SUPREME COURT OF CANADA
JUDGMENTS TO BE RENDERED IN APPEALS
OTTAWA, 17/12/03. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THAT
JUDGMENT
IN THE FOLLOWING APPEALS WILL BE DELIVERED AT 9:45 A.M. ON TUESDAY,
DECEMBER
23, 2003.
- David Malmo-Levine v. Her Majesty the Queen (Crim.) (B.C.) (28026)
- Victor Eugene Caine v. Her Majesty the Queen (Crim.) (B.C.) (28148)
- Christopher James Clay v. Her Majesty the Queen (Crim.) (B.C.) (28189)
- Her Majesty the Queen v. Grant Wayne Krieger (Crim.) (Alta.) (29569)
FROM: SUPREME COURT OF CANADA (613) 995-4330
New Date: Tuesday, May 6, 2003
SUPREME COURT OF CANADA - AGENDA
OTTAWA, 25/11/02. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THE LIST OF APPEALS THAT WILL BE
HEARD IN DECEMBER 2002.
2002/12/13 David Malmo-Levine v. Her Majesty the Queen (B.C.) (Criminal) (As of
Right / By Leave) (28026)
2002/12/13 Victor Eugene Caine v. Her Majesty the Queen (B.C.) (Criminal) (By
Leave) (28148)
2002/12/13 Christopher James Clay v. Her Majesty the Queen (Ont.) (Criminal)
(By Leave) (28189)
SOURCE: SUPREME COURT OF CANADA (613) 995-4330
NOTE: This agenda is subject to change. Hearings normally commence at 9:45 a.m. each day. Where
there are two cases scheduled on a given day, the second case may be heard immediately after the
first case, or at 2:00 p.m. Hearing dates and times should be confirmed with Registry staff at
(613) 996-8666.
Canadian Charter of Rights and Freedoms - Section 7 - Narcotic Control Act, s. 4
- Whether the Court of Appeal erred in characterizing the harms that may come with cannabis use as
inherent, instead of a product of mis-cultivation, mis-distribution and mis-use - Did the Court of
Appeal fail to address the issue of whether the harm principle applies to growers and dealers of
cannabis who arguably play an essential role in cannabis harm reduction? - Whether the Court of
Appeal erred in not considering the principle of equality found in s. 15 of the Charter as it
applies to "substance orientation" and in not applying equality to every producer and distributor
of stimulants and relaxants, whether bean, grape, herb or otherwise.
The Appellant was a self-described "marihuana / freedom activist". Beginning in
October 1996, he helped operate an organization in East Vancouver known as the Harm Reduction Club
which was a co-operative, non-profit association of its members. The stated object of the Club was
to educate its users and the general public about marihuana and provide unadulterated marihuana to
its users at Club cost. The Club had approximately 1800 members.
The Club purported to educate its members on a wide variety of "safe smoking
habits" to minimize any harm from the use of marihuana. Members were required to sign a pledge not
to operate motor vehicles or heavy equipment while under the influence of the substance.
On December 4, 1996, police entered the premises of the Club and seized 316 grams
of marihuana, much of it in the form of "joints". The Appellant was charged with possession of
marihuana for the purpose of trafficking contrary to s. 4 of the Narcotic Control Act and was
convicted. At trial, the Appellant's application to call evidence in constitutional challenge was
dismissed. On appeal, the majority of the Court of Appeal dismissed the appeal. Prowse J.A.
dissenting declined to make a finding with respect to the constitutional validity of s. 4(2) of the
Narcotic Control Act. On March 15, 2001, leave to appeal to the Supreme Court of Canada was also
granted.
Origin of the case: British Columbia
File No.: 28026
Judgment of the Court of Appeal: June 2, 2000
Counsel: David Malmo-Levine/John W. Conroy Q.C. for the Appellant
S.D. Frankel Q.C. for the Respondent
Canadian Charter of Rights and Freedoms - Section 7 - Narcotic Control Act, s. 3(1) - Whether
prohibiting possession of Cannabis (marihuana) for personal use under s. 3(1) of the Narcotic
Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the
Schedule to the Act (now s. 1, Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19),
infringes s. 7 of the Canadian Charter of Rights and Freedoms - If the answer is in the
affirmative, is the infringement justified under s. 1 of the Charter? - Whether the prohibition on
the possession of Cannabis (marihuana) for personal use under s. 3(1) of the Narcotic Control Act,
by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1, Schedule
II, Controlled Drugs and Substances Act, S.C. 1996, c. 19), is within the legislative competence of
the Parliament of Canada as being a law enacted for the peace, order and good government of Canada
pursuant to s. 91 of the Constitution Act, 1867; as being enacted pursuant to the criminal law
power in s. 91(27) thereof; or otherwise.
During the late afternoon of June 13, 1993, two R.C.M.P. officers were patrolling a parking lot
at a beach in White Rock. They observed the Appellant and a male passenger sitting in a van owned
by the Appellant. The officers observed the Appellant, who was seated in the driver's seat, start
the engine and begin to back up. As one officer approached the van, he smelled a strong odour of
recently smoked marihuana.
The Appellant produced for the officer a partially smoked cigarette of marihuana which weighed
0.5 grams. He possessed the marihuana cigarette for his own use and not for any other purpose.
The Appellant's application for a declaration that the provisions the Narcotic Control Act
prohibiting the possession of marihuana were unconstitutional was denied. On appeal, the appeal was
dismissed.
Origin of the case: British Columbia
File No.: 28148
Judgment of the Court of Appeal: June 2, 2000
Counsel: John W. Conroy Q.C. for the Appellant
S.D. Frankel Q.C. for the Respondent
Canadian Charter of Rights and Freedoms - Section 7 - Narcotic Control Act, s. 3(1) - Whether
prohibiting possession of Cannabis (marihuana) for personal use under s. 3(1) of the Narcotic
Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the
Schedule to the Act (now s. 1, Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19),
infringes s. 7 of the Canadian Charter of Rights and Freedoms - If the answer is in the
affirmative, is the infringement justified under s. 1 of the Charter? - Whether the prohibition on
the possession of Cannabis (marihuana) for personal use under s. 3(1) of the Narcotic Control Act,
by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1, Schedule
II, Controlled Drugs and Substances Act, S.C. 1996, c. 19), is within the legislative competence of
the Parliament of Canada as being a law enacted for the peace, order and good government of Canada
pursuant to s. 91 of the Constitution Act, 1867; as being enacted pursuant to the criminal law
power in s. 91(27) thereof; or otherwise.
The Appellant was convicted of possession of cannabis sativa, two counts of possession of
cannabis sativa for the purpose of trafficking and one count of trafficking in cannabis sativa,
contrary to the Narcotic Control Act, R.S.C. 1985, c. N-1 (repealed). The Appellant challenged the
constitutionality of the cannabis prohibitions in the Narcotic Control Act on the basis that they
violated his rights under s. 7 of the Charter and that the regulation of marijuana was not within
federal jurisdiction. He also argued that the Crown had failed to prove that the substances seized
from him were prohibited narcotics as defined by the Act. An analyst called by the Crown testified
that a substance certified as cannabis (marijuana) must contain two of four target cannabinoids and
that it is not necessary that one of these be THC, the psychoactive ingredient in marijuana. The
analyst could not say that the seized substances contained any THC. The trial judge dismissed the
Appellant's constitutional challenge and found that the Crown had proven the offences. The
Appellant's appeal from his convictions was dismissed.
Origin of the case: Ontario
File No.: 28189
Judgment of the Court of Appeal: July 31, 2000
Counsel: Paul Burstein for the Appellant
Morris Pistyner for the Respondent
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