[ql06] Re: CRIMINAL: Pot -- OCA strikes back
- From: "Ken Campbell -- LAW'06" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Wed, 15 Oct 2003 20:01:32 -0400
I'm sorry, I meant to answer this last week, Sheldon, but I had to split
Thursday for a long Thanx-g weekend. Since being back, just trying to
catch up on everything.
Sheldon wrote:
>One thing that confuses me about this article is the
>impression that the judges re-wrote the law. This
>can't be the case, can it?
I had thought that was weird, too.
(Tracey Tyler was not at her best in writing this article; it's unclear
in places, and certainly could do with a rewrite. She was probably
rushed.)
But it seems the court _is_ re-writing the law -- at least as I read the
actual Ontario Court of Appeals decision. I attach it at the end of this
email.
Under what authority did they do that?
Wellllll, it seems to be based on this logic (my quick reading of it, I
could be wrong):
1. The fed government has set up a situation where over-the-counter
supply is limited, but the black market is plentiful. The government
counsel even admits patients are free to visit the black market.
2. Forcing patients to use the black market ain't right.
3. So this problem has to be fixed.
4. BUT... there are people dying out there right now and they should
not be made to wait for the legislature and the courts to figure it all
out. [See paragraphs 166 and 167 -- the latter being the invocation of
something Lamer said.]
5. So, in the interests of immediacy (and while all that other stuff
is being worked out), here's our solution.
And, into that mix, the old law on non-medical possession is somehow
reinstated.
Let me know what you can read into it...
Ken.
P.S. I mentioned I was surprised to see Chris Clay is a party to a case
now before the SCC. It deals with the constitutionality of the
criminalization of pot possession -- R. v. Clay (2000), 146 C.C.C. (3d)
276 (Ont. C.A.). That decision was where it stood before jumping to the
court of final appeal.
--
I believe drugs are of more use
to the audience than the artist.
-- Stanley Kubrick
--- cut here ---
[2003] O.J. No. 3873
Docket Nos. C39532, C39738 and C39740
Ontario Court of Appeal
Toronto, Ontario
Doherty, Goudge and Simmons JJ.A.
Heard: July 29-31, 2003.
Judgment: October 7, 2003.
(183 paras.)
[CONCLUSION]
¶ 162 As the record makes clear, there are a number of people who
already have a source of marihuana and wish to engage in compassionate
supply of it to those in medical need. Indeed the Government's case
rested in large part on their existence. It argued that they effectively
serve as "unlicensed suppliers" for ATP holders. It may be that not all
of these people would satisfy the requirements to become DPL holders set
out in the MMAR. However, we are satisfied that, on this record, enough
would do so that taken together with existing DPL holders, the DPL
mechanism as modified could then provide a licit source of supply to ATP
holders. Once this modification is implemented, ATP holders would
therefore no longer need to access the black market to get the marihuana
they need.
¶ 163 Nor for DPL holders drawn from "unlicensed suppliers" is
there a "first seed" problem requiring that they enter the black market.
They already have their first seed. For future DPL holders who do not
have their first seed, the constitutional problem presented by their
need to access the black market once in order to get that first seed is
far less than the problem under the MMAR, where ATP holders themselves
are mostly unable to obtain designated producers and, not being healthy
enough to grow their own marihuana, must regularly and repeatedly access
the black market.
¶ 164 However, even this limited first seed difficulty would be
eliminated if future DPL holders who did not already have their first
seed could access the Government supply to obtain it. The regulation
that was brought into force on July 8, 2003 would appear to provide for
just that solution.
¶ 165 Taking these considerations together, we conclude that the
remedy which most directly addresses the constitutional deficiency
presented by the absence of a licit supply of marihuana is to declare
invalid sections 34(2), 41(b) and 54 of the MMAR. This will allow all
DPL holders to be compensated, to grow for more than one ATP holder, and
to combine their growing with more than two other DPL holders. Provided
that the regulation of July 8, 2003 remains in place and is acted upon,
there is no need to declare that the Government has a constitutional
obligation to provide the first seed to those DPL holders who do not
have one.
¶ 166 The declarations of invalidity we propose remove the single
unconstitutional barrier to eligibility and sufficient barriers to
supply that ATP holders will be reasonably able to meet their medical
needs from licit sources. As a result, the MMAR as modified become a
constitutionally sound medical exemption to the marihuana prohibition in
s. 4 of the CDSA. While the record before us sustains this conclusion,
it is conceivable that, as events unfold, further serious barriers could
emerge either to eligibility or to reasonable access to a licit source
of supply. Should that happen, the issue of the appropriate remedy might
have to be revisited in a future case.
¶ 167 The final question we must consider is whether to suspend our
declarations. We address this in the context of the guidance provided by
Lamer C.J.C. in Schachter v. Canada, [1992] 2 S.C.R. 679 at 717:
The question whether to delay the application of a
declaration of nullity should therefore turn not on
considerations of the role of the court and the
legislature, but rather on considerations listed earlier
relating to the effect of an immediate declaration on
the public.
¶ 168 Chief Justice Lamer was referring to any potential public
danger, threat to the rule of law, or denial of benefit to deserving
persons that could arise if there were no suspension. None are
applicable here. Indeed an immediately effective order would reduce any
potential public danger and the threat to the rule of law by providing
ATP holders with an effective alternative to the black market.
¶ 169 Not only is the suspension of our order not justified under
the ratio of Schachter. There are five factors specific to this case
which weigh against any suspension of our order. As will be apparent,
these considerations have also shaped the scope of our remedy albeit
viewed from a somewhat different perspective. Viewed in that context,
they speak to the targeted declaration we have determined to be
appropriate. Viewed in the context of the timing of that declaration,
they also speak against any suspension.
¶ 170 First, if we do not suspend our order, there will immediately
be a constitutionally valid exemption in effect and the marihuana
prohibition in s. 4 of the CDSA will immediately be constitutionally
valid and of full force and effect. In R. v. Parker, supra, this court
declared the prohibition invalid as of July 31, 2001 if by that date the
Government had not enacted a constitutionally sound medical exemption.
Our decision in this case confirms that it did not do so. Hence the
marihuana prohibition in s. 4 has been of no force or effect since July
31, 2001. Since the July 8, 2003 regulation did not address the
eligibility deficiency, that alone could not have cured the problem.
However, our order has the result of constitutionalizing the medical
exemption created by the Government. As a result, the marihuana
prohibition in s. 4 is no longer inconsistent with the provisions of the
Constitution. Although Parliament may subsequently choose to change it,
that prohibition is now no longer invalid, but is of full force and
effect. Those who establish medical need are simply exempted from it.
This consequence removes the cloud of uncertainty from the marihuana
prohibition in s. 4 of the CDSA - a cloud which we were told in argument
has created very considerable confusion for courts and law enforcement
agencies alike. A suspension of our remedy would simply have continued
that undesirable uncertainty for a further period of time.
¶ 171 Second, in argument, counsel for the Government strongly
urged that if we found the MMAR to be constitutionally flawed, we should
be as precise as possible in specifying the corrective measures to be
taken. Our remedy quite precisely determines the barriers in the MMAR
which, if removed, would render it a constitutionally sound medical
exemption to s. 4 of the CDSA. Our order represents a minimal intrusion
on the Government's scheme of medical exemption. It leaves untouched the
licensed possession aspect of the scheme and modifies the licensed
production aspect of it only enough to make it constitutionally
acceptable.
¶ 172 Third, we acknowledge that the Government could choose to
address the constitutional difficulty by adopting an approach
fundamentally different from that contemplated in the MMAR. The
alternatives range from the Government acting as the sole provider, to
the decriminalization of all transactions that provide marihuana to an
ATP holder. Indeed, even if the Government is content with the solution
contained in the MMAR as modified by our order, it may seek to impose
reasonable limits, provided they do not impede an effective licit
supply, for example on the amount of compensation that a DPL holder can
claim or on the size of the operation that a DPL holder can undertake.
¶ 173 If the Government wishes to adopt any of these alternatives,
that decision could be taken quickly, given the obvious thought that has
gone into the development of its policy on the medical use of marihuana.
Moreover, it can easily be implemented with dispatch, simply by
regulation. An amendment to the CDSA is not necessary. [See Note 12
below] In the meantime, the constitutional rights of those in medical
need will be respected.
¶ 174 Fourth, a central component of the Government's case is that
there is an established part of the black market, which has historically
provided a safe source of marihuana to those with the medical need for
it, and that there is therefore no supply issue. The Government says
that these "unlicensed suppliers" should continue to serve as the source
of supply for those with a medical exemption. Since our remedy in effect
simply clears the way for a licensing of these suppliers, the Government
cannot be heard to argue that our remedy is unworkable.
¶ 175 Finally an order that is not suspended gives immediate
recognition to the s. 7 rights of those whose serious illnesses
necessitate that they use marihuana. Some of these people are terminally
ill. To suspend our remedy if they may die in the meantime is, in our
view, inconsistent with fundamental Charter values.
¶ 176 In summary, we would dismiss the Government's appeal and
allow the cross-appeal of the Hitzig applicants, but only in one
specific respect. However, because of our conclusion about the proper
remedy, we would alter the judgment appealed from by setting aside its
first two paragraphs and substituting an order declaring that the second
specialist requirement (s. 4(2)(c) and s. 7) and sections 34(2), 41(b)
and 54 of the MMAR are of no force and effect. We would not disturb the
order as to costs made below nor order costs in this court.
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