Synopsis of Her Majesty the Queen v. Christopher Clay
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.