Section 4(3) Possession – An Example of Judge-Made Law: Episode Six of the Ideablawg Podcasts on the Criminal Code of Canada

I ended last episode with a bit of a teaser: I said in this episode we would explore the old adage: possession is nine-tenths of the law. Well, sorry to say, this is not the law, particularly in the criminal law meaning of “possession.” What we will explore in this podcast is what section 4(3) tells us about the meaning of “possession” and what it does not.

Once again, we will encounter the difficulty of using the Criminal Code as an inclusive repository of criminal offences. According to section 9 of the Code, which we will be discussing on these podcasts very soon, all crimes in Canada are in the Code, except for the common law crime of contempt of court. However, although all crimes are found under a particular section of the Code, on the plain reading of a particular section one cannot be certain of the requisite elements. Sometimes, we need to look elsewhere in the Code for further illumination, such as s. 2 definitions or the definitions found under the relevant Part.

More often, we need to look at case law for the answer. This reality suggests the concept in s.19 of the Code, that ignorance of the law is no excuse, is a bit of a joke, as certainly the average reasonable person, who has no legal training, could not access with certainty the requirements for each crime. This is even more evident when case law does not just define certain words used in a section but actually reads into the section additional words.

This is the case with the s.4 (3) meaning of “possession.” This section is a perfect example of how the Courts have restricted or narrowed the prohibited act of a crime, as originally conceived by Parliament, through legal interpretation. Of course the courts do not do this whimsically. There is a method to their madness and the modifications ensure the integrity of the criminal law as a whole. In the case of possession the added requirements ensure the law is not overly broad and does not capture those whom we would consider legally and perhaps, although not necessarily, even morally innocent. The big puzzle is why Parliament doesn’t take the hint and, in the next round of omnibus Criminal Code changes, amend the section accordingly. To not do this smacks of “ostrich-in-the-sand” kind of mentality. Or better yet, is to liken the attitude to the Ravenous Bugblatter Beast of Traal from the Hitchhiker’s Guide To The Galaxy– what you can’t see isn’t there.

In any event, with this lengthy introductory rant, let’s look at section 4 (3), which reads as follows:

For the purposes of this Act,(a) a person has anything in possession when he has it in his personal possession or knowingly(i) has it in the actual possession or custody of another person, or(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

What we really want to focus on is the concept of joint or constructive possession under s. 4 (3)(b), which requires “knowledge and consent.” The difficulty with this definition started with the Alberta case, from the sixties, Marshall.  The teenager, Daniel Marshall hitched a ride with some friends from B.C. intending to make his way home to Alberta. During the ride, the other teens smoked a hookah pipe filled with marijuana, which Marshall passed along but did not partake. When the Alberta police stopped the car for a broken headlamp, billows of marijuana smoke drifted out of the open windows. Everyone was charged with joint possession of marijuana on the basis of s. 4(3). Marshall was convicted at trial on the basis there was knowledge and consent per the wording of the section. The Alberta Supreme Court, Appellate Division, as it then was, disagreed, finding that consent required more than the mere presence of Marshall in the car and that although he consented to be in the car, that did not mean he consented to the presence of the drugs. Furthermore, the court, in discussing whether or not Marshall was a party to the possession, noted that Marshall had no power to control the people with the drugs nor was he the driver of the car.

This control aspect was applied directly to the meaning of possession in the 1983 Supreme Court of Canada Terrence case. In this case, the issue was possession of a stolen vehicle and Terrence’s presence in the vehicle as a mere passenger. In referring to and approving of the lower Court of Appeal for Ontario decision in the case, the SCC agreed that an element of control was required for proof of possession. In their view, if control was required for proof of being a party to an offence, then, similarly, control was required for joint possession, which was also a mechanism for deeming multiple parties legally responsible for a crime.

This case law restricting the meaning of joint or constructive possession under s. 4(3) does make sense and does ensure that responsibility is properly meted out. However, the concept can be a bit of a stretch. Take for example the 2001 Mraz case from the Saskatchewan Provincial Court wherein the accused was acquitted of possession of marijuana. There the judge found there was no control, even though the accused shared a “joint,” one of the many euphemisms for a rolled marijuana cigarette and apropos here as we are talking about joint possession, with his co-accused. There was no control because the co-accused had full control of the bagful of marijuana from which the previously smoked “joint” came. There was some dispute as to where the bag was found, as the accused believed his co-accused kept it on his person, while the bag was actually found in the car under the seat.

As a quick aside, this leads me to consider the origin of the slang “joint” used to describe a rolled marijuana cigarette. Although I am loath to use Wikipedia, the webpage on the etymology of the slang “joint” seems credible. “Joint,” which is derived from the French word “joined” was used in the 1800s to refer to an annex to a main room. The term picked up an unsavoury flavour when in the late 1800s it was then used in reference to a run-down bar or even an opium den. In the thirties the slang was used in reference to a heroin hypodermic needle because the needle was often shared. The same reasoning is applied to the use of the word “joint” for a marijuana cigarette, as it too, as seen in the cases of Marshall and Mraz, is usually shared.

Thank you for joining me. In the next podcast we will complete our discussion of section 4 when we look at the three “esses;” subjects, sexual intercourse, and service.

Episode Six Ideablawg Podcasts on the Criminal Code of Canada Section 4(3) Possession as an Example of Judge-Made Law

Part One of the Supreme Court of Canada’s Decisions In The Sniffer Dog Cases: Don’t Throw Out The Principle With The Bath Water!

Question: When is a legal principle clarified by unanimous court but when the principle must subsequently be applied, unanimity goes out the window? Answer: When the Supreme Court of Canada delivers a much anticipated and needed decision on an issue, which, depending on the outcome, may change the face of police investigatory practice. That is the case, of course, in the two sniffer dog decisions in Chehil and MacKenzie, which were supposed to clarify the standard of “reasonable suspicion.” However, instead of the much-needed direction from the Court, the Supreme Court of Canada leaves us with a ruling that fails to clarify. As we all know, legal principles do not live in a vacuum and if they cannot be applied consistently and with some prediction, then the principle becomes a tool of the law and not the rule of law.

Still, the cases do tell us something, about which I have consistently written: that a seemingly objective standard is a fallacy as it is applied through the subjective sensibilities of the assessor, the judge, and in the context of facts, which themselves are founded on a subjective view of the receiver. Chehil and MacKenzie are cases in point: Chehil sets out the principle, to which everyone on the Court agrees, while MacKenzie applies it through the judicial lens. Unfortunately, the judicial lens is of varying strengths and degrees: not everyone on the Court sees matters the same way. The decision is therefore a fractious one. If our Supreme Court of Canada cannot agree then how can the majority, written by Justice Moldaver as I predicted, find the trial judge, who heard the evidence, is wrong. Can one even be wrong when applying an objective reasonable person standard? Are there two reasonable people? Do we even know how a reasonable person thinks? Ah, there’s the rub and there is the tautology: objective standards are only as good as the facts behind them.

If the above seems like a rant, well I suppose it is: the decisions, when read together are puzzling. Moldaver’s MacKenzie decision is even more so when read against the trial judge’s reasons. Unfortunately, one cannot get beyond the admonition of the trial judge when he found it possible “that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located.” This kind of after the fact decision-making seems to permeate the SCC decision too but understandably so as in fact there were drugs found and the accused was a drug courier. But what we must all keep in mind is the purpose of the Charter is not to exonerate criminals but to provide oversight when the awesome powers of the state are used,  in whatever circumstances. Just as innocent people may come under scrutiny in a criminal investigation, as pointed out by Madame Justice Karakatsanis in Chehil, so too seemingly guilty people will benefit from inappropriate state intrusion. This is what safeguards our fundamental principles in a free and democratic society.

It is in this context that we must review and analyze these cases. In part two of my case comment, I will do just that.

Is “Reasonable Suspicion” Going to the Dogs?

What do Levi, Boris, and Max have in common? They are both “single-profile narcotic detector dogs,” commonly known as “sniffer” dogs. These highly trained canines are able to detect controlled substances in bus station lockers, luggage at airports, and in motor vehicles travelling west to east across the drug courier “pipeline,” which we call the Trans Canada Highway. Although typically part of the investigation of drug offences, these investigators do not make it onto the witness list, however, they too will soon have their day in court when the Supreme Court of Canada hears two “sniffer” cases – the MacKenzie case from Saskatchewan Court of Appeal and the Chehil case from the Nova Scotia Court of Appeal – on January 22. 2013.

At issue is the standard of “reasonable suspicion” required before using the dogs for a warrantless search. Although, previous case law has discussed the differences between “reasonable suspicion” and "reasonable and probable grounds,” the discussion has failed to provide the needed direction to trial judges when faced with the issue. When does an “educated guess” become “reasonable suspicion?” Although, trial judges list the evidence in support or lacking on the issue, the subjectiveness of such a finding has left any precedent in this area ephemeral at best. Of course, one difficulty is the requirement for the trial judge to subjectively assess the evidence on an objective basis. For example, in the MacKenzie case, the trial judge was decidedly unimpressed with the police officer’s evidence that the accused’s eyes were of a “pinkish hue” and therefore consistent with someone using marijuana. In the trial judge’s view, this evidence seemed more consistent with hindsight than providing reasonable grounds for a sniffer search.

The other difficulty with “reasonable suspicion” is also highlighted by both Court of Appeal cases – not in a legal sense, but in a practical one. Both Appeal Courts, allowed Crown appeals against acquittals, meaning that these appellate courts disagreed with the findings of the trial judges and substituted their opinion for the trial decision. Instead of deference, these cases exemplify the difficulty in assessing factors with no real guideline on the appropriate legal application. As every law student understands, to know the law is one thing but to apply it to a set of facts is another. Certainly, this is an issue which calls out for a clear SCC decision. My “educated guess” would be that help will be forthcoming and such a decision will most likely be written by Justice Moldaver, the purveyor of common sense decisions, or by Justice Fish, who was a member of the majority decision in the previous sniffer dog case R v Kang-Brown.

The one area that I hope the Supreme Court of Canada will touch upon is an interesting comment made by Saskatchewan Court of Appeal Justice Caldwell in the MacKenzie decision. In that case, the accused was pulled over for speeding 2 km over the posted speed limit, although the accused had rapidly slowed down his vehicle when he realized the police were at the roadside. Although the police officers maintained they were on traffic duty at the time and therefore had a legitimate reason for pulling over the accused, they also just happened to be trained drug officers from a different part of Saskatchewan with their sniffer dog, Levi.

Coincidence? I think not said the wily trial judge. This “innocent” explanation for their presence was not accepted by the trial judge who was therefore concerned that in fact the targeting of the vehicle was really for

the purpose of conducting random traffic stops for the sole purpose of checking for drugs being transported from west to east which, according to Cst. Sperle, is a common occurrence. It is therefore quite conceivable that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located.

Conversely, on appeal, Justice Caldwell quickly dismissed this concern as, in his view, whether “reasonable suspicion existed does not involve a search for motive.” The trial judge thereby erred by not placing enough emphasis on the police officers’ training as the objective assessment must be done in the context of the officer’s background, knowledge, and training. If the SCC accepts this, the concept of an “objective” assessment would be diminished. In my view, such an assessment would be more akin to a “modified’ objective assessment as seen in the assessment of defences such as necessity and duress.

In the end, the days of sniffers may be at a close as Harper’s government has already reduced the sniffer force by nineteen with fifty-three dogs remaining across Canada. According to the dog handlers, this reduction has nothing to do with effectiveness but everything to do with money as it costs about one hundred thousand dollars to start up a sniffer team. Despite this, the cases will go far, hopefully, in crystallizing the meaning of “reasonable suspicion,” an area which impacts not just sniffer dogs but other investigative searches and arrests as well. For further information on the appeals read the factums for MacKenzie and for Chehil.

The Road Taken by the Supreme Court of Canada

The Supreme Court of Canada, this Fall has already released a number of important judgments. The PHS Community Services Society decision on Ministerial discretion, or lack thereof, under s.56 of the CDSA for an exemption of a safe injection site in Vancouver is one such case. Another, is the Crookes v. Newton case in which the Court described a hyperlink in a website article as a reference and not a defamatory publication. 

The Court has also heard and reserved on some controversial cases such as the Whatcott case involving the constitutionality of the hate speech provisions in the Saskatchewan Human Rights Code. Whatcott is a good example of the difficult issues found in a Charter case involving conflicting fundamental freedoms as the freedom to express competes with freedom of religion. Not unusually with these conflicts, there is rarely a clear winner. As Ronald Dworkin, an American constitutional scholar, would say, one right does not "trump" another. For our rights in Canada, although guaranteed, are limited within the Charter itself. Ever reasonable, we Canadians prefer the balanced route, the road taken so to speak.

For tomorrow's blog we will be "taking rights seriously" as I speculate on the case the SCC has not yet heard, but should, and possibly, will. 

When Does One Marijuana Plant Plus One Shared Joint Equal Nine Months Incarceration?

Yesterday, I read a number of twitters about the new Omnibus Crime Bill now making its fast and furious way through the Canadian Parliament. This particular set of tweets pointed out an absurdity: a person can be sentenced to a mandatory 9 months in jail for growing a marijuana plant, smoking a joint with friends, all while sitting in the comfort of his or her own rental apartment. My first reaction was one of disbelief. I shared this tweet with my criminal procedure class with interesting results.

Some of the students, not unlike my reaction, gasped and shook their heads. But there was one student who applauded the action. This student, as an owner of rental property, was glad to hear that property rights will be protected. Instead of that much bandied about acronym (lawyers love acronyms!), NIMBY, it was NITPILO – Not In The Property I Lease Out. The student had a good point.

So I decided to investigate this new amendment further. Upon reading the actual amendment, the following became clear:

1. This is a mandatory minimum sentence or MMS
2. Applies to less than 201 marijuana plants
3.  Must be convicted of production for the purpose of trafficking
4. One of a list of factors must apply
5. One of those factors is the accused “used real property that belongs to a third party”

What does this add up to? Well, an argument. My spouse, who is also a criminal lawyer, and I had a boisterous argument over the application of this new amendment. The issue was; who can be captured by this amendment?

The argument revolved around the offence of production for the purpose and the meaning of using property “belonging to” another. So, we did what all good lawyers do when we disagree, we ran to our respective computers and did some legal research.

What did we find? I found more questions than answers. Although an accused will be acquitted of possession for the purpose of trafficking if the marijuana is for personal use, not necessarily so for production for the purpose. Under the Controlled Drugs and Substances Act (CDSA is the acronym), production includes “cultivating, propagating, and harvesting.”

So yes, you a grow a plant or two and harvest it to make a joint, you are producing contrary to the Act. But it must be for the purpose of trafficking. Okay, so if you produce for yourself only, you are not within this new amendment. But, if you grow the plant, harvest the plant, roll a joint and give the joint to a friend– that is trafficking the produced drug.

But how about that last factor – in rental property? It says real property belonging to a third party. My husband and I really argued about this. Many drug forfeiture hearings revolve around ownership of the property. The ownership is sometimes obscured through numbered companies, which are actually owned by criminal organizations. His argument was; this would only apply to those nefarious cases. I disagreed; this factor refers to rental property. It is protecting my student and many others who rent out property.

Who is right? Just read the House of Commons publication explaining the new legislation. The factors are for “health and safety.” Remember Safe Communities Act. The aggravating factor is committing the offence in a rental property.

Bottom line? The math does add up if there is a situation of a grow-op in a rented home. Bad things happen to homes used as grow-ops and adding a further disincentive to do this can be a good thing. Whether or not a MMS (acronym for mandatory minimum sentence) is appropriate or constitutional is for another blog.

Where the math does not add up however, is in the situation of the lost soul who grows a couple of plants, makes some joints from them and invites friends over for a smoke in his rented apartment. Is that justice? You do the math.

My question to the lawyers out there: in light of yesterday’s SCC decision in Cote, in which the Court showed strong support for Charter values and rights in their 24(2) analysis, would this legislation pass Charter scrutiny under a s.1 reasonable limitation argument?