- This is a true transcript of what the Judge handed me on June on Aug 17th
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Citation: [please note: no citation # posted] - Date: [please note: no date was posted here]

PROVINCIAL COURT File No: 193475-1 - OF BRITISH COLUMBIA Registry: Vancouver

FILED - JUL 14 2009 - VANCOUVER REGISTRY - 222 MAIN STREET

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA -Criminal

REGINA v. MARC PIERRE BOYER

REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. F. GIARDINI

Counsel for the Crown: A. Switzer
Appearing in person: M. Boyer
Place of Hearing: Vancouver, B.C.
Dates of Hearing: March 4; April 7; April 14, 2009
Date of Judgment: July 14, 2009

R. v. Boyer Page 1 - INTRODUCTION

[1] Marc Pierre Boyer is charged with unlawfully possessing cannabis (marijuana), in

an amount not exceeding 3 kilograms, for the purpose of trafficking, contrary to s. 5(2)

of the Controlled Drugs and Substances Act. The offence is alleged to have

occurred on June 17, 2008, in Vancouver, British Columbia.

PRELIMINARY OBJECTION AND ORAL RULING

[2] On February 27, 2009, at a pre-trial hearing, Mr. Boyer challenged this Court’s

jurisdiction to hear this matter and asked for a ruling on that point. Mr. Boyer argued

that the Court does not have jurisdiction because he is not a person. First, he argued,

he is not a person because his birth was not properly registered. He asserted that a

Statement of Birth from the Province of Ontario had been “defaced” and therefore is not

a valid birth certificate. Second, Mr. Boyer argued, he bought personhood, for a very

specific purpose, by depositing $1000 to run as a candidate for the Marijuana Party in

two separate elections. However, the fact that he may be considered to be a person

under the Canada Elections Act does not give this Court jurisdiction over him. He said

ruling against that person is not in this Court’s jurisdiction.

[3] In the course of my ruling on the preliminary objection I noted that Mr. Boyer was

alive, had attended court and had spoken in court. For all intents and purposes he is a

human being, colloquially; one would say he is a person. However, the question I had

to answer was whether Mr. Boyer is a person in law. I reviewed the definition of person

in the Criminal Code and in the Interpretation Act. As well I reviewed a decision of

Judge Bagnall of this Court in a case where Mr. Boyer made the same argument, R. v.

Boyer 2007 BCPC 0313. R. v. Boyer Page 2

[4] I concluded that Mr. Boyer is a person who is subject to the laws of Canada. I

further concluded that the charge on which he appeared before the Court is one over

which the Provincial Court of British Columbia has absolute jurisdiction. Accordingly, I

found this Court had jurisdiction to preside over the trial on this matter.

BACKGROUND FACTS - The police officers’ evidence

[5] At about 6:15 p.m. on June 17, 2008, Constable Niddrie and his partner,

Constable Stokes, were on routine patrol on Commercial Drive. They received

information that a man was dealing in drugs at the corner of Commercial Drive and

William Street. Accordingly, Constable Niddrie and Constable Stokes went to that

location to investigate. They were also given a description of the man who was

allegedly dealing in drugs. They were told he was a middle aged man with a beard,

long hair, and he was carrying a black and red backpack. The officers were also told

this man had last been seen sifting behind Joe’s Café at the corner of William Street

and Commercial Drive.

[6] It took the police officers approximately 10 minutes to arrive at Commercial Drive

and William Street. There Constable Niddrie saw a man whose description matched the

description he had been given. The man was sifting on a retaining wall on a property on

William Street just around the corner from Commercial Drive. Another man and a woman

were sitting beside him.

R v. Boyer Page 3

[7] Constable Niddrie walked up to the man and identified himself as a police officer.

Constable Niddrie saw what he believed to be a marijuana joint in the man’s hand which

the man attempted to conceal. That man later identified himself as Mr. Boyer.

[8] Constable Niddrie said, based on his experience, he believed the object Mr.

Boyer had in his hand was a marijuana cigarette. In reaching this conclusion he relied

on the fact that the cigarette was narrow in circumference and short in length; it had no

filter and Mr. Boyer was using an alligator clip. The police officer said it did not look like

a traditional cigarette.

[9] Constable Niddrie noted Mr. Boyer had a backpack. Mr. Boyer was seated on a

retaining wall and the backpack was tucked between his legs and was clearly visible.

Constable Niddrie believed Mr. Boyer to be the man about whom he had received the

call because Mr. Bayer appeared to be middle aged, between 50 to 55 years old, had

long gray hair, glasses and a red and black backpack. Constable Niddrie told Mr. Boyer

he was under arrest for possession of a joint of marijuana and conducted an initial pat-

down search.

[10] Constable Niddrie also asked Mr. Boyer to hand the backpack to him. Constable

Niddrie asked for the backpack because the complaint the police had received was that

the person was dealing in drugs. Constable Niddrie wanted to make sure there was

nothing sharp in the backpack and to take a cursory look inside. When Constable

Niddrie opened the backpack he found that it was full of individual baggies of what

appeared to be marijuana.

R. v. Boyer Page 4

[11] Constable Niddrie then told Mr. Bayer that he was also under arrest for

possession of marijuana for the purpose of trafficking. He obtained Mr. Bayer’s name

and date of birth. He advised Mr. Boyer of his rights under s. 10(a) and s. 10(b) of the

Charter. He did so by reading from a Charter card. Constable Niddrie told Mr. Boyer

he had the right to counsel. Mr. Boyer responded that he did not need counsel because

he was familiar with the court system.

[12] Constable Niddrie testified that in addition to reading Mr. Bayer his s. 10(a) and

s. 10(b) rights he also gave him a secondary warning to the effect that he had the right

to remain silent but that anything he said could be used against him. At the time

Constable Niddrie arrested Mr. Boyer; Constable Niddrie was in full uniform and had

arrived at the scene in a marked police car.

[13] After Mr. Boyer had been read his rights, the police officer carried out a further

search of Mr. Boyer. During that search Mr. Boyer engaged Constable Niddrie in a

conversation about why Mr. Bayer was there and Mr. Boyer’s views about his right to

sell marijuana. On further searching Mr. Boyer, Constable Niddrie found 3 Ziploc

baggies of marijuana that appeared to be the same size and with the same amount of

marijuana as the baggies he had found in the backpack. In addition to the baggies of

marijuana, the police officer found a marijuana grinder, rolling papers, and $415 in one

of Mr. Boyer’s pockets. The money was in denominations of $20s, $lOs, and $5s.

[14] While waiting for the police wagon to arrive Constable Niddrie stood with Mr.

Boyer. Mr Bayer gave Constable Niddrie some papers which outlined Mr. Boyer’s

R. v. Boyer Page 5

reasons for believing that he was allowed to sell marijuana. Mr. Boyer also asked

Constable Niddrie to read several papers which referred to recent case law.

[15] When Constable Niddrie had the conversation with Mr. Boyer, Mr. Boyer was not

restrained. He was standing up. Constable Niddrie was standing beside him as was

Constable Niddrie’s partner, Constable Stokes. Constable Niddrie asked Mr. Boyer why

he had the marijuana in the backpack and on his person. Constable Niddrie also asked

who the marijuana and the cash belonged to. Mr. Boyer said the marijuana was the

property of the Marijuana Party. Mr. Boyer said he was selling the marijuana to people

who suffered from medical ailments for pain. Mr. Boyer said he was selling the

marijuana on behalf of the Marijuana Party. He said the cash belonged to the Marijuana

Party and was money he had collected from selling marijuana.

[16] Constable Niddrie asked Mr. Boyer if he was selling drugs. At one point Mr.

Boyer said he was allowed to sell drugs and referred to a ruling regarding InSite (the

safe injection site) made by Mr. Justice Pitfield. Mr. Boyer said he had permission to

sell marijuana through the Marijuana Party. However, when he was asked if he had a

permit, Mr. Boyer said he did not have a permit or licence but appeared to suggest he

was exempted from the law because he was a member of the Marijuana Party. Mr

Boyer also told the police officer something to the effect that he thought he could sell to

people who had suffered injuries or who were members of a compassion club. Mr.

Boyer had a laminated card of some kind but he did not have any licence or permit to

sell marijuana. Mr. Boyer told the police officers he did not need a licence because he

was part of the Marijuana Party. Mr Boyer told Constable Niddrie that the case law he

had read exempted him from the provisions of the Controlled Drugs and Substances

R. v. Bayer Page 6

Act. Mr. Boyer also made a comment to the effect that it was a good thing he was

being arrested because it created change. Mr. Boyer further said he planned to run for

municipal office to create change.

[17] Constable Niddrie said when he examined the marijuana found in the backpack

he noted it was bagged individually and labelled with different names (e.g. Green Crush,

Early Girl, and Diesel). Accordingly, Constable Niddrie asked about the labelling and

Mr Bayer told him what he was selling was flavoured.

[18] When the police wagon arrived at the scene, Constable Niddrie told Mr Boyer he

was going to seize the money he had found on him. Mr. Bayer told Constable Niddrie

he could not do that because it was his money. Mr. Boyer said when he sells marijuana

he gets to keep the proceeds. Once the police wagon arrived Mr Boyer was

handcuffed and placed in the wagon and then taken to the city jail.

[19] The weight of the marijuana seized by Constable Nlddrie was 571.36 grams. It

was not clear whether this included the marijuana found on Mr. Boyer. The marijuana

was packaged in a number of separate Ziploc baggies. The weight of the individual

baggies ranged from 4.86 grams to 11.44 grams. As noted, the baggies were

separately labelled with such names as Champ, HP13, Cherry, and Blueberry. In

addition to the marijuana the police also found two vials of hemp oil.

[20] The Crown called Constable Kinney who was qualified to give evidence as an

expert in the use, distribution, price and packaging of marijuana. Constable Kinney

testified that the most common amount of marijuana for personal use is one gram,

commonly referred to as a dime baggie. One-eight of an ounce (3.5 grams) is also

R v. Boyer Page 7

common. Marijuana for personal use can also be packaged in a ¼ ounce size (7

grams). On or about June 8, 2008, one gram of marijuana sold for $10 on the street; 1/8

of an ounce sold for $25 to $35, and ¼ ounce sold from $50 to $60.

[21] Constable Kinney also gave evidence about how much marijuana an individual

user might use in the course of a day. She was given a hypothetical scenario based on

the weights and packaging of the baggies of marijuana seized in this case; namely, a

grand total of 571.36 grams packaged in a number of separate baggies of marijuana

and two vials of hemp oil. It was Constable Kinney’s opinion, based on: the quantity of

marijuana, the way it was packaged and the way it was labelled, that the amount of

571.36 grams of marijuana was consistent with street level sales of between 1/s and ¼

ounce. The amount of money ($415) was consistent with what Constable Kinney

expected to find in such a situation. Constable Kinney said the amount of marijuana

was a very large quantity and much more than one person would use. Constable

Kinney also said, if an individual set out to buy a large quantity of marijuana for personal

use, it was unlikely to be individually packaged because a reduced price can be

negotiated if a person buys in bulk.

[22] In cross-examination, Constable Kinney was asked whether street level

traffickers would have different flavours. She answered they could. Constable Kinney

was asked whether the amount of marijuana was consistent with a compassion club.

She said she could not speak about compassion clubs but she had seen traffickers with

more than one strain. Constable Kinney agreed it was more common for a street seller

to have one to three flavours. She acknowledged that, in this case, a variety of flavours

were found by the police.

R. v. Boyer Page 8 - Mr. Boyer’s evidence

[23] Mr. Bayer testified that he was barn in 1951 and his birth was registered in King

George’s Registry. According to Mr. Boyer his birth was never “transferred”. He said

his father told him the Queen was not a true sovereign and therefore he ought not to

apply for a birth certificate. As a result of a series of events (which I will not set out in

this judgment), Mr Boyer eventually obtained a copy of a “Statement of Birth”.

However, he said this “Statement of Birth” is not a valid birth certificate. Mr. Boyer

asserted that the Crown has no jurisdiction over him until he has a birth certificate. He

also maintained that by inserting numbers on the Statement of Birth, (37300), the

Queen “defaced” his birth certificate. Mr. Boyer testified he is “a free man on the land”.

Mr. Boyer also testified that he does not have what is defined as a “person” in the

Criminal Code or the Interpretation Act

[24] In 2002 Mr. Boyer ran as a candidate for the Marijuana Party. Mr. Boyer said he

filled out the required paperwork and paid a $1000 deposit. Mr Boyer said he was also

involved in the opening of the Marijuana Party’s compassion club on Kingsway in

Vancouver. He said that the city “busted me” and the matter went to trial. Mr Boyer

said that charge was eventually dropped by the Crown.

[25] Mr Boyer said he did not agree to be governed. Specifically, in relation to a

2004 charge, Mr. Boyer said he had denied consent to be governed other than under

the supremacy of God. Mr. Boyer said that a psychiatric evaluation was ordered at the

time. He was found to be eccentric but fit for trial.

R. v. Boyer Page 9

[26] Mr. Boyer said the backpack seized by the police is technically the property of

the Marijuana Party. He believed it is within the “jurisdiction” of the Marijuana Party.

Mr. Boyer believed that the articles in the backpack were there “with a claim of right”.

Mr. Boyer acknowledged he was smoking marijuana at the time. He said he needed it

because his lymphoma was very bad.

[27] Mr. Boyer said when the police officer looked into the backpack he objected. He

said the backpack was the property of the Marijuana Party and the police officer could

not enter it. However, Mr. Boyer acknowledged that, since he had a marijuana joint in

his hand, there could be an argument that the police officer had reasonable grounds.

Mr. Boyer said it was his position that the backpack is the property of the Marijuana

Party and the contents are the property of an officer of the Marijuana Party, namely;

himself. He said he was upholding the .Marijuana Party rubric by his actions.

[28] Mr Boyer testified he sells marijuana to members only. Mr. Boyer said under the

right of freedom of expression he has a right to social and political participation. He also

said he would administer to medical needs if persons are not members.

[29] Mr. Boyer said the fact he had 12 different varieties of marijuana was a clear

indication he was servicing medical needs. He sees what he does as dispensing

medicine. He said the vast majority of members to whom he sells marijuana use it for

sleep disorders.

[30] In cross-examination Mr. Boyer said when the police officers approached him he

Was holding a clipboard with Judge Pitfield’s decision and was smoking a marijuana

joint. He agreed the backpack was between his legs. He knew what was in it, namely;
R. v. Boyer Page 10
about one pound of marijuana. Mr. Boyer said it takes him about two days to “get rid of”

one pound of marijuana. Mr. Boyer said he sold different kinds of marijuana to different

people depending on their ailments. He only sold marijuana to members of the

Marijuana Party who became members of the Therapeutic Herb Coalition. Mr. Boyer

said he did not sell to people who are not sick. He said he relied on affidavits and many

people gave him prescription bottles. However, he agreed there was no such thing as a

prescription for marijuana. Mr. Bayer said he encourages people to get an exemption

under the medical marijuana regulations. However, he said he did not have one and he does not require purchasers to have one.

[31] Mr. Boyer was asked whether the marijuana he had that day would have been

sold for $25 to $50. He said ‘basically” yes. He said unlike other compassion clubs he

offers a price break. He said if a purchaser bought one ounce it would cost $150 instead

of $50 for each 1/4 ounce. He also said he urged people to buy a couple of weeks

supply. He was specifically asked whether it was his intention that day to sell

Marijuana. He replied “yes”.

POSITION OF THE PARTIES

[32] Mr. Boyer advanced a number of points in argument and the Crown responded.

For ease of reference his argument and the Crown’s response are summarized below,

by issue.

Section 15 of the Charter

[33] Mr. Boyer argued that he is a member of the Marijuana Party and ran as a

candidate for that party. He asserted that the Marijuana Party has distinct rights under

R. v. Boyer Page 11

s. 15(b) of the Charter Further, Mr. Boyer submitted he claimed the protection afforded

by s. 15 based on mental and physical disability and age. On this point he asserted that

marijuana provides relief for various conditions. Mr. Boyer also said he is essentially

claiming the same protection that was given to Dr. Morgentaler under s. 15 and raising

the same defence — namely necessity. Mr. Boyer sought to distinguish the decision of

R. v. Malmo-Levine, [20031 3 S.C.R. 571. He argued that the decision could not apply

to the Marijuana Party because “we were not standing under his claim of ‘substance

orientation rights’ because it trivializes the nature of having legitimate rights to access

medicine that delivers health benefits thru (sic) a plant that constitute, what the SCC

calls: ‘A need that is greater than the perceived risk’ (quote from Mr. Boyer’s written

submission filed April 14, 2009).

[34] The Crown argued that Mr. Boyer’s s. 15 argument has already been dealt with

in the Malmo-Levine case. In that case, the court said that smoking marijuana is not

analogous to gender or religion as a deeply personal characteristic. The Crown noted

that Mr. Boyer tried to distinguish Malmo-Levine by saying he was selling marijuana

as a member of a political party, therefore, that meant his political beliefs were being

infringed. Without conceding the merits, if any, of that argument, the Crown noted Mr.

Boyer was selling marijuana as an individual and not on behalf of the party. It is not

necessary to possess or traffic in marijuana to be a member of the Marijuana Party.

The Crown argued this Court is bound by earlier court decisions which have found that

an individual’s desire to smoke marijuana is not a characteristic which is protected

under s.1 5. Moreover, the Crown argued that political association alone does not

R. v. Bayer Page 12

trigger s.15 because political association with the Marijuana Party does not require

possession or trafficking in marijuana.

[35] As to Mr. Bayer’s argument that there may be discrimination based on mental or

physical disability or age, the Crown argued that cases which have been decided

subsequent to Malmo-Levine say that the Marihuana Medical Access Regulations

provide exceptions to the law in certain specified circumstances which thus render the

law constitutional.

Section 7 of the Charter

[36] Mr. Boyer asserted that his s. 7 Charter rights were breached. However, when

asked by the Court to explain which section 7 rights were infringed and how, he

responded that s. 7 of the Charter deprives everyone of their rights. He asserted he

was a loyal subject of King George’s registry and was entitled to the application of the

rules of natural justice.

[37] The Crown understood Mr. Boyer to be challenging the validity of s. 7 and

asserting that s. 7 violates his rights. The Crown submitted that by virtue of s. 52(1) of

the Constitution Act the Charter is the supreme law. One part of the constitution

cannot abrogate the other. Accordingly, s. 7 of the Charter is the ultimate law and

therefore Mr. Bayer’s argument is invalid.

Section 11(d) Right to a Fair Trial

[38] Mr. Bayer argued that he was denied the right to a fair trial. He based this argument on

the following points:

R. v. Boyer Page 13

1. This Court does not have jurisdiction to hear his case and it is per se

unfair for a provincial court judge to preside on this matter because his

case should be heard by the Supreme Court of Canada.

2. This Court denied him a fair trial when it found he was a person and in

doing so relied on an earlier decision of Judge Bagnall.

[39] The Crown argued that under s. 553 of the Criminal Code, a provincial court

judge has absolute jurisdiction to deal with the offence in question. The Crown argued

that s. 553(c) (xi) provides that a provincial court judge’s jurisdiction is absolute and does

not depend on the permission of the accused. The Crown argued that in the

circumstances of this case Mr. Boyer has not been denied the right to a fair trial.

Defences to Mr. Boyer’s actions

[40] Mr. Boyer argued there are several sections of the Criminal Code which afford

him a defence:

1. Section 126 of the Criminal Code

Mr. Boyer asserted he has a “lawful excuse” under this section. He said he

is wilfully breaking the law because the Controlled Drugs and

Substances Act is unconstitutional. He said, among other things, that as

a member of the Marijuana Party he has a guarantee of freedom of

expression. He appeared to read s. 126 as standing for the proposition

that if a person has a lawful excuse he/she can break the law.

R. v. Boyer Page 14

2. Section 39 of the Criminal Code

Mr. Boyer argued that s. 39 reinforces his view of s. 126. He asserted that

as long as a person is a registered member of the Marijuana Party in good

standing, if the person is in peaceable possession of articles of belief

(e.g. marijuana), that person can trespass on the Crown’s domain.

3. Section 8 of the Criminal Code

Mr. Boyer argued that s. 8(3) applies in this case; namely, that every

common law rule or principle that provides justification or excuse for an

act or provides a defence for an act continues in force. Mr. Boyer said

that section applies to the members of the Marijuana Party. Mr. Boyer

suggested that at common law he and other officers or agents of the

Marijuana Party are private individuals. In his written submission he wrote

that: “This means that until there’s actual Constitutional legislation passed

by Parliament that protect especially these SCC rulings means THAT any

laws rules or regulations that affect criminality of marijuana have no force

or affect on Marijuana Party Officers”, (sic) (quote from Mr. Boyer’s written

submission filed April 14, 2009)

[41] The Crown argued that on the facts it has established all the elements necessary

to prove possession for the purposes of trafficking. The Crown noted that the evidence

of the Crown’s witnesses and of Mr. Boyer is fairly consistent as to the facts. Mr. Boyer

was found near Commercial Drive smoking a joint. Marihuana was found in a backpack

in his possession. Mr. Boyer has admitted he had knowledge and control of the

marijuana. He has stated that the backpack was the property of the Marijuana Party but

R. v. Boyer Page 15

made it clear that the contents (i.e. the individually wrapped marijuana packages)

belonged to him. Mr. Boyer also indicated that he intended to sell that marijuana. He

acknowledged that he had no licence under the Marihuana Medical Access Regulations

and he did not require purchasers to have a licence.

[42] The Crown argued that s. 126 of the Criminal Code has no application in this

case. It deals with contraventions of other legislation where no criminal liability is set

out. Here the Controlled Drugs and Substances Act sets out a mechanism whereby

infractions can be brought before the court.

[43] As to s. 39 the Crown argued it is not relevant and does not apply to this case.

ANALYSIS - Findings of fact

[44] To ensure that there is no misunderstanding as to what I have found as a fact I

am setting out specific findings of fact below, in point form:

1. The police received information that a man was dealing drugs at the corner
of Commercial Drive and William Street. Accordingly, two police officers
were dispatched to that location to investigate.

2. The police officers went to Commercial Drive and William Street and saw a man, whose description matched the description they had been given, sitting on a retaining wall. The man on the retaining wall later identified himself as the accused, Mr. Boyer

3. Constable Niddrie saw what he believed to be a marijuana joint in the Mr. Boyer’s hand. Mr. Boyer attempted to conceal the marijuana cigarette.

4. Mr. Boyer had a backpack tucked between his legs when Constable Niddrie saw him sifting on the retaining wall.

5. Mr Boyer was placed under arrest for possession of a joint of marijuana. He was searched twice. The first search was a cursory search which

R. v. Boyer Page 16

occurred after he had been told he was under arrest for possession of the marijuana joint.

6. Mr. Boyer was searched a second time after he was arrested for possession of marijuana for the purpose of trafficking (see below). The second search was a more thorough search. During the second search Constable Niddrie found three Ziploc baggies of marijuana, a marijuana grinder, rolling papers and $415 in cash in denominations of $20s, $1 Os, and $5s on Mr. Boyer.

7. Constable Niddrie asked for the backpack because information had been relayed to him that a person matching Mr. Boyer’s description was dealing drugs. Constable Niddhe opened the backpack and found it was full of individual baggies of what appeared to be marijuana. Mr. Boyer was then told that he was under arrest for possession of marijuana for the purpose of trafficking and was advised of his Charter rights. On analysis, the baggies found in the backpack were found to be cannabis (marijuana).

8. At the scene Mr. Boyer had a conversation with the police officer The nature and substance of that conversation is set out in the background facts and will not be repeated here. A voir dire was heard to determine voluntariness and this Court concluded that the statements made by Mr. Boyer to the police at the scene were voluntary.

9. Mr. Boyer essentially acknowledged he had control of the backpack. He stated that technically the backpack itself was the property of the Marijuana Party; however, the contents of the backpack (the marijuana baggies) were his property.

10. Mr. Boyer also acknowledged that he sold marijuana but only to members of the Marijuana Party and claimed that in doing so he was exercising his right to freedom of expression. Mr Boyer said it was his intention to sell marijuana that day.

11. Mr. Boyer did not have any licence or permit to sell marijuana

12. The money that Mr. Boyer had on him ($415 cash) was money Mr. Boyer had collected by selling marijuana.

13. Mr. Boyer knows that possession of cannabis (marijuana) and possession of cannabis (marijuana) for the purpose of trafficking is prohibited under the Controlled Drugs and Substances Act. He also knows that the government has passed legislation which allows individuals to obtain exemptions. He colloquially referred to the legislation as the medical marijuana regulations.

R. v. Boyer Page 17

14. Mr. Boyer does not have an exemption under the Marihuana Medical Access Regulations.

15. The police seized a quantity of marijuana from Mr. Boyer. The marijuana weighed a total of 571.36 grams. The marijuana was packaged in a number of separate plastic baggies. Each baggie was labelled with a name for the particular marijuana package. It was not clear from the evidence whether the 571.36 grams of marijuana was the weight of all the marijuana seized by the police or only the weight of the marijuana found in the backpack. In addition to the marijuana, the police also seized two vials of hemp oil from Mr. Boyer.

Does the prohibition against possession of marijuana for the purpose of trafficking infringe s. 15 of the Charter?

[45] In Malmo-Levine the Supreme Court of Canada considered whether prohibiting

the simple possession of cannabis (marijuana) under the former Narcotics Control Act

was valid legislation. The question before the court was whether the prohibition fell

within Parliament’s legislative competence or whether it infringed the Charter. The

majority of the court concluded that the prohibition against the use of marijuana could

be supported under the criminal law power of the government. The majority found that

the accused in that case had not established an infringement of s.7 of the Charter.

[46] Further the majority of the court found that prohibiting possession of marijuana

for the purpose of trafficking did not infringe s. 15 of the Charter. It said that a taste for

marijuana is not a “personal characteristic” in the sense required to trigger s. 15 of the

Charter. The majority said it bore no analogy with the personal characteristics listed in

s. 15 and specifically noted at para. 185:

…It would trivialize this list to say that “pot” smoking is analogous to gender or religion as a “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs”...

R. v. Boyer Page 18

[47] Mr. Boyer asserted that marijuana provides relief for various conditions and

therefore he claimed protection under s. 15 based on mental and physical disability and

age. In making this argument Mr. Bayer was clearly grasping at straws and I find no

merit to his argument on this point. Mr. Bayer also argued that he was selling marijuana

as a member of the Marijuana Party and suggested that his political beliefs were being

infringed.

[48] On the facts of this case, Mr. Boyer has not established that his political beliefs or

his right to political association were infringed by the law that prohibits possession of

marijuana for the purpose of trafficking.

Was there a breach of s. 7?

[49] Section 7 provides that everyone has the right to life, liberty, and security of the

person and the right not to be deprived thereof except in accordance with the principles

of fundamental justice. In his argument Mr Bayer asserted that his s. 7 Charter rights

were breached. However, when he was asked by the Court to explain which s. 7 rights

were breached and how the breach occurred, Mr. Bayer appeared to suggest that s. 7

of the Charter itself deprives individuals of their rights. To the extent that Mr Boyer is

concerned that his right to a fair trial may have been breached in some way that will be

addressed below. However, if Mr. Bayer is challenging the validity of s. 7 itself, I

conclude there is no merit to that argument.

[50] In Malmo-Levine the Supreme Court of Canada considered whether the prohibition

on the possession of marijuana infringed s. 7 of the Charter. The majority of the court

concluded that for a rule or principle to constitute a principle of fundamental

R. v. Boyer Page 19

justice under s. 7 of the Charter, it must be a legal principle about which there is

sufficient societal consensus that it is fundamental to the way in which the legal system

should fairly operate. A criminal law which is shown to be arbitrary or irrational will

infringe s. 7. However, in light of the state’s interest in avoidance of harm to its citizens,

the prohibition on marijuana possession was found to be neither arbitrary nor irrational;

(see para. 135 to 140).

[51] In my view, those comments by the majority of the Supreme Court of Canada

apply in the case before me, albeit this case deals with possession for the purpose of

trafficking. Accordingly, to the extent that Mr. Boyer is challenging the government’s

right to enact criminal laws regarding possession for the purpose of trafficking of

marijuana, that question has been addressed by the court in Malmo-Levine, albeit in a

slightly different context. I find there was no breach of Mr. Boyer’s s. 7 rights.

Was Mr. Boyer denied a fair trial?

[52] Mr. Boyer argued that his case should go to the Supreme Court of Canada and

that this Court does not have the jurisdiction to hear his case. I am satisfied, based on

s. 553(3)(xi), that the offence of possession for the purpose of trafficking of marijuana in

an amount of 3 kilograms or less falls within the absolute jurisdiction of a provincial

court judge. Mr. Boyer has not been denied a fair trial by having the matter dealt with in

the Provincial Court of British Columbia.

[53] Mr. Boyer also argued he was denied a fair trial because this Court made a

preliminary ruling that he was a person and in doing so relied on a decision of Judge

Bagnall. The fact that this Court made a ruling finding Mr. Boyer to be a person and in

R. v. Boyer Page 20

doing so relied on a decision of Judge Bagnall does not deny Mr. Boyer a right to a fair

trial.

Other defences raised by Mr. Boyer

[54] My conclusions on the other defences raised by Mr. Boyer are as follows:

1. Section 126 of the Criminal Code
This section of the Code is a default provision which is engaged when no

penalty or punishment is expressly provided in an Act of Parliament. It

provides punishment for contraventions of Acts of Parliament in the absence

of other provisions. Mr. Boyer asserted that he is wilfully breaking the law

because it is unconstitutional. He further asserted that as a member of the

Marijuana Party he is upholding the rubric of the party and exercising his right

to social and political participation by his actions. Additionally, he views his

act of selling marijuana as dispensing medicine.

I find, on the facts of this case, that s. 126 is not engaged. The offence of

possession of marijuana for the purpose of trafficking is established by the

Controlled Drugs and Substances Act. The Act does set out a specific

punishment for the offence.

2. Section 39 of the Criminal Code

Section 39(1) provides a defence to a person who uses force to defend

personal property from removal by another person lawfully entitled to it. In

R. v. Boyer Page 21

my view, the defence provided by this section does not apply in the

circumstances of this case.

3. Section 8 of the Criminal Code

Section 8(2) permits the English criminal law which was in force before

the 1953-54 Criminal Code revision to continue. However, the English

criminal law continues only to the extent that it is not changed by the

Criminal Code or other federal legislation. Section 8(3) retains all

common law defences (such as necessity, due diligence, mistake of fact)

except as altered by or to the extent that they are inconsistent with the

Criminal Code or other federal legislation.

Mr. Boyer claimed that the defence of necessity applied in the
circumstances of this case. In order to successfully advance the defence
of necessity three elements must be established:

(a) imminent peril or danger;

(b) the absence of a reasonable legal alternative;

(c) proportionality between the harm inflicted and the harm avoided.

Mr. Boyer did not establish any of the three elements of the defence of

necessity in this case.

Did the Crown establish the elements of the offence
beyond a reasonable doubt?

[55] In this case the Crown must establish that Mr. Boyer had marijuana in his

possession for the purpose of trafficking. In order to establish possession, the Crown

must prove that Mr. Boyer had knowledge and control of the marijuana. Knowledge

R. v. Boyer Page 22

does not have to be proved by direct evidence alone. It can also be inferred by the

surrounding circumstances. In this case, Mr. Boyer admitted during cross-examination

that he knew there was about one pound of marijuana in the backpack that was

between his legs when he was arrested. This admission clearly established that he had

knowledge.

[56] As to control, I find that Mr. Boyer’s own testimony and the observations of

Constable Niddrie at the scene clearly establish that Mr Boyer had control over the backpack and its contents. Consequently, on the evidence before the Court, I find the

Crown has established possession.

[57] The next question is whether Mr Boyer was in possession of the marijuana for

the purpose of trafficking. The Crown must prove beyond a reasonable doubt that

Mr. Boyer had the intention to “traffic” the marijuana. Traffic includes: selling;

administering, giving, transferring, transporting. In this case the Crown called evidence

from an expert and asked this Court to draw the inference of trafficking from the quantity

of the drug, the way it was packaged, the money found on Mr Boyer and Mr. Boyer’s

statement to the police. I am satisfied that, even without Mr. Boyer’s testimony at the

trial, the Crown has proven that Mr. Boyer had the marijuana in his possession for the

purpose of trafficking. However, Mr. Boyer’s own testimony made it crystal clear that

he intended to sell the marijuana. He said it took him about two days to “get rid” of one

pound of marijuana. Consequently, I find that the Crown has proven, beyond a

R. v. Boyer Page 23

reasonable doubt, that Mr. Boyer had marijuana in his possession far the purpose of

trafficking and thus find Mr. Boyer guilty.

(signature)
The Honourable Judge M. F. Giardini
Provincial Court of British Columbia