R. v. Hunter, 1997 CanLII 1340 (BC S.C.)

In the Supreme Court of British Columbia

No.88807                                 14 April 1997

Victoria Registry                        Victoria, B.C.

                              REASONS FOR JUDGMENT

HER MAJESTY THE QUEEN

                                         OF

AGAINST

                                    THE HONOURABLE

IAN FERGUS HUNTER

                              MR. JUSTICE M.L.T. DRAKE

APPEARANCES:

David S. Mulroney...................appearing for the Crown

Ian Hunter..........................on his own behalf

THE COURT (Oral):  This matter is for judgment today on these applications to declare the Narcotic Control Act and the Food and Drugs Act unconstitutional.

  Mr. Hunter is charged with two counts under the Narcotic Control Act which are for cultivating marihuana and possession of its seeds for the purpose of trafficking.  He is also charged with possession of psilocybin, a restricted drug listed in the schedule to the Food and Drugs Act.  On these charges he was arraigned before me last week, but no jury has been sworn and no further steps will be taken until the court has determined these questions which are raised by Mr. Hunter, a procedure authorized by section 645(5) of the Criminal Code.

  Evidence leading to these charges has been admitted, and what was advanced before me was really a elaborate plea of confession and avoidance.  The questions raised are set out in what I regard as a notice of motion, which has been served upon the two Attorneys General, but the Attorney General of British Columbia did not appear.  Mr. Hunter's submissions enlarge greatly on his original notice.  Much of them dealt with purely political questions which are no concern of mine.  Among other things, I was asked to direct Parliament to repeal the two statutes in question, which of course is impossible.  I only mention this as one of the instances in the mass of irrelevant matter that I have heard.

  Shorn of all irrelevancy, the questions of substance are whether or not Mr. Hunter's Charter-­protected rights have been infringed by this prosecution.  These are specifically his rights, first, to freedom of expression, secondly, of conscience and religion, thirdly, to liberty and the security of his person, and fourthly, to equality before the law for those who use cannabis and psilocybin.

  There is also what I take to be an application to hold count two to be bad, and I shall deal with it first.  At the outset of this hearing, after Mr. Hunter had been arraigned, Mr. Mulroney stated that the marihuana concerned in this possession for trafficking count consisted of seeds.  I take that to be a statement of particulars of the charge.  Mr. Hunter pointed out that marihuana seeds are not mentioned in the list of prohibited substances found in the schedule to the Narcotic Control Act, and accordingly, count two discloses no offence.

  On reflection, I find myself unable to agree.  Seeds of any sort of a growing plant are obviously part of it, and to say that they lose this character when separated from the parent stem makes no sense to me.  Again, the schedule excludes "non‑viable seeds," that is seeds which cannot germinate, from the list of prohibited substances.  This alone would indicate that Parliament meant that viable seeds, those capable of germination, are to be included in the list of prohibited substances.

  There was also an argument that marihuana is not a narcotic.  I think we all know that, but since the statute has declared it to be one, that is the end of the matter, as many cases such as that of Perka indicate.

  In any event, Constable Mann states in his affidavit that he brought some of the seeds in question to germination under carefully controlled conditions.

  Accordingly, count two, that is to say possession of marihuana for the purpose of trafficking, is not defective, and it will stand.

  I will now pass on to deal with the submissions.  The first one is that Mr. Hunter's freedom of expression has been and is unlawfully fettered by both the Narcotic Control Act and the Food and Drugs Act.  I cannot see that there is any substance in this argument, as these two statutes are directed to the control of activities alone, not to speech or publication of opinion by anyone by any means such as conduct.  The authority for that is the Irwin Toy v. Attorney General of Quebec case, which is reported in (1989) 58 D.L.R. 577.

  As to freedom of conscience and religion, the argument is that the Church of the Universe, of which Mr. Hunter is a minister, requires the use of hemp as a sacrament.  This seems to me the only dogma of this church, but it is not an authoritative one, as Mr. Hunter admitted on cross‑examination that people could be members of his church without having anything to do with hemp in any way.  He went on to say that the basis of the church was "Do as you will," a reference I think to the rule of Rabelais' Abbey of Theleme, "fais ce que voudras".  In creating this fictitious religious community, Rabelais made it very clear that only the noblest and best could be trusted to live by this rule, which makes obvious sense.  However, this argument is about morals rather than about religion, and so it is not apposite.

  The awkward question as to the nature of religion thus arises.  The court will not become embroiled in ancient controversies.  I will simply observe the Oxford English Dictionary definition of the word and measure the evidence against that.  "Any religion," says this dictionary, "involves recognition on the part of man of some higher unseen power as having control of his destiny and as being entitled to obedience, reverence and worship."  It goes on to say, "The general mental and moral attitude resulting from this belief."  The great fundamental essential of any religion I take to be belief or faith.

  As to this, the only evidence as to belief is that of Mr. Hunter and Mr. Bennett, who is another minister of the Church of the Universe, that the cannabis plant is the tree of life mentioned in various Biblical books from Genesis to Revelation and that its use to achieve an ecstatic state is right and proper.  That seems to be the main tenet of the faith as the testimony of its two ministers has declared it.  Of course, an ecstatic state induced by a drug can reasonably be said to be merely an hallucination, but that is by the way.

  Unfortunately, this use is an unlawful act, and it is difficult to see how the Charter can protect such.  If it did, for instance Thugee and other murderous faiths would be quite legitimate in Canada.  I have to find that a religion which encourages or at least condones the commission of indictable offences, in this case under the Narcotic Control Act and Food and Drugs Act, is no religion at all so far as the Charter of Rights and Freedoms is concerned.

  As to liberty and security of the person, in my opinion the two statutes contain reasonable prohibitions against certain conduct, and these are not unduly broad in their application.  There is no need to test them against section 1 of the Charter, which only comes into play where a truly fundamental right is in question and any restriction upon it may be certainly unreasonable.  The authority for that is the Hamon case, 1993 CanLII 4139 (QC C.A.), (1993), 85 C.C.C. (3d) 490 in the Quebec Court of Appeal, in which leave to appeal to the Supreme Court of Canada was refused.

  Finally, Mr. Hunter submits that the community of users of marihuana and psilocybin are recognizable groups against which the Narcotic Control Act and Food and Drugs Act discriminate.  The short answer to this is that these statutes objectively prohibit everybody from possessing or dealing in these two substances which are prohibited by the two statutes.

  Accordingly, the application to declare the Narcotic Control Act and the Food and Drugs Act on the various grounds advanced to be unconstitutional and of no effect is dismissed.

  (JUDGMENT CONCLUDED)