Freedom of Expression is NORML
In 1988, most public libraries in Canada became criminal organizations. With the passage of Section 462.2 of the Criminal Code, librarians could be charged for distributing books that fell under the loose definition of “drug literature.” Indeed, the Toronto Public Library alone had at least sixty-nine “questionable” titles according to its Chief Librarian, Les Fowlie. A search at the London public library also turned up an impressive list of cannabis grower’s guides and other illicit books.
Perhaps fearing negative publicity, police left the libraries alone. Notable authors like Susan Musgrave, Daniel Richler and William Deverel, concerned about their own books, were also left alone. It wasn’t until London writer David Lambert distributed an illegal recipe in 1991 that police finally felt compelled to act.
Three years after the legislation was introduced, Lambert included his infamous hash brownie recipe in an annual restaurant and bar guide that he published. London police arrested Lambert, he retained Osgoode Hall law professor Alan Young, and the charges were soon dropped. However, the ludicrous nature of the charges concerned Young, and he spent the next three years fighting back.
Freedom of Expression is NORML
Since its inception, few people were ever charged with manufacturing or distributing “drug literature,” so it was difficult for Young to find a suitable test case to challenge the law. However, in April 1992 police struck again, this time in Toronto.
In April, NORML Canada director Umberto Iorfida was arrested in his home several days after having sent pro-pot letters to most Canadian newspapers, and also distributing legalization flyers at a local high school. An informant contacted police, who reacted by charging Iorfida and seizing membership lists, books, files and even a photocopier.
In typical fashion, the charges were dropped after a few months. However, Young and co-counsel Edward Morgan were intent on proceeding, and they used the civil courts to launch a constitutional challenge on behalf of Iorfida. The case finally went to trial in 1994, and in October Ontario Court Justice Ellen MacDonald ruled in their favour.
Law struck down in Ontario
Section 2(b) of the Canadian Charter of Rights and freedoms guarantees all Canadians “freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication.” In her decision, Justice MacDonald wrote that Section 462.2 “infringes the guarantee of freedom of expression… in a manner that is not justifiable under Section 1 of the Charter.” She concluded, “an order shall go severing the words “or literature” from Section 462.2 of the Criminal Code… with the result that the words are inoperative and have not force and effect.”
The Crown announced they would appeal the case, so everyone assumed the battle would continue for at least several years. However, after nearly a year had passed, the Feds realized they couldn’t win and decided to back down. With the case at rest and a positive ruling from Justice MacDonald, that should have been the end of story.
Battle Continues Across Canada
The NORML decision opened the floodgates, and once again cannabis culture literature became widely available across the country. Unfortunately, despite the ruling, a number of businesses outside of Ontario have since been harassed for stocking cannabis books and magazines.
Since only rulings from the Supreme Court of Canada have binding authority over all other courts in the nation, technically police outside of Ontario can still lay charges, and they do.
In Saskatchewan, a seizure of marijuana magazines and grow books at the Vinyl Exchange has evolved into yet another legal challenge for Professor Young. While victory is virtually assured using the NORML verdict as precedent, it is likely that thought police in other provinces will continue their war on information until the law is finally struck down by the Supreme Court of Canada.