ONTARIO COURT OF JUSTICE

CITATION: R. v. Barr, 2017 ONCJ 732
DATE: October 18, 2017

Information

HER MAJESTY THE QUEEN

v.

ANTHONY FRANCIS BARR

R U L I N G

BEFORE THE HONOURABLE JUSTICE G.M. HORNBLOWER

on October 18, 2017, at SARNIA, Ontario

APPEARANCES:

M. Robb Counsel for the Federal Crown

D. Burns Duty Counsel for Anthony Barr

WEDNESDAY, OCTOBER 18, 2017

R U L I N G

HORNBLOWER, J. (Orally):

On April 12th, 2017, Anthony Barr while operating a motor vehicle was observed by police to pass a string of vehicles at a high rate of speed. In the circumstances the police decided to stop the vehicle. In the course of their investigation, they determined that Mr. Barr's ability to operate the vehicle was impaired by the consumption of marihuana. Mr. Barr was charged with impaired driving. Mr. Barr was also found in possession of a quantity of marihuana, a total of 18 grams found in three separate small bags. Notwithstanding that he was prescribed the marihuana for medicinal purposes, Mr. Barr was also charged with possession of cannabis marihuana contrary to section 4(1) of the Controlled Drugs and Substances Act.

A guilty plea was entered before me on August 9th, 2017. At that time I questioned the basis upon which there could be a finding of guilt for possession of a substance that had been lawfully prescribed for him.

It was the Crown's position that by using the marihuana in committing a criminal offence, namely impaired operation of a motor vehicle, that the lawful possession ended and that the continued possession of marihuana became unlawful. The defence agreed with that position.

The Crown was asked to provide authority for their proposition and the matter was put to September 25th for further argument. At that time, the Crown provided a number of authorities that stand for the proposition that the innocent possession of an item can, depending upon the circumstances, become unlawful.

Elias v. The Queen, 1989 CanLII 127 (SCC), [1989], 1 SCR, 423 is a Supreme Court of Canada decision upholding a conviction for the unlawful use of a credit card. Although on the facts it was unclear how Mr. Elias came into possession of the credit card, once he obtained possession of it, he maintained possession and then used it for his own benefit.

In upholding the conviction the Court ruled as follows:

Even assuming that possession of the said card was innocent, it has to be admitted that at some point prior to its use, the accused chose to keep it wrongfully, hence his possession by the commission of an offence. He could subsequently have dealt with it by continuing the possession he knew to be unlawful or by using it. He chose to use it unlawfully to obtain goods.

There is no reason why possession that is initially innocent cannot later become unlawful.

It is of some significance, I believe, that the Court refers to Elias' initial possession of the credit card as "innocent" as opposed to describing it as "lawful". Elias was never entitled to the possession of that card. The same cannot be said of the marihuana that Mr. Barr was in possession of. The marihuana was lawfully prescribed to him.

Mr. Barr has a legal prescription for marihuana which makes it lawful for him to have that substance in his possession. The fact that he used the drug lawfully prescribed to him and lawfully in his possession and then operated a motor vehicle impairing his ability by the use of that drug, does not make the possession of the drug unlawful. To my mind, the decision in Elias can be clearly distinguished given that Mr. Barr was always lawfully entitled to possess the marihuana, and assuming he still has a valid medical authorization, is still lawfully entitled to possess that substance.

In its further submissions, the Crown has advanced an alternate argument based on the regulations governing the obtaining of marihuana for medical purposes. Nothing in those regulations, however, acts to convert lawful possession by a person who had obtained the substance through a valid prescription, and from a source authorized by law to supply it, into unlawful possession. The regulations provide for labeling requirements for the product. Those obligations are imposed upon the supplier. None of the marihuana seized from Mr. Barr was packaged in accordance with those requirements. The lack of proper labeling on the package may raise an issue as to whether the drug in question was in fact lawfully obtained in accordance with the regulations. Where, for example, an accused lawfully entitled to obtain marihuana obtains it from an illegal source, the possession is unlawful as the lawful possession can only be from a lawful source. In such a case, the lack of proper labeling on the marihuana in question may be a piece of evidence from which an inference can be drawn that the product was obtained other than from a lawful source. That, however, is not the case here. Mr. Barr maintains that he was entitled to lawfully obtain the drug that was in his possession and did so in a lawful manner. A breach of the regulatory scheme does not criminalize his possession.

Notwithstanding the plea of guilty, the facts before me do not disclose the commission of an offence. There is no basis for a finding of unlawful possession. Accordingly, the guilty plea is struck.