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Clay was convicted for possession, cultivation and trafficking of marijuana. He argued that the laws prohibiting the possession of marijuana are contrary to s.7 of the Charter because they are too broad and limit the freedoms of users who "have not really done anything wrong", as he is not harming himself or anyone else.


  1. Is the prohibition of marijuana for personal use constitutionally invalid per s.7 of the Charter?


Appeal dismissed.


Clay argued that the laws are unconstitutional because they are too broad as they penalize people who "have not really done anything wrong". Gonthier and Binnie, for the majority, decide that this argument of overbreadth does not apply because marijuana use is not a constitutionally protected activity. They say that overbreadth can only apply where a criminal sanction is "grossly disproportionate" to the state interest involved. In this case they decide that prohibiting marijuana growth is not "grossly disproportionate" to the desire to avoid harm of users and others from the use of marijuana and that it was the clear intent of Parliament to have a complete prohibition. Therefore the prohibition of marijuana is justified by the fundamental principles of justice.


In order for a prohibition to be deemed overly broad and therefore unconstitutional it must not be able to be justified by the principles of fundamental justice, and its effect must be "grossly disproportionate" to its purpose.