R. v. Dunn, [1982] 2 SCR 677

Supreme Court of Canada

R. v. Dunn, [1982] 2 S.C.R. 677

Date: 1982-11-23

Her Majesty The Queen Appellant;

and

Barry Wayne Dunn Respondent.

File No.: 16675.

1982: May 4; 1982: November 23.

Present: Ritchie, Dickson, Beetz, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Drug trafficking—Restricted drug occurring naturally in “magic mushrooms”—Restricted drug indicated to the object of sale—Acquittal given at close of Crown’s case—Whether or not respondent guilty of trafficking—Food and Drugs Act, R.S.C. 1970, c. F-27, ss. 40, 41, 42.

Respondent was charged with trafficking in a restricted drug, Psilocybin, pursuant to s. 42(1) of the Food and Drugs Act. Undercover police officers had purchased “magic mushrooms”—mushrooms in which Psilocybin occurs naturally—from him, and the conversation clearly indicated Psilocybin to be the object of the sale. The Crown appealed the acquittal of respondent given at the conclusion of the Crown’s case. The County Court and the Court of Appeal both upheld that verdict.

Held: The appeal should be allowed.

A properly instructed trier of fact could have convicted respondent of trafficking in Psilocybin on the evidence before him. The mushrooms contained Psilocybin, not merely its constituent elements. Respondent, knowing this, offered the mushrooms for sale at a price exceeding their value as food with the assurance that they were “good stuff”. The drug, even though contained in mushrooms, was still restricted and the subject of a conviction of unlawful possession. To be unlawful, however, there must be present a knowledge of the nature of the substance possessed.

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R. v. Parnell (1979), 51 C.C.C. (2d) 413; R. v. Cartier (1980), 54 C.C.C. (2d) 32, distinguished; Director of Public Prosecutions v. Goodchild, [1978] 2 All E.R. 161, referred to.

APPEAL from a judgment of the British Columbia Court of Appeal, June 5, 1981, dismissing an appeal from a judgment of the County Court of Vancouver Island, dismissing an appeal from an acquittal rendered by Metzger P.C.J. Appeal allowed.

S. David Frankel, for the appellant.

Edward A. Holekamp, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—In this appeal the Crown seeks to have the Court consider and overrule a judgment of the Court of Appeal of British Columbia in R. v. Parnell (1979), 51 C.C.C. (2d) 413, and that of the Court of Appeal for Alberta in R. v. Cartier (1980), 54 C.C.C. (2d) 32. These cases held that mere possession of the substance known as Psilocybin, as an integral part of the plant in which it is found in nature, cannot support a conviction for possession of a restricted drug contrary to s. 41(1) of the Food and Drugs Act, R.S.C. 1970, c. F-27. The British Columbia Court of Appeal in reaching its conclusion in Parnell accepted the reasoning of Lord Diplock in Director of Public Prosecutions v. Goodchild, [1978] 2 All E.R. 161, a case involving charges of possession of various hallucinogenic substances known as cannabinol derivatives in parts of the cannabis plant in the form in which the substance appears in nature.

The facts may be simply stated. The respondent was charged with trafficking in a restricted drug, pursuant to s. 42(1) of the Food and Drugs Act, in Courtenay, British Columbia, to two under-cover R.C.M.P. officers on November 22, 1980. The

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information was in these terms:

…on or about the 22nd day of November, 1980, at or near the City of Courtenay in the County of Nanaimo, in the Province of British Columbia, did UNLAWFULLY traffic in a restricted drug, to wit:

3-(2-(Dimethylamino)ethyl)-4-phosphoryloxyindole (Psilocybin),

CONTRARY TO THE FORM OF THE STATUTE IN SUCH CASE MADE AND PROVIDED:

The Crown proceeded summarily. The evidence revealed that Dunn met the police officers by a previous arrangement in the parking lot of a hotel. There the respondent produced a one‑pound bag of mushrooms, which it was later shown contained the drug Psilocybin, and it was agreed that it would be sold to the undercover officers for $3,000. A conversation took place from which it was clear that the vendor was selling and that the purchaser was buying Psilocybin. This conversation between the respondent and the undercover police officers included these comments:

Respondent:	This is a pound. We weighed it out with the scales.
Lefler:	You’re sure of that, eh?
Respondent:	Yeah.
Constable Lefler then examined the bag of mushrooms.
Lefler:	So this is the Psilocybin shit, eh.
Respondent:	Yeah, that’s the stuff. Why don’t you try a chew.
Lefler:	No thank you. I don’t do that, it makes me sick. I’m only in this for the money. Dennis may want to.
Constable Lefler then handed the bag to Constable Boissonnault who examined it.
Boissonnault:	(to Lefler) Well, Russ, you’d better get the money.
Boissonnault:	(to the Respondent) You’re sure this is good stuff.
Respondent:	Why don’t you chew on a few, five or six. That’s for $3,000.00.

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The money was produced and at that moment other police officers arrived on the scene and the respondent was arrested.

Throughout these proceedings it had been agreed by all parties that Psilocybin is a restricted drug listed in Schedule H to the Food and Drugs Act, that it appears in nature in some types of mushrooms, several of which grow wild in British Columbia, and that the mushrooms offered for sale in the case at bar did contain the drug Psilocybin. At trial the respondent at the conclusion of the Crown’s case moved for a dismissal of the charge on the basis that no evidence had been adduced to support the charge. The provincial court judge, following the Parnell case, supra, allowed the motion and acquitted the respondent. An appeal to the County Court was dismissed on the same basis as was a further appeal to the British Columbia Court of Appeal. The matter comes before us and the Crown asks us to review and overrule Parnell and Cartier.

Because of the way the matter was disposed of in the courts below, there are few findings of fact for the assistance of the Court. There was evidence from an expert that the mushrooms contained Psilocybin which could be extracted from the mushrooms in a somewhat complicated process. As I understand it, the expert evidence on this question was that the drug is found in the mushrooms in its free form. In argument before this Court counsel for the respondent agreed that this was so. I therefore conclude that the actual compound known as Psilocybin, not merely the constituent elements from which it could be chemically produced, exists in the mushrooms, and that its hallucinogenic effects may be obtained by chewing or eating the mushrooms.

Part 4 of the Food and Drugs Act deals with restricted drugs. Section 40 of the Act, the first section in Part 4, provides:

40. In this Part

“possession” means possession as defined in the Criminal Code;

“regulations” means regulations made as provided for by or under section 45;

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“restricted drug” means any drug or other substance included in Schedule H;

“traffic” means to manufacture, sell, export from or import into Canada, transport or deliver, otherwise than under the authority of this Part or the regulations.

Schedule H appended to the Act lists the restricted drugs and includes:

3-(2-(Dimethylamino)ethyl)-4-phosphoryloxyindole (Psilocybin) or any salt thereof.

In Parnell Nemetz C.J.B.C., speaking for the court (Nemetz C.J.B.C, Aikins and Lambert JJ.A.), considered a case where a charge of possession resulted from the finding of a mushroom-like substance containing Psilocybin in the accused’s residence. He reached the conclusion that the simple possession of mushrooms containing the restricted drug as it occurs in nature would not support a conviction for possession. At p. 414 of the report he said:

There is no doubt that the mushrooms found in the possession of the respondent contained psilocybin, though there was no evidence of what quantity of the drug was present in the mushrooms. Counsel for the respondent submitted, first, that the mere possession of the substance psilocybin as an integral part of the natural plant cannot support a conviction for possession of a restricted drug, and, second, that in enacting s. 41(1) and Sch. (H), Parliament intended to prohibit only the possession of the separated crystalline chemical substance. After anxious reflection, and after considering the circumstances of this case, as outlined above, I conclude that the first submission is correct insofar as psilocybin is concerned. It is not necessary for me to decide to what extent the second submission is correct.

He found support in the reasoning of Lord Diplock in Director of Public Prosecutions v. Goodchild, supra, a case based on different English legislation, but expressing the same principle. He referred to the words of Lord Diplock at p. 166, where he said:

…the offence of unlawful possession of any controlled drug described in Sch 2 by its scientific name is not established by proof of possession of naturally occuring

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[sic] material of which the described drug is one of the constituents unseparated from the others.

He also found support in a comparison with the provisions of the Narcotic Control Act noting that in the Act where Parliament intended to prohibit possession of the plant as well as the drug it made specific provision for that result by naming the plant. He also expressed the view that the position adopted by the Crown, that is that mere possession of the plant containing the naturally occurring drug was sufficient to support a conviction for possession, would lead to an absurd result opening the door to prosecution of farmers and others who merely by an accident of nature might have growing upon their land the nefarious ‘magic mushrooms’.

Shortly thereafter the same question was presented to the Alberta Court of Appeal in R. v. Cartier, supra. McGillivray C.J.A. (McGillivray C.J.A., McDermid and Laycraft JJ.A.) reached the same conclusion that Nemetz C.J.B.C. expressed in Parnell, relying as well on the approach taken by Diplock L.J. in Goodchild, supra, and noting as well with apparent approval the remarks of the Chief Justice of British Columbia regarding the absurd result which could follow from the acceptance of the Crown’s submission.

There have been other cases referring to the question raised in this appeal from trial courts but the two appellate decisions, Parnell and Cartier, are the leading cases on the subject. The Parnell case in particular is sought to be overturned by the appellant.

The Crown’s contention is that to follow the Parnell and Cartier cases would be to render the Food and Drugs Act nugatory in this connection. It does not rely upon the concept of trafficking by holding out a substance to be a restricted drug but argues that the words of the Act and Schedule H are broad enough in themselves to include as a restricted drug mushrooms containing in their natural state the specifically restricted drug Psilo-

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cybin. The position taken by the respondent is essentially to support the Parnell and Cartier cases and to stress the fact that mushrooms containing Psilocybin are not mentioned as such in Schedule H and, therefore, cannot be classified as a restricted drug.

In approaching the construction of the relevant provisions of the Food and Drugs Act I must observe that the words employed are clear and unambiguous and in this case there seems to be no real difficulty in statutory interpretation. Section 40 provides in unmistakable language that possession means possession as defined in the Criminal Code. Reference to s. 3(4) of the Criminal Code describes the elements which must be shown to find possession. Section 40 also describes a restricted drug as “any drug or other substance included in Schedule H” and Schedule H specifically includes Psilocybin. Section 41 prohibits possession of a restricted drug and s. 42, which is the relevant section in this case, prohibits trafficking in a restricted drug.

In reaching his conclusion on the ‘no evidence’ motion the trial judge followed Parnell and decided that there was no evidence before him because Psilocybin contained in a mushroom is not listed in Schedule H as a restricted drug. The question which faced him, however, was not whether Psilocybin naturally occurring in a mushroom is listed in Schedule H but whether there was evidence before him upon which a properly instructed trier of fact could have found the respondent guilty of trafficking in Psilocybin which clearly is.

In the face of the evidence given at trial and the concession made by counsel for the respondent that Psilocybin, not merely the constituents from which it could be made, existed in the mushrooms, it could not be said that there was not some evidence of trafficking in Psilocybin. The mushrooms contained the drug. There was evidence that the respondent knew it and that he assured his prospective purchasers that it was ‘good stuff’, that

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he invited them to try it, and that he had offered a pound for sale for $3,000, which would tend to exclude the possibility that the mushrooms were to be sold for their value as food. In my opinion, it is impossible to come to any other conclusion than that there was evidence before the trial judge upon which a properly instructed trier of fact could have convicted the respondent of trafficking in Psilocybin and that the trial judge was in error in allowing the motion of no evidence.

While this disposes of the case at bar, it does not deal with the question raised by the cases of Parnell and Cartier. As indicated above, the case at bar was not seriously considered in the courts below on the merits because all the judges dealing with it considered that the Parnell case was decisive on the matter and that the considerations involved in the charge of trafficking did not differ from those involved in a possession charge. It will be apparent from what I have said that, in my opinion, the fact that Psilocybin may be contained within a mushroom does not destroy its character as a restricted drug under Schedule H of the Food and Drugs Act. It could therefore, in my view, be as much the subject of a conviction for possession as it could be for trafficking. If the Parnell case and the Cartier case go so far as to deny that proposition, then in my view, with the greatest respect for the learned judges involved in those decisions, I consider the cases were wrongly decided. I am not overlooking the absurdity argument which impressed the courts, but I would point out that what is prohibited with respect to possession is unlawful possession, not mere physical possession. To be unlawful there must be present a knowledge of the nature of the substance possessed. The farmer who unknowingly has ‘magic mushrooms’ growing on his land is not guilty of unlawful possession. It would seem to me that reason and common sense on the part of the authorities would protect him if on discovery of the nature of the mushrooms he took the necessary steps to have them destroyed. In any event we are not here concerned with a possession case. Our case is that of an accused charged with trafficking in Psilocybin in respect of whom evidence was placed before the trial judge that he had acquired the mushrooms, dried them, and offered to sell them at

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$3,000 a pound. As I have said above, there was evidence of trafficking before the learned judge and it was error to allow the motion of no evidence. I would therefore allow the Crown’s appeal and remit the matter to the trial court for the completion of the trial.

Appeal allowed.

Solicitor for the appellant: R. Tassé, Ottawa.

Solicitor for the respondent: Edward A. Holekamp, Courtenay.