R. v. Barr, 2017 ONCJ 732

CITATION: R. v. Barr , 2017 ONCJ 732 DATE: October 18, 2017 Information ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ANTHONY FRANCIS BARR R U L I N G BEFORE THE HONOURABLE JUSTICE G.M. HORNBLOWER on October 18, 2017, at SARNIA, Ontario APPEARANCES : M. Robb Counsel for the Federal Crown D. Burns Duty Counsel for Anthony Barr WEDNESDAY, OCTOBER 18, 2017 R U L I N G

HORNBLOWER, J. (Orally): On April 12th, 2017, Anthony Barr while operating a motor vehicle was observed by police to pass a string of vehicles at ahigh rate of speed. In the circumstances the police decided to stop the vehicle. In the course of their investigation, theydetermined that Mr. Barr's ability to operate the vehicle was impaired by the consumption of marihuana. Mr. Barr was charged withimpaired driving. Mr. Barr was also found in possession of a quantity of marihuana, a total of 18 grams found in three separatesmall bags. Notwithstanding that he was prescribed the marihuana for medicinal purposes, Mr.

Barr was also charged withpossession of cannabis marihuana contrary to section 4(1) of the Controlled Drugs and Substances Act. A guilty plea was entered before me on August 9th, 2017. At that time I questioned the basis upon which there could be afinding of guilt for possession of a substance that had been lawfully prescribed for him. It was the Crown's position that by using the marihuana in committing a criminal offence, namely impaired operation of amotor vehicle, that the lawful possession ended and that the continued possession of marihuana became unlawful. The defenceagreed with that position.

The Crown was asked to provide authority for their proposition and the matter was put to September 25th for furtherargument. At that time, the Crown provided a number of authorities that stand for the proposition that the innocent possession of an item can, depending upon the circumstances, become unlawful. Elias v. The Queen, (SCC), [1989], 1 SCR, 423 is a Supreme Court of Canada decision upholding a convictionfor the unlawful use of a credit card. Although on the facts it was unclear how Mr.

Elias came into possession of the credit card, once he obtained possession of it, he maintained possession and then used it for his own benefit. In upholding the conviction the Court ruled as follows: Even assuming that possession of the said card was innocent, it has to be admitted that at some point prior to its use, the accused chose to keep it wrongfully, hence his possession by thecommission of an offence. He could subsequently have dealt with it by continuing the possession heknew to be unlawful or by using it. He chose to use it unlawfully to obtain goods.

There is no reason why possession that is initially innocent cannot later become unlawful. It is of some significance, I believe, that the Court refers to Elias' initial possession of the credit card as "innocent" as opposed todescribing it as "lawful". Elias was never entitled to the possession of that card. The same cannot be said of the marihuana thatMr. Barr was in possession of. The marihuana was lawfully prescribed to him. Mr. Barr has a legal prescription for marihuana which makes it lawful for him to have that substance in his possession.

The factthat he used the drug lawfully prescribed to him and lawfully in his possession and then operated a motor vehicle impairing hisability by the use of that drug, does not make the possession of the drug unlawful. To my mind, the decision in Elias can be clearlydistinguished given that Mr. Barr was always lawfully entitled to possess the marihuana, and assuming he still has a valid medicalauthorization, is still lawfully entitled to possess that substance.

In its further submissions, the Crown has advanced an alternate argument based on the regulations governing the obtaining ofmarihuana for medical purposes. Nothing in those regulations, however, acts to convert lawful possession by a person who hadobtained the substance through a valid prescription, and from a source authorized by law to supply it, into unlawful possession. The regulations provide for labeling requirements for the product. Those obligations are imposed upon the supplier. None of themarihuana seized from Mr. Barr was packaged in accordance with those requirements.

The lack of proper labeling on the package may raise an issue as to whether the drug in question was in fact lawfully obtained in accordance with the regulations. Where, for example, an accused lawfully entitled to obtain marihuana obtains it from an illegal source, the possession isunlawful as the lawful possession can only be from a lawful source. In such a case, the lack of proper labeling on themarihuana in question may be a piece of evidence from which an inference can be drawn that the product was obtained other thanfrom a lawful source. That, however, is not the case here. Mr.

Barr maintains that he was entitled to lawfully obtain thedrug that was in his possession and did so in a lawful manner. A breach of the regulatory scheme does not criminalize his possession.

Notwithstanding the plea of guilty, the facts before me do not disclose the commission of an offence. There is no basis for a finding of unlawful possession. Accordingly, the guilty plea is struck.