R. v. Paula Clarke, 2003 NSPC 12

““““““““ CANADA PROVINCE OF NOVA SCOTIA 2003 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus PAULA CLARKE DECISION [cite as: R. v. Paula Clarke, 2003NSPC012] ________________________________________________________________________ HEARD BEFORE: The Honourable Judge Flora I. Buchan, J.P.C. PLACE HEARD: Dartmouth, Nova Scotia DATE HEARD: February 26, 2003 DATE OF DECISION: March 31, 2003 CHARGE: That she, on or about the 4 th day of December, 2001, at, or near 169 Candy Mountain, Minesville, in the County of Halifax, Province of Nova Scotia, did unlawfully have in her possession, not in excess of 30 grams, cannabis (marihuana), a substance listed in

Schedule II of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 , and did thereby commit an offence contrary to Section 4(1) of the said Act . COUNSEL: Paul Riley, for the Prosecution Allan Doughty, for the Defence Ms. Clarke stands charged that she did, on or about December the 4 th , 2001, at, or near Minesville, in the County of Halifax, unlawfully have in her possession not in excess of 30 grams of cannabis marihuana, a substance listed in

Schedule II of the Controlled Drugs and

Substances Act , and did thereby commit an offence contrary to Section 4(1) of the said Act . Counsel for Ms. Clarke, Mr. Doughty, makes this application to have this charge dismissed, stayed, or held in abeyance, pending the final determination of the cases of Hitzig [1] , J.P. [2] from the Ontario Courts and now, most recently, Stavert [3] , a decision of the Provincial Court of Prince Edward Island, all presently on appeal. Based on the decisions in these cases, Mr.

Doughty submits that the possession of marihuana charge is an offence not known to law as a result of the Parker [4] decision of the Ontario Court of Appeal which declared Section 4(1) of the C.D.S.A. invalid because it failed to allow for the legal possession of marihuana for medical reasons; which was interpreted and followed in the J.P. case in which the Court found that the government’s response to the Parker decision failed to satisfy the intent of Justice Rosenberg in Parker and affirmed the invalidity of Section 4(1) of the C.D.S.A. , as have the Courts in Barnes [5] , Hitzig and now Stavert . Mr.

Doughty further argues that to allow this prosecution to proceed would be an abuse of process; first, because of the state of flux of the law as the Parker decision was not appealed by the Crown; secondly, that simple possession of marihuana may soon be decriminalized, as noted in Stavert by Chief Judge Thompson where he acknowledged the September 2002 report of the Senate Special Committee on Illegal Drugs has recommended that the Government of Canada amend the C.D.S.A. to create a legislated criminal exemption scheme for the production and sale of cannabis; and thirdly, that should this prosecution proceed, that it would be the Federal Crown’s fourth attempt to re-litigate the same issue.

In response, the Crown’s position is that the Ontario Court of Appeal’s declaration of invalidity has effect in Ontario only; and that J.P. and Stavert were ill-considered and wrongly decided. Further, the Crown contends that should this Court follow the rulings of the Ontario and Prince Edward Island Provincial courts without waiting for the appeal process to conclude, regardless of how long this may take, that legal chaos would ensue.

Both Counsel have presented excellent briefs, provided the appropriate authorities, delivered oral arguments, and filed supplementary briefs following the recent Stavert decision of March the 21 st , 2003. Both have presented arguments concerning policy and common- sense issues. All submissions are a matter of record and I will not repeat them here. Suffice to say that I have carefully reviewed all submissions and have given due consideration to same in reaching my decision in this application. In Parker , Mr.

Justice Rosenberg, on behalf of the Court of Appeal in Ontario, declared Section 4(1) of the C.D.S.A. to be invalid, providing a 12 month suspension of the declaration to allow Parliament to amend the legislation to comply with the Charter . In J.P. , Mr. Justice Phillips of the Ontario Court of Justice, after careful review and analysis, found that no legislation as required in Parker had been passed by Parliament within the 12 months and, therefore, found that the offence the accused in his Court was facing was not an offence known to law and quashed the Information.

The decisions from the Courts in Barnes , Stavert and J.P. , all courts of co-ordinate jurisdiction, lend support to the issue of stare decisis raised by Mr. Doughty, in the absence of strong reason to the contrary, as does the principle of Judicial Comity. Chief Judge Thompson addressed this aspect in Stavert as follows, and I quote: “This Court is not bound by either level of the Ontario Courts, although in my view a decision of the Court of Appeal of a province, being at a level directly below the Supreme Court of Canada should be followed unless very good reasons can be given for not doing so.”

There is support here, arguably strong support, for this Court to simply apply the rule of stare decisis and follow the principle of Judicial Comity; however; in my view, the real issue is whether it is an abuse of the Court process to permit the Federal Crown to litigate an issue already finally determined in Parker and now interpreted and followed by several lower courts in both Ontario and Prince Edward Island.

During oral arguments, I raised the concern that as things now stand, a Canadian citizen living in Ontario, and now since March the 21 st , 2003 in Prince Edward Island, are presently and possibly permanently, immune from prosecution for marihuana possession. To support the Federal Crown’s contention that it is restricted by the Parker decision only within Ontario, would allow, in my view, a re-litigation of the same issue in every province and territory. This would have the potential of creating the legal chaos that the Crown suggests would occur if this prosecution were not permitted to continue. Ms.

Clarke is charge under national legislation. If she had been charged in Ontario or Prince Edward Island, the charge against her would be now stayed. Surely, all Canadian residents are entitled in fairness to expect a uniformity of approach from the Federal Crown. Most importantly, where the Federal Crown has jurisdiction, the law must be applied consistently on a national level.

As Madame Justice L’Heureux-Dube states as pg. 302 of Conway [6] , quote: “Where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.” A trial judge has the discretion to stay proceedings in order to remedy an abuse of the court’s process. This power may be exercised only in the clearest of cases.

I would agree with Chief Judge Thompson in Stavert where he states that he fails to see how the Crown is not bound by Parker when we are dealing with a single, indivisible entity with jurisdiction throughout Canada. Certainly, the Crown should vigorously defend the constitutionality of duly enacted legislation within the bounds of the law; but when a law has been found to be invalid by several courts in separate jurisdictions in Canada, for the Crown to continue to prosecute that law in certain provinces and not in others, is an abuse of process.

Until a decision on appeal to a higher Court is made, the decision of the lower courts stand. I have considered Power [7] and O’Connor [8] , two of the most recent Supreme Court of Canada cases describing the abuse of process doctrine and setting out the test for the imposition of a stay of proceedings. I am satisfied that the high test has been met in deciding whether this case rises to the level of an abuse of process. I find that it would be oppressive and vexatious to allow the prosecution of Ms.

Clarke on the charge of marihuana possession to continue, given the state of this law in the Provinces of Ontario and Prince Edward Island. To do otherwise would undermine the fundamental justice of the system. I further find that this case is one of those “clearest of cases” where a stay of proceedings should be entered by this Court in order to avoid an abuse of its own process.

A stay of proceedings is, therefore, entered in this matter. [1] Hitzig v. Canada , 2003 CanLII 3451 (ON SC) , [2003] O. J. No. 12 (Ont. S. C.) [2] R. v. J.P. , [2003] O. J. No. 1 (Ont. Prov. Ct.) [3] R. v. Stavert , 2003 CanLII 89024 (PE PC) , [2003] P.E.I. J. No. 28 (P.E.I. Prov. Ct.) [4] R. v. Parker , (2000), 2000 CanLII 5762 (ON CA) , 146 C.C.C. (3d) 193 (Ont. C. A.) [5] R. v. Barnes , 2003 Carswell Ont. 259, (Ont. Prov. Ct.) [6] R. v. Conway , (1989) 1989 CanLII 66 (SCC) , 49 C.C.C. (3d) 289 (S. C. C.) [7] R. v. Power , (1994) 1994 CanLII 126 (SCC) , 89 C.C.C. (3d) 1 (S. C. C.) [8] R. v. O’Connor , (1995) 1995 CanLII 51 (SCC) , 103 C.C.C. (3d) 1 (S. C. C.)