Synopsis of Her Majesty the Queen v. Christopher Clay

 

Judgment

 

On October 6, 7 and 8, 1999, a panel of the Ontario Court of Appeal composed of Justices Catzman, Charron and Rosenberg heard a constitutional challenge to the marihuana prohibition in the former Narcotic Control Act ("NCA").  The constitutional challenge in this appeal required a consideration of the criminal law power to penalize possession of marihuana.  On August 14, 1997, McCart J. dismissed Christopher Clay’s constitutional challenge to the prohibition against possessing marihauna and found him guilty of the offences with which he was charged.  The unanimous Court of Appeal upholds the trial decision of McCart J. and dismisses Clay's appeal.

 

Clay owned a store called “The Great Canadian Hemporium”. In addition to selling items such as hemp products, marihuana logos and pipes, he sold small marihuana seedlings. He actively advocates decriminalization of marihuana.

After an undercover police officer bought a small marihuana cutting at the store and the police seized marihuana cuttings and a small amount of marihuana from his store and his home, Clay was charged under the former NCA with possession, trafficking, and possession for the purpose of trafficking of cannabis sativa and unlawful cultivation of marihuana.

At trial, Clay challenged the constitutionality of the cannabis prohibitions in the NCA 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 were prohibited narcotics as defined by the Act.

Clay's challenge was partly based on his argument that the evidence shows marihuana is not associated with any significant harmful health effects and that the criminalization of marihauna, rather than its use, poses a greater danger to the public.

 

Justice Rosenberg, writing for all three members of the panel, concluded 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.

For the purposes of this appeal, the court was prepared to accept that a harm principle is a principle of fundamental justice. Braidwood J.A. of the British Columbia Court of Appeal described that principle in a decision released in June of this year (R. v. Malmo-Levine) as involving consideration of whether the prohibited activities hold a ‘reasoned apprehension of harm’ to other individuals or society and that the degree of harm must be neither insignificant nor trivial. The court adopted this characterization of the harm principle. The court concluded that sufficient harms have been identified as associated with marihuana use for the law to meet that standard.

 

The prohibition was found by the court to be overly broad only insofar as it failed to include an exemption for medical use, a matter dealt with in the appeal in R. v. Parker, released on the same day. The court also held that there is a rational basis for Parliament prohibiting all cannabis in order to effectively control the harm from psychoactive cannabis and, as such, the legislation is not unconstitutional.

 

Clay also argued that the federal government did not have jurisdiction to regulate marihuana, as it is neither the proper subject matter of the criminal law nor of the federal government's jurisdiction over matters of peace, order and good government. The court concluded that R. v. Hauser (1979) is an authoritative statement from the Supreme Court of Canada that the NCA was valid federal legislation. In that case, the Supreme Court concluded that it was enacted under the general federal residual power to make laws for the “peace, order and good government of Canada”. This is established by the findings of the trial judge concerning the harm from marihuana use and the other objectives of the NCA, including Canada’s international obligations and controlling the domestic and international trade in illicit drugs.

 

Finally, the court disagreed with Clay’s final argument that the Crown failed to prove that the substances seized from his home and store were illegal substances under the Act. While the Act does not distinguish between intoxicating marihuana and non-intoxicating substances, such as "hemp", there is no ambiguity in the terms used in the Act: "narcotic" and "marihuana". In any event, the Supreme Court of Canada has already decided this issue against Mr. Clay in R. v. Perka (1984).

 

This was not an appropriate case for a stay of proceedings despite the conclusion of the court in the Parker case that the marihuana prohibitions were invalid in not including an exemption for medical use. Clay was also not entitled to a constitutional exemption since, unlike Mr. Parker, he is not within the class of persons for whom the exemption is required.