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 HANS-JORG ALBRECHT

I, HANS-JORG ALBRECHT (Ph. D.), of City of Dresden, in the Country of
Germany, MAKE OATH AND SAY AS FOLLOWS:

1. I am a Professor of Law at the Dresden University of Technology. I am
currently the Chair of Criminal Law at that university. Previously, I was
the Chair of Criminal Law at the University of Konstanz. As of March 1,
1997, I will be serving as the Director of the Max-Plank-Institute for
Foreign and International Criminal Law in Freidburg. I also act as editor
(or co-editor) of a number of legal and criminological journals including
the French journal, Deviance et Societe, the European Journal of Crime
Policy and Research, the European Journal of Crime, Criminal Law and
Criminal Justice and the German Journal, Monatsschrfi fur Kriminologie und
Straftechtsreform.

2. One of my areas of interest and expertise is in the field of the law of
drugs, both at the domestic and international levels. I have published
extensively in this field, with the bulk of my scholarship being in German.
However, I have published the following works in English: Criminal Law and
Drug Control, (1986) International Journal of Comparative and Applied
Criminal Justice 10; Criminal Law and Drug Control - A Look at Western
Europe, in Proceedings of the 34th International Congress on Alcoholism and
Drug Dependence (Alberta, 1986); Confiscation of the Proceeds of Drug
Trafficking - A Comparative View on Different Models of Confiscation and
Related Issues, in Korean Institute of Criminology: Measures for the
Deprivation of the Proceeds of Drug Trafficking (Seoul 1993); Drug Policy.'
A Commentary, in Crises in Normative Systems, Robert and Sack (ed.) (Paris,
1994); Drug Policies and National Plans to Combat Drug Trafficking and Drug
Abuse, in Policies and Strategies to Combat Drugs in Europe (Florence,
1995). In addition, Professor A. van Kalmthout and I were the co-editors of
Drug Policies in Western Europe (Friedburg, 1989).

3. In the past decade there have been numerous significant changes in
legislative policy in Western Europe and Australia with respect to the
prohibition on the use and possession of cannabis sativa. In this my
affidavit I will present a very brief outline of the changes in the
direction of decriminalization as it has occurred in Holland, Italy, Spain,
South Australia, the Australian Capital Territory and Germany.

4. Before 1976, Dutch law enforcement with respect to drugs was virtually
indistinguishable from the approach taken in other western liberal
democracies. However, in 1976 the Opium Act was amended to draw a strong
line of demarcation between "drugs presenting unacceptable risks" (i.e.
heroin, cocaine, amphetamines) and "traditional hemp products" (i.e.
hashish and marijuana). The amendments to this statute made possession of
up to thirty grams of cannabis a mere misdemeanour with a maximum penalty
of one month's imprisonment and/or a minimal fine. These penalties are
almost never enforced due to the "expediency principle".

5. One of the basic premises of Dutch Criminal Procedure is the
"expediency" principle enshrined in the Code of Criminal Procedure. This
principle empowers the Public Prosecutions Department to refrain from
bringing criminal proceedings if it is in the public interest not to
prosecute. Through the principle of expediency, the Dutch Government has
introduced the de facto legalization of use, possession and small-scale
trafficking in cannabis sativa, without having to amend the Opium Act.
Prosecutorial guidelines create a tacit policy of non-intervention in
cannabis dealing (of small amount of cannabis) by the so-called house
dealer ("kokerjuffer"), in the controlled setting of youth centres. The
house-dealer is permitted to sell cannabis products in a youth centre and,
in accordance with the guidelines, will only be prosecuted "when he
publicly projects himself as a dealer or runs his business provokingly in
other ways". "Coffee shop" proprietors have also emerged as de facto
licenced dealers in cannabis. The coffee shop dealer is permitted to sell
cannabis products subject to these guidelines: no sales to persons under 16
years of age, no promotion of business by advertisement, no sale of other
illegal drugs, and no sale to foreigners. Even these guidelines for coffee
shops are honoured more in their breach than in their compliance.

6. In 1995, the Ministries of Foreign Affairs, Health, Welfare and Sport,
Justice and the Interior, released a report entitled Drug Policy in the
Netherlands: Continuity and Change. In this report, the government
indicates that the decriminalization of cannabis has not led to any
increase in the use of cannabis by young persons. The report also indicates
that only a very small proportion of persons who use soft drugs make the
transition to hard drugs. With the exception of some concern over nuisance
and disturbances emanating from some coffee shops, the report concluded
that "given the relatively good results which have been achieved, we do not
believe that there is any reason for a fundamental re-examination of drugs
policy in the Netherlands". Attached hereto to this my affidavit as Exhibit
"A" is a copy of the report, Drug Policies in the Netherlands.

7. In Italy, there has been a movement towards replacing the criminal
sanctions for drug use and possession with an administrative sanction. In
1975, Article 80 was enacted, which provided that possessing a minor
quantity of controlled drugs for personal use would not be considered a
criminal offence. A 1990 amendment to Article 80 stipulated that anyone
found in possession of a minor amount of controlled drugs could be
classified as a "drug user". This person would be subject to an
administrative sanction if he or she failed to comply (several times) with
a treatment order issued by a competent authority. The administrative
sanctions would consist of a fine or community service. In 1993, a
referendum resulted in the abolishment of all remaining penal sanctions for
possession of any narcotic or psychotropic substance. Now, in any given
case it is incumbent upon the magistrate to determine if the drugs
possessed were for personal use or for drug dealing. (the administrative
sanction for personal use still remains in effect). Essentially, the
Italian drug laws put the drug user beyond the reach of criminal law by
creating drug law exemptions for possession, purchase and import of drugs
for personal use while still keeping the drug user under administrative
controls.

8. In Spain, a 1995 amendment to the Penal Code (articles 368-372)
stipulates that a criminal offence for drug possession is only established
upon proof of a subjective intent to traffick or facilitate drug use by
others. Possession of any illicit drug for personal use is no longer
subject to any criminal or administrative sanction.

9. The movement towards decriminalization can also be found in judicial
decisions. For example, in Switzerland, the Swiss Supreme Court ruled that
possession of large quantities of cannabis cannot constitute an "aggravated
drug offence". An aggravated drug offence carries increased penalties in
cases of possession of controlled drugs which pose serious health risks for
the populace. The Court concluded that even large quantities of cannabis do
not create this serious health risk which would require an increased
punitive response.

10. In Germany, public prosecutors have been given discretion to dismiss
minor cases of drug possession unconditionally or on condition that a fine
be paid or that community service bye completed. Prosecutors have used this
discretionary power dismiss minor drug cases in which the offender
purchased or was in possession of drugs for personal use. Each state has
developed its own guidelines as to when it would be permissible to dismiss
a drug case. Some states have adopted guidelines requiring non-prosecution
in cases involving 10-30 grams of cannabis as well as 5 and 1 gram of
heroin, while other states have not yet issued written guidelines.

11. In 1994, the German Constitutional Court was requested to evaluate the
constitutionality of German drug policy, in light of the fact that a number
of District Courts concluded that criminal penalties for possessing small
amounts of cannabis amounted to a clear violation of the German
Constitution. The Court considered the following arguments: 1) the
criminalization of possession of cannabis vi9lated the right to be treated
equally by state law, in that the states permit use and possession of more
dangerous substances such as alcohol and tobacco; 2) that criminalization
of cannabis possession violated the right to personal and individual
freedom; 3) that the right to privacy allows for consumption of illicit
drugs; and 4) that the criminalization of personal use and possession of
cannabis violates the principle of proportionality (i.e. with the principle
of proportionality it must be shown that a) the state intervention must be
able to achieve the goals set out by the legislative intervention; b) that
the intervention must be necessary and cannot be secured by less intrusive
means; c) if the intervention is both necessary and effective, then the
court must weigh the restrictions on liberty against the benefits resulting
from criminalization).

12. The German Constitutional Court concluded that the drug law did not, in
principle, violate the German Constitution. However, it also concluded that
the manner in which the drug law was enforced could violate the equality
principle and the principle of proportionality. In particular, the Court
expressed concern about the fact that non-prosecution policies in various
states were not uniform and should not be tolerated in the face of Article
3 of the German Constitution. Accordingly, the Court urged the Ministries
of Justice of the various states to implement uniform rules with respect to
non-prosecution of minor drug offences. More significantly, the Court
concluded that German drug policy did not violate the Constitution because
of the presence of the policy of non-prosecution. However, the Court held
that in cases involving the possession (i.e. purchasing and importation) of
small amounts of cannabis possessed for personal use only the risk of harm
is so small that the failure to implement a policy of non-prosecution could
violate the principle of proportionality. Therefore, the Court concluded
that the failure of a state to implement a policy of unconditional
dismissal or non-prosecution of minor cannabis offences could result in a
violation of constitutional rights. Attached hereto as Exhibit "B" is a
copy of the judgment of the German Constitutional Court as translated by
Professor Lorenz Bollinger of the University of Bremen.

13. Most recently, the state of Scheswig-Holstein (one of the northern
German states) has decided to apply to the Federal Health Authority for
implementation of a five year pilot project in which cannabis products will
be distributed through pharmacies. In this project, pharmacies will be
allowed to sell up to 5 grams of cannabis at one time, at a price slightly
above the black market price. After five years, the state will study the
impact of state distribution of cannabis on the rate of cannabis use in
that state. In addition, at the beginning of this year (1997) the Social
Democratic Party Faction in the Federal Parliament introduced a draft
statute which should serve to amend current narcotics law. According to
this draft (which immediately created serious conflicts in the political
system), Parliament will decriminalize possession of all kinds of drugs of
an amount which does not exceed the on average amount consumed per week per
person.

14. Beyond the recent European experience, there have been some dramatic
developments in two Australian states: South Australia and the Australian
Capital Territory. In 1987, in South Australia, and in 1992, in the
Australian Capital Territory, "expiation" schemes were introduced which
effectively have decriminalized the use and possession of cannabis. Under
these schemes, the police have the option of issuing an expiation notice to
anyone caught with a specified amount of cannabis instead of charging the
individual with a criminal offence. The expiation notice allows the
offender to pay a small fine and avoid being saddled with a criminal
record. In South Australia, the designated amount allowing for the issuance
of an expiation notice in lieu of a criminal charge is 100g of cannabis or
20g of cannabis resin. In addition, an expiation notice can be used for
someone cultivating up to 10 cannabis plants. In the Australian Capital
Territory, an expiation notice can be issued for 25 grams of cannabis or up
to five plants being cultivated.

Sworn before me at the )
City of Dresden in the )
Country of Germany, )
this day of March, )
1997 )
Hans-Jorg
Albrecht