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Citation: R. v. Graham and Parks

Date:
20031006
2003 BCPC 0369
File No:
63437

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

MICHAEL ROBERT GRAHAM

and BOBBIE JO PARKS

 

 

 

 

 

RULING ON APPLICATION

OF THE

HONOURABLE JUDGE M. BULLER BENNETT

 

 

 

 

 

Counsel for the Crown:

R. Pici

Counsel for Mr. Graham:

M. Barber

Counsel for Ms. Parks:

R. Carter

Place of Hearing:

Port Coquitlam, B.C.

Dates of Hearing:

January 17 and July 28, 2003

Date of Ruling:

October 6, 2003

 

INTRODUCTION

[1] At the beginning of their trial, both accused pleaded not guilty to a charge of possession of marihuana under section 4(1) of the Controlled Drug and Substances Act. The alleged offence date is February 13, 2002. At the close of the Crown's case, both accused made two applications: to quash the Information as it discloses no offence known to law; and, for a finding of abuse of process and a judicial stay of proceedings.

[2] Neither of the applicants has claimed that the marihuana seized from them was for medical purposes.

[3] After counsel submitted thorough and thought-provoking written arguments, my colleague the Honourable Judge Chen handed down his decision in R. v. Masse, [2003] B.C.J. No. 2085. Judge Chen ruled on a similar application. Counsel then made further written submissions at my request.

SUBMISSIONS OF COUNSEL

[4] The following is an outline of the lengthy submissions that counsel provided.

[5] Counsel for the applicants submitted that section 4(1) of the Controlled Drug and Substances Act as related to the possession of marihuana is no longer in effect, being declared invalid by the Ontario Court of Appeal in R. v. Parker (2000), 146 C.C.C. (3d) 193. Further, that offence has not been "saved" by regulations passed by Order-in-Council to allow possession of marihuana for medical use and for licensing marihuana grow operations.

[6] The applicants' counsel urge me to follow the reasoning of Judge Chen in Masse and his conclusion that section 4(1) of the Act as it relates to marihuana is not an offence known to law.

[7] Following that simple possession of marihuana is not an offence known to law, it would be an abuse of process for the Federal Crown to prosecute under an invalid statute.

[8] Crown Counsel submitted that I am bound by the British Columbia Court of Appeal decision in R. v. Malmo-Levine, [2000] B.C.J. No. 1095, that simple possession of marihuana is not contrary to the Charter. As a result, section 4(1) of the Controlled Drug and Substances Act is still valid law in British Columbia. Crown Counsel submitted that should follow the decisions of my colleagues in R. v. Nicholls, [2003], .C.J. No. 881 (B.C. Prov. Ct.) and R. v. R.(A.C.), [2003] No. 2365 (B.C. Prov. Ct.) and find that as the law is still valid in this province, there is no abuse of process.

[9] However, should I be bound by Parker, the offending aspects of section 4(1) of the Act have been remedied by subsequent regulations.

[10] Crown Counsel further submitted that Masse was improperly decided as my colleague Judge Chen incorrectly considered R. v. J.P., [2003] O.J. No. 1949 (Ont. S.C.) as binding on him and I should decline to follow the general rule of comity.

BACKGROUND

[11] Recently, the state of law regarding simple possession of marihuana has been subject to much judicial scrutiny. The timing and chronology of the decisions is also important. The following is a very brief summary of the evolution of judicial interpretation, as I see it.

June 2, 2000

R. v. Malmo-Levine and R. v. Caine, [2000] B.C.J. No. 1095, (B.C.C.A).

 

The decisions addressed the constitutional validity of section 3 of the Narcotic Control Act, the offence of simple possession of marihuana. The issue was whether the appellants' section 7 Charter rights were infringed by section 3. The appellant Malmo-Levine was a Marihuana activist who helped to operate a club for users. The appellant Caine was a recreational user. The court dismissed the appeal of conviction.

July 31, 2000

R. v. Parker (2000), 146 C.C.C. (3d) 193 (Ont. C.A.), and R. v. Clay (2000), 49 O.R. (3d) 577 (Ont. C.A.).

 

Clay was convicted of possession, possession for the purpose of trafficking and trafficking in cannabis sativa under the Narcotic Control Act. He too was a recreational user and ran a "hemp store".

In Parker, the court considered whether the prohibitions on cultivation of marihuana under the Narcotic Control Act and possession of marihuana under section 4 of the Controlled Drug and Substances Act were contrary to Mr. Parker's section 7 Charter rights. Mr. Parker used marihuana for medical reasons, to control frequent, serious epileptic seizures. The court concluded that authorization for possession under the Regulations was illusory. The court held that in Mr. Parker's circumstances, section 4 of the Controlled Drug and Substances Act was contrary to section 7 of the Charter. The court declared section 4, with respect to marihuana, invalid but suspended that declaration for a year so that Parliament could "fill the void". As the Narcotic Control Act had been repealed, it was unnecessary to strike down section 3 of that Act.

This decision was not appealed.

June 31, 2001

Marihuana Medical Access Regulations (the "Regulations") came into force

 

The Regulations set out the circumstances and the manner in which marihuana is authorized to be used for medical purposes.

January 17, 2002

Wakeford v. Canada (2002), 58 O.R. (3d) 193 (Ont. C.A.). (application for leave to appeal to the Supreme Court Canada dismissed, November 2002)

 

Wakeford used marihuana for medical purposes. He challenged section 56 of the Controlled Drug and Substances Act as being contrary to section 7 of the Charter as it did not allow an exemption for his caregivers. In dismissing the application, the court held that section 56 of the Act seemed to provide a way of exempting caregivers from the trafficking provisions. If the caregivers were unable to obtain an exemption, it was not because of a deficiency in the Act, but rather due to a failure to apply to the Minister for exemption or refusal of such an application.

January 2, 2003

R. v. J.P., [2003] O.J. No.1 (Ont. Prov. Ct.).

 

This was a ruling on an application for declaration that possession of marihuana in section 4(1) of the Act was no longer in force. The court held that the "gap in the regulatory scheme" was not addressed as the statute was not amended or re-enacted, but Regulations were enacted. The Regulations, not passed by Parliament but by the Governor General in Council, did not remedy the defects set out in Parker dicta. The declaration of invalidity was in effect.

January 9, 2003

R. v. Hitzig, [2003] O.J. No. 12 (Ont. S. C.).

 

Lederman, J. held that as there was no legal source of marihuana, the Regulations violated section 7 of the Charter and were not saved by section 1 of the Charter. The Regulations were declared to be of no force and effect, but the declaration was suspended for six months.

January 10, 2003

R. v. Barnes, [2003] O.J. No. 261 (Ont. Prov. Ct.).

 

Moore, J. followed J.P. and Parker and held that section 4(1) of the Controlled Drug and Substances Act as it relates to marihuana no longer exists and therefore the offence was one not known to law. A charge of simple possession was quashed.

March 14, 2003

R. v. Stavert, [2003] P.E.I. No. 28 (P.E.I. Prov. Ct.).

 

Stavert was charged with simple possession of marihuana and made application to have the Information quashed as it did not disclose an offence known to law as per Parker. Issue estoppel was raised, specifically that the Federal Crown was estopped from re-arguing section 4(1) of the Act, on the basis that the Federal Crown is bound by Parker, nationally. The court held that issue estoppel could not be raised as not plea had been entered. However, the court went on to hold that it was an affront to the community's sense of fair play and decency if the charge proceeds even though "one third" of the Canadian population is immune from similar prosecution. The court found an abuse of process and stayed the charge.

March 31, 2003

R. v. Clarke, [2003] N.S.J. No. 124 (N. S. Prov. Ct.).

 

This was a ruling on an application for a stay of proceedings as it was an abuse of process to prosecute under section 4(1) of the Act, given amongst other things that the law was in a stage of "flux" and that this was the fourth attempt to relitigate the same issue. Justice Buchan considered the importance of fairness and held that when a law has been found to be invalid by several courts in separate jurisdictions in Canada, it is an abuse of process for the Crown to continue to prosecute that law in certain provinces and not in others. The application was allowed.

April 15, 2003

R. v. Hadwen, [2003] S.J. No. 269 (Sask. Prov. Ct.).

 

Hadwen was charged with possession of marihuana contrary to section 4(1) of the Act. This was a ruling on an application for a declaration that the section is no longer of any force or effect as related to possession of marihuana. Orr, J. declined to follow the Ontario decisions. Although agreeing with the reasons in Parker, the court held that the Regulations adequately addressed the concerns of the Court of Appeal in Parker.

As no evidence was led regarding the "first seed" dilemma and the medical profession's response both of which were led in Hitzig, the court declined to consider Hitzig. The application was denied.

April 16, 2003

R. v. Nicholls, [2003] B.C.J. No. 881 (B.C. Prov. Ct.).

 

This was a ruling on a pre-trial application for a judicial stay because of abuse of process. Nicholls maintained that it was an abuse of process that he is prosecuted in British Columbia and would not be prosecuted in Ontario, Prince Edward Island and Nova Scotia. He relied on section 15 of the Charter. Judge Stansfield found that he was not bound by decisions out of other jurisdictions. Further, there is some tolerance for varied geographic applications of the law. Nicholls is subject to same law as all others in British Columbia. Therefore, section 4(1) of the Act was still valid legislation.

April 25, 2003

R. v. Ocoin, [2003], A.J. No. 633 (Alta. Prov. Ct).

 

This was an application for judicial stay as it was unfair that prosecution proceeding in Alberta while not doing so in Ontario, Prince Edward Island and Nova Scotia. The court concluded that Parker is restricted to possession for medical purposes only. Section 4(1) of the Act remains valid for recreational users. Therefore, there was no abuse of process to prosecute a recreational use of marihuana for possession.

May 16, 2003

R. v. J.P.,[2003] O.J. 1949 (Ont. S.C.).

 

The court held that section 4 of the Controlled Drug and Substances Act was not re-enacted. The Regulations do not prohibit simple possession of marihuana. Even if there were a prohibition in the Regulations, there is no longer a penalty in the Act. Since there is no penalty in the Regulations, a penalty cannot be proscribed by implication.

May 30, 2003

R. v. Peddle, [2003] O.J. No. 2096 (Ont. Prov. Ct.).

 

The accused was charged with simple possession of marihuana. The application to quash the Information was allowed as it did not disclose an offence known to law. The Federal Crown was not allowed to enter a stay of proceedings as the charge could be re-laid within a certain time period and that would be unfair.

July 3, 2003

R. v. R.(A.C.), [2003] B.C.J. No. 2365 (B.C. Prov. Ct.).

 

A young person was charged with simple possession of marihuana under section 4(1) of the Act. The application made was that the Information did disclose an offence known to law. Judge Palmer followed Nicholls and Hadwen and concluded that section 4(1) of the Act was declared valid. Judge Palmer also concluded that, in the absence of binding authority, the Regulations filled the "void" created by Parker.

September 4, 2003

R. v. Masse, [2003] B.C.J. No. 2085 (B.C. Prov. Ct.).

 

The accused was charged with possession of marihuana, contrary to section 4(1) of the Controlled Drug and Substances Act.

An application was made pursuant to section 601 of the Criminal Code to quash the Information as it does not name an offence known to law.

In granting the application, Judge Chen followed Parker, J.P. and Hitzig and concluded that section 4(1) of the Act as it relates to marihuana is invalid. He declined to follow Malmo-Levine on the basis that it was distinguishable as it did not address the issue of medicinal use of marihuana. He declined to follow Nicholls on the basis that it was rendered before the appellate decision in J.P. and was limited to the scope of the argument made by the applicant.

 

ANALYSIS

Is simple possession of marihuana an offence known to law?

[12] The Ontario cases, specifically Parker and J.P., create difficulty in this province, not so much because of their reasoning, but because of the remedy granted in Parker. The issue then becomes this: is the result of the Ontario decisions (to date) that section 4(1) of the Act as it relates to simple possession of marihuana invalid in this province?

[13] The applicants' counsel submit that the law is invalid for these reasons:

"1. Parliament alone can save s.4(1) CDSA as it relates to the inclusion of marijuana.
2. The implementation of the MMAR, or any other regulatory scheme does not suffice. Only a legislative change carried out through a real discussion in Parliament can restore the inclusion of marijuana under s.4(1).
3. As this has not been done in the time frame given in Parker the inclusion of marijuana in s.4(1) is struck down. Section 4(1) must then be re-enacted due to the previous section being struck down.
4. While the Ontario decisions are not binding on this court, they are extremely persuasive. Even without any binding effect, the arguments themselves are valid and should be used to their utmost.
5. Any vagueness in the law is to be interpreted to the benefit of the accused, especially where penal sanctions are a possibility."

[14] Crown Counsel submits that the law is still valid until the British Columbia Court of Appeal or the Supreme Court of Canada decides otherwise. Crown also relies on Hadwen.

[15] In my view, the applicants' submissions are founded on the basic premise that while conceding that I am not bound by Parker and J.P., I ought to follow them. This is an incorrect premise in this particular case. As both decisions are from an appellate court outside of this province, they would not be binding, but may be persuasive, if they were "on point", but they are not. Parker and J.P. may be persuasive, if and only if, I were being asked to rule on a section 7 Charter challenge based on medicinal use of marihuana. That I am not asked to do.

[16] The applicants must provide some legal basis for a conclusion that section 4(1) of the Act is invalid in this province. For the reasons stated above, Parker and J.P. are not helpful. The applicants have not otherwise provided persuasive or binding authority from outside of this province that the Parker declaration of invalidity applies nationwide.

[17] I am bound, however, by the principle of comity to consider the ruling by my colleague Judge Chen in Masse. I disagree with Judge Chen's analysis to the extent that he applied Parker and J.P. when he was not ruling on a section 7 Charter application. However, I may depart from his judgment and the principle of comity only for these reasons:

[1] Subsequent decisions have affected the validity of the impugned judgment;

[2] It is demonstrated that some binding authority in case law or some relevant statute was not considered;

[3] The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.

(Re: Hansard Spruce Mills Ltd. (1954), 4 D.L.R. 590 (B.C.S.C.)).

[18] Of course, the applicants urge me to apply the principle of comity and follow Masse. Crown Counsel submits that I ought not follow Masse as J.P. is not a binding authority. Also, the validity of J.P. is questionable as Rogin, J. did not consider Hitzig. Hitzig is not ad idem with J.P. regarding the declaration. Therefore J.P. cannot be said the affect the validity of the British Columbia cases Nicholls, Therrien or R.(A.C).

[19] After careful reading of the Masse decision and submissions of counsel, I am not aware of any subsequent decisions that have affected the validity of Judge Chen's judgment. Also, Judge Chen thoroughly analyzed the existing case law and statutes, so I could not conclude that it was in any way a nisi prius judgment.

[20] Crown Counsel submits that I ought to depart from the Masse decision because it was incorrect decided upon questionable, non-binding authority. That, however, is not the test. As I stated above, all relevant cases and statutes were considered and analyzed. Although I would have come to a different conclusion on those authorities than Judge Chen, again according to Re: Hansard, that is not reason enough to depart from his decision.

[21] Therefore, I must follow Masse and the conclusion that section 4(1) of the Act as it related to the simple possession of marihuana is invalid.

Is there an abuse of process?

[22] Applicants' counsel relied upon the reasoning of the Supreme Court of Canada in R. v. Jewitt (1985), 21 C.C. C. (3d) 7, for authority for a finding of abuse of process and a stay of proceedings. The court held that:

"The stay of proceeding for abuse of process is given as a substitute for an acquittal because, while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction. No consideration of the merits - that is whether the accused is guilty independently of a consideration of the conduct of the Crown - is required to justify a stay." (pg. 23)

[23] Chief Justice Dickson, writing for the court, adopted the conclusion of the Ontario Court of Appeal in R. v. Young (1984), 13 C.C.C. (3d) 1:

",,,'There is a residual discretion in a trial court judge to stay proceeding where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings.'
I would also adopt the caveat added by the court in Young that this is a power which can be exercised only in the 'clearest of cases'".(pg. 14)

[24] Having found that the law is invalid, the spectre of abuse of process raises its head. Is it an abuse of process to prosecute under an invalid law? I take from Stavert and Clarke that it most certainly is an abuse of process. I agree with that conclusion.

[25] But the analysis must go further in this case. My colleague Judge Stansfield wrote in Nicholls, the state of the law regarding simple possession of marihuana is a "mess". Justice Buchan in Clarke and my colleague Judge Palmer in R. (A.C.) wrote that the law is in a state of "flux". The question is this: how can an informed citizen know the state of the law when judges cannot agree amongst themselves; when it appears that possession of marihuana may be legal in some provinces and not in others; and when Parliament does not amend or re-enact invalid legislation? The answer is self-evident: he or she cannot. Therefore, even if I had found that the law was valid in this province and it was not an abuse of process to prosecute under it, I would still find an abuse of process in this case.

[26] Therefore, as this is in my view the "clearest of cases", I grant both of the applications for stays of proceedings.

 

 ________________________

M. Buller Bennett, P.C.J.



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Last Modified:Friday, 20-Jul-2007 13:13:15 PDT
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