DATE: 20000731
                                                   DOCKET: C28066
                                                                 
                   COURT OF APPEAL FOR ONTARIO
              CATZMAN, CHARRON and ROSENBERG JJ.A.
                      Summary of Judgment
                                
BETWEEN:                    )
                                   )  Alan Young and
HER MAJESTY THE QUEEN              )  Paul Burstein,
                                   )  for the appellant
                    Respondent     )
                                   )
- and -                            )  Morris Pistyner and
                                   )  Kevin Wilson,
CHRISTOPHER CLAY                   )  for the respondent
                                   )
                    Applicant/     )
                    Appellant      )
                                   )  Heard: October 6, 7 and 8, 1999
                                   )
On appeal from his conviction by Mr. Justice J. F. McCart,
sitting without a jury, on August 14, 1997
ROSENBERG J.A.:
[1]  This is one of two appeals heard by this court concerning
the constitutionality of the marihuana prohibition in the former
Narcotic Control Act, R.S.C. 1985, c. N-1 and the Controlled
Drugs and Substances Act, S.C. 1996, c. 19.1  The Crown appeal in
R. v. Parker concerns the medical use of marihuana.  This appeal
centres primarily on the use of the criminal law power to
penalize the possession of marihuana.
[2]  The appellant owned a store called “The Great Canadian
Hemporium”. In addition to selling items such as hemp products,
marihuana logos and pipes, the appellant sold small marihuana
plant seedlings from his store.  The appellant is an active
advocate for the decriminalization of marihuana. The appellant
does not require marihuana for any personal medical reason
although he did sell marihuana cuttings from his store to persons
who did.
[3]  An undercover police officer bought a small marihuana
cutting at the store.  The police also seized marihuana cuttings
and a small amount of marihuana when they executed search
warrants at the appellant’s store and home.  As a result, the
police charged the appellant under the former Narcotic Control
Act with possession of cannabis sativa, trafficking in cannabis
sativa, possession of cannabis sativa for the purpose of
trafficking and the unlawful cultivation of marihuana.2
[4]  At trial, the appellant challenged the constitutionality of
the cannabis prohibitions in the former Narcotic Control Act on
the basis that: (a) these prohibitions violate his rights under
s. 7 of the Canadian Charter of Rights and Freedoms; and (b) the
regulation of marihuana is not within federal jurisdiction. He
also argued that the Crown failed to prove that the substances
seized from him were prohibited narcotics as defined by the Act.
[5]  McCart J. dismissed the appellant’s constitutional challenge
and found that the Crown had proven the offences against him.  In
reasons reported at (1997), 9 C.R. (5th) 349, McCart J. fully
reviewed the evidence at trial and made findings of fact and law
with which I essentially agree.
[6]  For the reasons that follow, I would dismiss the appellant’s
appeal.  I will deal with the appellant’s constitutional
arguments first and then with whether the Crown proved that the
seized substances were narcotics as defined by the Act.
THE CONSTITUTIONALITY OF THE PROHIBITION AGAINST THE POSSESSION
AND TRAFFICKING OF MARIHUANA          
1.   The Appellant’s Position
                    
[7]  The focus of the appellant’s attack on the marihuana
prohibitions is on the alleged deleterious health effects of
marihuana use and the alleged danger to the public.  Briefly, he
argues that the evidence shows that marihuana use is not
associated with any significant harmful health effects3 and that
it is the criminalization of marihuana, rather than its use, that
poses the greater danger to the public.  He argues that inclusion
of marihuana in the Act violates s. 7 of the Canadian Charter of
Rights and Freedoms because:
(i)    It is a principle of fundamental justice 
that the criminal law be used with restraint and 
not employed unless there is a reasonable basis for 
finding that the prohibition is directed to harmful 
conduct;
(ii)   The marihuana prohibition is overly broad as 
it does not include an exemption for the medical use 
of marihuana and it prohibits forms of cannabis that 
are not harmful or intoxicating.
(iii)  The right to use intoxicants in the privacy 
of one’s home is a fundamental aspect of personal 
autonomy and human dignity and is thus guaranteed 
by s. 7.
[8]  The appellant argues, alternatively, that the regulation of
cannabis sativa is not within federal jurisdiction under s. 91 of
the Constitution Act, 1867, being neither criminal law nor a
matter of peace, order and good government.
[9]  A note on terminology: Under the former Narcotic Control
Act, it was an offence to possess a narcotic (s. 3), to traffic
in a narcotic (s. 4(1)), and to possess a narcotic for the
purpose of trafficking (s. 4(2)).  The term “narcotic” is defined
in s. 2 to include any substance in the schedule.  The schedule
lists “Cannabis sativa, its preparations, derivatives and similar
synthetic preparations”.  Among the listed derivatives is
“Cannabis (marihuana)”.  For this part of the analysis, I will,
for simplicity, generally use the term “marihuana” as the part of
the plant that users smoke.  On occasion, it may be necessary to
refer to the plant itself, in which case, I will use the term
“cannabis” or “cannabis sativa”.
2.   The Trial Decision
[10] The trial judge heard two weeks of evidence, including
evidence from some of the leading experts on marihuana.  He was
also referred to government and scientific studies and the
reports of various law reform bodies.  On the basis of this
evidence, the trial judge concluded that previous concerns about
marihuana use are exaggerated, but that there are certain health
and public dangers associated with its use. In my view, these
findings are founded in the evidence.  They are set out in full
below from pp. 360-62:
From an analysis of their evidence I am able to 
reach the following conclusions:
1.   Consumption of marijuana is relatively 
harmless compared to the so-called hard drugs 
and including tobacco and alcohol;
2.   There exists no hard evidence demonstrating  
any irreversible organic or mental damage from 
the consumption of marijuana;
3.   That cannabis does cause alteration of 
mental functions and as such, it would not be 
prudent to drive a car while intoxicated;
4.   There is no hard evidence that cannabis 
consumption induces psychoses;
5.   Cannabis is not an addictive substance;
6.   Marijuana is not criminogenic in that 
there is no evidence of a causal relationship  
between cannabis use and criminality;
7.   That the consumption of marijuana probably  
does not lead to "hard drug" use for the vast 
majority of marijuana consumers, although there
appears to be a statistical relationship between  
the use of marijuana and a variety of other 
psychoactive drugs;
8.   Marijuana does not make people more 
aggressive or violent;
9.   There have been no recorded deaths from the   
consumption of marijuana;
10.  There is no evidence that marijuana causes 
amotivational syndrome;
11.  Less than 1% of marijuana consumers are 
daily users;
12.  Consumption in so-called "decriminalized   
states" does not increase out of proportion to  
states where there is no decriminalization;
13.  Health related costs of cannabis use are   
negligible when compared to the costs 
attributable to tobacco and alcohol consumption.
Harmful Effects of Marijuana and the Need for More
Research
Having said all of this, there was also general  
consensus among the experts who testified that the 
consumption of marijuana is not completely harmless.  
While marijuana may not cause schizophrenia, it may 
trigger it.  Bronchial pulmonary damage is at risk 
of occurring with heavy use.  However, to be fair,  
there is also general agreement among the experts 
who testified that moderate use of marijuana causes   
no physical or psychological harm.  Field studies in 
Greece, Costa Rica and Jamaica generally supported
the idea that marijuana was a relatively safe drug - 
not totally free from potential harm, but unlikely 
to create serious harm for most individual users or
society.
The LeDain Commission found at least four major 
grounds for social concern:  the probably harmful
effect of cannabis on the maturing process in   
adolescence; the implications for safe driving  
arising from impairment of cognitive functions and  
psycho motor abilities, from the additive 
interaction of cannabis and alcohol and from the 
difficulties of recognizing or detecting cannabis 
intoxication; the possibility, suggested by reports 
in other countries and clinical observations on 
this continent, that the long-term, heavy use of 
cannabis may result in a significant amount of 
mental deterioration and disorder; and the role 
played by cannabis in the development and spread 
of  multi-drug use by stimulating a desire for drug 
experience and lowering inhibitions about drug 
experimentation.  This report went on to state that 
it did not yet know enough about cannabis to speak 
with assurance as to what constitutes moderate as  
opposed to excessive use.
The Report of the National Task Force on Cannabis,  
Canberra, Australia, was delivered on  September  30,  
1994.   This Task Force concluded,  in general, that 
the findings on the health and psychological effects
of cannabis suggest that cannabis use is not as
dangerous as its opponents might believe, but that 
its use is not completely without risk, as some of 
its proponents would argue.  As it is most commonly 
used, occasionally, cannabis presents only minor or 
subtle risks to the health of the individual.  The 
potential for problems increases with regular heavy
use.  While the research findings on some potential
risks remain equivocal, there is clearly sufficient 
evidence to conclude that cannabis use should be 
discouraged, particularly among youth.
Sometime prior to the Canberra Report, the Royal 
Commission into the non-medical use of drugs in  
South Australia was released.  This Commission 
concluded that marijuana is not an addictive drug 
and “is comparatively harmless in moderate doses, 
although there are effects on skills such as those 
required for driving, and its effects may be greater
if it is taken in combination with other drugs.  It  
is almost certainly harmful to some extent in high 
doses.  The summary of the scientific and medical 
evidence does not entirely resolve the policy 
questions, since further value judgments have to 
be made.” 
        Finally, I would refer to a commentary by Dr.  
	Harold Kalant [the Crown’s expert witness] on 
	three reports which appeared in 1982 respecting 
	the potential health damaging consequences of 
	chronic cannabis use. The one report is that  
        of an expert group appointed by the Advisory 
        Council on the misuse of drugs in the United 
        Kingdom.  The second is that resulting from a  
        scientific meeting sponsored jointly by the 
        Addiction Research Foundation of Ontario and the 
        World Health Organization.  The third is that of  
        a committee set up by the Institute of Medicine, 
        National Academy of Sciences, of the United States  
        of America.  There was general agreement by the
        three groups after a review of essentially the 
        same body of evidence.  In brief, the verdict in 
        each case has been that the available evidence is
        not nearly complete enough to permit an
        identification of the full range and frequency of
        occurrence of adverse effects from cannabis use,
        but that the practice can certainly not be
        considered harmless and innocent.
	I can only conclude from a review of these reports
        and the other viva voce evidence which I heard that
        the jury is still out respecting the actual and
        potential harm from the consumption of marijuana.
        It is clear that further research should be carried
        out.   While it is generally agreed that marijuana
        used in moderation is not a stepping stone to hard
        drugs, in that it does not  usually lead to
        consumption of the so-called hard drugs, nevertheless
        approximately 1 in  7 or 8 marijuana users do graduate
        to cocaine and/or heroin.
[11] The trial judge noted that studies have shown that marihuana
has a therapeutic value for the relief of symptoms of certain
diseases and illnesses.  However, he concluded that this was
irrelevant to the appellant’s case since he did not claim to
require marihuana for medical use.  I address the issue of the
medical use of marihuana in the companion appeal in R. v. Parker.
I will consider the impact of my findings in that case to this
appellant’s case at the conclusion of these reasons.
THE CONSTITUTIONAL ARGUMENT
1.   Section 7 of the Charter of Rights and Freedoms
(i)  Personal autonomy
[12] The appellant’s principal argument was based on the “harm
principle” as a principle of fundamental justice.  However, I
find it convenient to first deal briefly with an alternative
argument raised by the appellant.  He argues that the right to
use intoxicants, including marihuana, in the privacy of one’s
home is a fundamental aspect of personal autonomy and human
dignity.  In my reasons in R. v. Parker, I have dealt at some
length with the extent to which s. 7 of the Charter protects
aspects of personal autonomy and I need not repeat that
discussion here.  For the purposes of this appeal, it is
sufficient to refer to the reasons of La Forest J. in B. (R.) v.
Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R.
315.  This represents the widest view of liberty that has
attracted the support of some of the judges of the Supreme Court
of Canada.  La Forest J., writing for himself, L’Heureux-Dubé,
Gonthier and McLachlin JJ. on this issue, held as follows at p.
368:
Freedom of the individual to do what he or she 
wishes must, in any organized society, be subjected 
to numerous constraints for the common good. The 
state undoubtedly has the right to impose many types 
of restraints on individual behaviour, and not all 
limitations will attract Charter scrutiny. On the 
other hand, liberty does not mean mere freedom from 
physical restraint. In a free and democratic society, 
the individual must be left room for personal 
autonomy to live his or her own life and to make
decisions that are of fundamental personal importance.  
[Emphasis added.]
[13] This and other cases, such as the recent decision in New
Brunswick (Minister of Health and Community Services) v. G. (J.)
(1999), 177 D.L.R. (4th) 124 (S.C.C.), concern decisions over
medical care and by parents concerning the health of, and access
to, their children.  They are of an entirely different order from
the right to intoxicate oneself in the privacy of one’s home.
The marihuana prohibition does not infringe this wider aspect of
liberty in s. 7 of the Charter.
[14] The Supreme Court of Canada has also confirmed that s. 7
protects a right to personal autonomy as an aspect of security of
the person.  As Sopinka J. wrote in Rodriguez v. British Columbia
(Attorney General), [1993] 3 S.C.R. 519 at p. 588:
There is no question, then, that personal autonomy, 
at least with respect to the right to make choices 
concerning one's own body, control over one's physical 
and psychological integrity, and basic human dignity 
are encompassed within security of the person, at 
least to the extent of freedom from criminal 
prohibitions which interfere with these.  [Emphasis 
added.]
[15] In my view, the decision to use marihuana for recreational
purposes similarly does not fall within this aspect of security
of the person.  I do not agree that such a decision is basic to
human dignity.  This case is not at all like Rodriguez where, at
p. 588, Sopinka J. described the impact of the Criminal Code
prohibition on assisted suicide on the appellant’s ability to
make personal decisions in these terms:
The effect of the prohibition in s. 241(b) is to 
prevent the appellant from having assistance to 
commit suicide when she is no longer able to do so 
on her own. She fears that she will be required to 
live until the deterioration from her disease is 
such that she will die as a result of choking, 
suffocation or pneumonia caused by aspiration of 
food or secretions.  She will be totally dependent
upon machines to perform her bodily functions and 
completely dependent upon others. Throughout this 
time, she will remain mentally competent and able 
to appreciate all that is happening to her. Although 
palliative care may be available to ease the pain 
and other physical discomfort which she will
experience, the appellant fears the sedating effects 
of such drugs and argues, in any event, that they 
will not prevent the psychological and emotional 
distress which will result from being in a situation 
of utter dependence and loss of dignity.
[16] Other cases engaging this aspect of security of the person
have included R. v. Morgentaler, [1988] 1 S.C.R. 30, where delays
in the therapeutic abortion procedure put the pregnant woman’s
life and health at risk, and Fleming v. Reid (1991), 4 O.R. (3d)
74 (C.A.), where a psychiatric patient was medicated contrary to
instructions he had given when he was still competent.  I have
also held in R. v. Parker that the accused’s right was infringed
where he was denied access to marihuana that he required to
control epileptic seizures that threatened his life and health.
Again, the affront to autonomy and human dignity in these cases
is far removed from the claim made by the appellant in this case.
[17] At this stage in the development of the Charter, it is not
possible to delineate the aspects of personal autonomy that will
receive protection under s. 7.  The result for any given fact
situation must be informed by the situations where a deprivation
of liberty or security of the person has been found in the past.
[18] I agree with the trial judge that the recreational use of
marihuana, even in the privacy of one’s home, does not qualify as
a matter of fundamental personal importance so as to engage the
liberty and security interests under s. 7 of the Charter.    
(ii) The “harm” principle
[19] This part of the appellant’s s. 7 argument rests upon the
risk of deprivation of liberty through the possibility of
imprisonment upon conviction for the marihuana offences under the
Narcotic Control Act.  Drawing together a number of themes from
various authorities, not all of them dealing with s. 7, Mr.
Young, on behalf of the appellant, argues that s. 7 of the
Charter precludes Parliament from interfering with the liberty of
Canadians through a penal sanction unless there is a reasonable
basis for finding that the conduct to which the prohibition is
directed is harmful.
[20] In this aspect of the case, the appellant particularly
relies upon the well-known principle expressed by Lamer J. at the
opening of his reasons in Reference re s. 94(2) of the Motor
Vehicle Act, [1985] 2 S.C.R. 486 at 492:
A law that has the potential to convict a person 
who has not really done anything wrong offends 
the principles of fundamental justice and, if 
imprisonment is available as a penalty, such a law 
then violates a person's right to liberty under 
s. 7 of the Charter of Rights and Freedoms 
(Constitution Act, 1982, as enacted by the Canada 
Act, 1982. 1982 (U.K.), c. 11).  [Emphasis added.]
[21] This principle has been employed to measure the
constitutionality of the mens rea or fault requirements of
criminal and quasi-criminal provisions.  It has not previously
been used by the courts to evaluate the wisdom of penalizing the
underlying prohibited conduct.
[22] The appellant also relies upon statements from the Law
Reform Commission of Canada, the Report of the Canadian Committee
on Corrections (Ouimet Report) and the Government of Canada
itself in The Criminal Law in Canadian Society, which have all
affirmed the principle of restraint as a fundamental basis for
use of the criminal law and especially the use of the sanction of
imprisonment.
[23] In summary, the appellant seeks to derive a “harm principle”
from these and other statements as a principle of fundamental
justice.  He rightly points out that his liberty interest is
engaged since imprisonment was available for the marihuana
offences under the Narcotic Control Act (as it still is under the
Controlled Drugs and Substances Act).  Accordingly, he can only
be deprived of his liberty in accordance with the principles of
fundamental justice.  He argues that penal legislation that does
not comply with the harm principle is not consistent with the
principles of fundamental justice and therefore violates s. 7 of
the Charter.
[24] In Rodriguez v. British Columbia (Attorney General) at p.
590, Sopinka J. cautioned that the court must be careful that the
principles of fundamental justice do not become principles in
“eye of the beholder only”.  As he said at pp. 590-91:
Principles of fundamental justice must not, 
however, be so broad as to be no more than 
vague generalizations about what our society 
considers to be ethical or moral.  They must 
be capable of being identified with some 
precision and applied to situations in a 
manner which yields an understandable result.
[25] The harm principle as a principle of fundamental justice
evokes many of these concerns when it is taken out of the context
from which it is derived.  While it is a good basis for
legislative policy, a helpful guide for the exercise of
discretion by prosecutions and an important principle for judges
in exercising discretion in sentencing, it is a difficult
principle to translate into a means of measuring the
constitutionality of legislation.  For example, how much harm is
sufficient to warrant legislative action?  And, can the harm
principle be applied outside the mens rea area in a manner that
yields an understandable result?
[26] In R. v. Malmo-Levine, [2000] B.C.J. No. 1095, the British
Columbia Court of Appeal was presented with virtually the same
arguments made in this case.  In a thoughtful treatment of this
difficult question, Braidwood J.A., speaking for himself and
Rowles J.A., concluded that the harm principle is a principle of
fundamental justice within the meaning of s. 7.  He concluded,
however, that the marihuana prohibition in the former Narcotic
Control Act is consistent with the principles of fundamental
justice.
[27] Braidwood J.A. described the harm principle at para. 138 as
“whether the prohibited activities hold a ‘reasoned apprehension
of harm’ to other individuals or society”.  He also held that the
degree of harm must be neither insignificant nor trivial.  He
rejected a higher test suggested by Prowse J.A. in her dissenting
reasons.  She held at para. 177 that the harm must be of a
serious, significant or substantial nature.
[28] I am prepared to accept for the purpose of this appeal that
a harm principle is a principle of fundamental justice in the
terms suggested by Braidwood J.A.  I do not agree with the higher
test propounded by Prowse J.A. which, in my view, could lead to
an unjustifiable intrusion into the legislative sphere.
Moreover, the principle, as derived by Braidwood J.A., appears to
be consistent with the argument made by the appellant in this
court, which in turn was based on some of the language from R. v.
Butler, [1992] 1 S.C.R. 452.  In that case, Sopinka J., in
applying s. 1 to the alleged violation of freedom of expression
from the obscenity prohibition in the Criminal Code, held at p.
504 that a rational connection between the impugned measure and
the objective of the legislation was made out if Parliament had a
“reasoned apprehension of harm”.  Later he held at p. 505, in
applying the minimal impairment test, that it was sufficient that
the prohibited material “creates a risk of harm to society” and
“that it is sufficient in this regard for Parliament to have a
reasonable basis for concluding that harm will result and this
requirement does not demand actual proof of harm”.
[29] Finally, it seems to me that the test, as articulated by
Braidwood J.A., is consistent with Sopinka J.’s discussion in
Rodriguez about the principles of fundamental justice.  Sopinka
J. held that in determining whether the legislation was
consistent with the principles of fundamental justice, it was
necessary to consider the state interest and at pp. 593-94 he
referred to the reasons of McLachlin J. in Cunningham v. Canada,
[1993] 2 S.C.R. 143 at 151-52:
The principles of fundamental justice are concerned 
not only with the interest of the person who claims 
his liberty has been limited, but with the protection 
of society.  Fundamental justice requires that a 
fair balance be struck between these interests, both 
substantively and procedurally… [Emphasis added.]
[30] In Cunningham at p. 151, McLachlin J. had also held that the
“Charter does not protect against insignificant or ‘trivial’
limitations of rights”.
[31] Finally, the harm principle as articulated by Braidwood J.A.
is not unlike a principle of fundamental justice described by
Sopinka J. at pp. 594-95 of Rodriguez.  He held that where the
“deprivation of the right in question does little or nothing to
enhance the state's interest (whatever it may be), it seems to me
that a breach of fundamental justice will be made out, as the
individual’s rights will have been deprived for no valid
purpose”.  Similarly, if the marihuana prohibition, which risks
depriving the appellant of his liberty, does little or nothing to
enhance the state’s interests because there is no rational basis
for finding that marihuana use is harmful, there is a breach of
fundamental justice.
[32] As Sopinka J. said at p. 596 of Rodriguez, the determination
whether substantive legislation is consistent with the principles
of fundamental justice requires “an analysis of our legislative
and social policy … to determine whether fundamental principles
have evolved such that they conflict with the validity of the
balancing of interests undertaken by Parliament.”  I need not
engage in an extended discussion of this issue since I agree with
the findings of McCart J. at trial and much of the analysis of
Braidwood J.A. in Malmo-Levine.
[33] In considering whether Parliament has struck a fair balance,
the deleterious effects of the marihuana prohibition should not
be underestimated.  In addition to the possibility of
imprisonment, the evidence at trial also demonstrated the broader
adverse impact.  As Braidwood J.A. noted at paragraphs 146-47 in
Malmo-Levine, the continued criminalization of marihuana has led
to a “palpable disrespect for the law among the million or so
Canadians who continue to use the substance despite the risk of
imprisonment”.  The marihuana law has fostered disrespect and
distrust for narcotic laws generally.  The marihuana prohibition
has also resulted in the stigmatization of many thousands of
Canadians who have been given a criminal record or a record of a
finding of guilt by reason of their being charged with possession
of marihuana.  That charge and the resultant court proceedings
are often their only interaction with the criminal justice
system.
[34] In considering the other side of the issue, the interests of
the state, it has to be conceded that origins of the marihuana
prohibition in Canada are not based in good public policy.  While
the objective was to protect Canadians from harm caused by
marihuana use, the supposed evidence of that harm was based on
racism and irrational, unproven and unfounded fears.  The Crown
does not suggest that the harms identified in the early part of
the last century can justify the legislation.  It does, however,
identify a number of other harms that can justify a continuing
state interest in the prohibition.  As discussed earlier, I
accept McCart J.’s findings that there is some harm associated
with marihuana use.  In my view, the evidence established that
there is a reasoned apprehension of harm that is neither
insignificant nor trivial.  I do not see this as the “shifting
purpose” argument, condemned by the Supreme Court of Canada in R.
v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.  The purpose of the
legislation has remained the same; the evidence to support the
purpose has shifted.  In any event, in considering the purpose,
it is necessary to consider the particular legislation at stake.
While the impugned provisions have their origin in the Opium and
Narcotic Drug Act, 1923, S.C. 1923, c. 22, the legislation
involved in this challenge is the Narcotic Control Act, which was
enacted in 1961 after Canada became a party to the United Nations
Single Convention on Narcotic Control 1961.  Under that
Convention and those that have followed, Canada was obligated to
prohibit the scheduled drugs, including marihuana, except in
narrow circumstances, such as for medical use.
[35] The legislative situation in other western democracies, in
general, reflects a similar approach to that currently existing
in Canada.  I canvass this issue more fully in R. v. Parker. It
is sufficient for this appeal to note that, except for the
medical use of marihuana, there is nothing approaching an
international consensus that even the simple possession of
marihuana should be legalized.
[36] Mr. Young also pointed to studies showing that cigarette
smoking is more dangerous to the smoker’s health than marihuana
smoking and that alcohol abuse is associated with violent crime
whereas marihuana use is not.  In my view, this is not an apt
comparison.  The fact that Parliament has been unable or
unwilling to prohibit the use of other more dangerous substances
does not preclude its intervention with respect to marihuana,
provided Parliament had a rational basis for doing so.
[37] To conclude, given the harms identified by the trial judge
and the other objectives of the legislation, I do not agree that
there is no rational basis for the marihuana prohibitions. In
terms expressed by Sopinka J. in Rodriguez, the legislation is
not arbitrary or unfair in that it is unrelated to the state’s
objectives and lacks a foundation in the legal traditions and
societal beliefs that are said to be represented by the
prohibitions.
(iii)   Overbreadth
(a)  Medical use
[38] The appellant submits that the marihuana prohibitions are
overly broad in two respects and therefore the infringement of
liberty does not accord with the principles of fundamental
justice.  For my reasons in R. v. Parker, I agree with the
appellant’s submission that the prohibition is overly broad in
that it fails to include an exemption for medical use.  I need
not expand on that issue in these reasons.  I will consider the
impact of that holding for this appellant when I deal with remedy
at the end of these reasons.          
(b) Inclusion of non-intoxicating cannabis
                   
[39] The appellant also submits that the prohibition is over
broad because it applies to all forms of cannabis, not merely
those with a sufficient level of Tetrahydrocannabinol (THC) to
produce the psychoactive effect.  It does not appear that this
issue was raised before the trial judge as a constitutional
matter.  In any event, there is a rational basis for Parliament
prohibiting all cannabis in order to effectively control the harm
from psychoactive cannabis.  This is because there is not a clear
distinction between “narcotic” and “non-narcotic” cannabis and,
therefore, it is difficult to distinguish between the two.  For
example, while some scientists consider cannabis with 0.3% THC
“narcotic”, there is evidence that even cannabis with less than
this amount of THC is psychoactive.          
2.   Federal Jurisdiction to Regulate Marihuana
                   
[40] The resolution of this issue depends primarily on the effect
to be given to the decision of the Supreme Court of Canada in R.
v. Hauser (1979), 46 C.C.C. (2d) 481. While the constitutionality
of the Narcotic Control Act was not in issue in Hauser, in my
view, this case is an authoritative statement from the Supreme
Court of Canada (in a case involving cannabis) that the Narcotic
Control Act was valid federal legislation and this court should
follow it:  R. v. Sellars (1980), 52 C.C.C. (2d) 345 (S.C.C.) at
348.
[41] In considering the application of Criminal Code provisions
for the prosecution of offences under the Narcotic Control Act,
Pigeon J., speaking for the majority, held that the Act did not
depend for its validity on the criminal law power in s. 91(27) of
the Constitution Act, 1867.  After tracing the history of
narcotic regulation in this country, he concluded that the
legislation was enacted under the general federal residual power
to make laws for the “peace, order and good government of
Canada”.  His reasoning is summarized in the following passage at
p. 498:
In my view, the most important consideration for 
classifying the Narcotic Control Act as legislation 
enacted under the general residual federal power, is 
that this is essentially legislation adopted to deal 
with a genuinely new problem which did not exist at 
the time of Confederation and clearly cannot be put 
in the class of "Matters of a merely local or private 
nature".  The subject-matter of this legislation is 
thus properly to be dealt with on the same footing as 
such other new developments as aviation: see Re Aerial 
Navigation, [1932] 1 D.L.R. 58, [1931] 3 W.W.R. 625, 
[1932] A.C. 54, and radio communications Re Regulation 
& Control of Radio Communication, [1932] 2 D.L.R. 81,
[1932] 1 W.W.R. 563, [1932] A.C. 304.
[42] The appellant seeks to avoid the effect of Hauser on three
bases.  The appellant’s first argument is that on this issue
Hauser was simply wrongly decided, that Pigeon J. was in error in
holding that the regulation of cannabis sativa does not infringe
upon matters of a merely local or private nature, namely health
concerns.  It may be that the record in this case is more
extensive than the record placed before the Supreme Court of
Canada in Hauser.  However, in my view, it is not for this court
to reconsider the issue.
[43] The appellant’s second argument is similar to the first.  He
argues that recent pronouncements of the Supreme Court of Canada
have called into question reliance upon the residual power as the
foundation for the Narcotic Control Act.  Once again, in my view,
it is not open to this court to revisit the matter.  In any
event, I do not agree with the appellant that Estey J.’s
statements in Labatt Breweries of Canada Ltd. v. Canada (Attorney
General) (1979), 52 C.C.C. (2d) 433 (S.C.C.) are inconsistent
with the holding by Pigeon J. in Hauser.  I also note that the
view expressed by Laskin C.J.C. in Schneider v. The Queen (1982),
68 C.C.C. (2d) 449 (i.e. that had he been sitting, he would have
viewed the Narcotic Control Act as an exercise of the federal
criminal law power) was not adopted by the other members of the
court.  Dickson J., speaking for the other members at pp. 465-66,
accepted the majority holding in Hauser that Parliament is
competent to make laws for the control of narcotics pursuant to
its power to make laws in relation to peace, order and good
government.
[44] The appellant’s third argument depended upon his success in
convincing the court that the legislation could not be supported
by the federal residual power.  He then sought to argue that the
only other suggested head of power, criminal law, would not
support the legislation for many of the same reasons that he
advanced in support of his arguments under s. 7 of the Charter.
Mr. Young referred to the well-known passages from Reference as
to the Validity of Section 5(a) of the Dairy Industry Act [The
Margarine Reference], [1949] S.C.R. 1 at 49 and 50 to support his
argument that, because marihuana possession no longer represents
a substantial harm to the public, it no longer falls within the
realm of criminal law:
A crime is an act which the law, with appropriate 
penal sanctions, forbids; but as prohibitions are 
not enacted in a vacuum, we can properly look for 
some evil or injurious or undesirable effect upon 
the public against which the law is directed. That 
effect may be in relation to social, economic or
political interests; and the legislature has had 
in mind to suppress the evil or to safeguard the 
interest threatened.
Is the prohibition then enacted with a view to a 
public purpose which can support it as being in 
relation to criminal law?  Public peace, order, 
security, health, morality: these are the ordinary 
though not exclusive ends served by that law, but 
they do not appear to be the object of the 
parliamentary action here.  That object, as I must 
find it, is economic and the legislative purpose, to
give trade protection to the dairy industry in the 
production and sale of butter; to benefit one group 
of persons as against competitors in business in 
which, in the absence of the legislation, the latter 
would be free to engage in the provinces.  To forbid 
manufacture and sale for such an end is prima facie 
to deal directly with the civil rights of individuals 
in relation to particular trade within the provinces …
[Emphasis added.]
[45] In my view, the findings by the trial judge concerning the
harm from marihuana use and the other objectives of the Narcotic
Control Act, including Canada’s international obligations and
controlling the domestic and international trade in illicit
drugs, are sufficient to dispose of this argument.  Moreover, in
view of the binding effect of the decision in Hauser, this
argument is not available to the appellant.  Finally, acceptance
of the reservations expressed by Dickson J. in Hauser and Laskin
C.J.C. in Schneider about the use of the federal residual power
would merely result in the Act being justified as an exercise of
the federal criminal law power.
PROOF OF THE OFFENCE
[46] The appellant’s final argument is simply that the Crown
failed to prove that the substances seized from his home and
store were illegal substances under the Act.  The certificates of
analysis tendered at trial identified the substance as cannabis
(marihuana).  The analyst who signed the certificates testified
that the procedures in his laboratory provide that a substance
certified as cannabis (marihuana) must contain two of four target
cannabinoids.  It is not necessary that one of the cannabinoids
be THC, the psychoactive ingredient in marihuana.  The analyst
could not say that the seized substances contained any THC.
Based on this evidence, the appellant argues that the seized
substances do not fall within the Narcotic Control Act
prohibitions.  To understand this argument, it is necessary to
set out the relevant statutory provisions.
[47] Section 3 of the Act provides that except as authorized by
the Act or regulations, no person shall have a “narcotic” in his
possession.  Section 2 defines “narcotic” as “any substance
included in the schedule or anything that contains any substance
included in the schedule”.  Item 3 to the schedule is as follows:
Cannabis sativa, its preparations, derivatives and 
similar synthetic preparations, including:
(1)   Cannabis resin,
(2)   Cannabis (marihuana),
(3)   Cannabidiol,             
            (4)   Cannabinol (3-n-amyl-6,6,9-
                  trimethyl-6-dibenzopyran-1-ol),
	    (4.1) Nabilone ((±)-trans - 3 (1,1 – 
            dimethylheptyl) – 6, 6a, 7, 8, 10, 
	    10a-hexahydro-1-hydroxy-6,6-dimethyl-
	    9h-dibenzo[b,d] pyran-9-one),
(5)  Pyrahexyl (3-n-hexyl-6,6,9-
trimethyl-7,8,9,10-tetrahydro-
6dibenzopyran-1-ol), and
(6)  Tetrahydrocannabinol.
but not including:
(7)  non-viable Cannabis seed.
          
[48] The appellant argues that, properly construed, the Act was
not intended to apply to non-intoxicating substances.  The
appellant submits that the evidence showed that there are two
strains of cannabis sativa – a fibre strain (hemp) and an
intoxicating strain (marihuana) - and only the intoxicating
strain, cannabis sativa with an excess of 0.3% THC could be
considered a narcotic.  I would not give effect to this argument.
[49] The appellant’s submission is dependent upon there being an
ambiguity in the wording of the statute because of the use of the
term “narcotic” and the term “marihuana”, both of which in their
ordinary and dictionary meanings imply an intoxicating or
hallucinogenic substance.  In my view, however, there is no
ambiguity.  It is open to Parliament to deem a particular term to
have a meaning that it would not otherwise bear if it does so
with sufficient clarity.
[50] Moreover, the decision of the Supreme Court of Canada in R.
v. Perka, [1984] 2 S.C.R. 232 determines this issue against the
appellant.  In Perka, the accused advanced a similar argument.
They adduced evidence that botanists considered that there were
three species of cannabis—Cannabis sativa L., Cannabis indica
Lam., and Cannabis ruderalis Jan.  They argued that only Cannabis
sativa L. was covered by the Narcotic Control Act and the analyst
had not tested the material to prove that it was Cannabis sativa
L.  The court rejected this argument.  Dickson J. wrote as
follows at pp. 265-66:
But where, as here, the legislature has deliberately 
chosen a specific scientific or technical term to 
represent an equally specific and particular class 
of things, it would do violence to Parliament’s 
intent to give a new meaning to that term whenever
the taxonomic consensus among members of the relevant 
scientific fraternity shifted.  It is clear that 
Parliament intended in 1961, by the phrase “Cannabis 
sativa L.”, to prohibit all cannabis.  The fact that 
some, possibly a majority, of botanists would now 
give that phrase a less expansive reading in the 
light of studies not undertaken until the early 1970’s, 
does not alter that intention.  The interpretation 
given to the Narcotic Control Act by the trial judge 
was consistent with Parliament’s apparent intent in 
enacting the legislation, and was, in my opinion, 
correct.
     There is no question in my mind that the 
appellants were given “fair warning” by the Narcotic 
Control Act that their conduct was illegal.  It is 
common knowledge in our society that marihuana is an 
illegal drug.  It is not common knowledge that some 
botanists have recently concluded that there are three 
separate species of the mother plant, based on 
morphological considerations.  Against this background, 
it seems highly unlikely that the citizen seeking 
guidance from his country’s laws as to what he may or
may not do, would see in the language “Cannabis sativa 
L.” a basis for the three species botanical argument 
relied upon by the appellants in the case at bar. It 
would simply be unreasonable to assume that by using 
the phrase “Cannabis sativa L.” Parliament meant to 
prohibit only some intoxicating marihuana and exempt 
the rest. Such an interpretation would be at odds with
the general scheme of the Narcotic Control Act as well 
as the common understanding of society at large. Under 
the circumstances, it seems clear that the statute 
gives ample warning as written.  Fairness does not 
demand that it be more narrowly construed.  [Emphasis 
added.]   
          
[51] Accordingly, the Crown proved that the substance found in
the appellant’s possession was marihuana as listed in the
schedule and a narcotic within the meaning of s. 3 of the
Narcotic Control Act.
DISPOSITION
[52] I have found that the marihuana prohibitions of the former
Narcotic Control Act are valid in all respects except that they
do not include an exemption for medical use.  For the reasons I
have given in R. v. Parker, the appropriate remedy would
ordinarily be a declaration of invalidity suspended for a period
of time to permit Parliament to fill the void created by the
declaration.  The person who brought the Charter challenge would
usually be entitled to a constitutional exemption during that
period, together with some other personal remedy to deal with the
charge brought against him.  See Reference re Remuneration of
Judges of the Provincial Court of Prince Edward Island; Reference
re Independence and Impartiality of Judges of the Provincial
Court of Prince Edward Island, [1998] 1 S.C.R. 3 at 20.
[53] However, the Narcotic Control Act has been repealed and
therefore no declaration of invalidity is required.  Further, the
appellant, in my view, would not be entitled to a constitutional
exemption since, unlike Mr. Parker, he is not within the class of
persons for whom the exemption is required.  The only issue,
then, is whether the appellant is entitled to a personal remedy
under s. 24(1) of the Charter in the form of a stay of
proceedings.
[54] In my view, this is not an appropriate case for a stay of
proceedings.  The appellant appears to have conceded at trial
that he had no standing to challenge the law on the basis of a
medical need for marihuana.  That concession was wrong.  However,
it was consistent with the appellant’s position throughout the
case that the real problem with the legislation was the
criminalization of personal possession for recreational use.  The
appellant did not succeed on that part of the case.
[55] The question of remedy raised by this case is similar to the
issue dealt with by the Supreme Court of Canada in Bilodeau v.
Manitoba (Attorney General), [1986] 1 S.C.R. 449.  Although not a
Charter case, some of the same principles apply.  The appellant
in Bilodeau had been charged with speeding contrary to the
Highway Traffic Act, R.S.M. 1970, c. H60 and received a summons
for the offence issued under the Summary Convictions Act, R.S.M.
1970, c. S230.  At trial, he applied for dismissal of the charge
because both enactments were ultra vires the Manitoba legislature
since they were printed and published only in English, contrary
to s. 23 of the Manitoba Act, 1870, R.S.C. 1970, App. II, No.8.
The trial judge held that the enactments were valid and convicted
the appellant.  His appeal to the Manitoba Court of Appeal was
dismissed.  The appellant appealed to the Supreme Court of
Canada.  By that time, the Supreme Court had held in Reference re
Manitoba Language Rights, [1985] 1 S.C.R. 721 that s. 23 of the
Manitoba Act was mandatory and that laws not conforming with the
bilingual requirement were, and always had been, invalid.
However, the court had then applied the constitutional principle
of rule of law to ensure that legal chaos did not ensue in
Manitoba for the period required to translate, re-enact, print
and publish the statutes in conformity with s. 23.  With respect
to the appellant’s conviction under the invalid Highway Traffic
Act, the court held as follows at pp. 456-57:
The conviction is, however, saved by the principle 
of rule of law. One of the manifestations of this 
principle with respect to the legal situation in 
Manitoba is stated in the Reference re Manitoba 
Language Rights, at p. 768:
All rights, obligations and any other effects 
which have arisen under Acts of the Manitoba 
Legislature which are purportedly repealed, 
spent, or would currently be in force were 
it not for their constitutional defect, and 
which are not saved by the de facto doctrine, 
or doctrines such as res judicata and mistake 
of law, are deemed temporarily to have been, 
and to continue to be, enforceable and beyond
challenge from the date of their creation to
the expiry of the minimum period of time 
necessary for translation, re-enactment,
printing and publishing of these laws.
Thus, the conviction of the appellant under the 
invalid Highway Traffic Act is enforceable pursuant to
this Court's decision and order in the Reference re 
Manitoba Language Rights.
          
[56] This doctrine appears to stand as an exception to the broad
proposition stated by Dickson J. in Big M Drug Mart Ltd., at p.
313 that “no one can be convicted of an offence under an
unconstitutional law”.  That statement was made in the context of
the court striking down the legislation under s. 52 of the
Constitutional Act, 1982.
[57] I have held in the Parker case that the marihuana
prohibitions under the Narcotic Control Act should not be struck
down since the legislation has been repealed.  Therefore, s. 52
is not engaged.  Section 43(d) of the Interpretation Act, R.S.C.
1985 c. I-21 nevertheless authorizes the prosecution under the
former enactment.  The question is then whether the appellant’s
convictions should stand or whether the appellant is entitled to
a personal remedy under s. 24(1) of the Charter.  While the
result in Bilodeau depended upon the rule of law doctrine as
applied to s. 23 of the Manitoba Act, it seems to me that the
same result is achieved under s. 24(1) of the Charter.
[58] Moreover, it is not unheard of for the successful Charter
claimant to receive no immediate benefit from the result.  In
Corbiere v. Canada (Minister of Indian and Northern Affairs),
[1999] 2 S.C.R. 203, the respondents, non-resident members of the
Batchewana Indian Band, sought a declaration that s. 77(1) of the
Indian Act, which requires that band members be “ordinarily
resident” on the reserve in order to vote in band elections,
violates s. 15(1) of the Charter.  They were successful and the
court declared that the words “and is ordinarily resident on the
reserve” in s. 77(1) were invalid but suspended the declaration
of invalidity to permit Parliament to amend the legislation.  The
court, however, refused to grant the Band an exemption from the
declaration of invalidity in the expectation that the parties
could develop an electoral process that balanced the rights of
off-reserve and on-reserve members in future elections.
[59] In her concurring reasons, L'Heureux-Dubé J. considered the
basis for granting an exemption.  Some of the considerations that
underlie the exemption remedy may apply to the personal remedy of
a stay of proceedings sought by this appellant. L'Heureux-Dubé J.
pointed out that, in general, litigants who have brought forward
a Charter challenge should receive the immediate benefits of the
ruling, even if the effect of the declaration is suspended.  She
referred at pp. 286-87 to an excerpt from Roach, Constitutional
Remedies in Canada (loose-leaf), (1999) at para. 14.1856 as to
why the successful litigant should be granted an exemption from
the suspension of the effect of a declaration of invalidity and,
therefore, an immediate remedy:
Corrective justice would suggest that the successful
applicant has a right to a remedy while regulatory 
or public law approaches would only be concerned 
with giving the applicants enough incentive to 
bring their case to court.
[60] In Corbiere, L'Heureux-Dubé J. held that neither
consideration applied.  In my view, similarly, neither
consideration applies here.  The corrective justice rationale has
no application since the appellant did not obtain the remedy he
was seeking, decriminalization of marihuana for recreational use.
The public law rationale has no application, for the same
reasons.  The only question is whether the appellant should be
granted a stay of proceedings on the more general basis, that to
permit the conviction to stand in the circumstances would
constitute an abuse of process.  In my view, it would not.  It
does not offend the community’s sense of fair play and decency
that this appellant, who openly defied the law, should remain
convicted when the basis upon which he challenged the law failed.
[61] Accordingly, I would dismiss the appeal.
                              Signed: “M. Rosenberg J.A.”
                                      “I agree: M.A. Catzman J.A.”
                                      “I agree. Louise Charron J.A.”
RELEASED:  31 JUL 2000
MAC
_______________________________
1    In 1997, the Narcotic Control Act was repealed by the
Controlled Drugs and Substances Act, S.C. 1996, c. 19.
2    The appellant was convicted of possession of cannabis
sativa, two counts of possession of cannabis sativa for the
purposes of trafficking and one count of trafficking in cannabis
sativa.  He was acquitted on the charge of unlawfully cultivating
marihuana.
3    Indeed, he argues that marihuana has therapeutic uses.