The violators were the White Rock RCMP.
What had started out as an afternoon of quiet conversation between two
friends was quickly changed. A fishing trip undertaken by the police bicycle patrol (we
were sitting in a parked van) rapidly escalated when they caught a whiff of a recently
smoked joint. What I mean by "fishing trip" is that we had not been approached by the
police due to a complaint or a disturbance but solely out of curiosity. It was only
following a lengthy conversation which included questions as to what we were doing, if we
had any alcohol in the vehicle or whether we had been drinking, that the officer finally
brought up the subject of drugs.
"You are under arrest" were the
officer's next words. All we had been doing was smoking a joint, and hadn't I heard
somewhere that they didn't do this anymore? Feeling that this must be a simple
misunderstanding, I willingly offered up the roach believing that this would help resolve
the problem. I felt certain that when the police officer saw that this wasn't a major
dope deal things would lighten up a little.
Much to my surprise, this act of good faith on my behalf only served to heighten the
tension. I was immediately asked to step out of my vehicle and was bodily searched.
Within moments a squad car pulled up on the scene and I was placed in the back. The
experience was surreal. Here I was, sitting in the backseat of a police car, watching my
friend being questioned and searched while my vehicle was being dismantled. A crowd had
begun to gather and a reporter from the Peace Arch News was on the scene snapping
pictures.
In the end, my friend was found in possession of a 1/4 oz. and I was discovered with half a gram, less than a half a joint. We were set free upon signing a notice to appear in
court.
There was however, one final assault to come. I was told that if I attempted to operate
my vehicle within the next few hours they would arrest me on the charge of impaired
driving. I was assured that they (the police) would be watching my activities. All this
fuss over a little pot.
So much for the rumour suggesting that possession of small quantities of marijuana is
being treated with discretion. Don't believe it. This case is by no means a rarity. I
regularly hear of and am witness to this continued misuse of authority.
One of the most disturbing elements of the bust was the crowd that had gathered to
witness this assault. As I looked out at the gathering crowd, I saw many parents who were
pointing and discussing the situation with their children. It became apparent that my
friend and I were being used to "educate" their children. As a parent, and a very proud
one at that, I was insulted by the suggestion that I could somehow be used as an example
of what a person should not be.
I see myself as a loving parent, a supportive partner, a believer in humanity, and
over-all a fairly decent individual, but these qualities had been rapidly erased, if at
all noticed. It became apparent that in the aftermath of the discovered marijuana these
qualities were to go unnoticed. All attention was focussed on the one thing I was not: a
supporter of our drug policies.
Since the age of 14
I have been a regular marijuana user and, as a youth, a psychedelic voyager. I am now 41,
and throughout these many years the greatest threat to my well being has not come from my
use of marijuana, but rather in the threats to my person that I have experienced due to
the laws themselves. This episode has been but one more example.
The journey I am about to detail is not only about what oppression was doing to me, but
what it does to us all at some point. This journey also details the experiences of one
individual in attempting to overcome that oppression. What has shocked me the most is how
it was me who had really had built the walls around my life. It was me who had become
content to hide.
If that police officer had said to me, "I'll let you go this time but you had better
watch yourself," I would have done just that, I would have watched myself better. I would
have learned to hide better. I would have been further silenced. I would have remained
content to bitch at my friends about how dreadful the laws are. But I would not have been
willing to act.
The day I was busted signaled the beginning of a greater process. What that officer did
when he busted me was to remove the carrot that I had been chasing. I had been willing to
hide simply to avoid a criminal record. I will remain eternally grateful to that officer,
for he alone served as the catalyst that broadened my awareness and social activism. I
often wonder if he would be pleased.
It became clear that I would not be able to admit to the amount of guilt the court wanted
me to. Yes, I was in possession of marijuana and yes, there is a law that prohibits this,
but was I criminal? To this I would not plead guilty. If the court felt that such a
verdict was necessary to prop up their pitiful little laws, then they could rpoduce one,
but not with my assistance. This was a verdict that they would have to work for. After
three court appearances the trial was set for January 24, 1994.
And what of my friend? Due to the real and potential threat that fighting the charge
would have had on his career (he works with the physically and mentally challenged), he
eventually plead guilty to possession. The court, in its infinite wisdom, chose to ignore
his community involvement. He was fined $75 and received a criminal record. This was his
first offense.
A lawyer by the name of John Conroy became part
of this voyage in November of 1993. I was in dire need of legal advice. John is the kind
of person you take to right away. There were no airs, no bullshit. He was as concerned
about these laws as anyone I have ever met. His sincerity was and remains genuine.
My first meeting with John included all the formalities of such meetings, as we traded
details and ideas. Part of this exchange included John's suggestion that I could fight
this charge on its technical difficulties. I argued that the problem I had in taking this
line of defense was that it presumed that the drug laws themselves, if carried out
properly, were just.
To me a just law is one that protects the person and property of one individual from
attack or threat by another. Since I believe that what took place in White Rock was an
attack and a threat to my person and property by another (the police), and that this
attack was supported by laws, then by my understanding those laws are unjust. As I could
not except these laws as just, the procedures themselves meant nothing.
What was at issue here was not the law and procedure but rather the law and liberty. At
the end of our conversation John stated that he would see what he could find regarding
the latest court decisions.
John Conroy's background is one that reveals his commitment not only to the legal system
but to Canadians as a whole. He is also very active with regards to penal and criminal
law reform at a national and international level. He was one of the founding members of
NORML Canada back in the early 70's, and was awarded the 1992 Commemorative Medal for the
125th Anniversary of Canadian Confederation for significant contributions to Canada,
community, and fellow Canadians. John is someone I am extremely pleased to know.
In the first week of 1994 John called and raised the idea of challenging the marijuana
laws on constitutional grounds. If I was in agreement, the necessary paperwork would be
drawn up. We had to act quickly as the notice for such a challenge had to be filed no
later than 14 days before the trial date.
Although unsure of the legal aspects of such a challenge, I was certain of the advice I was being offered. John Conroy formally became my legal representative on that day.
On January 24, 1994, the court agreed to hear the challenge. We were granted a full day
in court to present our case. The date was set for April 28, 1995. For me this signaled a
small victory; at least I would be heard.
What
is at issue here is liberty and freedom. To what extent should any one group be able to
impose their views on another? To disapprove of a behavior or dislike an individual due
to a specific behavior is one thing, but it is another matter entirely to force those
views upon others with the full weight of the law. That is simply coercion.
The Constitution guarantees all citizens of Canada certain fundamental freedoms. Under
Section 2, everyone has the following fundamental freedoms:
Clearly the goal of the Charter lies in Section 2: freedom. This also is where the
problem arises. When we discuss freedom of conscience, of thought, of belief, or of
expression it is vitally important that we also discuss who's conscience, who's thought,
who's belief or who's expression is free. It is evident that within each of these
freedoms there lies a subjective interpretation. I, for example, interpret these
fundamental freedoms to include the private use of marijuana, or any other drug I might
choose to use.
Prior to 1982 the definition of these freedoms was left solely to the interpretation of
the government. There was little if any recourse in challenging poorly legislated law.
With the Constitutional amendments of 1982 however, the Supreme Court of Canada was
formally given the right and obligation under Section 52(1) of the Canadian Charter of
Rights and Freedoms to ensure that all laws are just according to the Constitution.
Section 52(1) states:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Further, under Section 24(1) of the
Charter, the court has been given the authority to remedy any and all laws that the court
deems to be unjust. This is essentially what we will be asking the court to do: remedy
the existing drug laws.
The Constitutional
challenge rests on two parts of the Charter, Sections 7 & 1. Within the Charter of Rights
and Freedoms, under the heading "Legal Rights" Section 7, it states that: Everyone has
the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
This phrase carries a lot of weight. While recognizing that all are entitled to certain
rights, there are limits. Those limitations though, also have limits.
An offence that provides for penalty of imprisonment, as does possession of marijuana, is
one that clearly affects "liberty" and "the security of the person". What we must prove
to the court, with regards to marijuana use, is that my right to life, liberty and
security of the person is being affected otherwise than in "accordance with the
principles of fundamental justice".
The Supreme Court of Canada has ruled that the creation of an absolute liability offence
coupled with potential imprisonment as a penalty violates Section 7 principles and is
unconstitutional. An absolute liability offence is one where there is no requirement on
the part of the Crown to prove an intention to commit the offence and where there is no
defence of due diligence in trying to avoid the commission of the offence. As anyone who
has been busted knows, possession, not intent, is all that must be proved by the Crown in
order to achieve a verdict of guilty.
If we can prove that possession of marijuana is in fact an absolute liability offence, or
that I have been affected otherwise than in accordance with "principles of fundamental
justice", then the onus shifts to the Crown, under Section 1 of the Charter, to provide
evidence that supports and justifies the drug laws and the associated penalties.
Section 1 of the Charter states:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it only subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Given the fact that most research suggests that any harm from marijuana use is more
directly caused by the drug laws themselves rather than the drug use, it should prove to
be quite a challenge for the Crown to support the legitimacy of the laws as they pertain
to marijuana use, or the use of any drug for that matter.
It will not be enough for the Crown to simply supply opinions and rhetoric, they will
need to present solid evidence: evidence that can demonstrably justify the penalties
associated with the existing drug laws.
In order for the Crown to do this, two conditions must be met. The first condition is
that the issue, in this case marijuana use, must be sufficiently important as well as
pressing and substantial in relation to societal concerns in order to over-ride
constitutional rights. Secondly, the means used, i.e. the laws and penalties, must be
reasonable and proportionate to the objective. To this end, a proportionality test is
used which states that
The measures used must be fair and rationally connected,
Such measures must impair the Charter as little as possible,
There must be a proportionality between the effect of the limiting measure (the law and penalties) and the objective.
The recent report handed down by Vince Cain
(no relation), BC's Chief Coroner, represents but one aspect of what the crown will be
faced with in their attempt to support the existing drug policies. The most interesting
aspect within this trial will be, and has always been, that much of the evidence to
support the decriminalization of marijuana has been supplied by the government and their
own studies. What this will mean for the crown is that they will have to attack and
discredit the government research while at the same time looking to that same government
for research that supports the existing drug policies. Not a task I would envy.
Statistics Canada reports that in 1993 there were 35,998
Canadians charged with marijuana offences - nearly one hundred Canadians each and every
day. This represents a 6% increase over 1992 statistics. Of the 1993 figures, over 24,200
individuals were charged with simple possession, a 7% increase from the previous year.
Trafficking charges also increased by 5% to 8,286 in 1993. All indications suggest that
this trend will continue.
These figures represent only those who were formally charged, not the thousands who
received community-service time as punishment rather than a criminal record. There are
also thousands of individuals who are found not guilty yet must defend themselves in the
courts. This also does not include the tens of thousands of Canadians who were subjected
to police interrogations and searches. A conservative estimate as to the number of
Canadians who are assaulted each year because of alleged or known use of marijuana would
be in the hundreds of thousands.
As noted earlier in this article, I was busted during a "fishing trip" by the police. Due
to the great infringements that the drug laws have on our rights, the police are free to
harass and intimidate whoever they please, whenever they please, as long as it is under
the guise of a drug investigation.
Every time a person pleads guilty to a possession charge they end up supporting the
existing legal system. The time is long overdue for each person who is attacked to fight
back. Politicians will soon get the message when the courts are so bogged down that they
can no longer function. It is estimated that the prohibition on marijuana costs the legal
system $5 billion a year to administer. Added resistance towards these laws will greatly
increase these costs as well as increasing the pressure on Ottawa to rethink its
position. We must begin to actively oppose the continuing brutalization of Canadians.
Following this article is a kit to launch your own
Constitutional challenge. Although I have tried to make the kit as user-friendly as
possible, if you have any problems I can be contacted at:
Randy Caine
Canadian Activists Coalition
26578-28A Ave, Aldergrove BC
V4W 3A7
I also can be reached via e-mail: vcaine@haven.uniserve.com, or by phone at (604)
-856-5027.
If you would like a copy of the Constitutional challenge kit faxed to you please include
your fax number. I will do everything I can to assist you in your challenge. There is no
charge for this service.
As this article goes to press, I have had my trial date set for July 7th, 1995.
I would like to take this opportunity to acknowledge and thank all those who have
assisted me along the way. I could not have come this far without your help and
reassurance.
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