Mr. Moore-Stewart?
MR. MOORE-STEWART: I’ve just been provided with it this morning, and I talked briefly about it with my friend, who has given me a brief synopsis.
THE COURT: It sounds very familiar, although I don’t see that the Court of Appeal said anything in the reasons for judgment.
MR. FOWLER: It doesn’t appear that way, My Lord. The only reason I I brought it to your attention is it appears to be the kind of decision where they may very well after the fact have decided it was worth having a look at the procedures for such [indiscernible/overlapping speakers]
THE COURT: Well, it must have been or it might have been something during argument
MR. FOWLER: Possibly.
THE COURT: — but I know it changed the procedure in the County of Victoria. But they don’t say anything about it, and there are other grounds for coming to the conclusion that they did, so it doesn’t help me very much that I can see, Mr. Moore-Stewart.
MR. MOORE-STEWART: It I think you are probably correct in that.
THE COURT: All right. Another question, Mr. Moore-Stewart, you argued yesterday that this was a borderline case, this Malmo-Levine, and
MR. MOORE-STEWART: Yes.
THE COURT: — that there was a six three split, but so far as the constitutional question involving possession for the purpose of trafficking is concerned it was a unanimous court.
Here is what Madam Justice Arbour said. Well, first she dealt with the the offence of possession for the purpose of trafficking in paragraph 266 of the reasons, and she refers to the majority judgment with respect to their conclusion on possession for the purpose of trafficking, and she said in the final sentence of that paragraph or I guess it is not, but it’s the subparagraph (4) under paragraph 266 in the Supreme Court Report.
Her words are:
I agree entirely with this conclusion.
And then she says at paragraph 271 [sic], with capital Roman numeral III, “Conclusion”, capital letter A, “Malmo-Levine”:
273 For the foregoing reasons, in the case of the appellant David Malmo-Levine, I would dismiss the appeal.
274 The constitutional questions in the Malmo-Levine appeal should be answered as follows:
1. Does prohibiting possession of Cannabis (marihuana) for the purpose of trafficking under s. 4(2) of the Narcotic Control Act. . . by reason of the inclusion of this substance in s. 3 of the Schedule to the Act . . . infringe s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question 3, the next constitutional question was:
3. Does prohibiting possession of Cannabis (marihuana) for the purpose of trafficking under s. 4(2) of the Narcotic Control Act . . . by reason of the inclusion of this substance in s. 3 of the Schedule to the Act . . . infringe s. 15(1) of the Charter by discriminating against a certain group of persons on the basis of their substance orientation, occupation orientation, or both?
Answer: No.
Now it looks to me like it was a unanimous court, it wasn’t borderline at all when it came to trafficking.
Does that change your submission any, Mr. Moore-Stewart?
MR. MOORE-STEWART: Yes, Your Honour, in the light of that I think it does, and I certainly am not trying to dissuade the court from going against the Supreme Court of Canada.
THE COURT: Thank you. That would be embarrassing for me.
MR. MOORE-STEWART: Yes.
THE COURT: All right.
[RULING RE CONSTITUTIONAL QUESTION]
THE COURT: Now Mr. Moore-Stewart, that concludes an explanation of my disposition of the application and the reasons therefore.
Is there anything else I need to deal with?
MR. MOORE-STEWART: Nothing that I’m aware of.
THE COURT: Mr. Fowler?
MR. FOWLER: No, I don’t think so, My Lord.
THE COURT: Thank you, gentlemen.
We’ll adjourn
MR. MOORE-STEWART: Thank you, My Lord.
(PROCEEDINGS CONCLUDED)
Victoria, B.C.
October 12, 2005
(JURY OUT)
THE CLERK: In the Supreme Court of British Columbia, Wednesday, this 12th day of October 2005, recalling Her Majesty The Queen against Leon Edward Smith, file 112476, My Lord.
THE COURT: Thank you.
All right. Counsel, before I have the jury come in, I’ve got two questions that I’ll hear from you on.
The first one, which I think is easy, is this, “What is the definition in law of the word “trafficking”?”
Now what I propose to do is say that these are the kind of things that will be dealt with in the final charge, but since they’ve asked I’ll tell them right now what the what the statute defines “trafficking” as.
The second question is, “Is there a charge of less than a kilo for the purpose of trafficking, or would that be simple possession?”
MR. FOWLER: I think the answer, My Lord, to that second question is probably not much more difficult, quite frankly. I think that there is no lower limit, if you will, on the amount of substance that can be possessed for the purpose of trafficking. Obviously often times the amount is an indicator of the intent, but certainly if somebody indicates very clearly that their intent is to traffic even a very small amount of a substance, that can still be in my submission, it would still fit within the definition of possession for the purpose of trafficking.
It may be that what the the members of the jury, of course, have heard some talk about is the charge as it is sometimes particularized being less than three kilograms, for example, and that of course
THE COURT: I think that is what is troubling them.
MR. FOWLER: I think that, and perhaps it could be explained to them that that simply is a matter of the penalty that can be imposed as well as some of the procedural aspects, but it doesn’t change the actual definition of the offence itself.
THE COURT: Right.
MR. FOWLER: I think that’s fair unless my friend has some
THE COURT: All right. Thank you, Mr. Fowler.
Mr. Moore-Stewart, what do you say, about these two little questions?
MR. MOORE-STEWART: Yes, My Lord, I agree that it seems to me that one of the areas that there is likely confusion in that second question is where this “less than, greater than” line is drawn.
THE COURT: Yes.
MR. MOORE-STEWART: And they seem to have some confusion as to whether it is three kilograms, one kilogram, and also they don’t seem to know the significance of it, nor were they given too much information on that by Officer Lauer.
I think they do need to know that there is the significant upgrade of the penalty from five years less a day to life imprisonment, and that the procedural difference means that there is an election allowed to the jury [sic], which includes the election of judge and jury, which is not available to under three kilograms.
THE COURT: Right.
MR. MOORE-STEWART: I think they should know both of those things.
THE COURT: Well, I don’t think I should be telling them what the penalties are. I I can tell them that there is a difference, but I will be telling them in the final charge they don’t have to worry about the penalty, that is my job.
MR. FOWLER: Given this particular substance, there is no provision in the the Act for possession for the purpose of trafficking less than the three kilograms. THC is one of those substances that only be particularized as PPT essentially. There is it is only if if
THE COURT: Now wait a minute, it’s particularized in the indictment.
MR. FOWLER: It is particularized, as THC in the indictment, but it doesn’t say “less than three kilograms”, I don’t believe.
MR. MOORE-STEWART: It does in my copy of the indictment.
MR. FOWLER: [indiscernible/overlapping speakers]
THE COURT: “Not greater than three kilograms.”
MR. MOORE-STEWART: What? I I recall looking at the indictment and seeing that it is particularized
THE COURT: Yes.
MR. MOORE-STEWART: — as less than three kilograms.
THE COURT: That’s right.
MR. MOORE-STEWART: And
MR. FOWLER: You are quite right actually
THE COURT: Well, where is that in a schedule? Where is that
MR. MOORE-STEWART: It isn’t in the schedule. I think that is entirely surplusage.
MR. FOWLER: I would have to agree with my friend in that case. It is likely quite frankly an error in drafting at the end of the day, but in any event, the Act makes it very clear that the offence
THE COURT: No, where is where is the provision in the statute dealing with over and under three kilos?
MR. FOWLER: That is in section 5, My Lord. In particular I’m just looking at it starts with subsection (4) and it makes reference to the schedules there, but it indicates:
Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in Schedule II . . .
And that is the schedule including marihuana and the derivatives.
. . . in an amount that does not exceed the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years . . .
If you look at the Schedule VII then, My Lord, I think it
THE COURT: Cannabis resin and marihuana.
MR. FOWLER: Exactly, but it doesn’t include tetrahydrocannabinol, particularly.
So certainly it would be my submission that given that the particularization of the substance in this case there is no provision for I mean we could it certainly, in my submission, doesn’t change the offence that we particularized it as being less than three kilograms. The evidence suggests that there was less than three kilograms of of the substance present. That just simply has no effect at the end of the day on anything unfortunately, on whether there is a lesser punishment available, or whether there is a procedural change.
THE COURT: So surplusage?
MR. FOWLER: That would be my submission.
MR. MOORE-STEWART: Well, I’m going to withdraw the term “surplusage” actually. I think that it might be significant whether the Crown proves their case or not in regard to the charges laid. I just think I agree with my friend in the statement that in his analysis of section 5 of the Controlled Drugs and Substances Act, and and it’s relation to Schedule VII, that indeed there is nothing in the in this Act that suggests that that there is any difference between there is no three kilogram limit in regard to THC that is mentioned in the Act, only for resin and for marihuana.
At the same time I do withdraw my comment about surplusage.
THE COURT: All right. So when the information was amended to substitute marihuana the word “marihuana” by the word “THC”
MR. MOORE-STEWART: Yes.
THE COURT: — they didn’t go far enough and delete the words of “under three kilograms”.
MR. MOORE-STEWART: I would never want to critique my learned friend in that regard.
MR. FOWLER: But I I think in fairness, My Lord, that is very likely exactly what occurred in this case.
As I say, the evidence has come out, and I don’t expect there to be any further evidence, certainly led by the Crown, as to the amount of substance that was actually possessed by Mr. Smith. I think the evidence on that has come out and it has been certainly I think the maximum amount we’ve heard is perhaps one gram per cookie multiplied by some 300 cookies, that is still far less than three kilograms of of any substance that has been particularized. So I don’t think there is a real issue as to whether somehow the case is going to show something more than three kilograms. And
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