WHAT IS SECTION 462.2?
Section 462.2 of the Criminal Code, passed with only one dissenting
vote in 1988, provides a $100,000 fine and/or up to 6 months in
jail, for any printed or video promotion, advocacy or encouragement
of the use of prohibited substances, including, of course,
cannabis. The law includes political dissent, cannabis hemp
clothing, T-shirts with cannabis leaves on it, High Times magazine,
grow guides, and even this newsletter, which was seized at two
locations in Ontario. It prevented legalization groups from buying
newspaper or TV ads, and prohibited High Times from entering the
country.
At the time that issue #4 was being released, two cannabis friendly shops in Ontario had contents seized under this law (100% Hemp in Kingston, Shakedown Street in Kitchener) and a third was under investigation (Friendly Stranger in Toronto). The seriousness of this law can be illustrated as follows: According to RCMP testimony offered in 1987, there were over 800 "head" shops or paraphernalia related shops in Canada, over 200 in Toronto alone, and over 30 on Yonge St. Those figures are probably somewhat inflated, but we all remember when you could buy High Times magazine on the newsstands, and when every town had an East Indian shop or two that sold paraphernalia and incense. Well, this was the law that destroyed our access to the cannabis culture. Overnight, it was gone.
For the record: here is the law, 462.2:
462.2 Everyone who knowingly imports into Canada, exports from
Canada, manufactures, promotes or sells instruments or literature
for illicit drug use is guilty of an offense and is liable on
summary conviction
(a) for a first offense, to a fine not exceeding one hundred
thousand dollars or to imprisonment for a term not exceeding six
months or to both; or
(b) for a second or subsequent offense, to a fine not exceeding
three hundred thousand ($300,000) dollars or to imprisonment for a
term not exceeding one year, or to both.
462.1 describes "literature for illicit drug use" as being any printed matter or video describing or depicting, and designed primarily under the circumstances to promote, encourage or advocate the production, preparation or consumption of illicit drugs.
Section 462.2 was introduced into parliament on Sept. 14, 1987 by Mississauga North MP Bill Horner. (It should be noted that the chairman of the Health & Welfare sub-committee which investigated Bill C-7 was Mississauga South MP Paul Szabo. Obviously, the Mississauga electorate is among Canada's least intelligent citizens.)
Section 462.2 became law almost a year after its introduction, on August 22, 1988. The minutes of committee meetings described the purpose of the bill as being"to eliminate all publications and literature glamorizing advocating and promoting drugs." According to court trancgi, Mr. Horner told a rather gullible Commons that: "There are 2,000 such stores ("head shops" which are "glamourizing illicit drug use") across Canada, 800 in Ontario, 29 on Yonge St."
The passing of 462.2 was supported by all parties then in Parliament (the usual three) with only one dissenting vote out of the then 265 parliamentarians: Svend Robinson of Burnaby (NDP).
The law makes no exceptions for journalistic, educational, scientific, scholarly, or political ends.
Police witnesses at Iorfida's court hearing claimed that 462.2 did, in fact, eliminate all stores in Canada that carried literature or paraphernalia, although Staff Sergeant Michael Pelletier (RCMP) said this closed only 500 shops in Canada!
In April 1992, NORML Canada director Umberto Iorfida was handing out pamphlets to high school students in a northern Toronto suburb, specifically "10 Facts about Marijuana For Students, Teachers, Parents", a pro-legalization brochure. A few days later a search warrant was obtained by York Regional Police. Police raided the home of Iorfida (also the office for NORML Canada) and seized, as was specified in the warrant, photocopiers, mailing lists of contributors (!), and in the words of the warrant:
"Any information (flyers) promoting the legalization and use of cannabis marijuana " and "any machinery used to distribute and duplicate written literature"
How a judge managed to issue a warrant for such insidious encroachment of basic political dissent is chilling enough, but under the "information to obtain a search warrant", here's some of the criteria presented to the judge by the York Regional Police:
All of the 9 points in the information for the warrant are clearly and exclusively aimed at prosecution of ordinary political debate. Did you think this couldn't happen in Canada? Elimination of the entire sub-culture in 1988? Prosecution of political lobby groups even as small as NORML Canada? Seizure of mailing lists?!?
However, having poured over all the contents, police, as is always the case, withdrew charges June 12, 1992, two and a half months after the arrest, after messing up Mr. Iorfida's life and greatly impairing NORML Canada's ability to function.
On June 16 Umberto Iorfida filed a writ with the Ontario courts seeking constitutional remedy He asserted that section 462.2 is unconstitutional because it infringes on the freedom of expression and ordinary political rights guaranteed (lest we forget!) under the supreme law of the land, The Charter of Rights & Freedoms. Notice of constitutional question was forwarded to provincial & federal attorney generals a week later. Iorfida also laid a claim for financial compensation as a result of the police action.
The learned (genuinely, as it turned out) judge Ellen J. MacDonald, of the General Division of the Ontario Court of Justice (formerly the Superior Court), considered the Plaintiff's (NORML Canada) argument, that this law stifles legitimate dissent and expression, and agreed, explaining:
Judge MacDonald commented:
"Drug using religious movements such as rastafarians, aboriginal native North Americans, cannot describe their religious experiences without potential for prosecution..."
"groups such as NORML Canada who advocate legislative change, harbour a justifiable fear of prosecution... This comes at a time when the question of the industrialization and-or legalization of marijuana is an issue of public concern."
The judge then asked two questions (as set out by the Supreme Court) in regards to determining whether legislation has violated the Charter of Rights:
"The answer to both questions is yes. In addressing question one, whether the activity falls within conduct protected by freedom of expression, the Supreme Court has taken a broad and inclusive approach, excluding only the rare cases where expression is communicated in a physically violent manner. In the words of Chief Justice Dickson in Irwin Toy and Keegstra [two famous cases], 'if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee.'
"The Attorney General of Canada acknowledges that literature for illicit drug use has expressive content in that the literature conveys or intends to convey, a meaning.
"...an analysis of the chilling effect, as it was put to me in argument by the plaintiffs, is that it demonstrates the reach of 462.2 and it clearly indicates that it has a potential, if not actual, impact on freedom of expression.
"I am in agreement, as well, that the description or promotion of drug use is an expressive activity...
"As Chief Justice Lamer pointed out...'the mere fact that parliament has decided to criminalize an activity does not render it beyond the scope of section 2 (b) of the Charter.'
"...To turn now to the analysis of issues under question 2, the stated goal of parliament is clear. It is, among other things, to restrict the content of speech by singling out particular meanings that are not to be conveyed... There cannot be any issue but that the purpose of 462.2 is to restrict free expression. It is a statutory provision aimed at censorship.
"...Viewed from this perspective, 462.2 constitutes a prima facie infringement of the 2(b) Charter right. Advocacy of illicit drug use may be inspired by humane considerations (medical use), by spiritual considerations (religious movements), by artistic considerations (novelists and fiction), or contrarily, it may be a distasteful message aimed at popularizing or glamorizing socially undesirable forms of activity. However, the silencing of even an undesirable message, through content-based criminalizations of written forms is, as pointed out J.A. Cory (Supreme Court): '...it is difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression. A democracy cannot exist without the freedom to advocate new ideas and to put forward opinions about the functioning of public institutions... So long as comments made on matters of public interest are neither obscene nor criminal libel, citizens of a democratic country should not have to worry unduly about the framing of their expression of ideas...If these exchanges are stifled, democratic government itself is threatened.'"
The judge's decision rejected the government's argument that it is a "justifiable infringement as permitted by the Charter." The 34 page decision concludes with this:
"Accordingly, an order shall go out severing the words 'or literature' from section 462.2, with the result that the words are inoperative and have no force and effect. The words are inconsistent with s. 2(b) of the Charter. The words are declared to be of no force and effect.... The definition of 'literature' in 462.1 is also severed and serves no purpose."WHAT HAPPENS NOW?
THE IMMEDIATE EFFECT
More stores in Ontario and other provinces began ordering books and
magazines that deal with cannabis and other entheogens. HEMP BC is
the distributor for many of these magazines and books in Canada,
and as proprietor I can describe the number of stores handling
cannabis books in Ontario, Saskatchewan and Quebec as having
tripled, with many store owners commenting on 462.2 being quashed.
Some people are just hearing about the decision now in late
December because of limited and small media attention to the
decision. Newspapers such as the Globe & Mail, The (BC) Province
and the Toronto Star carried small notices, but the media
essentially ignored the biggest civil liberties victory in a
decade. Two million cannabis Canadians were returned more or less
unfettered access to materials merely discussing one of their more
enjoyable pastimes, yet the media to an almost unanimous degree,
didn't notice.
The February High Times carried a good notice and photograph of hemp stalwart Umberto Iorfida of NORML Canada. High Times Magazine stands to be the main commercial beneficiary (HEMP BC is certainly a commercial beneficiary also), and the February issue of High Times appeared on newsstands in Vancouver, Toronto, and Montreal, 3,500 copies worth. This was the first time High Times had entered Canada through conventional newsstand distribution since July 1988, although I brought High Times into Canada in November 1991 in order to challenge section 462.2, and began nationwide distribution in May 1994 in defiance of the ban and as a commercial aspect of my HEMP BC operation. Between the two distribution arms, 5,000 copies are being distributed in Canada, but I think it's possible that High Times could sell 25,000 copies a month if properly distributed.
The other immediate effect is that FINALLY, WE, or more accurately, UMBERTO IORFIDA, WON ONE (for us)! In British Columbia, this ruling came on the heels of a B.C. Court of Appeal ruling putting limits on police ability to get drug search warrants.
WHAT CAN I DO?
You enjoy your new freedom and read, read, grow, grow, grow
(intellectually!). Alas, the practical aspect to this kind of
successful constitutional challenge is money. Lawyers Alan Young
and Edward Morgan have given up all their professional time to this
cause of overturning this wretched law, at no charge. Costs of
travel, photocopies, depositions, hiring of assistants, and so many
other incidental costs run into the several thousands, so to
celebrate this great decision in freedom's favour, we, meaning YOU
& I, will have to make a donation to the costs incurred in this
long process.
To that end, HEMP BC is pledging to match, dollar for dollar, all contributions towards these costs, up to a total of $2,500. So if you send $25 to this fund, HEMP BC will match it with $25, etc., until we hit $2,500. We'll probably give more later also (I know how expensive these things can be!)
It is vital you help out, as a trip to the Supreme Court will cost a large amount of money, but we are very fortunate to have two talented lawyers who are collecting no money for their personal use, and will likely sacrifice many days of their lives to the cause of defending our returned freedoms at the Supreme Court. We have an obligation not to fail in this regard, and we cannot be less than generous in contributing to this VICTORY. Please send a cheque or money order to the offices of:
Edward Morgan Davies, Ward & Beck
1st Canadian Place,
Toronto, Ont.
Make cheques payable to Edward Morgan, in trust re: NORML Canada.
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