21 O.R. (3d) 186

Iorfida et al. v. MacIntyre et al.

[Indexed as: Iorfida v. MacIntyre]

Ontario Court (General Division), Ellen MacDonald J.
October 5, 1994

Charter of Rights and Freedoms -- Freedom of expression -- Prohibition in s.462.2 of Criminal Code of distribution of "literature for illicit drug use" infringes freedom of expression and is not saved under s.1 of Charter -- Words "or literature" in s.462.2 are of no force or effect -- Canadian Charter of Rights and Freedoms, ss.1,2(b) -- Criminal Code, R.S.C. 1985, c.C-46, s.462.2.

The plaintiffs moved for an order declaring that s.462.2 of the Criminal Code, which prohibits the distribution of literature for illicit dug use (defined as "any printed matter or video describing or depicting and designed primarily or intended under the circumstances to promote, encourage or advocate the production, preparation or consumption of illicit drugs"), infringes the guarantee of freedom of expression in s.2(b) of the Canadian Charter of Rights and Freedoms in a manner that is not justifiable under s.1 of the Charter and is there force of no force or effect.

Held, the motion should be granted.


Section 462.2 of the Code infringes the guarantee of freedom of speech in s.2(b) of the Charter. The description or promotion of drug use is an expressive activity that attempts to convey a meaning and, as such, it prima facie falls within the scope of s.2(b). By passing s.462.2, the government intended to restrict expression by singling out meanings that are not to be conveyed. The merits of any given expressive activity cannot be a relevant determination of whether the expressive activity is deserving of constitutional protection. The fact that Parliament has decided to criminalize an activity does not render it beyond the scope of s.2(b) protection.

The infringement of s.2(b) is not justified under s.1 of the Charter. Section 462.2 is aimed directly at the written word and not at its immediate physical consequences, and is subject to the strictest judicial scrutiny.

The legislative objective of s.462.2 is impermissible because it restricts debate about drug use and, accordingly, is aimed at the very heart of the right enshrined in s.2(b). A restriction on debate about drug use cannot constitute a justifiable limit on the s.2(b) right. The guarantee of free expression was designed to ensure that social institutions and federal criminal legislation and its various forms of prescribed conduct are subject to constant revisions through debate and discussion. Legislation aimed at prohibiting such discussion cannot be justified under s.1 as it negates the very core of the charter right.

Section 462.2 is overly broad. It catches not only literature which glamorizes or promotes the use of drugs, but also political speech advocating law reform, religious speech, medical and health-related speech, scholarly speech, artificially inspired speech and popular speech. Also, no exceptions or defences are provided in s.462.2. It was not demonstrated that alternative measures of less deleterious effect on constitutional rights were considered and rejected. The words "or literature" in s.462.2 of the Criminal Code are of no force or effect and should be severed from s.462.2.

R. v. Oakes, [1986] 1 S.C.R. 103, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 53 O.R. (2d) 719n, apld
Other cases referred to
Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, 4 C.R.R. (2d) 60, 77 D.L.R. (4th) 385, 120 N.R. 241, 40 F.T.R. 240n sub nom. Lepine v. Canada;
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, 45 C.R.R. 1, 64 D.L.R. (4th) 577, 71 Alta L.R. (2d) 273, 102 N.R. 321, [1990] 1 W.W.R. 577, 41 C.P.C. (2d) 109;
Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, 36 C.R.R. 1, 54 D.L.R (4th) 577, 19 Q.A.C. 69, 90 N.R. 84 sub nom. Chausure Brown's Inc. v. Quebec (Procureur General);
High Ol' Times v. Busbee, 456 F. Supp. 1035 (U.S. Dist. Ct., 1978), affd 621 F. 2d 141 (5th Cir., 1980);
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 39 C.R.R. 193, 58 D.L.R. (4th) 57, 24 Q.A.C. 2, 94 N.R. 167, 25 C.P.R. (3d) 417;
R. v. Butler, [1992] 1 S.C.R. 452, 8 C.R.R. (2d) 1, 70 C.C.C. (3d) 129, 11 C.R. (4th) 137, 89 D.L.R (4th) 449, 78 Man. R. (2d) 1, 134 N.R. 81, 16 W.A.C. 1, [1992] 2 W.W.R. 577 sub nom. R.V. McCord;
R. v. David (1970), 50 C.C.C. (2d) 557, 9 C.R. (3d) 189 (Que, C.A.);
R. v. Keegstra, [1990] 3 S.C.R. 697, 3 C.R.R. (2d) 193, 61 C.C.C. (3d) 1, 1 C.R. (4th) 129, 77 Alta. L.R. (2d) 193, 117 N.R. 1, [1991] 2 W.W.R. 1;
R. v. Kopyto (1987), 62 O.R. (2d) 449, 39 C.C.C. (3d) 1, 61 C.R. (3d) 209, 47 D.L.R. (4th) 213, 24 O.A.C. 81 (C.A.);
R. v. McLeod (1970), 1 C.C.C. (2d) 5, 12 C.R.N.S. 193, 75 W.W.R. 161 (B.C.C.A.);
R. v. Zundel, [1992] 2 S.C.R. 731, 10 C.R.R. (2d) 193, 75 C.C.C. (3d) 449, 16 C.R. (4th) 1, 95 D.L.R. (4th) 202, 140 N.R. 1;
Reference re Criminal Code, Sections 193 & 195.1(1)(c), [1990] 1 S.C.R. 1123, 48 C.R.R. 1, 56 C.C.C. (3d) 65, 77 C.R. (3d) 1, 68 Man. R. (2d) 1, 109 N.R. 81, [1990] 4 W.W.R. 481;
Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, 47 C.R.R. 193, 71 D.L.R. (4th) 68, 111 N.R. 161, 40 O.A.C. 241, 73 O.R. (2d) 128n

Statutes referred to
Bill C-420 ( Narcotic Control Act, R.S.C. 1985, c.N-1)
Canadian Charter of Rights and Freedoms, ss.1, 2(b)
Criminal Code, R.S.C. 1985, c.C-46, s.462.2 [enacted R.S.C. 1985, c.50 (4th Supp.), s.1]

MOTION for an order declaring s.462.2 of the Criminal Code, R.S.C. 1985, c.C-46, of no force and effect.

Edward M. Morgan, for plaintiffs.
Jeanne Craig, for defendants.
Donald A. MacIntosh, for Attoney General of Canada.


ELLEN MACDONALD. J.: -- This motion is brought by the plaintiffs for an order declaring that s.462.2 of the Criminal Code, R.S.C. 1985, c.C-46, is of no force and effect. Section 462.2 prohibits the distribution of literature for illicit drug use. the motion is brought on the grounds that s.462.2 infringes the guarantee of freedom of speech in s.2(b) of the Canadian Charter of Rights and Freedoms (hereinafter the "Charter") and is no justifiable under s.1 of the Charter as a reasonable limit on that guarantee in a free and democratic society.

The motion is successful. the words "or literature" are severed from s.462.2 as being inconsistent with s.2(b) of the Charter and as not being justifiable in a free and democratic society.

Factual Background

On April 3, 1992, an information was laid against Mr. Umberto Iorfida (hereinafter "Mr. Iorfida"), alleging that he knowingly manufactured and promoted literature which was intended to advocate and encourage the production, preparation and consumption of cannabis marijuana contrary to s.462.2 of the Criminal Code.

The plaintiff, National Organization for the Reform of Marijuana Laws in Canada (hereinafter "NORML") is an organization dedicated to the legalization of cannabis/marijuana. Mr. Iorfida is the president of NORML. On April 3, 1992, Mr. Iorfida's residence, which served as the headquarters for NORML, was searched by the defendants (York Region police officers). The search warrant was obtained on April 3, 1992 and authorized the officers assigned to the Morality Bureau in the Regional Municipality of York to conduct the search of the premises identified as "The Dwelling House, Lot 28, Concession 7, King City, Ontario" for certain things, namely:

(a)
any information (papers, flyers) promoting the legalization and use of cannabis marijuana);
(b)
any machinery (photocopiers, fax machines) used to distribute and duplicate written literature for illicit drug use;
(c)
other illicit drug paraphernalia and videos promoting illicit drug use.
The information to obtain the search warrant of the residence of Mr. Iorfida is signed by the defendant P.C. Duncan MacIntyre. Appendix "A" attached to the information to obtain the search warrant contains the following paragraphs:
1.
The informant, Constable D. MacIntyre #502, is a member of the York Regional Police Force and is currently assigned to the Morality Bureau ans as such, is tasked with the investigation of illicit drugs within the Regional Municipality of York.

2.
In December 1991, the Morality Bureau was made aware of an organization within the Region that is attempting to have legislation amended to have Marihuana legalized. This organization is known as NORML (National Organization for the Reform of Marihuana Laws).

3.
The National Director of NORML, Umberto Iorfida, presently resides in King City (Pottageville). Information that has been received from a confidential Human Source is that Umberto Iorfida has his office for NORML located in the basement of his residence. The Human Source further advises that the literature promoting the illicit drug use and the legalization of Marihuana originates from this basement office.

4.
The confidential Human Source is a carded member of NORML and an admitted Cannabis Marihuana and Canabis Resin user and became involved in NORML and its policies of legalizing illicit drugs, after this was promoted to him by Umberto Iorfida and NORML members.

5.
The informant was also advised by the Human Source that High School youths and youths in there [sic] late teens are shown a video promoting the use of illicit drugs when they attend the Iorfida residence to inquire about NORML.

6.
During their investigation, officers have gathered literature from NORML. This literature promotes the recreational use of Cannabis Marihuana and the retailing and distributing of Marihuana.

7.
During a recent newspaper article, Umberto Iorfida openly admitted that the [sic] smokes Marihuana. This article also states that the smoking of Marihuana is much safer than what Iorfida calls legalized drugs such as tobacco and alcohol. This newspaper article also invites interested persons to write to him in King City (Pottageville) for further information, confirming the information that the informant provided about the literature being at the residence which indicates that the literature is still at the residence.

8.
The informant mentioned in paragraph (3) has been at the Iorfida residence and assisted in preparing the literature for distributing into the general public.

9.
The informant prays that this warrant be granted so that further evidence can be gathered to substantiate the charge Promoting Illicit Drug Use, contrary to the Criminal Code of Canada.
On April 10, 1992, a report to a justice was issued which set out the items seized from Mr. Iorfida's residence. Numerous NORML books, pamphlets, articles and other materials, advocating the legalization of marijuana, were seized by the defendants in the search of Mr. Iorfida's residence.

The charge against Mr. Iorfida, under s.462.2 of the Criminal Code was eventually withdrawn by the Crown on June 12, 1992. The within action claiming a number of remedies, including damages for breach of plaintiff's constitutional rights and a declaration that s.462.2 of the Criminal Code violates freedom of expression and is constitutionally invalid, was commenced on June 16, 1992. A notice of constitutional question was served on the federal and provincial Attorneys General on July 23, 1992. The present motion was brought by agreement of all parties to determine the constitutionality of s.462.2 prior to trial of the plaintiff's claim for damages.

The Legislation

Sections 462.1 and 462.2 of the Criminal Code, in part, state:

462.1
In this Part, . . .
"literature for illicit drug use"
means any printed matter or video describing or depicting, and designed primarily or intended under the circumstances to promote, encourage or advocate the production, preparation or consumption of illicit drugs;

462.2
Every one who knowingly imports into Canada, exports from Canada, manufactures, promotes or sells instruments or literature for illicit drug use is guilty of an offence and is liable on summary conviction
(a)
for a first offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both; or
(b)
for a second or subsequent offence, to a fine not exceeding three hundred thousand dollars or to imprisonment for a term not exceeding one year or to both.
Section 462.2 was introduced to the House of Commons by way of Private Members' Bill C-264, on September 14, 1987. Bob Horner, M.P. for Mississauga North, was responsible for the introduction of the Bill. It was enacted the following year after being examined by a House of Commons legislative committee in May and June 1988. It passed on third reading in the House of Commons on August 22, 1988 and was proclaimed in force later in 1988.

Bill C-264 is described in the minutes of proceedings and evidence of the legislative committee as "An Act to Amend the Criminal Code (Instruments and literature for illicit drug use)". The stated purpose of the government in enacting s.462.2 was to prohibit the sale of drug-related instruments and drug-related paraphernalia in so-called head shops and to eliminate all publications and literature glamorizing, advocating and promoting the use of drugs. Mr. Horner's information was that there were 2,000 such stores across Canada, 800 in Ontario and 29 on Yonge Street. It was pointed out, during argument, that the purpose was to censor not only literature which counsels imminent violation of current drug laws but also literature which, in some way, makes drug use attractive. It was emphasized, during argument, by Mr. Morgan that the legislation contains no defences or exceptions for literature produced in pursuit of artistic, scientific, scholarly, religious or political ends.

In this motion, the plaintiffs do not challenge the government's ability to ban instruments; it is the expression of certain ideas, sought to be banned in s.462.2, that is challenged by the plaintiffs. In allowing the plaintiffs' motion, the court expresses the concern that the plaintiffs' success should not be seen as trivializing or undermining, in any way, the achievements of parents' groups such as Parents Against Drugs or PRIDE.

It is apparent, from reading the minutes of the Standing Committee of the House of Commons that studied the Bill, and from reading the speeches delivered in the House of Commons at the time of its introduction to Parliament, that the Bill's objective was to protect vulnerable children and youth and to reduce the influence of organized crime who distribute illicit drugs.

There was also a concern that vulnerable youth were the recipients of a double message. On the one hand, the consumption of illegal drugs was banned and subject to severe penalty; on the other hand, drug paraphernalia shops freely sold instruments to aid in drug consumption and literature that promoted the consumption of illicit drugs. This tended, in the eyes of vulnerable youth, to glamorize illicit drug use. This dilemma was expressed by Assistant Commissioner Rod T. Stamler (Director of Drug Enforcement, Royal Canadian Mounted Police) who was a witness a the hearings of the legislative committee on Bill C-264. He stated:

In Montreal, in Toronto, in Vancouver, indeed in almost every Canadian city we see the drug problem in our streets and learn about it daily from our media. We see it preying on our nation's youth. We see the crime it brings, the robberies, even murders, and the organized crime groups that have made it such a lucrative business.

Drug trafficking is the most prosperous and widespread organized crime activity in Canada, generating billions of dollars of income annually for organized crime groups. In turn, the massive profits produced from drug trafficking have had a significant influence on the presence, size, structure, and power of these organized crime groups. Indeed, it is a vicious cycle.

At the same time, while organized crime groups are reaping massive profits from the illegal drug trade, we continue to permit the public sale of instruments and literature for illicit drug use, which no doubt reinforces the motives and the incentives of crime organizations in responding to the obvious demand for drug supplies. Thus, although narcotics and certain drugs are outlawed, drug-related paraphernalia are readily available throughout Canada. Parents are appalled at the open sale and availability of "how-to" publications, such as How to Grow Marijuana and Magic Mushrooms. the same is true for the availability of monthly issues of High Times magazine, published in the United States, which promotes and glamorizes the drug trade. This is a major concern to parents and youth. The vast majority of these groups have expressed the need for legislation to outlaw the sale of drug-related literature, devices, and kits.

Simply stated, since it is illegal to import, possess, and traffic in drugs, why may we promote the sale and distribution of drug-related paraphernalia? there is no doubt head shops, by displaying the paraphernalia in their store windows, are promoting not only the sale of instruments and literature for illicit drug use but also the actual use of illegal substances. We estimate there are approximately 500 such establishments now operating in Canada.

At the hearing of this motion, I granted leave, at the request of Mr. MacIntosh, counsel for the Attorney General of Canada, to hear viva voce evidence from Staff Sergeant Michael Pelletier, National Co-ordinator for Drug Awareness Program of the R.C.M.P. he showed a videotape taken from various angles of store front windows, located in Montreal and Toronto, demonstrating the nature of the inventory of drug paraphernalia shops. Staff Sergeant Pelletier stated that all such shops across Canada ceased operation after the passage of Bill C-264.

At this point, the court is faced with a challenge to the constitutionality of s.462.2 as it relates to the ban on drug literature. the plaintiffs' motion is supported by the affidavit of Alan N. Young, an associate professor at Osgoode Hall Law School. He has devoted much of his time "to the study of the historical evolution and justifiability of the current prohibitory approach to drug use" in Canada and in the international community. He has spent a great deal of time studying the operation of the drug literature prohibition contained in s.462.2. His interest in this section arose partly as a result of being retained by David Lambert who was charged under s.462.2 in 1991. The charges were eventually withdrawn. Mr. Lambert was charged with selling drug literature as a result of the inclusion of a recipe for "hash brownies" in an annual restaurant and bar guide that he published in London, Ontario.

Professor Young has conducted a study of drug literature prohibition in other jurisdictions. At paragraphs 8, 9 and 10 of his affidavit, he states:

8.
In my research, I have discovered that there is not one other common law jurisdiction that has a similar drug literature prohibition as the one contained in s.462.2. There is no counterpart to s.462.2 in British, Australian or New Zealand criminal legislation. The closest existing provision is found in s.166 of the Drugs of Dependence Act 1989 (Australian Capital Territories) which does contain a prohibition on advertisements (but not literature or any other forum of publications) that promote or encourage drug use. Attached hereto and marked as Exhibit "C" to this affidavit is a copy of the text fo s.166 of the Drugs of Dependence Act.

9.
In the United States there did exist a drug literature prohibition in the State of Georgia; however, this provision was invalidated for constitutional infirmity by the U.S. Federal Court of Appeal in the case of High Ol' Times v. Busbee, 456 F. Supp. 1035; aff'd 621 F. 2d 141 (1980). To the best of my knowledge, there has not been any legislative attempt to resurrect a drug literature prohibition since the decision of the Federal Court of Appeal. In 1991 the U.S. Senate voted to pass the "Biden-Thurmond" Violent Crime Control Act of 1991, section 4906 of which prohibited the distribution of advertisements that facilitate drug transactions. This provision specified, however, that "the term advertisement does not include material which merely advocates the use of a similar material, which advocates a position or practice, and does not attempt to propose or facilitate an actual transaction in a Schedule 1 controlled substance". This bill has not been passed in the U.S. House of Representatives and so it was never enacted into law. Attached hereto and marked as Exhibit "D" to this affidavit is a copy fo the text of s.4906 of the new defunct bill.

10.
Canada stands alone among English-speaking, common law countries in its decision to prohibit drug literature.
The concern as to whether or not s.462.2 could withstand a Charter challenge was raised by a member of the legislative committee examining the Bill. A legal opinion was prepared in the office of the law clerk and Parliamentary counsel for the committee. The opinion stated that Bill C-264 "could probably withstand a constitutional challenge". Apparently, it was on the strength of this opinion that the Bill was ultimately supported in the House of Commons.

Before dealing with the application of the Charter to s.462.2, there is one other reality that, in my view, points to the potentially absurd, but arguably possible, consequences to some of the classics in historical and modern English literature, if s.462.2 withstood this Charter challenge. One Member of Parliament raised this concern and expressed it as follows:

Let us also consider the history of literature with respect to drug use. Under some circumstances as described in this Bill, we would outlaw the following literature: A Rebours by Joris-Karl Huysman, Kubla Khan, A Vision in a Dream by Samuel Taylor Coleridge, Ulalume by Edgar Allen Poe, The Adventures of Sherlock Holmes by Sir Arthur Conan Doyle, Alice in Wonderland by Louis Carroll, Tropic of Capricorn by Henry Miller, Naked Lunch by William S. Burroughs, On the Road by Jack Kerouac, Howl and Other Poems by Allen Ginsberg, Beneath the Underdog by Charles Mingus and The Collected Works of Billy the Kid by Michael Ondaatje, winner of the Governor General's Award for Poetry in 1971.
To illustrate this point during argument, Mr. Morgan provided me with a copy of The Doors of Perception and Heaven and Hell by Aldous Huxley (Grafton, 1977). It had been purchased in a well-known Toronto book store just prior to commencement of the motion. It could, given that its subject matter is the author's experience with mescalin, offend s.462.2. During argument, I commented to counsel that it appears that, while Mr. Iorfida puts himself at risk for being in possession of literature advocating the legalization of marijuana, he could, for example, call a radio phone-in show and argue the position set forth in his literature. As well, he could give a public speech advocating reform of marijuana laws, but any notes or written text of such a speech could offend s.462.2. An examination of the minutes of the proceedings of the senate standing committee, first and complete proceedings, dated October 30, 1988, on Bill C-264, demonstrates that there was concern about the impact and effect of s.462.2 on publications such as the Globe and Mail.

The Chilling Effect Doctrine

Section 462.2 is far-reaching. It was argued by the plaintiffs that the legislation has the effect of chilling literary or artistic expression. This chilling effect is achieved through the fear of potential criminal prosecution. This was emphasized by Mr. Morgan.

The essence of this argument is that the possibility of charges being laid, pursuant to s.462.2, has a chilling effect on the publication and distribution which, implied or overtly, comments on the use of drugs. The argument goes further in that it is suggested that it stifles political debate and chills other legitimate forms of expression. To support the plaintiffs' position on the possible chilling effect, the motion record contains affidavits of several persons, all of whom express concern about the chilling impact of s.462.2.

Of interest is the affidavit of Mr. Les Fowlie, who was Chief Librarian of the Toronto Public Library until his retirement in February 1993. It is his opinion that there are books currently carried by Toronto public libraries that may fall within s.462.2. Sixty-nine titles were identified by the Toronto Public Library in anticipation of challenging s.462.2. It is Mr. Fowlie's opinion that the Toronto Public Library would hesitate to purchase books that may be categorized as literature promoting drug use. He states:

In the past, police authorities have attempted to remove materials from the Toronto Public Library. Although these attempts were not successful, the chilling effect remains.
In paras. 10 and 11 of his affidavit sworn on April 6, 1993, he makes the following observations.
10.
It is also my belief that this chilling effect has extended itself to Canadian writers who may be practising self-censorship by rewriting their books to confirm to s.462.2. This section of the Criminal Code affects their ability to express their thoughts freely and without censorship.

11.
In my view, if the purpose of s.462.2 is to reduce drug usage and have children reject drugs, it is important to allow them to read both fact and fiction so that they can separate the truth from falsehood. As a professional librarian, it is my view that education is best accomplished by allowing readers to have access to all of the ideas and publications available on a given topic, and not by prohibiting access to publications expressing a point of view not favoured by the government.
Mr. Fowlie's concern about the chilling effect is shared by Susan Musgrave, Daniel Richter and William Deverell, all of whom are well-known authors. Each of them expressed concern that their works could be subject to criminal sanction as a result of s.462.2.

In response to these concerns, the Attorney General of Canada argues, without conceding that the "chilling effect" doctrine has any relevance in the Canadian context, that the chill is hypothetical and prospective. It is based on the possibility of a criminal prosecution. The Attorney General also points out that Mr. Iorfida has not deposed that he is chilled by the possibility of criminal prosecution under s.462.2.

I agree with the Attorney General, however, that a declaration of constitutional invalidity should not be given on the basis of evidence that is prospective and hypothetical. The chilling effect of s.462.2 is relevant to the analysis of issues under this motion. Aside from anything else, it demonstrates the impact of s.462.2 on the freedom of expression. By further examining the evidence dealing with the chilling effect, the overbreadth of s.462.2 becomes evident.

The major point of departure, as between the Attorney General on the one hand, and the plaintiffs on the other hand, is that the Attorney General argues that the breach is justifiable under s.1 as a reasonable limit in a free and democratic society. On this point, I disagree with the Attorney General. The Canadian Charter of Rights and Freedoms states:

1.
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2.
Everyone has the following fundamental freedoms:
. . . . .

(b)
freedom of though, belief, opinion, and expression, including freedom of the press and other media of communication.
Because of the nature of the issues raised in the case, I consider it important to elaborate on the application of s.2(b) to the facts of this case, even in the face of the concession of the Attorney General with respect to s.2(b).

It was also argued that literature describing and expressing the religious practices of various minority faith communities is also stifled by s.462.2. Drug-using religious movements such as the Rastafarians of Jamaica, and various groups of aboriginal North American peoples, cannot describe their religious experiences without potential prosecution for promoting the use of illicit drugs.

Referable to the plaintiffs' own experience, it was argued that groups such as NORML Canada, who advocate legislative change related to drug use, harbour a justifiable fear of prosecution under s.462.2. This comes at a time when the question of the industrialization and/or legalization of marijuana is an issue of public concern. In Canada, following the lead of other western countries, a legislative bill has been introduced to Parliament to decriminalize the use of marijuana. I note that, in the spring of 1993, James Fulton, M.P., submitted a private member's bill, Bill C-420, to introduce legislative amendments to the Narcotic Control Act, R.S.C. 1985, c.N-1, which would remove marijuana from the list of prohibited narcotics, effectively decriminalizing its possession, sale and cultivation. This Bill has not been enacted, but its introduction to the House of Commons clearly indicates that the debate over the legalization of marijuana is very much a current topic.

Professor young is also legal counsel to an organization headquartered in London, Ontario, called Hemp and Marijuana Prohibition ("H.E.M.P. Canada"), which seeks to cultivate marijuana for industrial use. The organization publishes a newsletter entitled "The Legalizer", the purpose of which is to advocate legislative reform concerning hemp/cannabis.

H.E.M.P. Canada strongly urges support of the private member's bill introduced by James Fulton, M.P. and it actively seeks monetary contributions to what it calls the "legalization movement".

Legal Issues Raised

1.
The infringement of freedom of expression as set out in s.2(b) of the Charter.
Since the Charter has been enacted, the Supreme Court of Canada has developed a two-part test for determining if a legislative provision violates freedom of expression. This test requires a court to address the following questions:
1.
Was the plaintiffs' activity within the sphere of conduct protected by freedom of expression?

2.
Was the purpose or effect of the government action to restrict freedom of expression?
See Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at pp.967-77, 39 C.R.R. 193 (hereinafter "Irwin Toy"); Reference re Criminal Code, Sections 193 & 195.1(1)(c), [1990] 1 S.C.R. 1123 at pp.1180-86, 48 C.R.R. 1 (hereinafter the "Prostitution Reference"); R. v. Keegstra, [1990] 3 S.C.R. 697 at pp.729-34, 3 C.R.R. (2d) 193 (hereinafter "Keegstra"); R. v. Zundel, [1992] 2 S.C.R. 731 at pp.751-60, 10 C.R.R. (2d) 193; R. v. Butler, [1992] 1 S.C.R. 452 at pp.486-90, 8 C.R.R. (2d) 1 (hereinafter "Butler").

The answer to both questions is yes. In addressing question 1, i.e., whether the activity falls within the sphere of conduct protected by freedom of expression, the Supreme court has taken a broad and inclusive approach, excluding only those rare cases where expression is communicated in a physically violent form. In the words of Chief Justice Dickson in Irwin Toy and Keegstra, "if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee".

Mr. MacIntosh, for the Attorney General of Canada, acknowledges that "literature for illicit drug use" has expressive content in that the literature conveys, or intends to convey, a meaning. Mr. Macintosh also acknowledges that, by passing s.462.2 of the Criminal Code, the government intended to restrict expression by singling out meanings that ar not to be conveyed. Both Mr. MacIntosh and Mr. Morgan are in agreement that literature for illicit drug use has expressive content. Mr. MacIntosh argues that the plaintiffs have not demonstrated that the legislation, by its purpose or effect, infringes s.2(b) of the Charter. He argues that the American doctrine of the "chilling effect" should not be applied in interpreting s.2 of the Charter. The "chilling effect" has been used mainly in interpreting the First Amendment of the United States Constitution, a right which has received a very different interpretation than s.2 of the Charter. The Supreme Court of Canada has demonstrated a reluctance to accept a wholesale application of American case law with respect to the freedom of expression and with respect to the Charter generally. The court has emphasized that ready-made tests should not be imported into the Charter; instead, the Charter should be given its own interpretation: see Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, 4 C.R.R. (2d) 60 (hereinafter "Committee for the Commonwealth of Canada").

While I agree that it is not appropriate to apply the American analysis of the "chilling effect" to determine whether s.462.2, by its effect or purpose, violates s.2(b) of the Charter, I do not consider that this defeats the plaintiffs' challenge to the constitutionality of s.462.2 under s.2(b) of the Charter. An analysis of the chilling effect, as it was put to me in argument by the plaintiffs, is that it demonstrates the reach of s.462.2 and it clearly illustrates that it has a potential, if not actual, impact on freedom of expression.

To return to the analysis of question 1,as set out above, I am in agreement with the submission of Mr. Morgan that the merits of any given expressive activity cannot be a relevant factor in a determination of whether the expressive activity is deserving of constitutional protection. Sopinka J. pointed out in Butler, at p.489 that:

Meaning sought to be expressed need not be "redeeming" in the eyes of the court to merit the protection of s.2(b), whose purpose is to ensure that thoughts and feelings may be conveyed freely in non-violent ways without fear of censure.
(Emphasis added)

I am in agreement, as well, that the description or promotion of drug use is an expressive activity that attempts to convey a meaning and, as such, it prima facie falls within the scope of the s.2(b) Charter guarantee. As Chief Justice Lamer pointed out in the Prostitution Reference, at p.1182, "the mere fact that Parliament has decided to criminalize an activity does not render it beyond the scope of section 2(b) of the Charter". At p.1183, he goes on to say, "In my view it would be unwise and overly restrictive to a priori exclude from the protection of s.2(b) of the Charter activities solely because they have been made the subject of criminal offences": see High Ol' times v. Busbee, 456 F. Supp. 1035 at p.1040 (U.S. Dist. Ct., 1978), affirmed 621 F. 2d 141 (5th Cir., 1980).

To turn now to the analysis of issues under question 2, that is to say whether the purpose or effect of the statute was to restrict free expression, the stated goal of Parliament in enacting s.462.2 is clear. It is, among other things, to restrict the content of speech by singling out particular meanings that are not to be conveyed. As Mr. Morgan argued, the legislation is neither content-neutral nor viewpoint-neutral and was designed to prohibit the dissemination of a particular perspective on a designated topic of discussion. There cannot be any issue but that the purpose of s.462.2 is to restrict free expression. It is a statutory provision aimed at censorship.

I agree with Mr. Morgan that expressive activity that promotes or advocates illicit dug use is within the principles identified by the Supreme Court as underlying the constitutional guarantee of freedom of expression. As Mr. Morgan put it, "to prohibit discussion and debate on this topic, is to elevate the statutory drug prohibition into an immutable policy that is incapable of evolving or changing in any manner or form".

Viewed from this perspective, s.462.2 constitutes a prima facie infringement of the s.2(b) Charter right. As it was expressed in the factum of Mr. Morgan, s.462.2 is "inimical to free expression and to our democratic institutions". Advocacy of illicit drug use may be inspired by humane considerations (as in medical uses), by spiritual considerations (as by various religious movements), by artistic considerations (as by novelists and other fiction writers); or, contrarily, it may be a distateful message aimed at popularizing or glamorizing socially undesirable forms of activity. However, the silencing, even of an undesirable message, through the content-based criminalization of written forms of expression is, as pointed out by Cory J.A. (as he then was) in R. v. Kopyto (1987), 62 O.R. (2d) 449 at p.462, 61 C.R. (3d) 209 at p.272 (C.A.):

. . . it is difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression. A democracy cannot exist without the functioning of public institutions. these opinions may be critical of existing practices in public institutions and of the institutions themselves. However, change for the better is dependent upon constructive criticism. Nor can it be expected that criticism will always be muted by restraint. Frustration with outmoded practices will often lead to vigorous and unpropitious complaints. Hyperbole and colourful, perhaps even disrespectful language may be the necessary touchstone to fire the interest and imagination of the public, to the need for reform, and to suggest the manner in which that reform may be achieved.

The concept of free and uninhibited speech permeates all truly democratic societies. Caustic and biting debate is, for example, often the hallmark of election campaigns, parliamentary debates and campaigns for the establishment of new public institutions or the reform of existing practices and institutions. the exchange of ideas on important issues is often framed in colourful and vitriolic language. So long as comments made on matters of public interest are neither obscene nor contrary to the laws of criminal libel, citizens of a democratic state should not have to worry unduly about the framing of their expressions of ideas. The very lifeblood of democracy is the free exchange of ideas and opinions. If these exchanges are stifled, democratic government itself is threatened.

(Emphasis added)

2.
Is the infringement justifiable under s.1 of the Charter?

(i)
The s.1 test
I repeat s.1 of the Charter which provides:
1.
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The Attorney General of Canada argues that the infringement is justifiable under s.1. The plaintiffs take a contrary view.

In determining this question, I am guided by R. v. Oakes, [1986] 1 S.C.R. 103 at pp.136-37, 19 C.R.R. 308 (hereinafter "Oakes"). The infringement of the Charter, having been found in this case, the onus is now on the Attorney General of Canada to demonstrate, on the balance of probabilities, and on the basis of cogent evidence, that the violation of the constitutional right is justifiable. In its effort to so demonstrate, the Attorney General of Canada has provided three volumes of s.1 evidence. Much of the material contained in the s.1 evidence presented to the court is literature (using the word loosely) which openly promotes the use of illicit drugs for many purposes, including recreational purposes. It is also aimed at persons in our society who could be persuaded, through the material to engage in the consumption of illicit drugs. Some titles are: David Lee, Cocaine Handbook (Berkeley: And/Or Press Inc., 1982); Adam Gottlieb, The Art and Science of Cooking with Cannabis (Manhattan Beach, CA: 20th Century Alchemist, 1974); Ed Rosenthal, Marijuana Question? Ask Ed (San Francisco: Quick American Publishing Company); Ed Rosenthal, Marijuana Growing Tips (Berkeley: And/Or Books); and Alexander Sumach, Grow Yer Own Stone.

To return to the onus on the Attorney General of Canada, it must first establish that the impugned state action has an objective of pressing and substantial concern which warrants overriding a constitutional protective right or freedom. Secondly, the government must meet a proportionality test in which the legislative objective is weighed against the impugned measure. As formulated by Chief Justice Dickson in Oakes, at p.139, this proportionality test is generally broken into three distinct issues:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question. . . . Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".
The strictness of the s.1 test varies in accordance with the context of the rights violation in issues. It is argued by Mr. Morgan that this contextual approach to Charter interpretation is particularly relevant to freedom of expression cases, where the analysis may vary depending upon the context of the speech which the government seeks to prohibit. As Madam Justice Wilson stated in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at p.1355, 45 C.R.R. 1:
One virtue of the contextual approach, it seems to me, is that it recognizes that a particular right or freedom may have a different value depending on the context. It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case . . .
(ii)
The legislative objectives of s.462.2 are impermissible
Section 462.2 is aimed directly at the written word and not at the immediate physical consequences of the written word or expression. As such, the imposition of limits on freedom of expression, based on this legislative objective, must receive the court's strictest scrutiny: see Prostitution Reference.

The objective of the section is to restrict debate about drug use and, accordingly, it is aimed at the very heart of the Charter right enshrined in s.2(b). The restriction of debate about drug use cannot constitute a justifiable limit on the s.2(b) right. This issue was canvassed by Madam Justice L'Heureux-Dubé in Committee for the Commonwealth of Canada case, wherein she observed that the guarantee of free expression was designed to ensure that social institutions and federal criminal legislation and its various forms of prescribed conduct are subject to constant revisions through debate and discussion. Legislation aimed at prohibiting such discussion cannot be justified under s.1 as it negates the very core of the Charter right. At p.172, in the Committee for the Commonwealth of Canada case, Madam Justice L'Heureux-Dubé expressed it as follows:

The liberty to comment and criticize existing institutions and structures is an indispensable component of a "free and democratic society". It is imperative for such societies to benefit from a multiplicity of viewpoints which can find fertile sustenance through various media of communication.

The alternatives are particularly frightening.

In the context of this analysis, it is interesting to observe that, prior to the enactment of s.462.2, publications and other written forms of expression which actively counselled the commission of a drug-related crime, and which posed an imminent threat of criminal conduct, were prosecuted under the counselling offence in the Criminal Code. As an example, the writer of a chain letter exhorting readers to cultivate marijuana in return for certain promised rewards was successfully prosecuted for counselling, as was the Quebec translator and distributor of a book entitled The Cultivator's Handbook of Marijuana, on the basis that the book could be construed strictly as an instruction or counselling manual for violating the law. See R. v. McLeod (1970), 1 C.C.C. (2d) 5, 12 C.R.N.S. 193 (B.C.C.A.), and R. v. David (1979), 50 C.C.C. (2d) 557, 9 C.R. (3d) 189 (Que. C.A.), both of which were decided prior to the enactment of the Charter in 1982.

The enactment of s.462.2 expanded the prohibition and publication to include all literature which promotes or glamorizes illicit drug use. This takes the prohibition much beyond what was already covered in a counselling offence. It must also be remembered that the express objective of s.462.2 is to prohibit expression. Its objective is not to prevent imminent criminal conduct. The purpose of the statue is to prevent the free flow of information touching on the wisdom of Parliament's own laws. I am in agreement with the submission of Mr. Morgan that such a legislative objective, which criminalizes speech for its own sake, is an objective "aimed at the heart of the Charter right and cannot constitute a s.1 limit".

(iii)
The legislation's lack of proportionality
Arguably, it is no necessary for me to address the question of proportionality, but I will do so because considerable time was taken during argument canvassing this issue. The impact on free speech, which occurs by reason of s.462.2, becomes apparent when one assesses the effects, as opposed to the purpose, of the section under the proportionality test which is part of the analysis under s.1 of the Charter.

Referrable to the proportionality test, the Attorney General of Canada must first show that there is a rational connection between the legislative objective and the measures implemented by the legislation. In evaluating the rational connection, the court must assess whether the legislation is designed to achieve its objectives. In order for the Attorney General of Canada to succeed, it must submit cogent evidence establishing that the legislative measures taken will, in fact, lead to or advance its stated objective. I am mindful, in the context of this analysis, that when Sergeant Pelletier testified at the hearing in this matter, it became apparent that head shops closed after the enactment of s.462.2. Beyond that, no evidence is advanced by the Attorney General that suggests that s.462.2, as it relates to literature, has advanced the stated objective of the legislation. While banning literature may stop the promotion of drug use, there is no evidence that it stops the use of drugs. In Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, 36 C.R.R. 1, (hereinafter "Ford"), the court stated that the materials did not demonstrate that the requirement of the use of French only was either necessary for the achievement of the legislative objective or proportionate to it. This specific question was simply not addressed by the materials.

Overbreadth

I have to look at the legislation and ask whether or not it impairs the plaintiffs' freedom of expression "as little as possible". If the legislation is considered to be overly broad, such overbreadth is fatal to an attempt to achieve justification under s.1 of the Charter: see Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232 at pp. 250-51, 47 C.R.r. 193, and Committee for the Commonwealth of Canada, supra, at pp.215-19.

In my view, it is apparent that this legislation is overly broad. It catches not only literature which glamorizes or promotes the use of drugs, but also political speech advocating law reform, religious speech, medical and health-related speech, scholarly speech, artistically inspired speech and popular speech. There is also the evidence from various authors and scholars who have deposed to the potential chilling effect of s.462.2 on their current literary activities, believing that their works could be subject to prosecution pursuant to this section. I am mindful, in this context, of the words of Madam Justice McLachlin in Zundel on this point at pp.771-72:

Section 181 can be used to inhibit statements which society considers should be inhibited, like those which denigrate vulnerable groups. Its danger, however, lies in the fact that by its broad reach it criminalizes a vast penumbra of other statements merely because they might be thought to constitute a mischief to some public interest, however successive prosecutors and courts may wish to define these terms. The danger is magnified because the prohibition affects not only those caught and prosecuted, but those who may refrain from saying what they would like to because of the fear that they will be caught. Thus worthy minority groups or individuals may be inhibited from saying what they desire to say for fear that they might be prosecuted. . . .

These examples illustrate s.181's fatal flaw -- its overbreadth.

Another factor that I must consider is that no exceptions or defences are provided in s.462.2 as they were, for example, in Keegstra. While this is not fatal, it certainly lessens the probable impairment of the right in question which would otherwise be provided if the legislation contained a statutory defence to any criminal prosecution.

finally, I must comment on one aspect of the argument of the Attorney General of Canada. The Attorney General sought to rely on judicial interpretation to provide a more narrow reading of the section. the section captures expression which cannot be justifiably limited, together with expression which may be justifiably limited. This demonstrates to my mind that the section is not only overly broad, but it is also vague.

the argument that prosecutorial discretion will save the section was addressed by McLachlin J. in Zundel at p.773:

I, for one, find cold comfort in the assurance that a prosecutor's perception of "overall beneficial or neutral effect" affords adequate protection against undue impingment on the free expression of facts and opinions. The whole purpose of enshrining rights in the Charter is to afford the individual protection against even the well-intentioned majority. To justify an invasion of a constitutional right on the ground that public authorities can be trusted not to violate it unduly is to undermine the very premise upon which the Charter is predicated.
At p.774, McLachlin J. goes on to say:
Not only is s.181 broad in contextual reach; it is particularly invasive because it chooses the most draconian of sanctions to effect its end -- prosecution for an indictable offence under the criminal law. Our law is premised on the view that only serious misconduct deserves criminal sanction.
At the conclusion of argument, I inquired if Mr. Morgan or Mr. MacIntosh knew of any convictions under s.462.2. I was provided with particulars of a conviction which occurred in Kelowna, British Columbia, on March 19, 1993. the sentence imposed was four months' imprisonment on each charge and a fine of $5,000. The conviction was appealed and it is interesting to note that one ground of the appeal challenged the constitutionality of s.462.2. As of the time of argument, the appeal had not been perfected.

While some of the expression or speech, in this case, is not worthy of protection, this in and of itself cannot justify the legislation. It remains that, in our society, much of the expression or speech, is worthy of s.2(b) protection. I am in agreement with the comment made by Mr. Morgan to the effect that "in overshooting the mark, Parliament has in effect missed the mark" with the result that s.462.2 captures speech which cannot be justifiably limited, together with speech that can be justifiably limited. But the presence of the latter, within the prohibition, does not justify the presence of the former: see Committee for the Commonwealth of Canada, at p.271:

Does Regulation 7 "cast the net too widely" ? . . . The provision is so broad, . . . It certainly can encompass handing out leaflets for a political party. On its face, and certainly in its application, the Regulation reflects a governmental policy administered in a manner that is excessively broad, and hence unconstitutionally invasive of the freedom of expression guarantee.
Finally, in measuring the proportionality of the effects of the legislation as against the objectives of the legislation, the Attorney General must demonstrate that alternative measures of less deleterious effect on constitutional rights have been considered and rejected for cogent reasons. The Attorney General has not done so.

Having considered the detailed submissions of counsel and the materials provided to me by them, I am satisfied that inadequate consideration was given to the deleterious effects on constitutional rights of s.462.2. There is no justification for such an unmeasured legislative measure: see Ford.

Accordingly, an order shall go severing the words "or literature" from s.462.2 of the Criminal Code, R.S.C. 1985, c.C-46, with the result that the words are inoperative and have not force and effect. The words are inconsistent with s.2(b) of the Charter The words are declared to be of not force and effect.

To the extent that the words "or literature" are severed from s.462.2, the definition of "literature for illicit drug use", as set out in s.462.1 becomes redundant and it too is severed.

I am grateful to Mr. MacIntosh and Mr. Morgan both of whom submitted very detailed material and made very helpful arguments.

Arrangements may be made with me to address costs.

Application allowed.