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R. v. Marshall, [1969] 3 C.C.C. 149 Alberta Supreme Court, Appellate Division

In February 1968, 16-year-old Daniel Joseph Marshall of Calgary travelled as a passenger by car with friend to Vancouver for a weekend holiday. On the way back to Calgary, according to his own testimony, Marshall knew that marijuana was being smoked, saw others smoking it, and passed the pipe for them to smoke it. An RCMP officer stopped the car near Golden, British Columbia, for speeding and requested the boys follow him into Golden. The boys complied, throwing the marijuana out of the window as they started to follow. The alleged owner of the marijuana was detained in Golden because he did not have any identification or a driver’s licence with him. The other boys were free to continue their trip. Although he could have left the car at this point, Marshall remained with the group because he had no money and had to get back to classes. Retracing their journey, the boys stopped to retrieve the marijuana. Shortly thereafter, they also picked up a hitchhiker.

Just outside Calgary, the car was pulled over because of a faulty headlight. The police discovered more than a kilo of marijuana, along with a hookah pipe used for smoking it. With the exception of the hitchhiker, the boys were arrested and charged with unlawful possession of marijuana for the purpose of trafficking, contrary to the provisions of s. 4, ss. 2 of the Narcotic Control Act. All four were found guilty on the basis of s. 3(4)(b) of the Criminal Code, which defines possession. Section 3(4)(b) states

where one or two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
Marshall admitted to knowledge. The trial judge considered Marshall’s actions of remaining in the car in Golden, when he might have made other arrangements to get back to Calgary from that point, along with the fact that his passing of the hookah (although he did not use it), constituted consent. With both knowledge and consent requirements satisfied, the judge found Marshall guilty. Marshall appealed his conviction to the Supreme Court of Alberta.

The Alberta Supreme Court agreed that Marshall had knowledge of the marijuana, but not that he had consented to it. Indeed, the Court held that Marshall, in choosing to continue his trip, “did not consent or agree to, nor acquiesce in the presence of the drugs in the car. . . the consent was only as to riding in the car and not to the marijuana being there.” With regards to Marshall passing the pipe, the Supreme Court held that, “while it came very close to consent, [it] was almost a reflex action and did not constitute consent.” The Supreme Court then considered the question of whether Marshall was guilty of aiding or abetting. They determined that Marshall had no power to control the persons possessing the marijuana, nor was he the owner of the car. Therefore, he could not be guilty of aiding or abetting. The appeal was allowed and the conviction quashed.

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