r.v.smith supreme court of canada transcripts
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36059
SUPREME COURT OF CANADA
BETWEEN:
Her Majesty the Queen
v.
Owen Edward Smith
(B.C.) (Criminal) (As of Right)
***********
TRANSCRIPTION OF COMPACT DISC
Friday, March 20, 2015
***********
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APPEARANCES Party: Her Majesty the Queen Counsel W. Paul Riley Kevin Wilson Public Prosecution Service of Canada 900 - 840 Howe Street Vancouver, B.C. V6Z 2S9 t: 604-666-0704 f: 604-666-1599
Agent François Lacasse Director of Public Prosecutions of Canada 160 Elgin Street 12th Floor Ottawa, OntarioK1A 0H8 t: 613-957-4770 f: 613-941-7865
Party: Smith, Owen Edward Counsel Kirk I. Tousaw John W. Conroy, Q.C. Matthew J. Jackson Bibhas D. Vaze 4768 Fairbridge Drive Duncan, B.C. V9L 6N8 t: 604-836-1420 f: 866-310-3342
Agent Jeffrey W. Beedell Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, Ontario K1P 1C3 t: 613-786-0171 f: 613-788-3587
Party: Santé Cannabis Counsel Julius H. Grey Geneviève Grey Grey, Casgrain 1155 René-Lévesque Ouest Suite 1715 Montréal, Quebec H3B 2K8 t: 514-288-6180 Ext: 229 f: 514-288-8908
Agent Guy Régimbald Gowling Lafleur Henderson LLP 160 Elgin Street 26th Floor Ottawa, Ontario K1P 1C3 t: 613-786-0197 f: 613-563-9869
Party: Criminal Lawyers' Association (Ontario) Counsel Nader R. Hasan Gerald Chan Ruby Shiller Chan Hasan 11 Prince Arthur Ave. Toronto, Ontario M5R 1B2 t: 416-964-9664 f: 416-964-8305
Agent Guy Régimbald Gowling Lafleur Henderson LLP 160 Elgin Street 26th Floor Ottawa, Ontario K1P 1C3 t: 613-786-0197 f: 613-563-9869
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APPEARANCES Party: Canadian Civil Liberties Association Counsel Andrew K. Lokan Debra McKenna Paliare, Roland, Rosenberg, Rothstein, LLP 155 Wellington Street West 35th Floor Toronto, Ontario M5V 3H1 t: 416-646-4300 f: 416-646-4301
Agent D. Lynne Watt Gowling Lafleur Henderson LLP 160 Elgin Street Suite 2600 Ottawa, Ontario K1P 1C3 t: 613-786-8695 f: 613-788-3509
Party: British Columbia Civil Liberties Association Counsel Jason B. Gratl Gratl & company 601-510 West Hastings Street Vancouver, B.C. V6B 1L8 t: 604-694-1919 f: 604-608-1919
Agent D. Lynne Watt Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, Ontario K1P 1C3 t: 613-786-8695 f: 613-788-3509
Party: Canadian AIDS Society, Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario Counsel Paul K. Burstein Ryan Peck Richard Elliott Burstein, Bryant, Barristers 6 Adelaide Street East, 5th Flr Toronto, Ontario M5C 1H6 t: 416-927-7441 f: 416-488-9802
Agent Marie-France Major Supreme Advocacy LLP 100- 340 Gilmour Street Ottawa, Ontario K2P 0R3 t: 613-695-8855 Ext: 102 f: 613-695-8580
Party: Medicinal Cannabis Patients' Alliance of Canada Inc. Counsel Marie L. Cassis 5 Viewpointe Private Ottawa, Ontario K1V 1M5 t: 613-698-9523 f: 613-733-1319 Party: Marc Boyer for Vancouver Quadra Electoral District Association for the Marijuana Party This party is not represented by counsel.
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TABLE OF CONTENTS PAGE
Argument for the Appellant, Her Majesty the Queen by Mr. Riley, Q.C. 1 Argument for the Respondent, Owen Edward Smith by Mr. Tousaw 52 Argument for the Intervener, Criminal Lawyers’ Association (Ontario) by Mr. Chan 94 Argument for the Intervener, Canadian Civil Liberties Association by Mr. Lokan 98 Argument for the Intervener, British Columbia Civil Liberties Association by Mr. Gratl 102 Written submissions only for the Intervener, Santé Cannabis by Mr. Grey n/a Written submissions only for the Interveners, Canadian AIDS Society, et al No one appearing n/a Reply Argument for the Appellant, Her Majesty the Queen by Mr. Riley, Q.C. 105
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Ottawa, Ontario 1
--- Upon commencing on Friday, March 20, 2015 2
at 9:00 a.m. 3
(0900) MADAM CHIEF JUSTICE: Thank you. You may be 4
seated. 5
Her Majesty the Queen versus Owen Edward Smith, 6
W. Paul Riley, Q.C. and Kevin Wilson for the Appellant; 7
Kirk I. Tousaw and John Conroy, Q.C., Matthew 8
J. Jackson and Bibhas D. Vaze for the Respondent; 9
Gerald Chan and Nader R. Hasan for the 10
Intervener, Criminal Lawyers’ Association; 11
Andrew K. Lokan and Debra McKenna for the 12
Intervener, Canadian Civil Liberties Association; 13
Jason B. Gratl for the Intervener, British 14
Columbia Civil Liberties Association; 15
Julius H. Grey and Genevieve Grey for the 16
Intervener, Santé Cannabis, written submissions only; 17
And no one appearing for the Interveners, 18
Canadian AIDS Society, et al. 19
Ms. Riley...? 20
ARGUMENT FOR THE APPELLANT, HER MAJESTY THE QUEEN 21
(0901) MR. RILEY, Q.C.: Chief Justice, Justices, the 22
Charter of Rights does not include a freestanding 23
Constitutional right to medical marihuana, much less a 24
freestanding right to produce and distributive marihuana 25
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products. 1
The question in this case was whether a 2
particular legislative scheme that provided for medical 3
access to marihuana but did not allow for access to 4
derivative marihuana products was shown to infringe the 5
rights of life, liberty and security of the person in 6
section 7 of the Charter. The specific question for this 7
Court is whether the courts below applied the correct legal 8
or constitutional standards when trying to resolve that 9
issue. 10
So in bringing this appeal, the Crown is not 11
asking this Court to reweigh the evidence. We are not 12
inviting the Court to pronounce on any evidentiary issues 13
with respect to botany. So, for example, the Crown is not 14
asking the Court to interpret the evidence concerning the 15
significance of glandular trichomes on a marihuana plant. 16
The Crown is asking the Court to apply and, if 17
necessary, clarify the legal standards or thresholds under 18
section 7 of the Charter. And the Crown argument will 19
address legal standards or thresholds under both phases of 20
the section 7 Charter analysis. 21
And to be clear, this is just an overview of 22
the arguments the Crown will present and I will obviously 23
get into them in more detail. 24
At the first stage, the Crown is asking the 25
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Court to pronounce on the legal threshold that an applicant 1
must meet to establish that liberty and security of the 2
person’s interests are engaged. In the context of access to 3
controlled substances, is it enough for an applicant to 4
merely assert or believe that he or she is making a medical 5
decision? Or must a claim meet some objective standard or 6
threshold? That’s at the first stage. 7
At the second stage if it is reached the Crown 8
is asking the Court to address and apply the burden of proof 9
required for an applicant to demonstrate that a deprivation 10
of liberty or security of the person is inconsistent with 11
the principles of fundamental justice. And we say that 12
burden is on the applicant. 13
The Crown will also address -- 14
MADAM CHIEF JUSTICE: I just want to be clear 15
just that this Court has come out with a very thorough 16
examination of those legal principles in Carter. Are you 17
asking us to refine, explain; change Carter in some way? 18
MR. RILEY, Q.C., Q.C.: On the first stage I 19
would say this: That with regard to the threshold that has 20
to be met I say fair enough. Apply the principles in Carter 21
but it’s a particular context here and the context is access 22
to controlled substances for a medical purpose. It may 23
require some refinement of how that threshold works in that 24
particular context. We say that if the courts below had in 25
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effect applied the threshold that has been applied in a 1
leading case in this area, Parker, then there is no basis on 2
which the claims could have succeeded at the first stage of 3
the analysis. 4
At the second stage of the analysis there was a 5
clear error on the part of the courts below. In effect -- 6
and effectively reversing the burden under the principles of 7
fundamental justice to show not that the applicant had to 8
show that the deprivation of liberty was inconsistent with 9
the principles of fundamental justice but actually requiring 10
the Crown to prove the opposite. The Crown had to prove 11
that the law was not arbitrary. That’s a key point 12
especially in the context of a regulatory scheme that 13
operates on the basis of the reverse proposition. And I 14
will explain what I mean by that as we go. 15
I should say also by way of introduction the 16
Crown will also address as a preliminary point the question 17
of who should have standing to advance a section 7 Charter 18
claim and here the question is: Is there a point at which 19
someone who operates entirely outside of a particular scheme 20
has the ability to allege -- raise alleged deficiencies in 21
that scheme as a defence to a criminal charge under a 22
related act. That’s the question. 23
So it’s not asking the Court to overturn or 24
revisit the leading cases of Big M, Morgentaler but, rather, 25
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ask is there a refinement or a point at which that reasoning 1
falls down or doesn’t apply. 2
So I will say this as well, that this case is 3
not about dried marihuana versus other forms of marihuana. 4
It’s about whether a scheme that allows for access to 5
marihuana for medical purposes must as a matter of 6
constitutional law be extended to all other substances 7
listed in Schedule 2 of the CDSA. So we’re talking about 8
marihuana derivatives. These are separate substances that 9
are derived from the marihuana plant, so THC, cannabis resin 10
and other derivatives that are called cabinoids. 11
The CDSA regulates these derivatives in much 12
the same way that it regulates opium, heroin and other 13
opiates that are all derived from opium poppies but they are 14
all discrete substances and they have different potencies, 15
different concentrations; different risk profiles. 16
And so the question is not, well, dried 17
marihuana versus some other kind of marihuana. These are 18
discrete substances that are scheduled in the CDSA. The 19
trial judge’s ruling said, “Well, you must apply the medical 20
access regime to all of them”. And that’s what the case is 21
about. 22
Now, with regard to the facts every 23
constitutional issue arises in a particular set of facts and 24
context is obviously very important. But the facts in this 25
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case are fully set out in the Crown’s factum and I’m just 1
going to say enough to set the table for the arguments. So 2
I will say this: 3
Firstly, with regard to respondent -- this is 4
Owen Edward Smith -- he was charged with the offence of 5
possession of THC for the purpose of trafficking. He was 6
found in possession of a large quantity of -- he was engaged 7
in producing derivative marihuana products, cookies, oil, et 8
cetera, all containing THC. 9
The evidence at the Charter application was 10
that his intent was to provide these substances to an 11
unincorporated enterprise, the Cannabis Buyers Club of 12
Canada “CBCC”, engaged in the distribution of marihuana and 13
derivative marihuana products to people who were believed by 14
the principal of that enterprise, the principal of the CBCC 15
to require marihuana for medical purposes. 16
Now, that brings me then to the CBCC witnesses. 17
There were four witnesses who were customers or members of 18
the CBCC who testified. All four used both. They used both 19
dried marihuana and derivative cannabis products and they 20
believe that the derivative products were either beneficial 21
to their health or helped them to treat some of their health 22
problems. However, based on their testimony, it would be 23
impossible to discern, one, what is the actual basis for 24
that belief or, two, whether marihuana alone or any other 25
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legally available product could have been used to reasonably 1
treat each of the conditions that they suffered from. 2
So there was no real link between the 3
conditions that they were suffering from and the use of 4
derivative marihuana products as the only realistic way to 5
treat those conditions. There was no evidence about that. 6
To summarize the evidence of the CBCC 7
witnesses, I say this. The witnesses each expressed a 8
subjective preference to use derivative marihuana products 9
to treat some of their ailments some of the time. 10
MADAM JUSTICE ABELLA: The expert witnesses? 11
MR. RILEY, Q.C., Q.C.: Yes. And that brings 12
me to the expert evidence. 13
The expert evidence -- this much we can say is 14
clear. Marihuana has -- marihuana has some medicinal 15
properties but the precise basis for its efficacy is not 16
clearly established through a body of scientific research. 17
And what I mean by that is there haven’t been a great number 18
of double-blind studies the way other drugs have been 19
studied and regulated. 20
By contrast, the evidence was clear. There are 21
three pharmaceutical drugs containing cannabis or one of its 22
extracts. Its active ingredients which have gone through 23
the regulatory process, have been tested and approved for 24
sale in Canada. 25
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Moving on, if we look at cannabis, marihuana, 1
the evidence was that there were five ways of adjusting it, 2
and I’ll explain why this is relevant in a minute: Smoking, 3
vaporization, oral ingestion, trans-mucosal spray and 4
topical administration. 5
Now, if we look at the cannabis products that 6
are actually available, legally available for use in Canada; 7
dried marihuana, Marinol®, Cesamet® and Sativex®. These 8
legally available products provide for every form of 9
ingestion except topical use. And on topical administration 10
the trial judge reached no conclusion. He said that method 11
of administration was controversial and he reached no 12
conclusion. So there are legally available products that 13
allow for every method of ingestion that, on the evidence, 14
was accepted to be in some way effective. 15
MADAM JUSTICE ABELLA: I thought the evidence 16
was that the least safe method was smoking. 17
MR. RILEY, Q.C., Q.C.: The least safe? 18
MADAM JUSTICE ABELLA: Method of ingesting 19
marihuana was the one that is legally available under the 20
scheme. 21
MR. RILEY, Q.C., Q.C.: Right. I think when 22
you talk about safety I mean you really are involved in a 23
guessing game because there is not a lot of scientific 24
research in terms of double-blind studies of the substances. 25
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But I will say this -- 1
MADAM JUSTICE ABELLA: About smoking? 2
MR. RILEY, Q.C., Q.C.: Well, no question that 3
smoking. But in every case when someone engages in using 4
marihuana it’s sort of a cost-benefit analysis between the 5
detriments of smoking versus the medical -- the medicinal 6
properties that one gets from marihuana use. So it 7
alleviates certain conditions or symptoms but it has 8
detriments. 9
But I’ll just say this as well, that even dried 10
marihuana you don’t have to smoke it. You can use a 11
vaporizer if you choose to do so and that doesn’t involve 12
the same kind of inhalation issues as smoking does and, 13
indeed, the CBCC, the entity that was in issue in this case 14
provided to the members of its club -- it had available 15
vaporizers. 16
I will say this, though, that if someone says, 17
“I need marihuana but I don’t want to smoke it” they have a 18
host of legally available options. They can obtain an 19
authorization to possess marihuana and they can use a 20
vaporizer. They can obtain a prescription for Marinol® 21
which is a pill, for Cesamet® which is a capsule or for 22
Sativex® which is a whole plant extract administered by a 23
trans-mucosal spray. They can do any one of those things 24
legally. 25
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MR. JUSTICE CROMWELL: Can you just refresh my 1
memory as to what conditions the three products you just 2
mentioned are suitable for? 3
MR. RILEY, Q.C., Q.C.: I think that they are 4
in effect -- they are replicates of -- Sativex® is a whole 5
plant extract. So anything that marihuana would be in a 6
position to address, Sativex® would be in a position to 7
address as well but I don’t have -- I’m sorry, Justice 8
Cromwell -- at the tip of my mind each of the conditions 9
that each of those substances would treat. The notices of 10
compliance in the record would show that. 11
I could say this that the expert evidence 12
didn’t identify any particular condition, any specific 13
condition that could not reasonably be treated by either 14
dried marihuana or some other legally available means. The 15
expert evidence didn’t do that. The expert evidence was 16
theoretical and it was in effect, well, you know, in theory 17
derivative marihuana products could offer these benefits. 18
There had been no study of those things and there were no 19
specific conditions that were identified that were said you 20
can’t treat these conditions with either dried marihuana or 21
with these legally available derivative marihuana products. 22
MR. JUSTICE CROMWELL: Just while I have you 23
stopped there, Justice Chiasson in dissent seemed to be of 24
the view that a person could legally obtain the dried 25
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marihuana and then change its form legally. I was 1
struggling with how one could do that and not be in 2
possession of the other substances. 3
MR. RILEY, Q.C., Q.C.: Yes. I will say that 4
question is raised squarely, I think. 5
And I will say this, that as from the 6
government’s perspective the CDSA and the Medical Marihuana 7
Access Regulations, the MMARs, regulate possession and 8
access to marihuana, not use or ingestion. So neither the 9
CDSA nor the MMARs purport to regulate use or ingestion. 10
The CDSA makes it an offence to possess, to 11
produce or to traffic in these drugs. It does not say 12
anything about use and the Regulations authorize access in 13
the form of authorized possession or authorized production. 14
Neither of those schemes say anything about use or 15
administration. 16
And if you actually look at the Medical 17
Marihuana Access Regulations and the Regulatory Impact 18
Statements to some of them they make this point that the 19
Regulations don’t purport to regulate that component. So if 20
we look at Tab -- 21
MR. JUSTICE CROMWELL: I understand that they 22
don’t purport to regulate that -- 23
MR. RILEY, Q.C., Q.C.: Right. 24
MR. JUSTICE CROMWELL: -- what I was struggling 25
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with is how one could change the form from dried to some 1
other prohibited form and not be in possession of the 2
latter. 3
MR. RILEY, Q.C., Q.C.: Right. I think it’s 4
because at a certain point when you possess dried marihuana 5
and you are in the process of using it. You have to use 6
some common sense. 7
If you apply the strictest definition of the 8
offence of production which means to alter the physical or 9
chemical properties of a substance, if you take dried 10
marihuana and you smoke it then on the broadest, most absurd 11
definition someone would say, “Well, you’re producing THC” 12
because you’re changing dried marihuana into THC. But we 13
don’t approach it that way. We use some common sense and we 14
must use common sense. 15
And so for example we used -- we must use 16
common sense here the same way we would in distinguishing 17
between trafficking and someone who purchases drugs. On the 18
broadest definition of being a party to trafficking a 19
purchaser could be said to be aiding and abetting the 20
trafficking by participating in the transaction. 21
MADAM CHIEF JUSTICE: Well, those are a lot of 22
lawyer words but is Justice Chiasson right or wrong? 23
MR. RILEY, Q.C., Q.C.: He’s right that the 24
Regulations do not purport to proscribe the manner in which 25
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people use or ingest the substance that they are authorized 1
to possess. And so at the end of the day you can acquire 2
dried marihuana and if you choose to ingest it orally or mix 3
it into tea and use it that’s not proscribed by the 4
Regulations. They don’t say anything about that. 5
And so it becomes a question of drawing lines. 6
In every case -- in many, many fields it’s necessary for 7
courts to draw lines. But one thing is clear. You can draw 8
a distinction between, on the one hand, mass production of 9
derivative marihuana products in a sort of an assembly line 10
situation like we saw in Mr. Smith’s case, producing large 11
quantities of dried marihuana -- I’m sorry -- of derivative 12
marihuana products for distribution to others. That’s one 13
side. 14
And the other side -- on the other side of the 15
equation clearly very different, choosing to smoke marihuana 16
and thereby transforming its qualities or its chemical 17
makeup by smoking it or mixing it into tea and ingesting it. 18
And so our point is Justice Chiasson is right. 19
The Regulations don’t regulate or proscribe that. All they 20
do is authorize -- they authorize possession and they 21
authorize possession of what is in effect the known 22
substance that has been identified in some of the literature 23
that leads to some medical properties that’s dried marihuana 24
and allow people to access it and then use it as they 25
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determine necessary. 1
MR. JUSTICE CROMWELL: I’m sorry to delay you 2
but I just want to be very clear. 3
Justice Chiasson says, paragraph 153: 4
“This contention which I want to get back 5
to is based on the proposition that it 6
would be illegal for a person who is 7
authorized to possess marihuana to 8
transform the dried product into another 9
form.” (As read) 10
Now, do you say that’s correct? 11
MR. RILEY, Q.C., Q.C.: Yes, not all -- if you 12
are engaged in use and you technically transform the dried 13
marihuana into another form even, for example, smoking it, 14
that’s common sense. That happens. No one is suggesting 15
that that is production of a separate substance. That’s 16
using the substance you are authorized to possess and we 17
really have to use common sense when we apply that. 18
Perhaps I can just take you to -- if you look 19
at the condensed book and this is Tab 7 of the condensed 20
book -- and to be clear, this is the Marihuana for Medical 21
Purposes Regulations which are the most recent regulations. 22
The old regime that was in place in this instance has now 23
been replaced by a new regime, the MMPR, but to be clear the 24
new regime maintains this restriction. It only authorizes 25
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access to marihuana and not derivative marihuana products. 1
And if we go to the last page in Tab 7, if you 2
go to the second-last page the issue at the bottom is -- 3
this is in the Regulatory Impact Analysis Statement, the 4
RIAS statement that accompanies the Regulations, the RIAS 5
statement is not evidence and it’s not part of the 6
Regulations but it shows the regulators approach to 7
particular issues -- so in the RIAS statement at the bottom 8
of page 1756 they are dealing with a question of marihuana 9
infused products should be allowed under the MMPR. So they 10
are considering that. 11
And if you go over to the next page the health 12
response is listed. Then the reasons for that are given and 13
I am going to come back to this. But if we just go to the 14
last two sentences in that paragraph it says this: 15
“There are no restrictions on how dried 16
marihuana is to be ingested or inhaled and 17
patients may choose to use it, for example, 18
in foods or by vaporizing. H.C. does not 19
limit or recommend a particular method of 20
administration.” (As read) 21
And that’s entirely consistent with the 22
regulatory model which just says you are authorized to 23
possess it. This is what you are authorized to possess it. 24
You use it how you see fit. 25
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MADAM CHIEF JUSTICE: But there is a little 1
difference if you are actually changing it into another oral 2
product and keeping that around so that you can put it in 3
your brownies or whatever next week. What would you say 4
about that situation? Would that not be offside? 5
MR. RILEY, Q.C., Q.C.: I’m going to say that -6
- as I alluded to a few minutes ago, there is a necessary 7
exercise in line drawing in many, many areas of the law and 8
this may be one of them where something goes from use or 9
ingestion to actual production of a derivative substance and 10
where that line is drawn is going to depend on the facts. 11
Now, if you have a particular quantity of dried 12
marihuana that you are authorized to possess and you produce 13
or you are using that and you mix it into something to 14
ingest that’s one thing. But if you produce batches and you 15
are carrying those around with you outside of your house you 16
are entering an area of risk. You are entering an area of 17
risk where you are authorized to possess dried marihuana and 18
then you are allowed to use it or the law doesn’t regulate 19
how you use it. 20
But you are not authorized to produce batches 21
of separate substances. So at a certain point in that 22
continuum, and it’s going to involve line drawing and we 23
know -- as we know in the abstract it’s often very difficult 24
to do but when you have actual facts it’s not so difficult. 25
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This case is not a difficult one because it’s mass 1
production of large quantities of a derivative substance. 2
MADAM CHIEF JUSTICE: You have a criminal 3
prohibition and you are telling us that the line drawing is 4
very difficult. That seems constitutionally problematic. 5
MR. RILEY, Q.C., Q.C.: I don’t agree with that 6
assertion in the sense that I am saying there may be some 7
cases where the line drawing is very difficult. 8
But what I am saying is if you have -- if you 9
are authorized to possess a certain quantity of dried 10
marihuana and you are engaged in using that and you, in the 11
process of using it put it into forms to allow you to ingest 12
it, that’s not the same thing as producing. And we know 13
from common sense it wouldn’t be producing to smoke it. It 14
wouldn’t be producing to mix it into something and eat it. 15
MADAM JUSTICE ABELLA: Can I keep you then on 16
the line drawing common sense framework that you are urging 17
on us? This is a case about line drawing and whether the 18
line at dried marihuana is legal, constitutional. Just on 19
the level of common sense looking at the evidence that was 20
before the court can you explain in ordinary language why 21
since the scheme permits medical use of marihuana with the 22
doctor’s permission the line was drawn at dried marihuana? 23
MR. RILEY, Q.C., Q.C.: Yes, I can. I think 24
the best way to do this is to actually go back to the very 25
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document that I just referred you to. I want to make the 1
point that this is a Regulatory Impact Analysis Statement. 2
It’s not part of the law but in answer to your question, 3
Justice Abella, this expresses the point in a way that I -- 4
in a better way than I actually could. 5
So if you look at page -- it’s Tab 7, page 6
1757. The Department of Health responds: 7
“The new Regulations will limit producers 8
to the production and distribution of dried 9
marihuana only. The MMPR will no authorize 10
extractions of active ingredients, i.e. 11
resin, to be sold for therapeutic purposes. 12
The only clinical studies on therapeutic 13
use to date have been carried out, used 14
dried marihuana that was either smoked or 15
vaporized. There are no clinical studies 16
on the use of cannabis edibles, e.g. 17
cookies, baked goods or topical products 18
for therapeutic use. As with other drugs, 19
all products that claim to have health 20
benefits must go through a drug approval 21
process outlined in the Food and Drugs 22
Regulations.” (As read) 23
And so that’s really it. So this is the way I 24
would summarize that. I would say that if the government is 25
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forced to carve out a judicially-mandated exception to the 1
general principle under which the regulatory scheme 2
operates. It’s not irrational for the government to frame 3
and limit that exception based on what scientific evidence 4
is available. 5
So to be clear, the principle under which the 6
FDRs and the FDA operates is that drugs should not be 7
authorized for therapeutic use unless they are shown by 8
scientific data to be safe and effective. 9
Now, there has been, in effect, a judicially-10
mandated exception to that for marihuana based on the Parker 11
decision and the government’s response to it. But my point 12
is this: If the government is forced to create an exception 13
to that general principle, it’s not arbitrary for the 14
government to frame that exception on the basis of what 15
information there is out there and that does exist. And so 16
what Health Canada is saying is leave aside anecdotal 17
opinions of individual witnesses. 18
The science -- what science there is on 19
marihuana has been done with respect to dried marihuana. 20
That’s the known quantity. We don’t know the implications 21
and effects and utility of derivative products which are in 22
effect -- many of them much more concentrated like THC and 23
Canada’s resin. We don’t know those things so we are not 24
going to regulate them because to do that would be to go 25
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against the general principle of the Regulations. 1
So let me explain it this way; the regulatory 2
approval process for drugs in Canada. Access to drugs in 3
Canada is strictly controlled. There are two statutory 4
pillars for Canada’s drug regime, the CDSA and the FDA. 5
These statutes operate together to prohibit access to drugs 6
with a history of abuse. That’s the CDSA and to regulate 7
access to all drugs for therapeutic purposes. That’s the 8
FDA. So it’s prohibiting drugs that are liable to abuse, 9
CDSA, regulating access to drugs for therapeutic purposes, 10
the FDA. 11
Now, under the legislative scheme there are 12
three means of obtaining access to a new drug for 13
therapeutic purposes: 14
One, the new drug approval process. And as I 15
already pointed out, there are three cannabis-based 16
pharmaceuticals that have actually gone through that 17
process. So it’s not as though it’s impossible. 18
Two, clinical trials. So in the course of 19
seeking a new drug approval you can seek approval to conduct 20
a clinical trial on a substance that’s not yet been approved 21
for use. 22
Third, the special access program. And this is 23
a case-by-case authorization to use a presently unapproved 24
drug based on demonstrated need by a physician in a 25
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particular case. So a very, very flexible -- okay, this 1
drug is cutting edge and controversial, not yet approved, 2
but here I have a patient who can’t be treated by other 3
means. I want special access. That’s a very nimble element 4
of the scheme. 5
Now, I’ll say this that on the approach the 6
courts have taken there appears to be a fourth means of 7
obtaining access to a new drug in Canada. The fourth means 8
is what I would call an extra regulatory means. You produce 9
the drug. You distribute it and if you are prosecuted you 10
call evidence in court to prove on an anecdotal basis that 11
someone believes they need the drug and that it helps them. 12
That’s the fourth extra regulatory model. 13
Now, there are court cases where this has 14
happened, most notably Parker. But the concern that I’ve 15
identified highlights the need for deference when courts are 16
being asked to pronounce on the manner in which Health 17
Canada classifies, regulates and approves drugs for 18
therapeutic purposes. 19
If it’s not carefully circumscribed this fourth 20
route has the potential to overwhelm or overtake the entire 21
premise of the regulatory model which is that drugs should 22
not be made available for therapeutic purposes unless shown 23
by scientific study to be safe and effective. 24
Now, this point that I have just made goes 25
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directly to the burden of proof at the second stage of the 1
section 7 analysis. How so? Because as I said earlier, in 2
effect the courts below said, well, arbitrariness -- the 3
government hasn’t shown why there are specific health risks 4
associated with derivative marihuana products that are not 5
present with regard to dries marihuana. 6
And the problem with that approach is that it 7
flips the burden under the section stage of the section 7 8
analysis on its head by saying the government has to prove 9
that the law is not arbitrary when the rule is that the onus 10
is on the applicant, the proponent, to show that the law is 11
inconsistent with the principle of fundamental justice, that 12
it is arbitrary. 13
And I’ll go one step further. The court below, 14
the trial judge accepted that it might be rational or it 15
might be reasonable or logical. I think the word was 16
logical. It might be logical to assume that certain 17
concerns were present but “I would have expected to see 18
better evidence of that”. 19
And that is -- that’s the point is that here 20
the courts are applying expectations that certain risks be 21
proven by evidence in court when the entire basis for the 22
regulatory model is unless things are shown by scientific 23
evidence to be safe and effective we are not going to allow 24
them to be approved. 25
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MADAM CHIEF JUSTICE: The difficulty that I am 1
having with this is that it’s a criminal model. And you 2
keep talking about it being a regulatory model and 3
everything you say may apply to that. But we are talking 4
about criminal law here and exceptions to criminal law. 5
Certainly it is a way of regulating but it’s 6
regulating with the heaviest instrument the law can apply. 7
And when you do that you come into section 7 territory. 8
That is a concern I have. 9
MR. RILEY, Q.C., Q.C.: Right. 10
MADAM CHIEF JUSTICE: Perhaps you can allay it. 11
MR. RILEY, Q.C., Q.C.: Yes. 12
I’ll say this that the kind of concern that 13
Chief Justice you just articulated is not one of 14
irrationality or arbitrariness. So you are not saying, 15
well, that’s not a rational way of doing it. You are saying 16
it’s the heaviest hand. 17
That’s a question of is it grossly 18
disproportionate or overbroad. That becomes the question. 19
MADAM CHIEF JUSTICE: Well, what becomes the 20
question is that you are putting people in risk of 21
imprisonment as opposed to the usual regulatory scheme where 22
they are -- 23
MR. RILEY, Q.C., Q.C.: M’hmm, right. Well, 24
I’ll just say this that consider the conduct of the person 25
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24
who is charged in this case, okay. 1
Mass producing large quantities of derivative 2
products for distribution by a dispensary that was operating 3
completely outside the regulatory scheme, okay, even under 4
the Regulations as they exist, Medical Marihuana Access 5
Regulations, you are not authorized to run a dispensary. 6
The Regulations authorize possession and production for 7
medical purposes. They don’t authorize dispensation by 8
third parties. 9
Take it beyond that. This organization had 10
some four -- 3,700 to 4,000 members, only 5 to 10 percent of 11
whom had medical marihuana authorizations to begin with. 12
And the same organization, the evidence from -- the 13
principal of this organization I think is Leon Smith. He 14
testified that of those members he had to take away 500 to 15
600 memberships from people that he suspected were reselling 16
marihuana. All of that to show that it’s necessary to 17
maintain strict controls over marihuana and access to 18
marihuana because it’s a drug of abuse. 19
And that question, Chief Justice, that was 20
resolved in Malmo-Levine. We don’t need to have that debate 21
again. We don’t need to say is it appropriate to have 22
marihuana as a controlled substance. That was resolved in 23
Malmo-Levine. It’s not even an issue here. Indeed, Canada 24
has international commitments to regulate that. 25
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25
MADAM CHIEF JUSTICE: My point was a very 1
narrow one. It may be slightly different than an ordinary 2
regulatory scheme because -- 3
MR. RILEY, Q.C., Q.C.: Yes. Well, it -- 4
MADAM CHIEF JUSTICE: -- because of, as you 5
say, the legitimate to some extent potential for 6
imprisonment. But it is a different sort of situation. 7
MR. RILEY, Q.C., Q.C.: It -- 8
MADAM CHIEF JUSTICE: And so when you are 9
bringing in all these regulatory principles and saying well, 10
you know, you have got to give a lot of leeway to the 11
government, et cetera, et cetera, it may take on a different 12
complexion when the result of not -- of running afoul of one 13
of those Regulations is a criminal record, incarceration and 14
so on. 15
MR. RILEY, Q.C., Q.C.: Really, Chief Justice, 16
in my respectful submission what you are alluding to there 17
are questions of gross disproportionality and overbreadth. 18
Is this the right tool? 19
And even those are highly circumscribed. I 20
think in Carter the court appeared to allow for a 21
considerable degree of deference in respect of complex 22
regulatory responses. I’m going to suggest no one would say 23
that the regulation of drugs from the -- along the spectrum 24
from preventing abuse of drugs that are liable to abuse, 25
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26
psycho-active drugs, et cetera, all the way to allowing 1
access to drugs for therapeutic purposes. No one would 2
suggest that’s not a complex field that requires many 3
different parts. 4
And so what the Court said in Carter was in 5
contra-distinction to the scheme. They are saying the 6
scheme in issue there which had to do with prohibitions 7
against assisted suicide, it was not a complex regulatory 8
field and so less deference was owed. Here it is a complex 9
regulatory field. The deference is owed. 10
Now, I need to move on then to address the 11
specific issues. 12
The question of standing. This Court has 13
consistently held that no one can be convicted under a law 14
that’s unconstitutional. Now, I say it’s questionable 15
whether this point applies to the respondent in this case 16
and let me explain why. 17
He was charged with possession of THC for the 18
purpose of trafficking under the CDSA. In response to that 19
charge he argued that the Medical Marihuana Access 20
Regulations were unconstitutional. Now the underlying 21
conduct, he chose to supply marihuana products to an 22
organization that was operating completely outside the MMAR 23
scheme. And let me explain what I mean by that. 24
The MMAR scheme authorizes possession and 25
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27
production of marihuana for medicinal purposes. It never 1
has authorized distribution. It doesn’t do that. 2
And so this was an organization that was 3
operating completely outside that model. So the scheme does 4
not allow for and has never allowed for the operation of 5
marihuana dispensaries. So it’s hard to see how the 6
constitutionality of a scheme that authorizes the possession 7
and production of marihuana for medical purposes could be 8
relevant to someone charged with possession of THC for the 9
purpose of trafficking and in response to the charge he 10
alleges a deficiency in a regulatory scheme that could never 11
authorize his conduct. That’s the point. 12
Is there a point at which someone who operates 13
entirely outside a particular regulatory scheme has the 14
ability to raise alleged deficiencies in that scheme as a 15
defence to a criminal charge even though that scheme could 16
never apply to them. It’s not the same thing as Morgentaler 17
where the person is charged under a criminal section and the 18
defence is in that section. It’s being charged with an 19
offence under this provision under a statute and pointing to 20
a regulatory scheme that operating in a different context 21
could in theory authorize some conduct by other people but 22
not even in respect of the very offence that you have been 23
charged with trafficking. And I also -- 24
MR. JUSTICE CROMWELL: Is this really a 25
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question of standing or is it more related to remedy because 1
another way of putting what you are saying is that if the 2
Court cures the unconstitutionality by reading something 3
into the statute or reading something out of it and that has 4
no impact on the particular accused, then the law remains in 5
force. 6
MR. RILEY, Q.C., Q.C.: No, because what 7
happens in the situation you have just described, Justice 8
Cromwell, is someone who could never have benefitted from 9
the alleged constitutional infirmity in law, not to say, 10
well, the offence is unlawful, invalid. The offence was 11
still -- it’s still present -- is somehow bringing an 12
application, getting relief and that relief can never apply 13
to them and it leaves in the air this finding of 14
unconstitutionality that doesn’t in effect change anything 15
in that case. 16
And so the bottom line is that, sure, no one 17
can be convicted under a law that’s unconstitutional but 18
here it’s a regulatory scheme that might provide an escape 19
to a conviction but that regulatory scheme couldn’t have 20
applied to this applicant in these circumstances and that’s 21
the refinement that we are saying should be considered. 22
Now, I should also address some of the 23
interveners have referred to “public interest standing” and 24
on that question, public interest standing, I would say 25
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this. 1
If the person is not -- is caught in a criminal 2
case and doesn’t have standing as a result of the Big M Drug 3
Mart principle, is it appropriate to allow them to say, 4
well, even though I don’t really have standing in response 5
to the charge I’m facing I should be allowed to raise this 6
matter as a question of public interest when we know from 7
cases like Downtown Eastside Sex Workers, Carter, Bedford. 8
We know from those cases there are situations where if 9
someone feels that a law is unconstitutional and wants to 10
raise it in a forum that does involve breaking the law they 11
can do it. 12
So if it’s not appropriate for a person to -- 13
they don’t have standing in respect of a criminal charge, 14
they should in the same case have access to the pubic 15
interest standing principles. 16
That brings me then to the Charter analysis and 17
the two stages of the Charter analysis. The first one is 18
the life, liberty or security of the person analysis. 19
At the outset I’ll acknowledge that because Mr. 20
Smith was charged with a criminal offence his liberty 21
interests were engaged. However, the key question for the 22
courts below is what is the scope of the liberty and 23
security of the person’s interests at stake? Because the 24
jurisprudence makes it clear that the scope of the liberty 25
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and security of the person’s interests that are at stake 1
will involve or will dictate the nature of the principles of 2
fundamental justice analysis, the second stage. 3
So if it’s just a liberty interest that’s 4
engaged by the fact of a criminal charge then the general 5
answer would be, okay, well, if you’re at risk of going to 6
jail then the principles of fundamental justice demand that 7
you have a fair criminal trial based on proof beyond a 8
reasonable doubt and all the principles of fairness that are 9
entailed in that. 10
The question here is are there additional 11
liberty and security of the person interests beyond near 12
imprisonment that require a fuller consideration of, well, 13
is this law arbitrary, disproportionate? Is it in some way 14
failing in one of those principles? 15
And so that’s the same kind of analysis that 16
you will see in Malmo-Levine where the Court looked at the 17
question of imprisonment and then went beyond that and said, 18
“Are there broader interests at stake that require 19
consideration?” The answer in that case was, no, there 20
weren’t because lifestyle choices didn’t get caught by 21
section 7 of the Charter. 22
The same analysis took place in Parker. The 23
Court accepted that liberties engage because of the 24
potential for imprisonment but went on to say, “But are 25
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31
there medical issues at stake here?” And that’s the 1
question here. 2
Our position is this; that when you look at 3
liberty and security of the person’s interests and whether 4
those are engaged in the context of claims to access to a 5
substance that’s otherwise illegal. It has to be an 6
objective standard or threshold and it has to be one that 7
involves a consideration of, well, are there other 8
reasonable legal alternatives available other than the one 9
that you are seeking? 10
So if you are claiming access to a medical 11
treatment and there are other available treatments that are 12
actually lawful, it’s not a breach of the principles of 13
fundamental justice to say, well, you might prefer this 14
illegal treatment over the legal one but that doesn’t 15
intrude upon your liberty. There are ways for you to treat 16
the condition that you are suffering from. 17
MR. JUSTICE CROMWELL: You accept, I think, 18
that the liberty interests of the users is implicated 19
because what they are doing would be criminal? 20
MR. RILEY, Q.C., Q.C.: On the same basis, 21
Justice Cromwell, yes, that they could be prosecuted, yes. 22
MR. JUSTICE CROMWELL: And if that’s the only 23
section 7 interests implicated is your case better or worse? 24
MR. RILEY, Q.C., Q.C.: It’s much clearer 25
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because you say, well, someone is facing prosecution and 1
could go to jail for committing an offence, the offence 2
being unauthorized possession or production of a controlled 3
substance. 4
And the question is if there are no medical 5
issues associated with that, no additional liberty or 6
security of the person concerns, the question is, is it 7
consistent with the principles of fundamental justice to 8
allow that person to be convicted of that offence? 9
The answer would be if the Crown proves the 10
offence beyond a reasonable doubt and the accused has a fair 11
trial then the principles of fundamental justice are 12
addressed. It’s only -- 13
MR. JUSTICE CROMWELL: But I thought that 14
what’s being challenged is the criminalization of the 15
possession of the particular substance and the legal issue 16
is whether that’s arbitrary. I’m having difficulty seeing 17
what difference it makes what other section 7 interests are 18
implicated. 19
MR. RILEY, Q.C., Q.C.: It’s not a challenge to 20
the criminal offence of possession of those substances. 21
It’s a challenge to the under-inclusiveness of a regulatory 22
scheme that allows for medical access. 23
MR. JUSTICE CROMWELL: The result of which is 24
to make the offence unconstitutional. 25
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MR. RILEY, Q.C., Q.C.: Right. But the claim 1
is “I need a substance to treat a medical condition that I 2
can’t otherwise treat” or that should be the scope of what 3
is protected by section 7. It shouldn’t be, “I prefer this 4
illegal treatment over that one. If that’s all it is then 5
what you have is based on health concerns. 6
So there is a recent case about access to raw 7
milk. You know, I believe that pasteurized milk is not -- 8
it’s not healthy and it causes health problems so I want to 9
have access to a raw milk collective. And the law that 10
prohibits me from doing that, I think, is just my section 7 11
rights. 12
And the Ontario Court of Appeal said, “Well, 13
no. Just because you personally believe that pasteurized 14
milk has health concerns doesn’t -- there’s no objective 15
basis to your claim that infringes upon your liberty because 16
there is no objective support for that”. 17
MR. JUSTICE CROMWELL: And I don’t want to 18
delay because you have a lot of ground to cover in a short 19
amount of time. I just want to signal to you that I’m not 20
following this line of reasoning at all. 21
MR. RILEY, Q.C., Q.C.: Right. Well, I guess I 22
would say this. 23
If we look at the condensed book and, in 24
particular, the Malmo-Levine decision which is at Tab 8, 25
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34
paragraph 84, we say at once: 1
“The availability of imprisonment for the 2
offence of simple possession is sufficient 3
to trigger section 7 scrutiny. However, 4
Malmo-Levine’s position requires us to 5
address whether broader considerations of 6
personal autonomy short of imprisonment 7
are also sufficient to invoke section 7 8
protection.” 9
So it is, are there are a broad range of 10
interests that have to be considered at the section stage of 11
the analysis? Are there -- and so in this -- in Malmo it 12
was lifestyle choice. 13
In the case at bar it is health concerns. That 14
more specific issues was dealt with in the Parker case. 15
That’s at Tab 10 and if you look at Parker at paragraph 81 16
in one sense -- this is paragraph 81, second sentence: 17
“In one sense it would have been sufficient 18
to identify the clearest of those 19
infringements, the possibility of 20
imprisonment ... his interference with 21
Parker's liberty interest would conceivably 22
be sufficient to require a determination of 23
whether the deprivation was in accordance 24
with the principles of fundamental justice. 25
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However, in my view, this would not 1
adequately capture the defects in the 2
legislation and would fail to come to grips 3
with the context in which the issue 4
arises.” 5
And then there is a reference to another case 6
where it says: 7
“’The contextual approach attempts to bring 8
into sharp relief the aspect of the right 9
or freedom which is truly at stake in the 10
case as well as the relevant aspects of any 11
values...’ Thus, the importance of the 12
right or freedom must be assessed in 13
context rather than in the abstract and its 14
purpose must be ascertained in context.” 15
And so the Court then goes on in paragraphs 82 16
and following to say -- sorry, in 83 and following to say 17
the question is are there liberty and security of the person 18
interests associated with health that are above and beyond 19
imprisonment that are in issue here. 20
And it would only be if those health concerns 21
are ones that are caught by liberty or security of the 22
person that you would say, “Well, you need to scrutinize the 23
law and the principles of fundamental justice against those 24
deprivations”. 25
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MADAM CHIEF JUSTICE: Just glancing, I didn’t 1
think it was only. I thought the contextual argument was 2
that you amplify it. 3
MR. RILEY, Q.C., Q.C.: That’s right. 4
MADAM CHIEF JUSTICE: But it’s -- the way your 5
argument was sounding to me was we forget about the 6
imprisonment part of it all. 7
MR. RILEY, Q.C., Q.C.: No. No. 8
MADAM CHIEF JUSTICE: We have just focused on 9
whether standing alone this would be a deprivation of 10
liberty and, therefore, alternatives are an answer. But the 11
problem some of us may be having is that it’s not just a 12
simple question of whether that’s the deprivation of 13
liberty. That’s part of it but there is a fundamental 14
deprivation of liberty which resides in this right of 15
imprisonment. You can’t wash that out -- 16
MR. RILEY, Q.C., Q.C.: You can’t. You can’t. 17
MADAM CHIEF JUSTICE: -- these other aspects. 18
MR. RILEY, Q.C., Q.C.: But my point is this. 19
If there is no health component or infringement upon 20
autonomy to obtain treatment for a medical condition that’s 21
part of the liberty interests that are engaged in a 22
particular context then you don’t consider those things when 23
you are saying is the deprivation consistent with the 24
principles of fundamental justice. 25
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You don’t ask yourself, well, does this law 1
deprive people of of access to healthcare in a way that’s 2
arbitrary? Because there is no healthcare concern. It’s 3
only the potential for imprisonment. 4
So it affects the subsequent analysis and the 5
arbitrariness test would be completely different. It’s a 6
question of does a law that prohibits access to a substance 7
-- 8
MADAM CHIEF JUSTICE: But it seems to me -- I 9
think you have to look at them both. Don’t you? 10
I mean it’s a healthcare issue. You have one 11
side of that. The other people have the other. But 12
healthcare is part of the picture and deprivation and mixed 13
in is the fact that it’s a criminal regime used to enforce 14
this and you are facing imprisonment as a result of how this 15
healthcare scheme is being -- has been set up. 16
That’s what I thought they were saying in 17
Parker. You have to look at the whole ball of wax and how 18
it interacts. And you seem to be saying you look at one or 19
you look at the other. 20
MR. RILEY, Q.C.: Well -- 21
MADAM CHIEF JUSTICE: Perhaps I’m 22
misunderstanding. I’m sorry. 23
MR. RILEY, Q.C.: Yes. Well, Chief Justice, 24
you’re saying, well, there is no question it’s a healthcare 25
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issue. My point is that it’s only a healthcare issue that 1
engages liberty or security of the person if you show at the 2
first stage of the analysis that what you’re talking about 3
are limits on healthcare that actually engage liberty or 4
security of the person. 5
So it’s not enough to say, well, it’s 6
healthcare. We claim healthcare. Let’s then ask you, “Does 7
the deprivation of my access to healthcare intrude upon the 8
principles of fundamental justice? It’s only if the 9
healthcare limitations rise to the level of restrictions on 10
liberty. 11
And so in Parker the Court made a thorough 12
analysis of the infringement on Mr. Parker’s access to 13
healthcare and said, “Well, in that case it actually is met 14
because the law prohibits him from treating a very serious 15
and life-threatening medical condition with the only 16
substance that he has shown is effective in treating that 17
condition, marihuana”. And all the other alternatives had 18
been considered and ruled out. So synthetic drugs had been 19
ruled out, other treatments. 20
The Court considered and carefully scrutinized 21
that. I say if you apply that template to these facts you 22
don’t get any further than saying these applicants expressed 23
a subjective preference for derivative marihuana products 24
for some of their conditions some of the time. And they 25
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didn’t -- 1
MADAM CHIEF JUSTICE: What do you say about the 2
evidence that the trial -- the findings of fact of the trial 3
judge on that? 4
MR. RILEY, Q.C.: Right. I say two things. 5
One, if you take the evidence at his highest the question 6
becomes: Does it meet the legal threshold? 7
And without debating the evidence I say if you 8
actually look at the evidence, not debating or weighing it, 9
looking at it. 10
MADAM CHIEF JUSTICE: Can we just at this level 11
focus on the findings of fact, because we don’t really get 12
into the evidence the findings of fact of the trial judge? 13
Could you address those? 14
MR. RILEY, Q.C.: Right. Well, I think the 15
judge -- the judge held -- the problem here, the judge held 16
this is access to medically necessary treatment. But the 17
only substance that he has shown is effective in treating 18
that condition, marihuana. And all the other alternatives 19
had been considered and ruled out. So synthetic drugs had 20
been ruled out, other treatments. 21
The court considered and carefully scrutinized 22
that. I say if you apply that template to these facts you 23
don’t get any further than saying these applicants expressed 24
a subjective preference for derivative marihuana products 25
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for some of their conditions some of the time and they 1
didn’t -- 2
MADAM CHIEF JUSTICE: What do you say about the 3
evidence at the trial -- the findings of fact of the trial 4
judge on that? 5
MR. RILEY, Q.C.: Right. I say two things. 6
One, if you take the evidence at its highest the question 7
becomes does it meet the legal threshold? And without 8
debating evidence I say if you actually look at the 9
evidence, not debating or weighing it -- looking at it -- 10
MADAM CHIEF JUSTICE: Can we just at this level 11
focus on the findings of fact because we don’t really get 12
into the evidence? The findings of fact of the trial judge, 13
could you address those? 14
MR. RILEY, Q.C.: Right. Well, I think the 15
judge -- the judge held -- the problem here is the judge 16
held this is access to medically necessary treatment but the 17
question becomes what evidence -- what were the findings 18
that supported that question? 19
And at the end of the day what it was, three 20
things: One, the subjective views of the witnesses that 21
said, “Well, we use derivative marihuana products some of 22
the time for some of our conditions” and then expert 23
evidence that was not -- it was not medical evidence saying 24
this person can’t treat their condition, this specific 25
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condition with nay other means”. 1
MADAM CHIEF JUSTICE: Well, we have rules for 2
when we can override a finding of fact or fact in law -- 3
MR. RILEY, Q.C.: Right, and -- 4
MADAM CHIEF JUSTICE: -- and they are in a case 5
called Howson and there is lots of other cases. 6
MR. RILEY, Q.C.: Yes. 7
MADAM CHIEF JUSTICE: And we just can’t go 8
beyond as you are invited us to do. It’s not permissible. 9
So you have got to tell us that the finding of fact -- show 10
us why the finding of fact was totally unfounded on the 11
evidence. 12
MR. RILEY, Q.C.: Right. 13
MADAM CHIEF JUSTICE: Not that you disagree 14
with it. We know you disagree with it. 15
MR. RILEY, Q.C.: Right. The best I can do at 16
this point, given my limited time, is I can say I have 17
addressed that question of factum by saying that the legal 18
effect of an undisputed set of facts is a question of law. 19
There is lots of support for that. J.M.H is one case where 20
the courts said that, the legal effect of undisputed facts. 21
Taken at its highest the evidence in this case 22
was not legally possible, legally capable of meeting the 23
threshold that’s articulated in Parker. 24
The second point, and I have made it in the 25
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factum. I won’t be able to go through it in detail, is that 1
there were extricable errors on the part of the court of 2
appeal in its assessment of whether the evidence supported 3
the conclusion. And those extricable errors had to do with 4
relying on subjective expressions of preference by lay 5
witnesses suggesting, well, that that may be enough in some 6
circumstances. 7
In effect, Justice Garson said that relying 8
upon expert evidence that did not go to the specific 9
question. It was general. The expert evidence as in 10
theory, because I haven’t done any studies, but in theory 11
these forms of -- these derivative marihuana products could 12
in theory be better treatments for certain things. 13
MADAM JUSTICE ABELLA: That included your own 14
witness. Dr. Abramovici from the Department of Health 15
confirmed everything that Dr. Pate said. 16
MR. RILEY, Q.C.: I think what he said was in 17
theory some of these things are true but sometimes when we 18
apply them in practice we don’t know until we actually do 19
the studies. 20
MADAM JUSTICE ABELLA: But he had never applied 21
them in practice because his role was simply collating all 22
the research? 23
MR. RILEY, Q.C.: Right. Our point is -- 24
MADAM JUSTICE ABELLA: There was no dispute in 25
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the evidence, was there? 1
MR. RILEY, Q.C.: Our point is no one has 2
applied them in practice because they haven’t been studied. 3
And the third aspect that the trial judge 4
relied upon was the fact that some of the witnesses after 5
the events in question on this case, after the charges 6
against Smith were laid, obtained medical marihuana 7
authorizations under the scheme. That’s legally irrelevant 8
for two reasons. 9
One, it doesn’t relate to the timeframe in 10
which the substances were being produced and; 11
Two, those are for -- those are for access to 12
dried marihuana. They authorize those individuals to have 13
access to dried marihuana and they don’t say you are 14
authorized to have derivative marihuana products. 15
And then the court of appeal referenced, well, 16
some of those forms reference routes of administration. 17
Justice Chiasson’s point about that: The Regulations don’t 18
restrict the manner in which you choose to use the 19
substance. 20
So I have very limited time and I have to move 21
on to the question of the principles of fundamental justice 22
if the second stage of the -- I say this to summarize. If 23
you apply Parker and what an Ontario court of appeal 24
subsequently said about Parker in a case called Mernagh --if 25
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you apply those thresholds to this evidence because in 1
Mernagh the Court said, “Look, you need to have more than 2
just a subjective preference for marihuana in order to 3
establish that your rights have been infringed, that your 4
right to liberty and security of the person has been 5
infringed. You need to present evidence to show that that 6
is a reasonably necessary means for you to treat a condition 7
that you can’t otherwise treat. 8
That’s what the Court said in Mernagh. If you 9
apply that threshold to this evidence it can’t meet that 10
threshold. The evidence never addressed those questions. 11
And so if you go to the second stage of the 12
analysis our argument is that -- fundamentally this, that 13
the court of appeal and the trial court when we look at the 14
principles of fundamental justice they reverse the burden by 15
saying -- and I won’t have time to take you through the 16
passages. 17
But the Court said at a number of stages, 18
“Well, this may be logical but we didn’t see any proof. The 19
Crown didn’t prove that regulating these substances is more 20
difficult than regulating dried marihuana. The Crown didn’t 21
prove that there are additional risks, health and safety 22
risks associated with these derivatives that aren’t present 23
with respect to marihuana. 24
And my point about that is that the Crown 25
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doesn’t have to prove it. Under the arbitrariness analysis 1
the burden is on the proponent to show that the deprivation 2
of interests is inconsistent with the principles of 3
fundamental justice. 4
Here the court seemed to accept that there was 5
some logic to the government’s regulatory model but said we 6
didn’t prove it. And the problem with that where the rubber 7
hits the road is that the very nature of the model is it 8
operates on the premise that unless you can show that 9
something is safe and therapeutically effective it shouldn’t 10
be authorized under this scheme because we are not going to 11
be in a business of authorizing therapeutic uses of 12
substance that haven’t been properly studied for reasons 13
that relate to cases like thalidomide and other drugs that 14
people assumed were okay but they ended up not being. 15
Without the science they don’t know. So that’s the 16
fundamental point with respect to the principles of 17
fundamental justice. 18
There is another area in which the court erred. 19
The court said there might be other ways other than 20
criminalization that would address some of these concerns 21
about misusing drugs. And my point on that is the same as 22
the one I made at the outset in response to a question from 23
the Chief Justice. That’s not a question of arbitrariness. 24
That’s gross disproportionality or overbreadth. The court 25
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said this law fails on arbitrariness and there the question 1
is only the rationality of the means, not whether there are 2
other approaches that might be more effective. 3
When we look at gross disproportionality and 4
overbreadth you’ll see that this scheme is actually very 5
flexible. It’s not, as it was in Parker, a blanket 6
prohibition. 7
It allows for medical access to the one 8
substance that’s been -- which is a known quantity, at least 9
to some extent, which is dried marihuana or marihuana. It 10
doesn’t allow access to substances that are -- as yet there 11
is no medical study to show that they have any medicinal 12
benefit that can’t be obtained by the one that’s available. 13
So it’s flexible in that respect. It also has, as I 14
mentioned before, other means to obtain approval for drugs 15
that are not presently authorized including a special access 16
program. 17
And a special access program allows an 18
individual who can’t get access to a drug through legal 19
means to apply with the support of a physician to say, “I 20
need to get access to this drug. There is no other way to 21
treat my condition that’s legally viable so I need access to 22
this experimental drug to do so”. 23
That provides flexibility that shows that this 24
scheme which, as a general rule, has built-in flexibility 25
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and it’s much different than a simple blanket prohibition. 1
It’s a more flexible scheme. 2
Now, I need to address in the last three 3
minutes that I have the question of remedy. And I will say 4
this that the Crown says we should succeed on the merits for 5
the reasons I have given and the reasons mentioned in the 6
factum. But if the Crown doesn’t succeed on the merits and 7
there is an adverse ruling the Crown will need time to 8
respond. 9
This is the first time that this Court has -- 10
will have pronounced on the validity of the medical 11
marihuana access regime. It’s the first time that there 12
will be a ruling of national application on this question in 13
an appellate court. It’s a complex area, a complex 14
regulatory environment. There are many stakeholders to be 15
consulted. A suspension is justified on both public safety 16
grounds and on the basis of the rule of law. 17
With respect to public safety there is 18
significant public safety interests in the continued 19
enforceability of the CDSA prohibition against possession, 20
production, trafficking. A finding on -- if a finding of 21
unconstitutional is up -- unconstitutionality is upheld, it 22
could be construed as leaving a gap in the legislative 23
stream -- scheme. This could jeopardize the ability to 24
prosecute offences under the CDSA including trafficking and 25
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production. 1
With regard to the risk of diversion I don’t 2
need to go any further than this case in which one of the 3
witnesses, Leon Smith, testified that his club had revoked 4
500 to 600 so-called memberships that it offered to 5
individuals who were suspected of reselling drugs. So in 6
terms of the risk of diversion it’s present on the ground 7
here and that’s just one piece of evidence. 8
With regard to the rule of law, if a ruling 9
that the MMARs are invalid is upheld this could be perceived 10
as leaving a gap or lacuna in the law that would cause 11
considerable confusion. It’s a complex regulatory 12
environment, evidenced by the host of interrelated statutes 13
and regulations that are listed in the Crown’s factum. 14
Addressing the rule of law, the Court May consider whether -15
- or the extent to which there has been what is referred to 16
as a dialogue between the courts and the legislative 17
branches of government. 18
If we look at the history of the MMARs you will 19
see that the government has responded to various court 20
rulings robustly, with substantive changes and refinements 21
each time the scheme has been challenged. The government 22
has to balance its concerns over the control of substances 23
identified nationally7 and internationally as substances of 24
abuse with the obligation to comply with court rulings. 25
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The government would need time to develop an 1
appropriate regulatory response and take steps to implement 2
it. If you look at the RIAS statements, the impact 3
statements for each of the iterations of the Regulations, 4
and there have been many, there is common ground with my 5
friends that this is an area that has been exceptionally 6
litigious. 7
If you look at the RIAS statements you will see 8
each time the government has made a regulatory response it 9
has to consult with stakeholders, many of them, consider the 10
implications of its programs and address refinements to the 11
scheme trying to balance all the interests that it has to 12
deal with. 13
If you look at the magnitude or the complexity 14
of the problem, how many people it affects, it’s not 15
insignificant. So the RIAS statement for the MMPR, the new 16
regulatory model which carries on with this restriction to 17
dried marihuana and doesn’t allow for derivatives, it says 18
this. In 2002 there were 477 individuals with 19
authorizations to possess marihuana under the scheme. In 20
2013 there were 29,000 individuals with authorizations and 21
it was estimated that by 2014 there would be 50,000. 22
It’s already a massive and complex program and 23
expanding it to include all substances listed in Schedule 2 24
of the CDSA which is what the judge did, didn’t just say 25
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delete dried marihuana. He said in a subsequent oral ruling 1
the way to fix this is to read into the MMARs the reference 2
to all -- marihuana means every substance listed in Schedule 3
2. Expanding that would be a very, very significant change 4
and it would require time to consider it. 5
MR. JUSTICE CROMWELL: Just ask you one narrow 6
question. 7
You are not seeking an order for a retrial? 8
MR. RILEY, Q.C.: To be clear, if the Crown’s 9
appeal is allowed we are seeking an order for a retrial, and 10
let me explain why that is. 11
The judge in a pre-trial ruling held that the 12
MMARs were constitutionally deficient. We say the judge 13
shouldn’t have done that for the reasons -- didn’t have 14
standing and on its merits it was wrong. But at the end of 15
the day, because of that ruling the Crown was not in a 16
position to prosecute its case. And let me explain why that 17
is. 18
The defence had indicated at the outset of this 19
case “We are going before a jury and we are going to argue 20
the common law defence of necessity.” Now, if that had been 21
presented to the jury as a defence the Crown would have 22
said, “Well, that defence fails because there is a 23
reasonable legal alternative to the conduct that you were 24
involved in, namely the Medical Marihuana Access Regulations 25
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provide a means for medical access. 1
And in response to that argument I think it 2
would be absolutely certain that Mr. Smith would say, yes, 3
but the judge has already struck down that provision -- 4
already found that that provision or that scheme is 5
constitutionally deficient. So could we have been expected 6
to comply with that? Was there really a reasonable legal 7
alternative and faced with that in trying to instruct a jury 8
on that question on the basis of a law that had been in 9
effect ruled unconstitutional by the law, it was completely 10
unworkable. 11
And so the Crown made a decision, “Look, this 12
ruling has significantly impacted on our ability to 13
prosecute this case. We can’t prosecute the case in light 14
of this ruling. If the ruling is overturned the Crown wants 15
to prosecute the case”. 16
MADAM CHIEF JUSTICE: Well, you don’t say that. 17
You just ask that the appeal be allowed. 18
MR. RILEY, Q.C.: Right. Well, I mean, it’s an 19
appeal from an acquittal. I mean I -- 20
MADAM CHIEF JUSTICE: Okay. Anyway, I think 21
we’ve taken enough time on this. 22
MR. RILEY, Q.C.: Right. 23
MADAM CHIEF JUSTICE: Thank you. 24
(1003) (Off microphone) 25
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ARGUMENT FOR THE RESPONDENT, OWEN EDWARD SMITH 1
(1004) MR. TOUSAW: Madam Chief Justice, Justices, I 2
will take you to the index of the condensed book of 3
Mr. Smith and after the table of contents on the third page 4
begins the outline of argument that I have prepared for 5
today’s purposes. 6
My intention is to take you first to the facts 7
of the case. In Mr. Smith’s respectful submission the 8
Crown’s position largely imports the factual findings made 9
by the trial judge below and of necessity must ignore those 10
factual findings in order to prevail. 11
I will then discuss the standing issue and then 12
move on to section 7 and section 1 and the issue of remedy. 13
With respect to the facts, and they are 14
unchallenged in this Court, the trial judge found certain 15
key things. The first is that the medicinal compounds in 16
cannabis are contained in resin glands that are grown on the 17
plant. The plant material itself is inert. 18
The government’s position would have you 19
conflate dried marihuana as a compound, as a substance with 20
a derivative compounds and say that they are somehow 21
different substances, that dried marihuana is different from 22
edible products, it’s different from topical products, it’s 23
different even from Sativex® which is a conventional 24
derivative product of cannabis. 25
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The difficulty of course is that the findings 1
of fact run contrary to that position. The medicinal 2
compounds are contained in the resin glands. They are not 3
contained in the plant. And it is those compounds that 4
provide a therapeutic effect whether those compounds are 5
smoked, whether those compounds are orally ingested, whether 6
those compounds are sprayed under the tongue by a trans-7
mucosal mechanism such as it’s the Sativex® compounds that 8
provide the therapeutic benefit. It is not the dried plant 9
material. And that fact is unchallenged. 10
The trial judge also found that the compounds 11
can be ingested in a variety of ways. They can be smoked or 12
inhaled using a vaporizer if one can avail themselves of 13
that particular product. 14
Smoking increases risk. Smoking is indeed the 15
key risk associated with consumption of cannabis as 16
identified both by the Crown, by Health Canada, by the 17
Crown’s witness, by the trial judge and by judicial 18
decisions in this area, as pointed out by one of the 19
interveners. Smoking has repeatedly been described as the 20
risk. 21
And I can even take you to the Crown’s 22
condensed book of authorities at Tab 8 -- sorry, not 8. 23
--- Pause 24
MR. TOUSAW: At Tabs 4 and 5 -- oh, the very 25
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last page of each tab sets out the issue of smoking and it’s 1
very clear under Issue 14 at Tab 4 of concerns in response: 2
“Smoking marihuana for medical purposes in 3
a public setting thereby potentially 4
exposing others to the drug’s effects is 5
unacceptable. Patients are therefore 6
expected to use common sense.” (As read) 7
At Tab 5, the very last page again there is a 8
description of physician’s opinions with respect to the use 9
of cannabis for medical purposes: 10
“Physicians generally express concerns that 11
marihuana is most often ingested by smoking 12
and encourage development of alternative 13
forms and routes of administration.” (As 14
read) 15
So smoking, as Dr. Pate described, and as the 16
trial judge accepted, inhalation, is a method of ingesting 17
the medicinal compounds that has utility. It produces 18
therapeutic benefit quickly. That therapeutic benefit 19
happens fast, tapers off very quickly. It’s good for acute 20
conditions. It’s good for breakthrough pain, for example. 21
He described it as good for using -- if you feel a migraine 22
coming on you would smoke. You would get the medicinal 23
effects quickly. They would taper off quickly. 24
Oral ingestion does not provide or produce the 25
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same potential harms as smoking. It is good, as Dr. Pate 1
testified, and as the trial judge accepted, for things like 2
chronic conditions; glaucoma, chronic pain, conditions where 3
you need to have a systemic load of the medicinal compounds 4
at all times in order to deal with your medical conditions. 5
And so you eat it. It takes a little bit longer to take 6
effect but the effects last for hours. 7
And so you’re not forced into a situation where 8
you are repeatedly consuming the medicine by way of smoking 9
all day long or, as Ms Herman testified, waking up in the 10
middle of the night in pain after two hours and then having 11
to smoke, fall back to sleep for another couple of hours, 12
wake up again in pain, smoke again and you go through this 13
cycle of constantly ingesting the medicine by way of smoking 14
when you can orally ingest it and achieve the benefits over 15
a longer term. Those are unchallenged facts. 16
There is a difference in effectiveness. That 17
is a factual issue that was found that the Crown can avoid 18
and, therefore, retreats very quickly from the findings of 19
fact to dwell in the area of subjective preference. And 20
I’ll have more to say about that later. 21
MADAM JUSTICE ABELLA: What do you say about 22
his argument that it hasn’t been clinically tested the way 23
dried marihuana has and so even if there are dangers to 24
smoking we don’t know what the dangers are in not having -- 25
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in having other forms of marihuana available? 1
MR. TOUSAW: Three things. Firstly, one of the 2
declarations that is required by the Marihuana Medical 3
Access Regulations before a patient is granted an 4
authorization to possess dried marihuana is that the 5
physician and the patient understand that there has been no 6
regulatory approval given and that there hasn’t been a great 7
deal of scientific study about dried marihuana generally. 8
So I think that detracts from the point of the Crown that, 9
“Well, we know -- dried marihuana is a known quantity. We 10
know a bit more about it”. 11
Secondly, the Information for Health Care 12
Practitioners book, assembled by Dr. Abramovici and put into 13
evidence before the trial judge from which he made findings 14
of fact, details the other methods of ingesting cannabis and 15
is heavily referenced with citations of scientific 16
authority. Let’s remember what’s providing the therapeutic 17
benefit are the compounds. The mode of ingestion changes 18
the effectiveness and the risk profile of how you take those 19
compounds but the compounds aren’t different. The compounds 20
are the same. 21
And thirdly, I would say this. With respect to 22
Sativex® which is a conventional treatment made, as the 23
government pointed out just moments ago, from a whole plant 24
extract, there have been clinical studies done. That’s how 25
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it obtained regulatory approval. It’s not as if cannabis is 1
not a known quantity. We know a tremendous amount about it. 2
The trial judge made findings of fact that these methods of 3
ingesting the medicine were as safe, or safer, than smoking 4
it. 5
The witnesses testified to no harms arising as 6
a result of using these particular modes of ingestion. And 7
all of this was confirmed by and conceded to by the Crown’s 8
witness at trial and was further confirmed by the 9
information that Health Canada assembled for provision to 10
doctors before they sign off on someone’s access to dried 11
marihuana. 12
And so I say the suggestion that somehow there 13
are greater dangers associated with oral ingestion or 14
topical application of cannabinoids is belied by the facts 15
that were found below. Those are the facts that are before 16
you. 17
The facts are that these products are safe, as 18
safe, or safer, than conventional over-the-counter -- some 19
conventional over-the-counter and prescription medicines. 20
We know they are safe. There aren’t any risks and none were 21
shown before the trial judge and his findings of facts amply 22
support that. 23
There is a further benefit from either oral 24
ingestion or topical applications found and that’s the 25
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delivery of the medicine directly to the site or 1
pathogenecity. This is a principle that Dr. Pate testified 2
was not unique to cannabis. This is for all medicines. 3
It’s the reason why when you have a rash you put a cream on 4
the rash instead of taking a pill to deal with the rash. 5
You certainly can do both but wouldn’t you rather use less 6
on the site that needs the medicine as opposed to taking 7
more and developing a systemic low. 8
The patient witnesses themselves all benefitted 9
from the use of these medicinal cannabis products. And they 10
did so in forms other than smoking or vaporizing the dried 11
plant matter, including the particular products which Mr. 12
Smith stood charged at trial below. 13
The trial judge found and the court of appeal 14
agreed that while patients can possess dried marihuana 15
lawfully pursuant to the MMARs, and I believe that this 16
addresses the question that you asked the government, 17
Justice Cromwell, about Mr. Justice Chiasson’s dissent, they 18
commit crimes punishable by severe deprivations of liberty 19
when they extract the medicinal compounds from the dried 20
plant matter and discard the dried plant matter. That is, 21
in my respectful submission, clear from the language of the 22
Controlled Drugs and Substances Act. 23
And my friend says and urges this Court to 24
apply common sense in its line drawing exercise. Mr. 25
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Smith’s position is that the Court should apply the Charter 1
and not common sense to this exercise and should look at 2
what the Controlled Drugs and Substances Act prohibits. 3
MR. JUSTICE CROMWELL: We don’t have to choose. 4
--- Laughter 5
MR. TOUSAW: Fortunately in this case they line 6
up. 7
The Controlled Drugs and Substances Act 8
prevents production which includes a broad definition of 9
manufacturing, deriving products. It’s illegal to produce 10
THC oil. Mr. Smith was charged with possessing THC for the 11
purpose of trafficking because he was making oil, an 12
extracted product. That’s not lawful. It’s not lawful for 13
Mr. Smith to do it. It’s not lawful for a patient to do it 14
either. They can be criminally charged. It’s not lawful 15
for them to possess those products either. They are granted 16
an authorization to possess dried marihuana and dried 17
marihuana alone. 18
I should also -- am constrained to point out 19
that my friend, I think, was in error when he suggested that 20
the MMARs have nothing to do with distribution of marihuana. 21
A designated producer is perfectly entitled to produce 22
marihuana plants and to distribute dried marihuana to up to 23
two patients that have designated that producer to produce 24
marihuana for them. That’s trafficking. That’s 25
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distribution of marihuana. You’re even entitled as a result 1
of the changes the government made in 2005 to the regulatory 2
scheme, to receive compensation from your patients for 3
engaging in that activity. That is selling marihuana, dried 4
marihuana to patients. 5
So the MMARs do authorize distribution. What 6
they don’t authorize is the production and distribution of 7
anything other than dried marihuana. And that’s why we are 8
before you today. It’s that restriction of the dried 9
marihuana alone that gives rise to the constitutional 10
problems identified. 11
And that really brings me to the standing 12
issue. It is difficult to get around the Big M problem. My 13
friend says, well, Mr. Smith didn’t available himself in any 14
way of the regulatory scheme. He was operating completely 15
outside that scheme. 16
Anyone charged with a criminal offence is 17
operating outside the regulatory scheme. That’s a basic 18
principle. What you are doing is unlawful and you are 19
charged with a criminal offence. 20
Now, Mr. Smith didn’t challenge the MMARs. He 21
challenged the Controlled Drugs and Substances Act under 22
which he was charged. The focus of the argument was on the 23
exemption scheme because it was the exemption scheme that 24
dealt with access to dried marihuana for medical purposes. 25
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But he wasn’t charged with an offence under the MMARs. 1
There is no offence provision under the MMARs. 2
He was charged with a criminal offence and he 3
raised the Charter as a defence to those charges, in much 4
the same way that Big M Drug Mart charged with an offence 5
was able to raise the unconstitutionality pursuant to 6
section 2 of the Charter as to other people. Corporations 7
don’t hold religious beliefs. But, yet, Big M was able to 8
say this is an unconstitutional law for which this 9
corporation stands charged with violating and it’s 10
unconstitutional not as to Big M. Big M doesn’t hold a 11
religious belief. It’s a company. It’s unconstitutional as 12
to others that do hold religious beliefs or atheists who 13
hold no religious beliefs. Therefore -- 14
MR. JUSTICE CROMWELL: Does it matter that the 15
constitutional fix, if I can use that word, the judge gave 16
as a remedy, leaves the scheme intact as regards Mr. Smith? 17
MR. TOUSAW: It matters not on the issue of 18
standing. It does matter, I think, when considering what 19
the Crown has said about seeking a new trial. 20
Because what the Crown has said is, well, after 21
the judge made his ruling we felt that he was -- we were 22
unable to convict Mr. Smith. And yet, in this Court, I 23
think what he said was, well, how do you instruct a jury? 24
How do you make those arguments? 25
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Well, in this Court he has made the arguments. 1
He said he is operating entirely out of the side of the 2
regulatory scheme. And presumably that would have been the 3
argument at trial. Well, yes, the law has been stricken 4
down as a result of its unconstitutional effects on 5
patients. Mr. Smith isn’t that patient. Mr. Smith is a 6
producer operating completely outside the regulatory scheme 7
and therefore he should be convicted for the offence. 8
That’s the argument. 9
The Crown’s decision was to call no evidence 10
and to have Mr. Smith acquitted. And so I was going to say 11
this at the end of my submissions but I’ll say it now. 12
Under no circumstances, in my respectful 13
submission, should this Court send Mr. Smith back down to be 14
retried on these charges even if he doesn’t prevail on the 15
Charter arguments. It was the Crown’s decision not to try 16
him. They could have. They chose not to. 17
MR. JUSTICE CROMWELL: So I guess just for the 18
purposes of this standing argument, we are getting into a 19
pretty narrow distinction here in the sense that it boils 20
down to saying that he had the right to make the arguments 21
that he made and have them ruled on, but having got the 22
remedy he had didn’t affect his liability under the section. 23
MR. TOUSAW: It didn’t in the sense that he was 24
operating outside the regulatory scheme as it stood. Now, 25
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had the regulatory scheme been constitutional -- in other 1
words, had it -- 2
MR. JUSTICE CROMWELL: I’m assuming that you 3
get the remedy you got. Then there was nothing to stand in 4
the way of being tried on the indictment? 5
MR. TOUSAW: The trial was scheduled and seven 6
months or so after the Charter voir dire the Crown elected 7
to call no evidence at the trial. 8
MR. JUSTICE CROMWELL: And that’s the 9
difference between this case and Big M that after the 10
constitutional ruling there was no offence to try? 11
MR. TOUSAW: And I want to make this point very 12
clearly. Had Mr. Smith -- had the unconstitutional impugn 13
restriction not been in place, and Mr. Smith been or others 14
been permitted to have access to non-dried forms of medical 15
cannabis, Mr. Smith could have been designated by, for 16
example, the two patients, Ms Quin and Ms Herman, who 17
received authorizations to possess dried marihuana and he 18
could have been designated to produce the products that he 19
was producing for the club for that. 20
Would that -- if he had operated outside of 21
that and produced for other people it could have given rise 22
to a further challenge based on the principles in 23
Sfetkopolous and Hitzig, having to do with the ratio between 24
patients and producers. That’s a different case. We would 25
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be arguing a different case. 1
But had the impugn restriction not been in 2
place there would have been a way to operate within the 3
regulatory scheme to produce these products for the patients 4
that required them for their health. The reason that he had 5
to operate outside the regulatory scheme is because of the 6
impugn restriction. And I think that that fully undermines 7
my friend’s position on standing. 8
I would certainly also urge this Court not to 9
narrow the principle in Big M. I think that the interveners 10
had quite a bit to say about the issue of standing and the 11
importance of being able to raise Charter defences. They 12
are being charged with criminal offences and the narrowing 13
of that would really take away from the fact that the 14
Charter is the supreme law of the land. 15
It would, in effect, allow prosecutorial 16
discretion to be a substitute for the supremacy of the 17
Charter. The Crown could keep in place unconstitutional 18
laws, laws that violate the Charter and take away autonomy, 19
in arbitrary overbroad and grossly disproportionate ways 20
simply by not prosecuting the wrong people or by realizing 21
when someone brings a constitutional challenge perhaps now 22
is the time to stay the charges to avoid a decision on the 23
Charter merits of the issue. The arbiters of what the 24
Charter protects are courts, not the discretion of Crown 25
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prosecutors. 1
If, however, the Court is inclined to accept my 2
friend’s position on standing in terms of direct standing, 3
Mr. Smith certainly urges that this case be considered a 4
public interest case. This is a serious judiciable issue, 5
as the government just pointed out. These regulations 6
affect many, many people across the country. 7
It is a case of nationwide importance. It is a 8
case that has been thoroughly litigated both at trial and 9
briefed at trial and in the courts of appeal and in this 10
Court. They meet the test for public interest standing. He 11
is engaged with the issues and the case has been brought 12
before you in a reasonable and efficient manner. 13
It would be unreasonable and inefficient to 14
deny standing at this point simply to have a patient come 15
forward and then challenge these Regulations and return here 16
some years hence. 17
Now, in terms of the section 7 threshold, my 18
friend’s argument is twofold. He says first that despite 19
the clear liberty violation arising from the spectre of 20
imprisonment for persons that possess forms of marihuana 21
other than dried marihuana, this case should not be 22
considered on section 7 grounds because there is no 23
objective evidence in the record suggesting that these 24
patients have anything other than a subjective preference 25
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for an illegal form of treatment over a lawful one. 1
In order to make this argument my friend has to 2
essentially ignore the findings of fact of the trial judge 3
because those findings of fact run completely contrary to 4
that position. The trial judge found as fact that there are 5
differential effectiveness to different modes of ingestion, 6
that there are risks attendant with smoking that are not 7
present in the other forms of ingestion and that the 8
patients benefited medically from these other modes of 9
ingestion. 10
In addition, in the record are documentary 11
evidence from, in some cases, the physicians of the patients 12
and, in particular, I would say, with respect to Ms Quin, 13
and I won’t take you to the record but it is in the 14
appellant’s record, Part 4, Volume 1 at page 159. 15
There is a letter from her physician describing 16
how Ms Quin is using a topical application of cannabinoids 17
on her incision that she had a post-mastectomy incision to 18
help reduce swelling and allow the healing of that incision. 19
He says it works remarkably well and also describes how she 20
is ingesting orally cannabis products and how those products 21
are assisting her. This is from her physician. He wasn’t 22
called to the stand but the exhibit went in to evidence 23
below. It’s part of the basis upon which the trial judge 24
makes his findings of fact. 25
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In addition to that, as the court of appeal 1
recognized and as the trial judge recognized, it’s a bit of 2
a red herring to say that there is no medical evidence or 3
objective medical evidence. The Government of Canada issued 4
two of the witnesses’ authorizations to possess dried 5
marihuana on the basis of their physicians’ declarations 6
required in the regulatory scheme that conventional 7
treatments have been tried or considered and were found to 8
be medically inappropriate or ineffective. 9
The physician’s declaration that the patient 10
should have access to dried marihuana and, in the case of Ms 11
Herman, the physician’s checking off a box on the 12
application form that says the mode of ingestion ought to be 13
oral ingestion; these are objective facts that are in the 14
record that support the trial judge’s findings of fact on 15
these particular points. 16
Further to that, as was pointed out during my 17
friend’s submissions, Dr. Abramovici, the Crown’s expert, 18
conceded essentially that Dr. Pate was right. For acute 19
conditions inhalation will deliver the benefits quickly. 20
For chronic conditions oral ingestion will deliver the 21
benefits over an extended period of time. That completely 22
supports exactly what the patients describe as their own 23
individual experience with their own medical conditions and 24
was accepted again by the trial judge on facts that are not 25
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directly challenged in this Court. Because I think my 1
friend, in order to prevail, needs to have this Court 2
overlook some of those findings of fact or at least minimize 3
their relevance to the particular issues that are joined. 4
Liberty and security of the person rights are 5
concerned with individual autonomy and dignity, as was 6
pointed out in the beginning of my friend’s submissions by 7
Justice Abella, I think. This Court recently had the 8
opportunity in Carter to discuss autonomy in the context of 9
making medical decisions. 10
I’ll take the Court to the condensed book that 11
I have provided at Tab -- I think it’s Tab K. Sorry, it’s 12
Tab M. This will be the back side of the second page 13
commencing at paragraph 64 where this Court said directly 14
that: 15
“Underlying both of these rights ... [that 16
is, the right to liberty and security of 17
the person] is a concern for the protection 18
of individual autonomy and dignity. 19
Liberty protects ‘the right to make 20
fundamental personal choices free from 21
state interference’. [Free from state 22
interference.] Security of the person 23
encompasses ‘a notion of personal autonomy 24
involving ... control over one’s bodily 25
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integrity free from state interference’ and 1
it is engaged by state interference with an 2
individual’s physical or psychological 3
integrity, including any state action that 4
causes physical or serious psychological 5
suffering. While liberty and security of 6
the person are distinct interests, for the 7
purpose of this appeal they may be 8
considered together.” 9
These are issues that are directly impugned 10
restriction. One needs to go no further than the testimony 11
of Ms Herman who describes the impact on her quality of life 12
resulting from the use of pharmaceutical substances and the 13
fact that, as the trial judge said, she got her life back. 14
She repaired her relationship with her husband. 15
She repaired her relationship with her children. She 16
experienced a cessation of the kind of pain she was 17
experiencing, the waking up in the middle of the night in 18
pain and the inability to sleep, the acting like a zombie 19
and being unable to participate in a social event as a 20
result of the use of the products that the MMARs make 21
unlawful for her to possess or produce as a result of using 22
those products. Her psychological state of mind improved. 23
Her physical health improved. 24
And the state here wants to interpose the 25
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criminal law, the criminal law between her and access to 1
those medicines in a manner that is completely unrelated to 2
her individual needs, her wants, her desires and her 3
dignity. Mr. Smith says that’s absolutely inappropriate. 4
That’s a severe violation of both liberty and security of 5
the person. 6
This Court went on to say in Carter at 7
paragraph 65: 8
“The trial judge concluded that the 9
prohibition on assisted dying limited Ms. 10
Taylor’s s. 7 right to liberty and security 11
of the person, by interfering with 12
‘fundamentally important and personal 13
medical decision-making” (para. 1302), 14
imposing pain and psychological stress and 15
depriving her of control over her bodily 16
integrity (paras. 1293-94).” 17
I’ll pause to say that’s precisely what the 18
effect of the MMARs restriction is on persons like Ms Quin 19
and Ms Herman. They are suffering from serious medical 20
conditions. They are finding relief from the medicinal 21
compounds contained in cannabis. They have been granted by 22
permission by the Government of Canada to access those 23
compounds. 24
And what the MMAR say is you can only access 25
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those compounds in the form of dried marihuana. You can’t 1
use the products that are actually working for you. We want 2
you essentially to smoke cannabis all day long or all night 3
long. This despite the fact, as I referenced earlier my 4
friend’s condensed book in the Tab 4 of the last page -- 5
this despite the fact that in the RIAS accompanying the MMAR 6
the Government of Canada says that smoking marihuana for 7
medical purposes in a public setting thereby exposing others 8
to the drug’s effects is unacceptable. It’s unacceptable 9
according to the Government of Canada. 10
So Ms Herman who wants to perhaps go watch her 11
son play soccer isn’t supposed to smoke her medicine in a 12
public setting. As a soccer coach I can tell you that 13
probably wouldn’t go over very well. 14
But the government is telling you it’s 15
unacceptable to use her medicine in public in the manner 16
that it only allows you to use the medicine because if you 17
turn the medicine into a capsule that you can then take 18
before you go out into public that’s unlawful. You have 19
produced an unlawful substance. You are in possession of an 20
unlawful substance. You could be arrested, charged, 21
convicted and imprisoned for doing so. 22
Now, my friend says use common sense. Again, I 23
would expect the Crown to use common sense in determining 24
whether or not to prosecute an individual in those 25
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circumstances. I would expect them to apply the test of 1
whether or not it’s in the public interest to prosecute a 2
patient in those circumstances. 3
It does not change the fact that that conduct 4
is criminal conduct and that imposes a severe psychological 5
burden on people. People don’t want to break the law. Sick 6
people should not be told, “Well, we’re going to use common 7
sense in whether or not to prosecute you for breaking the 8
law if we catch you in possession of these medicines”. 9
That’s not an answer to the Charter. 10
The Charter says an infringement of the liberty 11
and security of the person that deprives one of the 12
fundamental choices that one is entitled to make about 13
personal medical decisions violates section 7 unless it’s in 14
accordance with the principles of fundamental justice. And 15
on the findings of fact that were made below, applying the 16
proper analysis, perhaps using it not in exact language but 17
applying the proper analysis at the end of the day, the 18
trial judge and the court of appeal agreed that these -- 19
that this restriction was arbitrary. And it was arbitrary 20
because it produces effects that are inconsistent with the 21
law’s objectives. 22
And I should move now -- 23
MR. JUSTICE CROMWELL: Can I just stop you 24
there for one moment? Mr. Riley also mentioned the, I 25
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think, three products that are legally available and the 1
vaporization -- 2
MR. TOUSAW: Yes. 3
MR. JUSTICE CROMWELL: -- alternatives to 4
smoking. Was there evidence about that in relation to any 5
of the patients? 6
MR. TOUSAW: There was. Some of the patients 7
did vaporize from time to time. Vaporization, of course, 8
still produces an exhalation, an odour. The use in public 9
would presumably be unacceptable according to the Government 10
of Canada. The patients had not experienced the use of 11
Sativex® 12
The two that qualified for authorizations to 13
possess, their positions had indicated and were required to 14
declare that conventional treatments were medically 15
inappropriate or ineffective. Sativex® is a conventional 16
treatment. It’s gone through the Food and Drug approval 17
process. It’s a fair inference from that to say that the 18
physicians didn’t agree it was useful. 19
And you did ask, Justice Cromwell, about what 20
conditions Sativex® was approved for. It’s been issued a 21
Notice of Compliance with conditions and it’s been approved 22
for neuropathic pain associated with multiple sclerosis and 23
subsequent, I believe, to the decision at trial was also 24
approved for neuropathic pain associated with cancer. 25
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The difficulty of course is -- think about Ms 1
Quin. What is she doing? She at one point describes, and I 2
have this in my condensed book at Tab D, the second full 3
page, top of the page 93. 4
Ms Quin says firstly that she didn’t want to 5
smoke because had a bad reaction to pesticide-laden product 6
that she had taken and got a lung infection. But then she 7
says after her mastectomy she didn’t want to smoke because 8
it made her cough and she was worried about ripping her 9
incisions open as a result of that coughing. So what she 10
did is she mostly rubbed the cannabis oil on the incisions 11
to reduce swelling. THC is an anti-inflammatory. CBDD is 12
an anti-inflammatory. She would rub that on the incision to 13
reduce the swelling. This is halfway down the page 93 of 14
Tab D in the condensed book. 15
You don’t spray Sativex on incisions. It’s not 16
what you do. It’s a sub-mucosal spray. You spray it on to 17
your tongue. It has the same rapid absorption that 18
inhalation does. That’s one of the benefits of that mode of 19
delivery. It gives you the effects very quickly but it also 20
tapers off quickly just like -- just like smoking. 21
So it doesn’t provide the same types of 22
benefits and certainly one -- it’s an alcohol extract. I 23
think one can infer that you are not spraying alcohol 24
extracts on sutures and incisions on your chest. That’s 25
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just not the way the medicine is intended to be used in 1
addition to the fact that it’s a Notice of Compliance with 2
conditions that only relates to two particular and discrete 3
areas of medical practice. 4
MADAM JUSTICE ABELLA: I want to bring you to 5
remedy but are you finished with the section 7 argument? 6
MR. TOUSAW: I was going to move -- I’m happy 7
to discuss remedy now, Justice Abella, but I was going to 8
make just a few more points about -- 9
MADAM JUSTICE ABELLA: All right. Sure. 10
MR. TOUSAW: -- section 7 because I think I 11
have only gotten to the threshold of our liberty and 12
security of the person implicated on the facts of the case. 13
And I do want to say -- I have said a bit about 14
subjective versus objective evidence. I think that fails on 15
the record. But I do want to talk a bit about 16
arbitrariness, overbreadth and gross disproportionality. 17
And arbitrariness in Mr. Smith’s, in Mr. 18
Smith’s submission, is made out here in much the same way it 19
was made out in Carter, in Morgentaler, in Chaoulli and in 20
PHS. We need to think about what the objective of the 21
legislation is. And my friend urges this Court to consider 22
the objective as state control over drugs by means of a 23
comprehensive legislative scheme. 24
As I said in my factum, that’s a conflation of 25
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the objective with the means that the state goes about in 1
achieving that objective. The means are the comprehensive 2
regulatory scheme. Those considerations are best left for 3
section 1, not for section 7. What’s the objective? 4
Mr. Smith’s submission is that the objective is 5
the protection of health and safety of people that have been 6
granted permission by the Government of Canada and have 7
access to these medicinal compounds, not some sort of 8
general protection of health sand safety. 9
You have to draw the objective, as this Court 10
said in Bedford, narrowly to avoid essentially swallowing up 11
the analysis. But even if the objective is the protection 12
of health and safety, when you have a restriction that 13
actually creates a set of conditions in which patient health 14
is harmed and they are denied access to more effective ways 15
of taking medicinal compounds also harming their health and 16
causing risk to health, causing physical pain and physical 17
suffering that is arbitrariness. 18
I think the example of Ms Herman is a good one. 19
Ms Herman testified that she would take her dried marihuana 20
that she is lawfully entitled to possess and she would make 21
a tea solution with it in the morning. So she would crush 22
up the dried marihuana. That’s lawful. She would put it 23
into a tea strainer. That’s lawful. She would put the tea 24
strainer into the tea with a little bit of milk because the 25
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fat and milk will then solubilize with the resin glands and 1
you will have an extraction process. Not legal. She has 2
now produced THC in a weak oral solution and then she would 3
take the tea strainer out and set it off to the side because 4
that’s what you do. 5
What she is holding in her hand now is a weak 6
oral solution of THC and CBDD and other cannabinoids. She 7
has produced that. She made it. She manufactured it. She 8
derived it. Those are the words of the Controlled Drugs and 9
Substances Act. She is possessing it. 10
My friend says, well, there is no -- there is 11
no rules in the MMAR about how you use your cannabis 12
substances. See, we say here in the RIAS statements to the 13
MMPR, “Well, there is no rules about how you use your 14
cannabis”. No, there is no rules in the MMAR about how you 15
use your cannabis. 16
There is a rule in the Controlled Drugs and 17
Substances Act that says it’s unlawful to do what I have 18
just described Ms Herman as doing. So she is perfectly fine 19
holding that dried cannabis. She is not fine holding her 20
medicinal tea out of it. And that is arbitrary. That, in 21
my respectful submission, highlights the arbitrariness of 22
these restrictions and it does so in a way that is difficult 23
to reconcile with the factual record. 24
The compounds -- you know, my friend says, 25
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“Well, these things, these derivative products, they are 1
untested. There is no clinical studies. They are untried. 2
Their safety profile is not known” on the one hand. But on 3
the other hand he is saying the Government of Canada doesn’t 4
have any restrictions on patients making these substances 5
and they can consume them any way you want. 6
There is a contradiction there. I mean, it’s 7
either an untested, untried substance that should be kept 8
out of the hands of people to protect their safety or it 9
isn’t. And if it isn’t doesn’t that undo my friend’s point 10
entirely if patients are really able to do whatever they 11
want with their dried cannabis and adjust the compounds in 12
any way they want? 13
It completely undermines my friend’s point 14
about the line being drawn at dried marihuana because we are 15
worried about patient health if they consume these other 16
products. Apparently they are able to consume these other 17
products any way they want to. That’s a fundamental 18
contradiction in my friend’s position that there is no way 19
to reconcile on the argument. 20
I say, further, this in terms of overbreadth. 21
Even if, as respect to some persons, the restriction does 22
have some minimal rational connection to the objective of 23
protecting health and safety, to the patients that testified 24
at the trial there is no rational connection. It captures 25
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their conduct even though their conduct doesn’t implicate 1
the objectives. And that’s what overbreadth is. That’s 2
what this Court described overbreadth as in Carter, Bedford 3
and the other cases. 4
And then I say gross disproportionality. The 5
regulation is grossly disproportionate to those objectives 6
because the effects on patients as described by the 7
witnesses and supported by the objective evidence of the 8
experts is to harm them and to criminalize their conduct, to 9
criminalize their choices of how to best treat their 10
individual medical conditions. And it does so in a manner 11
that does not further the goals of the legislative scheme. 12
And I think this is where the comments of the 13
trial judge about evidence related to a diversion or harms 14
of the products comes into play. We know that the law says 15
you look at the objective but when the burden has been met, 16
when the rights claimant has met the burden of showing the 17
infringement of liberty and of showing an infringement of 18
security of the person and of showing that those 19
infringements are not in accordance of principles of 20
fundamental justice it’s fair to say where is -- where is 21
the evidence that there is any benefit being derived? 22
And I think it’s more appropriately considered 23
in section 1 but that evidence didn’t exist on the record. 24
It wasn’t there and it undermines -- I think I’ll conclude 25
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what what I have to say about section 7 there -- and it 1
undermines any position on section 1 as well. 2
And the evidence is firstly, as the case has 3
made clear, it’s very difficult to, on section 1 grounds, 4
justify the overriding of section 7 rights generally, 5
particularly where the restrictions have been shown to 6
intrude on liberty and security of the person in a way 7
that’s arbitrary or overbroad. There is a failure of 8
connection there. 9
There is a failure of rational connection there 10
that is stark in the section 7 analysis that really undoes 11
the ability to justify it, at least in the facts of this 12
case on section 1 because there were no facts provided by 13
the government in terms of the section 1 analysis that would 14
support that these products are dangerous, that patient 15
health is harmed, that public safety is implicated, that 16
diversion is occurring by patients in particular. Those 17
facts were just simply absent. And so there is no -- there 18
is no rational connection. 19
In addition, the existence of other legislative 20
schemes that would be applicable to the commercial 21
production and sale of these products but for their 22
inclusion in the Controlled Drugs and Substances Act 23
demonstrates that the restriction is not minimally 24
intrusive. And my friend talks a bit about a legislative 25
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lacuna and a threat to the rule of law in his discussions on 1
remedy and says, “Well, if the MMARs are stricken down or if 2
this restriction is stricken down there is going to be this 3
vacuum”. 4
The remedy that -- I’m coming to remedy, 5
Justice Abella -- the remedy that Mr. Smith seeks is a 6
reading in of an exemption from the Controlled Drugs and 7
Substances Act. 8
The end of the day, the problem is that the 9
government is treating medical cannabis in the same way that 10
it treats recreational cannabis, what it calls a drug of 11
abuse. People that use cannabis for medical purposes are 12
not abusing it. They are using it on the recommendation of 13
their physician. That is not abuse. That is legitimate 14
use. It is a very distinct situation, as this Court 15
recognized in Malmo-Levine. 16
There is a very stark difference between 17
recreational and medical. And, yet, the medical production 18
of these substances, the medical distribution of these 19
substances; the medical consumption and possession of these 20
substances is prohibited, generally speaking, by the 21
criminal law with a narrow exemption drawn by the MMARs. 22
That’s the difference. 23
MR. JUSTICE CROMWELL: I’m sorry. How is your 24
remedy different than the trial judge going through and 25
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taking out “dried” from the Regulation? 1
MR. TOUSAW: And it was a thorny issue before 2
the trial judge because the trial judge was attempting to 3
provide an effective remedy to patients principally in the 4
first instance. That’s why the trial judge did not suspend 5
the declaration of invalidity that he made as it related to 6
patients but did suspend it as it related to produce it to 7
allow the government to step in and regulate. 8
And what came about as we are working through 9
the regulatory scheme is that striking the word dried out of 10
the MMAR left in place the definition of marihuana. 11
Marihuana in the MMARs is specific to cannabis marihuana as 12
defined in Schedule 2(1)(2). It means the plant. It 13
doesn’t mean resin. It doesn’t mean THC. It doesn’t mean 14
the cannabinoids. It just means the plant. 15
And so really the remedy without turning it 16
into meaning all the Schedule 2 substances would have been 17
an ineffective remedy because it would have just left 18
patients in the same position. They could produce the 19
plant. 20
They could possess the plant but the minute 21
they turned it into resin, even if they just tapped the 22
flowers into their hands and were left with a small bed of 23
the medicinal compounds in their hands, would have still 24
been unlawful extracting it into oil and then having a 25
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solution of THC and the other cannabinoids would have 1
remained unlawful. That’s why the trial judge redefined it 2
to read Section 2. 3
The difficulty with that remedy sitting here 4
today is that the MMARs don’t exist anymore. The MMARs were 5
repealed by operation of the MMPR. 6
As referenced in one of the intervener’s 7
factums, there is ongoing litigation. There has been an 8
injunction granted preserving for some people aspects of the 9
MMAR regime. So in a limited sense the MMARs live on by way 10
of constitutional exemption but as a regulatory scheme it 11
doesn’t exist anymore. 12
And so the difficulty in the trial judge’s 13
remedy and the difficulty in the court of appeal’s remedy is 14
that it doesn’t provide an effective and responsive to the 15
patients who require access to these other forms of the 16
medicine, because redefining a definition or striking down a 17
restriction in a regulatory scheme that doesn’t exist any 18
more leaves them still captured by the regulatory scheme 19
that does exist which has the exact same restriction. 20
Notwithstanding what my friend said from the 21
Regulatory Impact Analysis Statement accompanying the MMPRs, 22
and he took you to it where he said, well -- and it’s at the 23
last page of Tab 7 of my friend’s book where he says, “Well, 24
there is no restrictions on how dried marihuana is to be 25
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ingested or inhaled”. 1
The problem of course is that it’s not the 2
restriction in, as I said, the MMPRs that’s the problem. 3
It’s the restriction in the Controlled Drugs and Substances 4
Act that is the problem. And that is why Mr. Smith comes 5
before this Court and says what is really required to follow 6
the principle elucidated in Doucet-Boudreau, the Charter 7
remedies must be effective and responsive to the problems 8
identified as a read-in of an exemption to the Controlled 9
Drugs and Substances Act. And that -- 10
MADAM JUSTICE ABELLA: Sorry. That brings me 11
to the questions that I had. 12
MR. TOUSAW: Yes. 13
MADAM JUSTICE ABELLA: Was that put before the 14
court of appeal, the argument about -- it just strikes me 15
that we are dealing now with a very different set of 16
constitutional remedies. 17
MR. TOUSAW: It was not. 18
MADAM JUSTICE ABELLA: It was not put -- 19
MR. TOUSAW: It was not put before the court of 20
appeal. 21
MADAM JUSTICE ABELLA: So it’s being put before 22
us for the first time? 23
MR. TOUSAW: It is being put before you for the 24
first time. 25
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MADAM JUSTICE ABELLA: And the argument against 1
just saying to the government if we accept your argument 2
that it’s unconstitutional, find a way to make it 3
constitutionally compliant within a period of time is...? 4
MR. TOUSAW: I would say here is the problem. 5
And there are two problems. 6
The first is that there has been no evidence 7
put before this Court or any court on why the Schacter 8
criteria for suspending declarations of invalidity ought to 9
apply in this case. There is no threat to the public 10
safety. There is no threat to the rule of law. This is not 11
a case of where you strike down a statue and all of a sudden 12
no one will have the benefit of that statue. 13
In fact, exempting medical cannabis from the 14
Controlled Drugs and Substances Act will automatically by 15
operation of law put medical cannabis into the Natural 16
Health Product Regulation. The Natural Health Product 17
Regulation governs the commercial production, marketing and 18
sale of medicinal plant and plant-based products. 19
MADAM CHIEF JUSTICE: How do you define medical 20
exemption? You simply say at paragraph 195 you want us to 21
read in a medical exemption. One person’s medicine is 22
another person’s poison. 23
Is there not going to be problems just saying 24
anything that you think is medical is going to be okay? One 25
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would think there would have to be more, more detail 1
provided unless we want simply everybody to self-medicate. 2
MR. TOUSAW: Mr. Smith at trial took no issue 3
with a requirement that a physician be a gatekeeper in the 4
MMAR regime. 5
It is reasonable for this Court if it reads a 6
medical exemption into the Controlled Drugs and Substances 7
Act to say that that has to truly be medical. And medical 8
could be defined by reference to the approval of a 9
physician. And physicians of course are able to prescribe 10
all manner of substances potentially including cannabis 11
under section 53 of the Narcotic Control Regulation. 12
MADAM JUSTICE ABELLA: Isn’t this very 13
conversation a reason for us not to wade in -- reading in is 14
usually something we do when the circumstances are so clear 15
about what the effect would be of reading in and the 16
government really doesn’t have any range of options to think 17
about. 18
Here it’s a new remedy that is being proposed 19
for the first time before this Court without any argument or 20
discussion about the utility, the precision. I see your 21
point about the fact that they have had three years 22
effectively since the decision was made. But doesn’t that 23
argue for less time than the year given by the court of 24
appeal rather than for reading in? 25
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MR. TOUSAW: I’ll say two things in response, 1
Justice Abella. 2
First, I would say the government has had more 3
than three years to come up with a constitutional scheme. 4
On this particular point they have had three years. 5
On the issue of the constitutionality of the 6
medical exemption scheme generally this issue has been 7
litigated for the last 15 years. It’s resulted in no less 8
than three court of appeal decisions finding the regulatory 9
scheme to be unduly restrictive, one decision in the B.C. 10
Supreme Court which proceeded by way of direct leave 11
application to this Court that was denied, finding the 12
regulatory scheme to be insufficient on Charter grounds. 13
My friend has described the government’s 14
responses to those declarations of invalidity as robust. 15
With the greatest of respect to my friend’s position I think 16
that the history that I have provided in my remedy section 17
tells a different story. The response has been anything but 18
robust. And I will give you one stark example. 19
In the case called Sfetkopolous which was 20
ultimately decided in the Federal court of appeal , a court 21
of national impact which I think runs contrary to my 22
friend’s point that this Court is the first to deal with 23
this case and have a national impact. The Federal court of 24
appeal did have national impact. 25
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But in the case called Sfetkopolous one 1
producer and about 15 patients challenged the one to one 2
ratio between producer and patient that was contained in the 3
MMARs. That restriction was found to violate the Charter of 4
Rights and Freedoms as arbitrary and unduly restrictive. 5
Now, keep in mind this is one producer and 15 patients of 6
the factual matrix of that case. 7
The government’s response to that was to amend 8
the regulatory scheme. My friend calls it a robust 9
response. They made it one producer and two patients. In 10
my respectful submission it’s not even responsive to the 11
case. They prompted the response. 12
And so there has been 15 years of opportunity 13
and what keeps happening, what we keep coming back to is 14
that medical production, medical delivery, medical 15
possession remains a criminal offence and that puts patients 16
at significant jeopardy of their liberty and their security 17
of the person. It interposes the state in between them and 18
their medical choices. 19
Mr. Smith says that’s unacceptable. Mr. Smith 20
says the only way to effectively respond to that is to take 21
the medical canvas out of the Controlled Drugs and 22
Substances Act. Immediately it becomes a natural health 23
product. 24
And so the commercial aspects that my friend is 25
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concerned about, the commercial marketing, the commercial 1
production, the commercial sale remain regulated behaviour. 2
The Natural Health Product Regulation contains non-criminal, 3
non-CDSA offence provisions. The government can continue to 4
manage the commercial aspects of this endeavour. 5
However, what the Natural Health Product 6
Regulation does not do is criminalize individual patient 7
conduct and it does not then interfere with their liberty 8
and their security of person in a way that using the 9
criminal law, the heavy hand of the criminal law does. 10
That’s why, in my respectful submission, the read-in is the 11
appropriate remedy. 12
I should also say this: Proving intent, 13
medical intent or other intent, is not a concept foreign to 14
law. In fact, the Controlled Drugs and Substances Act, as a 15
result of the 2012 amendments brought about by the Safe 16
Streets and Communities Act put very precisely into the 17
production offence for producing marihuana plants between 18
six and 200 a requirement that in order for the mandatory 19
minimum sentences to apply the Crown would need to prove 20
beyond a reasonable doubt that the production was for the 21
purposes of trafficking. 22
That’s an intention. That’s not -- so it’s not 23
unknown in the law to have intent be part of the 24
prosecution’s case in chief. Indeed, the very offence for 25
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which Mr. Smith stood charged was possession for the purpose 1
of trafficking. And in order to convict him, the Crown 2
would have had to prove beyond a reasonable doubt that he 3
possessed these products for the purpose of trafficking 4
them. 5
Now, we admitted that, obviously, in this 6
particular case. But in terms of reading in a medical 7
exemption, if the Crown and the prosecutorial authority 8
after a case comes to it from the law enforcement authority, 9
reviews the facts and sees that in the ordinary course of 10
investigation of marihuana offences someone is trafficking 11
marihuana and there is no indicia of medical need 12
whatsoever, that person is going to be convicted. 13
That’s the way the system works. That’s the 14
way the criminal justice system works. It’s not an 15
impediment to that to say, “You can’t convict a patient, 16
particularly a patient of these offences if the patient is 17
using the products for medical purposes”. 18
And that is the way that we solve the thorny 19
problems that have been plaguing patients for 15 years or 20
more and plaguing the courts for that same span of time. At 21
some point the endless cycle of litigation on this issue 22
needs to cease and there needs to be a clear line of 23
demarcation between what conduct the state is entitled to 24
make criminal and what conduct the state is not entitled to 25
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criminalize. 1
We know that recreational cannabis as a result 2
of Malmo-Levine, we know that the state is entitled to 3
criminalize for recreational purposes. But as this Court 4
said, it’s a very different thing indeed when the cannabis 5
is intended for medical purposes. 6
In my respectful submission that’s a 7
distinction that this Court needs to drive home and make 8
clear so that the courts understand what the law is, so that 9
the state understands where its powers are circumscribed and 10
so that the patients can understand that they are free from 11
the spectre of criminality for their medical cannabis 12
possession/consumption and their making of these products 13
that provide them a benefit to health. 14
MR. JUSTICE CROMWELL: Could I take you back to 15
your arbitrariness point just for a second? 16
MR. TOUSAW: Absolutely. 17
MR. JUSTICE CROMWELL: The way you presented 18
the point orally, at least as I understood it, was it was 19
premised on the patient having or being eligible for an 20
authority to possess and the irrationality resided in the 21
fact that you had legal authority to possess the compound 22
but not in different forms. 23
MR. TOUSAW: Yes. 24
MR. JUSTICE CROMWELL: So I want to know 25
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whether your arbitrariness point is premised on a patient 1
who is otherwise entitled to the authority to proceed to 2
possess. 3
MR. TOUSAW: We did not challenge at trial the 4
gatekeeper provisions in the MMAR requiring physician 5
approval before one became a lawful possessor of dried 6
marihuana. That was being challenged at the time in a case 7
called Mernagh that my friend has referenced. 8
It was decided at least on evidentiary grounds 9
in Mernagh that the physician’s gatekeeper problem did not 10
render the defence illusory in the way that the Morgentaler 11
case described an illusory defence. And so we did not 12
pursue that line of argument either at trial or in the court 13
of appeal. 14
So for purposes of this hearing before this 15
Court what we are talking about is patients that are 16
medically qualified as a result of being approved for access 17
for therapeutic compounds by their physicians. 18
MR. JUSTICE CROMWELL: And in the record in 19
this case there were two and one pending. Is that -- 20
MR. TOUSAW: That’s correct; two and one 21
pending and then further that 5 percent of the several 22
thousand, 5 to 10 percent of the several thousand members of 23
the Cannabis Buyers Club of Canada at least at the time of 24
trial had been approved for authorizations to possess dried 25
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marijuana. 1
Now, that number has grown since then, but it 2
is certainly the case that at least two of the patients were 3
medically approved by their physicians on the basis of very 4
serious medical conditions that they treated effectively, 5
safely and without the risk of harms of smoking as a result 6
of having access to forms of marihuana other than dried 7
cannabis. And it’s for those reasons that Mr. Smith says 8
the restriction violates the Charter of Rights and Freedoms. 9
MR. JUSTICE CROMWELL: But your remedy seems to 10
me to go well beyond arbitrariness that you have identified 11
because you want us to dismantle the regime. 12
MR. TOUSAW: I am asking this Court to read a 13
medical exemption into the Controlled Drugs and Substances 14
Act. If that medical exemption depends for its 15
effectiveness on a physician signing off either under the 16
Narcotic Control Regulation, section 53 or other -- 17
MR. JUSTICE CROMWELL: You would have to say 18
that the whole regulatory regime is gone and all that’s 19
required is a physician’s letter or something of that sort. 20
MR. TOUSAW: I think the Government of Canada 21
has a regulatory regime in place that will govern the 22
production and commercial sale of these products for medical 23
purposes already. What I am saying is that in respect of 24
patients, they should not be subject to the heavy hand of 25
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the criminal law for making the choice to use cannabis in 1
all of its forms. 2
And to the extent that Schedule 2 includes 3
synthetic substances those were not before the trial judge. 4
Those are not a concern of Mr. Smith. 5
Thank you. 6
(1105) MADAM CHIEF JUSTICE: Thank you very much. 7
Court will rise for its morning recess. 8
--- Upon recessing 9
--- Upon resuming 10
(1123) MADAM CHIEF JUSTICE: Thank you. 11
Mr. Chan...? 12
ARGUMENT FOR THE INTERVENER, CRIMINAL LAWYERS’ ASSOCIATION 13
(ONTARIO) 14
(1123) MR. CHAN: Thank you, Chief Justice and 15
Justices. 16
The Criminal Lawyers’ Association is concerned 17
with both the issues of standing and remedy. 18
With respect to standing I echo much of what my 19
friend, Mr. Tousaw, said. I add -- wish to add an 20
additional case for your consideration. That’s the case of 21
Wholesale Travel in which corporations of course were 22
allowed to assert the section 7 rights of individuals and 23
challenge to an unconstitutional law under which they were 24
charged even though there can never be any connection 25
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between the accused corporations and the section 7 rights 1
asserted because corporations cannot enjoy the right to 2
life, liberty and security of the person. 3
And I simply say that if a corporation can 4
assert the constitutional rights of individuals then surely 5
a supplier of medical marihuana who operates entirely 6
outside the regulatory scheme can assert the section 7 7
rights of a supplier who may have at least one foot inside 8
the scheme. The only connection required under Big M Drug 9
Mart is that the accused be charged under the impugned law. 10
And this principle in our respectful submission should be 11
reaffirmed and not narrowed in any way, particularly given 12
the trend in this Court to broaden the rules of standing as 13
we have seen most recently in Downtown Eastside. 14
The second point I wish to make to standing, 15
and this goes to the question, Justice Cromwell, you asked 16
as to whether my friend from the Crown’s complaint is really 17
more about remedy. And we say that it is. 18
An accused has standing to challenge the 19
constitutionality of a law under which he is charged because 20
he can obtain a declaration of invalidity. That would 21
operate as a complete defence to the charge. It would 22
remove the basis for the prosecution. 23
Now, just because the accused may not 24
ultimately succeed in obtaining his desired remedy, for 25
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example if the Court ultimately decides to read the 1
legislation down in a way that still sustains its 2
applicability to the accused doesn’t mean that the accused 3
should never have been granted standing in the first place. 4
In our submission to allow speculation as to 5
what the ultimate remedy might be, to dictate the terms of 6
standing would be to put the cart before the horse. And 7
this exact point was dealt with by Chief Justice Lamer in 8
his concurring opinion in a case of Ontario and Canadian 9
Pacific Limited [1995] in which Chief Justice Lamer said: 10
“...the fact that an accused has standing 11
to challenge law does not inevitably mean 12
that he or she will benefit from a finding 13
that the law is unconstitutional,...” 14
Standing just gets your foot in the door so 15
that you can make your arguments. It does not guarantee 16
success but that door should not be closed simply because 17
you are not guaranteed success. 18
Dealing then with the issue of remedy, the 19
CLA’s position is that this Court should recognize that 20
there is a fundamental conflict between the suspended 21
declaration of invalidity when it is used in this context, 22
when we are dealing with an unconstitutional and, arguably, 23
unconstitutional criminal offence. 24
There is a conflict between the suspended 25
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declaration here and the principal in Big M Drug Mart that 1
no one shall be convicted under an unconstitutional law. 2
And that conflict arises because when we leave -- when we 3
grant the suspended declaration this Court is leaving on the 4
books for a period of time an unconstitutional offence that 5
can be used to arrest, to imprison in pre-trial custody and 6
potentially convict people despite its unconstitutionality. 7
And because of this conflict we urge this Court to insist 8
that the government justify a suspended declaration and show 9
that there is a compelling reason to override the principle 10
of Big M Drug Mart if it’s to be used in this context. 11
The Schacter criteria, in our submission, 12
provides useful guidance as to when it may be appropriate to 13
temper this constitutional principle with practical 14
necessity if there is a rule of law problem, if there is a 15
public safety problem or if you are dealing with an under-16
inclusive benefits regime and you don’t want to strip away 17
those benefits from all those who would otherwise be 18
entitled to it. 19
My friend tried to -- from the Crown tried to 20
place this case within the rule of law category in terms of 21
justifying why a suspended declaration would be appropriate 22
and argued that because there is a gap in the law that poses 23
a rule of law problem. I simply say the two are distinct. 24
A gap in the law does not necessarily create a rule of law 25
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problem. Otherwise, you would always be suspending 1
declarations of invalidity. It is a bigger rule of law 2
problem to leave on the books an unconstitutional offence 3
that can result in the arrest, incarceration and potential 4
conviction of individuals. 5
MADAM CHIEF JUSTICE: Thank you. 6
MR. CHAN: Subject to questions those are my 7
submissions. 8
(1128) MADAM CHIEF JUSTICE: Very good. 9
Mr. Lokan...? 10
ARGUMENT FOR THE INTERVENER, CANADIAN CIVIL LIBERTIES 11
ASSOCIATION 12
(1129) MR. LOKAN: Thank you, Chief Justice and 13
Justices of the Court. 14
On behalf of the CCLA I will address three 15
brief points arising from the section 7 analysis. 16
First, the liberty interest is engaged by the 17
threat of imprisonment and this is enough on the Court’s 18
principles and case law to shift the analysis to the 19
principles of fundamental justice stage. There does not 20
need to be a further showing that patients’ liberty or 21
security of the person interests are engaged by interference 22
with fundamental personal health choices although that 23
appears to have been made out on the findings of the case. 24
The second point is to the extent it’s 25
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necessary to show that marihuana products are a reasonable 1
treatment choice the evidentiary bar should not be set too 2
high because of access to justice concerns. That is to say 3
the requirement for medical or scientific proof may be 4
unrealistic and contrary to access to justice. 5
Thirdly and finally, we say the courts below -- 6
the courts below did not alter the burden of proof when it 7
comes to arbitrariness. At most there was a shifting of the 8
evidentiary burden as the case unfolded. 9
So on the first point we say that the liberty 10
interest is engaged by the statutory scheme because both 11
patients and providers may be imprisoned for supplying or 12
possessing cannabis products other than dried marihuana. 13
That has always been enough to pass the threshold stage of 14
section 7 and move on to principles of fundamental justice. 15
You have seen that in Malmo-Levine and in the PHS case 16
that’s very clear on the law. 17
My friend for the Crown says, “Well, all that 18
gets you is a review of whether you had a fair trial. That 19
doesn’t get you into any other kind of review”. I say there 20
is no authority for that proposition and that’s wrong in 21
principle. 22
And if I could just give a little hypothetical 23
example, if there was a law on the books which made it 24
illegal to have a last name beginning with “L” -- so that’s 25
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a completely arbitrary law -- it would be no answer if the 1
government says, okay, you can be imprisoned for that. 2
But you have a fair trial. They have produced 3
your birth certificate. It’s been proven. You had a chance 4
to make your case. You would still be entitled on that 5
purely arbitrary law because of the threat of imprisonment 6
to take to court to say it’s completely arbitrary. There 7
would be an arbitrariness review. 8
Now, in this case we have, as in several other 9
cases of this Court -- we have the liberty interest engaged 10
from threat of imprisonment as well as the patient choice of 11
medical treatment. Both elements are there and both are in 12
the analysis but we say that either gets you to principles 13
of fundamental justice. 14
Now, on the point about the evidentiary bar not 15
being set so high that medical or scientific proof is the 16
only way of establishing your case, we would say the courts 17
below have found that the derivative products were 18
reasonably required through the use of patient testimony and 19
expert evidence on a process of what the Ontario Court of 20
Appeal has described as ordinary fact finding. Unless those 21
findings of fact are palpable or of writing error there is 22
no basis to say that doesn’t meet the standards that have 23
been set. And if you were to go on and say, well, wait for 24
-- you need to have medical professionals testify or 25
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physicians testify and you need also to have scientific 1
studies that’s going to render illusory the scope of the 2
medical exemptions that has been developed in the case law. 3
That would be an unduly credentialist approach with serious 4
implications for access to justice. 5
On my final point we disagree that the courts 6
below reversed the (indiscernible) proof in the analysis of 7
arbitrariness. The appellant complains that the trial judge 8
and court of appeal made some comments about how they would 9
have expected to see some evidence in certain areas such as 10
the alleged difficulties in estimating quantities of THC and 11
derivative products as opposed to dried marihuana. With 12
respect, that was simply a practical -- what judges do in 13
practical circumstances and it’s a shifting of the 14
evidentiary, not the legal burden. 15
What the respondent did was to bring 16
arbitrariness in play that derivative marihuana products are 17
more effective for some patients in some conditions. That 18
raised the question of why it is that they should be 19
prohibited under the statutory scheme. As a practical 20
matter the appellants then found itself in a position where 21
it would be advisable to provide some support for the claims 22
that are made about why this is necessary but that was not a 23
shifting of the legal burden. It was only a shifting of the 24
evidentiary burden. 25
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And subject to any questions those are my 1
submissions. I do want to simply add that the CCLA regards 2
the questions of standing and remedy as very important 3
questions and we adopt the submissions of the CLA on those 4
points. 5
(1134) MADAM CHIEF JUSTICE: Thank you. 6
MR. LOKAN: Thank you. 7
ARGUMENT FOR THE INTERVENER, BRITISH COLUMBIA CIVIL 8
LIBERTIES ASSOCIATION 9
(1134) MR. GRATL: Chief Justice, Justices, the 10
British Columbia Civil Liberties Association says that the 11
criminalization of modes of ingestion of medical marihuana 12
is an infringement of the right to liberty that extends 13
beyond the mere threat of incarceration, the threat of 14
incarceration. Standing alone is enough to trigger scrutiny 15
for consistency with the principles of fundamental justice 16
we say. 17
Similarly, we adopt the respondent’s 18
submissions in respect of the very significant effect on the 19
security of the person regarding which there were clear 20
findings of fact. 21
But we would say that this case affords an 22
opportunity to bring clarity to a zone of the right to 23
liberty that rarely receives treatment, precisely because 24
cases like Morgentaler, Bedford, Portland Hotel Society, 25
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Chaoulli and Carter tend to deal with life and death 1
situations or very, very serious bodily harm. It’s also 2
raised because the Crown asks that the right to life be 3
triggered only where there is a life or death situation and 4
where there is serious bodily harm. 5
In response the British Columbia Civil 6
Liberties Association under section 7 should afford 7
protection to important choices, the restriction of which 8
detracts from the sphere of personal autonomy, individual 9
dignity or independence from state interference. The right 10
to liberty should only be restricted in scope where it would 11
debase the administration of justice to hear the issue. 12
In Malmo-Levine the examples were given by this 13
Court, golfing for example, lifestyle choices. Here BCCLA 14
argues that all non-trivial choices, especially of a medical 15
nature, all non-trivial choices should trigger the right to 16
liberty. The reason for that is twofold. 17
Firstly, it’s found in the place accorded to 18
the right to life, liberty and security of the person in the 19
overall architecture of the Constitution. The right to 20
liberty, security of the person and life are -- they are all 21
triggers for further scrutiny of laws for accordance with 22
the principles of fundamental justice and for justification. 23
So that’s the first aspect. It’s not, in my client’s 24
respectful submission, appropriate at this first triggering 25
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stage to take into account the issue of whether affording 1
too much liberty will make society ungovernable. It’s not 2
suitable in my client’s respectful submission to have 3
concerns at that stage about unbridled liberty. 4
The “bridle” metaphor, in my respectful 5
submission, is not appropriate to the governance of 6
constitutional affairs where it ought to be recognized that 7
the state exists for the benefit of the individuals 8
constituting it rather than the other way around. 9
The second imperative, also a constitutional 10
imperative, is the role of the courts in defining the rule 11
of law, in providing transparent and intelligible rationales 12
for a restriction of liberty. If the scope of liberty is 13
defined too narrowly the Court will not have an opportunity 14
to serve its proper constitutional role in providing 15
transparent and intelligible reasons for the restrictions of 16
liberty if we are properly scrutinizing the justifications 17
afforded by the Crown for those limitations. That 18
imperative to provide intelligible justifications is 19
underscored by this Court’s comments in the succession 20
reference that democracy for its justification relies on the 21
application of the rule of law. 22
There is no social compact, no real contract 23
that citizens sign when they are born into citizenship. 24
Instead we are left for surrogates for that constitutional 25
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legitimacy and that legitimacy derives from the 1
justification exercise engaged in by the courts to ensure 2
the privacy of the individual over the state in the form of 3
demanding justification and consistency with the principles 4
of fundamental justice. 5
That brings my time to an end. 6
MADAM CHIEF JUSTICE: Thank you very much. 7
MR. GRATL: Thank you. 8
(1139) MADAM CHIEF JUSTICE: Reply...? 9
REPLY ARGUMENT FOR THE APPELLANT, HER MAJESTY THE QUEEN 10
(1139) MR. RILEY, Q.C.: Chief Justice, Justices, 11
first with respect to remedy, the statement of 12
constitutional question in this case is very specific; 13
whether the restriction of the MMARs to dried marihuana is 14
inconsistent with section 7 of the Charter. 15
MADAM CHIEF JUSTICE: I think we have to 16
remember that statements of constitutional questions are 17
only intended to provide notice to attorney generals and 18
others. They are not in any way binding and it may well be 19
that the real gravamen here has to take into account the law 20
as well. Otherwise, of course, there would be no offence. 21
MR. RILEY, Q.C.: Right. 22
MADAM CHIEF JUSTICE: What we are dealing with 23
is an exception. So I just -- 24
MR. RILEY, Q.C.: Yes. 25
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MADAM CHIEF JUSTICE: -- don’t want to cut off 1
your argument but I wouldn’t put too much weight on the 2
constitutional questions. 3
MR. RILEY, Q.C.: Chief Justice, I think you 4
may be -- I may not have made the -- made it clear the 5
reason I am saying that. 6
The specific issue is alleged constitutional 7
infirmity with respect to one component of the regime. 8
That’s the restriction to dried marijuana. So Mr. Tousaw 9
refers to all the number of producers and the many other 10
aspects of the regulatory scheme which have drastically 11
changed with the introduction of the new regime, the MMPRs, 12
a totally different scheme; moves to a model where instead 13
of designated producers you have commercially licenced 14
producers treating this substance as closely as possible; 15
that is, marihuana, to other drugs that are regulated for 16
pharmaceutical purposes. 17
So my point is that the issue is the 18
restriction to dried marihuana, not all of the other 19
complaints that have been litigated in other cases and have 20
been responded to and are still undergoing litigation. 21
And so if there is a remedy the Crown says it’s 22
right on the merits but if the Crown isn’t right on the 23
merits, if there is a remedy it’s got to be focused on the 24
question of restriction to dried marihuana and not 25
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jettisoning an entire government program that has at least 1
30,000 licenced individuals operating under it. That would 2
be drastic and in favour of a judicially legislated defence 3
what’s ill defined, frankly. 4
I will just say one more specific point. My 5
friend says that the response to Sfetkopolous which was the 6
limit to the number of producers was to move from one to 7
two. And if you look at the Regulatory Impact Analysis 8
Statement for the new MMPRs which is in the condensed book 9
at Tab 4, I believe, what you will see -- oh, it’s going to 10
be -- this part isn’t in the condensed book because I didn’t 11
realize it would arise. 12
But if you look at the appellant’s authorities, 13
Tab 13, that’s the complete Regulatory Impact Analysis 14
Statement. At page 1725 it shows that the government 15
responded to the Sfetkopolous ruling by moving from one 16
designated producer to two and that the amendment was an 17
inter-measure intended to address the Court’s decision while 18
the program and the MMARs were being reassessed. The 19
ultimate conclusion was the MMPRs, an entirely new regime 20
that moves to licence producers. So it’s not -- it’s a 21
completely irrelevant issue at this point. 22
With respect to my friend, Mr. Tousaw, says, 23
“Look, derivative marihuana products are as safe or are 24
safer than many approved pharmaceuticals”. My friend can’t 25
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say that and there is no finding to that effect. No one can 1
say that. The reason no one can say it is because there has 2
been no scientific study over -- with a statistically 3
significant number of participants to show that’s the case. 4
Indeed, what the court of appeal said was the 5
Crown hasn’t produced evidence to show that these products 6
are any less safe or more dangerous. And my point from the 7
very beginning has been that that’s a reversal of the burden 8
under section 7 of the Charter. 9
With respect -- 10
MR. JUSTICE CROMWELL: (Off microphone) 11
interrupt you. But can you explain why it is you need a 12
suspension of a declaration of invalidity of a scheme that 13
is no longer in force? 14
MR. RILEY, Q.C.: Yes. I think it’s this, and 15
it goes to the rule of law question. There is no question 16
there is a new scheme now which has many different facets 17
but that new scheme maintains the impugn distinction by 18
saying only authorizes dried marihuana. 19
So I appreciate the Court will be saying the 20
restriction in the old regime is invalid. There is no 21
question, though, that in terms of the rule of law everyone 22
will take guidance from what this Court says about that 23
restriction. It will have to be -- obviously it would have 24
-- that point would be decided. So with regard to the new 25
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regime since it envelops and adopts that new provision even 1
though it’s not subject to challenge, the government would 2
have to obviously look at responding to the ruling to make 3
sure that the ruling corresponds with, or that the 4
Regulations correspond with the ruling. 5
I had more points and I’m not sure if I will be 6
given the time to make them. 7
MADAM CHIEF JUSTICE: Well, very quickly. 8
MR. RILEY, Q.C.: Yes. Thank you. 9
With respect to my friend, Mr. Tousaw, 10
referenced doctors’ notes and I will just point out of the 11
CBCC patients, the Crown at the trial objected to any 12
testimony from patient witnesses about medical opinions of 13
doctors and said that they could give that evidence but it 14
would not be permissible for a hearsay purpose. And the 15
trial judge accepted that limitation. That comes from the 16
record, Part 3, Volume 2, page 77, line 1 to 19, and page 17
83, line 40 to page 84, line 7. And then -- 18
MADAM CHIEF JUSTICE: Would you confine your 19
points to things that really matter? I think that we -- 20
MR. RILEY, Q.C.: Oh. 21
MADAM CHIEF JUSTICE: -- have findings and 22
whatever that particular evidence is we will be looking at 23
it. 24
MR. RILEY, Q.C.: Right. I guess I would just 25
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say this, and I will leave it at this, Chief Justice, that 1
my friend is saying, “Well, look, there is support for the 2
CBCC witness opinions that they need to use other kinds of 3
substances other than dried marihuana. Look at this letter 4
from a doctor”. That’s a hearsay letter and the Crown made 5
it clear on the record that the witnesses could testify 6
about their dealings with their doctors but any medical 7
opinions through those witnesses would be hearsay and the 8
trial judge accepted that limitation. 9
MADAM CHIEF JUSTICE: Thank you. 10
MR. RILEY, Q.C.: Thank you. 11
(1146) MADAM CHIEF JUSTICE: The Court will reserve 12
its decision. We thank all counsel. 13
We are adjourned. 14
--- Whereupon the hearing concluded at 11:46 p.m. 15
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CERTIFICATION 1
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I HEREBY CERTIFY that I have 17
accurately transcribed the foregoing 18
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Karen Paré 24
Verbatim Court Reporter 25
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