''R v Clay''

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3 S.C.R. 735, is a decision by the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

on the constitutionality of the prohibition to possess

marijuana Cannabis, also known as marijuana among other names, is a psychoactive drug from the cannabis plant. Native to Central or South Asia, the cannabis plant has been used as a drug for both recreational and entheogenic purposes and in various tra ...

. The accused claimed that his section 7 Charter rights were violated. The Court dismissed the claim. This case is the final of a trilogy of cases regarding the constitutionality of the prohibition of marijuana.

Background

Clay was a 26-year-old owner of "The Great Canadian Hemporium" in

London, Ontario London (pronounced ) is a city in southwestern Ontario, Canada, along the Quebec City–Windsor Corridor. The city had a population of 422,324 according to the 2021 Canadian census. London is at the confluence of the Thames River, approximate ...

where he held many hemp related products. He was caught selling marijuana plant cuttings to an undercover police officer and was charged under the former

Narcotics Control Act The ''Narcotic Control Act'' (the ''Act''), passed in 1961, was one of Canada's national drug control statutes prior to its repeal by the 1996 ''Controlled Drugs and Substances Act.'' It implemented the provisions of the Single Convention on Nar ...

. Clay argued that his Charter rights were violated by the Narcotics Control Act's prohibition of possession of marijuana. At trial and appeal the claim was dismissed.

Opinion of the Court

The Court held that the appeal should be dismissed. The opinion of the Court was given by McLachlin C.J. Arbour, LeBel, and Deschamps JJ. each gave dissenting opinions. It has been well established, McLachlin claimed, that the risk of imprisonment creates a violation of an accused's

liberty Liberty is the ability to do as one pleases, or a right or immunity enjoyed by prescription or by grant (i.e. privilege). It is a synonym for the word freedom. In modern politics, liberty is understood as the state of being free within society fr ...

and

security of person Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly defined and guaranteed by the European Convention on Human Rights, th ...

under section 7. However, in this case it is in accordance with the principles of

fundamental justice In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as ...

. The purpose of the section is to protect the "core of what it means to be an autonomous human being blessed with dignity and independence in matters that can properly be characterized as fundamentally or inherently personal". Smoking marijuana, it is held, is not included. McLachlin then considered the claim of whether the law was "overbroad" as in '' R. v. Heywood''. She found that the law is not grossly disproportionate to the interest of the government to avoid harm caused directly or indirectly by the use of the drug, citing operation of motor vehicles or other complex machinery as sufficient dangers to warrant prohibition. Furthermore, there was no convincing evidence that looser prohibition would be as effective. McLachlin dismissed the argument that the term "narcotic" in the act was ambiguous and could be read to exclude the cuttings as there was no THC in it.

External links

appellant's factum
*{{lexum-scc, 2003, 75

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