R. v. Jaswal Date:, 2012 BCPC 244

Citation: R. v. Jaswal Date: 20120717 2012 BCPC 0244 File No: 54718-3 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAVI JASWAL RULING ON APPLICATION OF THE HONOURABLE JUDGE E. D. SCHMIDT Counsel for the Crown: J. M. Le Dressay Appearing in person: Ravi Jaswal Place of Hearing: Richmond , B.C. Date of Hearing: July 16, 2012 Date of Judgment: July 17, 2012

[ 1 ] The accused is charged as follows: Count 1: Ravi JASWAL, on or about the 17 th day of October, 2009, at or near the University Endowment Lands, Vancouver, in the Province of British Columbia, did unlawfully produce a controlled substance, to wit: Cannabis (marihuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act.

Count 2: Ravi JASWAL, on or about the 17 th day of October, 2009, at or near the University Endowment Lands, Vancouver, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Cannabis (marihuana), for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act . [ 2 ] Prior to trial, the accused filed an Application to a Judge.

According to the application, he is seeking an order as follows: “An application is made to the court for the following order: ORDER pursuant to S. 601 to quash CDSA charges as unknown to law.” [ 3 ] The court heard argument yesterday, both by way of oral and written argument and reserved until today for decision. [ 4 ] The court expressed concerns that the procedure in

Section 601 was not appropriate for the relief sought by the accused. [ 5 ]

Section 601 of the Criminal Code deals with defects apparent on the face of the indictment. Upon application, the court may quash the indictment or may amend the indictment. If the motion is made after a plea has been taken, leave of the court must be sought. [ 6 ] The application is based on a line of cases dealing with the constitutionality of the prohibition against possession and cultivation of cannabis marihuana prohibited by the Controlled Drugs and Substances Act . [ 7 ] The line of cases commence with Her Majesty the Queen v. Terrance Parker [2000] O.N.C.A. 5762.

In that case, the court held that the prohibition against the possession of marihuana was unconstitutional, as it did not provide for a scheme for the legal possession for medical reasons by persons who required or would benefit from the drug medically. The Court stayed the operation of the prohibition for the period of one year to give Parliament an opportunity to amend the scheme to provide for medical use of marihuana. [ 8 ] Parliament did make provisions for the medical use of marihuana in the Medical Marihuana Access Regulations . The next case to be argued was Hitzig et al. v.

Her Majesty the Queen [2003] O.N.C.A 30796. That court declined to strike down the prohibition against possession, but struck down two provisions in the Medical Marihuana Access Regulations . The effect of the decision was that the prohibition against possession was maintained, or re-instituted, depending on the view taken of the Parker case and its aftermath. [ 9 ] As Parliament responded to the requirements of the Hirtzig case, other cases were decided, all based on the constitutionality of various provisions of the MMAR . Some found that provisions of the MMAR were unconstitutional and struck them down.

Sfetkolopoulos v. Canada (Attorney General) [2008] F.C. 33. [ 10 ] In the most recent case, R. v. Mernagh 2011 ONSC 2121 , the court made a declaration that the prohibition against possession and production of marihuana contained in Sections 4 and 7 of the CDSA was constitutionally invalid and of no force and effect.

The accused says that the effect of that case is to return the law to the state it was in after the Parker decision. [ 11 ] The Mernagh case is under appeal. [ 12 ] The accused takes the view that these cases have resulted in there being no prohibition against the cultivation and possession of marihuana in Canada.

He says that as a result, the possession and cultivation of marihuana in Canada is legal and therefore the charges against him are charges unknown to the law. [ 13 ] Other cases, notably the B.C. cases of R v Beren and Swallow {2009] B.C.S.C. 429, Kubby v Her Majesty the Queen , [2005] B.C.C.A 640 and Poelzer v.

Her Majesty the Queen , [2009] B.C.S.C. 18, found the provisions constitutional and convictions were entered for cultivation and possession of marihuana. [ 14 ] All of the above cases were decided in context after evidence was called, and in most cases extensive evidence, relating to the facts of the case and the general use of and medical need for the drugs, and the practicality of the requirements of the MMAR . [ 15 ] The accused is self represented and has prepared a written argument to support his application to quash. [ 16 ] A plea of not guilty was entered July 12, 2010.

According to s. 601 , the accused may only bring an application to quash after plea with leave of the court. [ 17 ] The court, after considering the argument on the invalidity of the sections of the CDSA , requested argument on the correctness of using

Section 601 of the Criminal Code to quash an indictment based on an

interpretation of the validity of the legislation. [ 18 ] Counsel for the Crown and Mr. Jaswal were unable to provide the court with any authority for using

Section 601 for purposes other than to quash or amend an information due to a defect on the face of the indictment.

[ 19 ] The CDSA is validly enacted legislation. There may be an argument to be made as a result of case law impugning some aspects of the legislation or its related MMAR . However, in the view of the court, that is a matter for consideration by the court after the calling of evidence and determination of the facts. [ 20 ] If the indictment gives reasonable information in order for the accused to understand the charge he is facing and there are no other defects on the face of the document, the potential argument concerning the laws validity is not a defect on its face. It is not a nullity.

It is a charge that must be proven by the Crown. [ 21 ] If the charge is proven, it is still open to the accused to attack the validity of the legislation at trial. [ 22 ]

Section 601 does not, in the court’s view, open the door to an attack on the legislation itself, but only on the drafting of the indictment and whether it contains the essential elements to constitute a charge as worded. If not, the court can quash or amend the information to correct the defect, or, if evidence has been led, amend the information to conform to the evidence. [ 23 ] The Provincial Court would be in error to opine on the validity of legislation without the hearing of evidence or, at the least, reviewing filed admissions of evidence at trial. [ 24 ] Certain applications based on the Charter are heard prior to trial. For example, an application to stay a charge based on

Section 11(b), the right to be tried within a reasonable time, will be brought prior to the trial on the evidence called with respect to the delay and with reference to the court record. The law will be considered by the court and applied to the facts about the delay led by way of evidence and court record. [ 25 ] This is quite a different pretrial procedure than that contemplated by

Section 601. It does not require the court to make a finding on the state of the law without applying it to found facts. It is an examination of a court document to determine if it is sufficient to describe an offence that the accused can plead to. [ 26 ] The Superior Court has jurisdiction to make declaratory orders by way of a prerogative writ. Presumably, a petition could be brought in that court for a writ of prohibition or other appropriate prerogative writ. [ 27 ] There are also provisions in Superior Courts for a reference on a point of law.

However there are no provisions, outside of the context of a trial, for a Provincial Court to make a finding on the state of the law absent the context of a trial. If there is an appropriate method for the Provincial Court to make a declaration on the state of the law outside of the context of a trial, I have not been advised of it. In any event, the court finds that

Section 601 of the Criminal Code is not an appropriate vehicle for the relief sought by the accused. Leave of the court to consider the application to quash is thereby denied. ____________________ E. D. Schmidt, P.C.J.