ONTARIO COURT OF JUSTICE
(GENERAL DIVISION)
(Southwest Region)

B E T W E E N:

HER MAJESTY THE QUEEN
Respondent

-and-

CHRISTOPHER CLAY
Applicant

AFFIDAVIT OF NEIL BOYD

I, NEIL BOYD, of the City of Burnaby, in the Province of British Columbia,
MAKE OATH AND SAY:

1. I am a professor at the School of Criminology at Simon Fraser University
in Burnaby, British Columbia and I have worked there since 1978. One of my
areas of study and expertise relates to the sociological and criminological
implications of Canada's drug laws. I have received several grants to
further my studies in this area and I have authored numerous articles in
this area. In 1991, my book, High Society: Legal and Illegal Drugs, was
published by Key Porter Books. Attached hereto to this my affidavit as
Exhibit "A" is a copy of my curriculum vitae which outlines my professional
qualifications and my various publications.

2. One area that I have studied extensively concerns the various rates of
arrest, conviction, and dispositions for cannabis offences in Canada.
Attached hereto to this my affidavit as Exhibit "B" is a copy of my
article, co-authored with Professor J. Lowman and Professor Clayton Mosher,
Case Law and Drug Convictions: Testing the Rhetoric of Equality Rights
(1986), 29 Criminal Law Quarterly 487. In that article, we review the
differential sentencing patterns upon conviction for the offence of
cannabis possession.

3. My studies of the relevant Statistics Canada reports indicate that
cannabis offences have usually comprised the majority of all federal drug
possession offences in Canada since 1980. For example, in 1989, in all
provinces except Quebec (43%) and Manitoba (39%), cannabis offences
comprised between 65% (Ontario) and 95% (North West Territories) of the
total possession charges reported in that year. Attached hereto to this my
affidavit as Exhibit "C" is a copy of the Statistics Canada 1990
publication "Juristat" vol. 10 No. 11 Drug Possession Offenses in Canada,
in which these figures are found.

4 A useful comparison can be made between the total number of cannabis
offences and the total number of federal drug offences. Attached hereto to
this my affidavit as Exhibit "D" is a copy of the joint publication of the
Canadian Centre on Substance Abuse and the Addiction Research Foundation,
Canadian Profile" Alcohol, Tobacco and Drugs, 1995, in which these figures
can be found. The number of cannabis offences under the Narcotic Control
Act compared with the total number of federal drug offences in Canada
averaged for each province over the years 1984 and 1989 is as follows:

Total Drug Offences and Cannabis Offences Averaged per year from the period
1984 to 1989

Province Total Drug-Related Offences Cannabis Offences

Newfoundland 817 731

Prince Edward Island 215 172

Nova Scotia 1,971 1,550

New Brunswick 1,533 1,266

Quebec 8,696 4,145

Ontario 21,456 13,968

Manitoba 2,480 1,624

Saskatchewan 2,191 1,684

Alberta 6,225 4,788

British Columbia 12,991 9,508

Yukon 204 172

North West Territories 320 289

Canada 58,995 39,787

The general trend during the period of 1984 to 1989 was one of general
decline for cannabis offenses. Since the mid-1980's, the highest number of
cannabis offences in Canada was 43,917 which was recorded in 1984. The
numbers then decline to a low of 32,275 in 1991. However, in 1992, the
number began to rise to 34,005 thereby indicating that cannabis is still a
large part of Canada's drug law enforcement efforts.

5. Drug possession offences comprise almost two-thirds of all reported drug
offences. Cannabis offences comprise the vast majority of all federal drug
offences. In 1976, 96% of all Narcotic Control Act offences involved
cannabis. This figure fell to 83% in 1980, and 74% in 1987. Attached hereto
to this my affidavit as Exhibit "E" is a copy of the Statistics Canada
report, "Juristat", vol.8, no.2, Drug Offenses in Canada 1962-1987, in
which these figures can be found.

6. The number of offences involving simple possession of cannabis
comprised, on average, roughly two-thirds of all recorded cannabis offences
between the period of 1984 to 1989. The relationship between total cannabis
offences and cannabis possession offences in this period, as taken from the
Juristat, Drug Possession Offences in Canada 1990, is as follows:

Cannabis Offences General vs. Cannabis Possession-Canada 1984-1989

Year Cannabis Offenses (trafficking, cultivation, possession) Cannabis
Possession

1984 43,917 35,587

1985 43,803 34,665

1986 41,514 31,766

1987 43,072 30,856

1988 40,484 29,637

1989 40,740 29,119

7. Although the general tendency appears to have been towards progressively
greater leniency in sentencing cannabis users (i.e. those convicted of
simple possession), it must be noted that over 2000 people were
incarcerated for simple possession in 1981. Since the introduction of the
discharge provisions of the Criminal Code in 1972, there has been
considerable variation in the employment of this sentencing option, and
other sentencing options, from province to province and from year to year.
Since 1970, the absolute discharge has been used in less than 10% of cases
in Manitoba, British Columbia and Quebec, whereas, in 1983, 32% and 38% of
those convicted in Ontario and Manitoba were so sentenced. The Canadian
average at that time was 21%. The fine was used in 44% of all cases in both
Ontario and Manitoba at this time, whereas the fine was used in 74% of all
cases in Alberta. Prison sentences have been used more frequently in Quebec
than elsewhere, consistently comprising over 20% of all convictions (rising
to 32% in 1983).

8. Attached hereto to this my affidavit as Exhibit "F" is a copy of the
publication of the Bureau of Dangerous Drugs, Department of Health and
Welfare, Restricted Drugs Statistics 1984, in which incarceration rates for
cannabis possession offences are summarized. The it number of custodial
terms for the period of 1980 to 1984 is as follows:

Dispositions Resulting in Incarceration under section 3(1) of the Narcotics
Control Act-Canada 1980 to 1984

Year 1 mo to 1 year 1 to 2 years 2 to 5 years 10 to 20 years Indefinite
Life Other Total

1980 1494 28 2 - 8 1 468 2001

1981 1985 35 5 - 13 - 432 2470

1982 1989 36 2 - 7 - 281 2315

1983 1765 45 5 - 7 - 248 2070

1984 1606 28 2 1 5 2 141 1785

Range: 1785(1984) to 2470(1981) people were incarcerated

Average: 2128 on average from 1980 to 1984 were incarcerated for possession

Dispositions resulting in incarceration for offences under section 3(1) of
the Narcotics Control Act as percentages:

Year Total Dispositions Total Incarcerations Percentage

1980 35,225 2001 5.7%

1981 37,041 2470 6.7%

1982 28,133 2315 8.2%

1983 23,000 2070 9%

1984 20,203 1785 8.8%

While the number of people being incarcerated for simple possession was
decreasing during this period, the actual rate of incarceration for simple
possession was rising. In 1981, the highest number of dispositions resulted
in an incarceration rate of 6.7%. In 1984, the total number of custodial
terms was down, but the percentage of those being incarcerated rose to 8.8%.

9. Unfortunately, it is impossible to provide current figures for the rate
of incarceration for cannabis offences because in 1985, the Bureau of
Dangerous Drugs decided to exclude from its statistical reports all figures
specifically relating to cannabis possession offences. This decision to
stop compiling cannabis possession offence statistics was said to be a
matter of budgetary constraints. However, the Bureau still collects this
data. Social scientists such as I have been left to wonder what the real
reason is for the government's decision to leave cannabis possession
offence statistics unpublished.

10. In my article, Case Law and Drug Convictions: Testing The Rhetoric of
Equality Rights, I concluded, based upon the data available until 1984,
that there is a pronounced variability in provincial interpretations of
criminal procedure. To be more specific, there are substantial differences
across Canadian provinces in the use of withdrawals, stays in drug charges
per capita, and in the use of fines, discharges and imprisonment with
respect to the offence of cannabis possession. These are not differences
which can be explained by provincial variations in rates of use, nor by
provincial variations in the nature or logic of illegal drug use of
distribution.

Sworn before me at )
Bowen Island in the )
Province of British )
Columbia, this 1st Day )
of April, 1997 )
Neil
Boyd