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

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

-and-

CHRISTOPHER CLAY
Applicant

AFFIDAVIT OF MARIE ANDREE BERTRAND

I, MARIE ANDREE BERTRAND, of the city of Montreal, in the province of
Quebec, hereby MAKE OATH AND SAY AS FOLLOWS:

1. I am currently an Honorary Professor of Criminology at the University of
Montreal, having officially retired on June 1,1996, after having been a
member of faculty since 1967. At present, I am also a research associate
with the International Centre of Comparative Criminology. From 1988 to
present, I have been acting as President of the International
Anti-Prohibitionist League in Brussels. Attached hereto as Exhibit "A" is a
copy of my curriculum vitae.

2. I was a member of the Commission of Inquiry into the Non-Medical Use of
Drugs (hereinafter the "LeDain Commission") from 1969-1973, and in that
capacity I authored three minority reports. My reports can be found in the
1970 Interim Report, the 1972 Cannabis Report and the 1973 Final Report.

3. Controversy over drug use and its handling by governments has led to
numerous global public inquiries. During this century, the governments of
Canada, Britain, India, United States and Australia have commissioned
various studies on cannabis (the majority of the studies being conducted in
the latter half of the century). These governmental reports by independent
groups have come to similar conclusions regarding the use and effects of
cannabis. In general, these reports have concluded that use and possession
of marijuana should not be the subject of criminal sanction, although there
have been a few inquiries which have not supported the decriminalization of
cannabis use and possession. Despite the emerging consensus on the need to
decriminalize cannabis use and possession, these reports have had very
little impact on government policy.

4. I have knowledge and understanding of the history of Commissions and
other Public Inquiries which have studied legal, medical and sociological
issues relating to cannabis use.

5. In 1893, the Government of India appointed the Indian Hemp Drugs
Commission to ascertain whether the consumption of cannabis is harmful.
This inquiry remains one of the most thorough general studies of cannabis
ever conducted, although it has also been noted that the Canadian LeDain
Commission is one of the most exhaustive and scientifically reliable
studies to date. The scientific reliability of the LeDain Commission was
enhanced by the fact that its research employed control groups (i.e.
comparing user populations vs. non-user populations), whereas many of the
early reports, such as the Indian Hemp Drugs Commission, did not employ
control groups. In investigating the effects of hemp, the Indian Hemp Drugs
Commission concluded that "the moderate use of cannabis produces no
injurious effects on the mind" [p.264], and that excessive use was
exceptional in that particular cultural and historical context even though
the drug was popular and culturally accepted within certain social strata.

7. That the Indian Hemp Drugs Commission analyzed the relationship between
cannabis and aggression, violence and crime. With respect to the person's
relationship with society, the commission concluded that "for all practical
purposes it may be laid down that there is little or no connection between
the use of hemp drugs and crime." [p.264]

8. In 1944, in New York City, Mayor La Guardia established a committee
(hereinafter the "LaGuardia committee") to investigate the effects of
cannabis on intellectual functioning. Their - findings refuted many of the
United States government's claims of that time that cannabis had adverse
affects.

9. The LaGuardia Committee examined 48 cannabis users in New York who had
been smoking regularly and concluded that: "there is definite evidence in
this study that the marijuana users were not inferior in intelligence to
the general population and that they had suffered no mental or physical
deterioration as a result of their use of the drug." [p.141]

10. The LaGuardia Committee studied the theory that cannabis incited people
into performing antisocial acts, but they did not observe any aggression in
subjects to whom cannabis was given.

11. In 1967, the President's Commission on Law Enforcement and
Administration of Justice (hereinafter the "President's Commission") was
created in the United States. The President's Commission recommended that
opiates and cannabis have separate legal classifications. The Commission
also reported that opiates are physically addictive while cannabis is not.

12. The President's Commission critically examined the charge that cannabis
leads to the use of addicting drugs and concluded that there is no
scientific basis for such a theory.

13. In 1968, the British government commissioned the report by the
Advisory Committee on Drug Dependence (hereinafter the "British Report").
That report recommended removing cannabis from the same schedule as heroin
and other opiates. It also recommended that possession of cannabis should
not be punishable by imprisonment and that cannabis should be available
from pharmacists.

14. The British Report evaluated criminal, sexual and aggressive behaviour
as a result of cannabis use and concluded that "there is no evidence that
taking cannabis in any special way stimulates behaviour of this kind. If
cannabis is taken, it is not because it supplies the spark of what would
otherwise catch fire." [p.30]

15. In 1972, the American government commissioned The President's
Commission on Marijuana and Drug Abuse (hereinafter the "Shafer
Commission"). The Shafer Commission recognized "the extensive degree of
misinformation about marijuana as a drug." [p.167]

16. The Shafer Commission recommended that cannabis no longer be classified
as a narcotic. The Commission further recommended that neither possession
for personal use, nor casual distribution of small amounts of cannabis for
no remuneration, should be offences under Federal law. The commission also
recommended that State law should not allow possession of cannabis for
personal use to be an offence. Finally, the Commission recommended that
casual distribution in private, for no remuneration, should no longer be an
offence.

17. The Shafer Commission described cannabis as a problem in this manner:
"considering the range of social concerns in contemporary America,
marijuana does not, in our considered judgment, rank very high. We would
de-emphasize marijuana as a problem." [p.167]

18. The Shafer Commission recommendations were based on two specific
findings. The first being that "marijuana does not cause violent or
aggressive behaviour; if anything marijuana generally serves to inhibit the
expression of such behaviour. The Commission's second finding was that
marijuana is not addictive. The Commission stated: "In a word, cannabis
(marijuana) does not lead to physical dependence."

19. In 1979, the Australian Government commissioned a study titled "The
Non-Medical Use of Drugs - South Australia" (hereinafter the "Australia
Report"). The study provided the government with two alternatives to
consider, which accorded with those views expressed by the Canadian LeDain
Commission. It advised the government to consider Partial Prohibition,
where the possession or cultivation for personal use would no longer be an
offence, but trafficking would remain an offence. Secondly, the Commission
recommended the Regulatory Model which would place cultivation and
marketing of cannabis under governmental control.

20. The Australia Report made numerous findings regarding the
pharmacological and medical effects of cannabis. First, it was established
that cannabis is "not an addictive drug"[p.96]. Further, the Commission
analyzed the medical uses of cannabis and concluded that: 1)cannabis is
effective in its treatment of glaucoma; and 2)"of potentially greater
significance, is the recent finding that THC inhibits the growth of some
types of cancer in tissue culture." [p.116]

21. The Australia Report assessed the evidence and concluded that "some
modification of the policy of total prohibition is warranted". The
Commission recommended that simple possession and that personal use of
cannabis should not be a criminal offence. However, the Commission did
recommend that possession with the intent to sell or distribute should
remain a criminal offence.

22. The only comprehensive study ever conducted in Canada regarding the use
and effects of cannabis was the Inquiry Into the Non- Medical Use of Drugs
(hereinafter the "Le Dain Commission) headed by Honourable Mister Justice
Gerald Le Dain, and commissioned by the Canadian Government in 1969. That
inquiry was commissioned in response to concern over the growing use of
cannabis and other hallucinogenic drugs by young people. The Terms of
Reference entitled the Commission to make recommendations to the federal
government concerning legislative policy.

23. The purpose of the Le Dain Commission was to inquire into all factors
relating to the non- medical use of sedative, stimulant, tranquilizing and
psychotropic drugs to find out the extent of their use, the state of
knowledge about each drug, their effects and the problems surrounding them,
and finally to recommend what action should be taken by the government to
reduce the problems.

24. The reports of the Le Dain commission and its staff qualify as the most
extensive compendium to date of fact and opinion on a national drug situation.

25. The Le Dain Commission, held hearings in twenty seven cities across the
country, listening to grievances, accepting reports, gathering facts, and
carrying out its research, over a period of almost four years.

26. During those four years, the Le Dain Commission published four reports:
an interim report (1970), a final report on cannabis (1972), one on
treatment (1972) and one entitled Final Report (1973).

27. The Commission recognized that the use of cannabis in Canada was a
problem, but it was also recognized that the reliance upon the criminal law
to suppress it was in need of reform. The Commission found that the known,
probable and possible effects of cannabis did not justify the enforcement
policies that were in place. Further, the costs of a policy of prohibition
of simple possession, in general, were not justified by the potential harm
of cannabis. Accordingly, the Le Dain Commission recommended a repeal of
the prohibition against simple possession of cannabis.

28. The majority opinion further recommended that cultivation of cannabis
remain an offence, but that it should not be a punishable offence unless it
was cultivation for the purpose of trafficking.

29. The Le Dain Commission outlined the benefits of cannabis for industrial
and medicinal purposes.

30. The Le Dain Commission concluded that the risk of prosecution for
simple possession had relatively little deterrent. As a result, it was
recommended that cannabis should not be grouped with opiates and that
simple possession should not be a criminal offence. That conclusion was
based on the premise that cannabis is less dangerous than previous policy
had made people understand.

31. On the question of removing marijuana from the narcotic schedule, the
Le Dain Commission recommended placing marijuana under the Food and Drugs
Act, "since cannabis is clearly not a narcotic" [p. 249, Interim Report].

32. The Le Dain Commission also studied the possibility of eliminating the
offence of possession for all psychotropic drugs. The report did not
recommend this as a proposal since it was believed that this offence was
necessary for the effective suppression of trafficking. At the same time
the Commission concluded, "no one should be liable to imprisonment for
simple possession of a psychotropic drug for non-medical purposes" [p. 242,
Interim Report]. Accordingly, the Commission recommended revising the
Narcotic Control Act and the Food and Drugs Act so as to remove the option
of the Crown proceeding by indictment. Furthermore, it was recommended that
the penalty for simple possession should not exceed a maximum fine of one
hundred dollars. It was advocated that police, prosecutors, and judges
should "exercise the discretion entrusted to them....so as to minimize the
impact of the criminal law upon the simple possession of psychotropic
drugs" (p.243, Interim Report).

33. The Le Dain Commission's final recommendation was for an absolute
discharge for first offenders found guilty of simple possession. This
procedure, which had been recommended to the government by the Canadian
Committee on Corrections (the Oulmet Report, 1969), in regard to general
criminal offences, would allow a court to grant an absolute discharge, with
or without conditions, upon finding a person guilty.

34. I led a minority dissent opinion and recommended that the offence of
simple possession of cannabis be abolished entirely.

35. The opinion of the majority of the Le Dain Commission did not recommend
the legalization of cannabis distribution through a federal-provincial
agreement. As a result, I dissented from the majority opinion of my
esteemed members of the Commission and recommended a policy of legal
distribution of cannabis.

36. The Le Dain Commission undertook experimental projects analysing the
acute effects of cannabis in humans. It was concluded that "few acute
physiological effects have been detected. Those which have been identified
generally seem to have little clinical significance" [p. 114, Final Report].

37. The Le Dain Commission examined the police theory that marijuana use
leads to heroin use. As Commissioners, "we found that cannabis plays a part
in multiple drug use and must be considered as one factor contributing to
the growth of multiple drug use". However, we estimated that less than one
percent of all cannabis users "progress" to heroin use.

38. The Le Dain Commission examined the charge that cannabis contributes to
other criminal activities. The Commission concluded that "there is no
scientific evidence that cannabis use, itself is significantly responsible
for the commission of other forms of criminal behaviour" [p. 110, Final
Report.] As commissioners, we felt that marijuana use should be
discouraged, but that the punishments existing under the Narcotic Control
Act were much too severe for the seriousness of the crime.

39. It was further held that although trafficking and possession for the
purpose of trafficking should still be prohibited, there should be an
option for the Crown to proceed by Summary Conviction or by Indictment.

40. The Le Dain Commission conducted comparative studies between tobacco
smokers and cannabis users and concluded that "regular tobacco smokers
generally consume much greater quantities of plant material than do chronic
cannabis users" [p.l 15].

41. When the Le Dain Commission explored the physical and mental effects of
cannabis, it concluded that the effects of cannabis "at the levels of use
presently attained in North America, would appear to be much less serious
than those which may result from excessive use of alcohol." [p.267].
Further, the Commission concluded that the "short term physical effects of
cannabis are relatively insignificant on normal persons and there is as yet
no evidence of serious long term physical effects from use at current
levels of consumption in North America" [p.267].

42. The Le Dain Commission concluded that very few cannabis users in Canada
have ever required medical or psychological treatment as a consequence of
cannabis use. It was further concluded that smoking cannabis produced no
serious personal problems, nor did it result in criminality. Conversely, it
was found that "many users of cannabis exhibit high ethical standards" [p.273].

43. After observing and analysing the clinical experiments and control
studies on cannabis users, and having carefully studied the longitudinal
studies done by others in Canada, U.S. and mostly in the Netherlands by
Peter Cohen and his team at Amsterdam University, I have come to the
conclusion that the probable consequences of legalization of cannabis will
be less harmful than the evils of prohibition. I have further concluded
that the cost of prohibition is very expensive economically, socially and
morally. I believe that if cannabis remains illegal, the necessity of
people dealing in an illegal market will foster criminality among users. I
believe that imprisoning individuals convicted of cannabis offences is
particularly stigmatizing and dysfunctional as it places the cannabis user
or "exchanger" in a criminalized environment.

44. I further believe that there is inequity of the enforcement system, as
the system, even at its harshest, still fails to reduce cannabis use and
trafficking. Scientific literature does not conclusively demonstrate that
cannabis causes any physical or mental problems. As a result, in the
minority, I recommended a policy of legal distribution of cannabis as it
would have fewer harmful consequences than prohibition.

45. Despite the Le Dain Commission's recommendations, there have not been
any amendments to diminish the scope of the Narcotic Control Act. The
maximum penalties remain the same with a maximum sentence of life
imprisonment available for trafficking in cannabis and a maximum sentence
for possession of cannabis remaining at seven years (if the offence is
proceeded upon by way of indictment).

46. Two years after the Le Dain report, Bill S-19 was introduced, which
would have made the possession of cannabis a summary offence only, moved
cannabis out of the Narcotics Control Act and into the Food and Drugs Act,
reduced the penalties for all offences but cultivation, and provided
automatic pardons for all first offenders given a discharge for possession.
However, this Bill was never assented to, nor has it ever been resurrected,
leaving the possession laws in the same state as before the Le Dain Commission.

47. Cannabis continues to be classed with the opiate narcotics and cocaine.
The cultivation of the marijuana plant is still an indictable offence with
a maximum seven year sentence. Possession of the plant is a hybrid offence
with a maximum seven year sentence when the offence is proceeded upon by
way of indictment.

48. Having reviewed all the various reports, and having participated in the
Canadian LeDain Commission, I have concluded that all inquiries or
commissions from the 1940's to the 1980's (except the Pelletier Report from
France and the New Zealand report) have come to similar conclusions. In a
nutshell, these reports determined that:

1) the assimilation of marijuana with the opiates is a misnomer and
misleading, and that legislatures should follow proper pharmacological
classification in reforming their legislative approach;
2) the use of cannabis, even frequent or regular use, is not conducive to
violent behaviour nor it is associated with habitual criminality;
3) there is no clear relationship between the use of cannabis and that of
stronger opiates.

49. Although the uniform conclusions reached by these various reports have
had little impact on law reform in North America, it is apparent that these
reports have had an influence on European drug policy. In Holland, there
has been a de facto legalization of marijuana use, possession and exchange
of small quantities for many years with cannabis being available for
purchase in many Dutch cafes. Both Spain and Italy have effectively
decriminalized use and possession of cannabis by treating cannabis
possession as a mere administrative offence (Italy) or by permitting
private consumption and private possession of cannabis in one's home
(Spain). Other recommendations towards decriminalization and a policy of
harm reduction (as opposed to simple prohibition) are being considered
throughout Europe.

SWORN before me at the )
City of Montreal in the )
Province of Quebec on this )
day of March, 1997. )
MARIE
ANDREE BERTRAND