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COURT FILE No.:  Toronto
DATE:  June 15, 2007
ONTARIO  COURT  OF  JUSTICE
BETWEEN:

HER  MAJESTY  THE  QUEEN

—  AND  —

CLIFFORD LONG


 
Before Justice H. Borenstein
Heard on March 28 and May 2, 2006
Reasons for Judgment released on July 13, 2007
 
Chris De Sa and Jason Mitschele .................................................for the Crown
Brian McAllister  ...............................................      for the accused Clifford Long

 
BORENSTEIN J.:


OVERVIEW

[1] On September 23, 2005, Clifford Long was a passenger in a car that was stopped by the police for a seatbelt infraction. He was allegedly in possession of three and a half grams of marijuana at the time and has been charged with possession of cannabis marijuana under 30 grams contrary to s. 4(1) of the Controlled Drugs and Substances Act (“CDSA”).
[2] Mr. Long submits that the law prohibiting possession of marijuana in s.4(1) of the CDSA is unconstitutional as Parliament has failed to enact a constitutionally acceptable medical marijuana exemption.
[3] In Parker, it was established that, if Parliament intends to criminalize possession of marijuana, it can do so only as long as there is a constitutionally acceptable exemption for seriously ill persons who require marijuana to alleviate symptoms associated with their illness (“medical marijuana exemption”).  
[4] After Parker was decided, the Government attempted to create a medical marijuana exemption by enacting the Medical Marijuana Access Regulations  (“MMAR”).  
[5] In Hitzig , the Court of Appeal found that that attempt failed and was unconstitu-tional. Three regulations in the MMAR in particular set up barriers that overly restricted access to a licit supply of marijuana for medical purposes. A constitutionally acceptable exemption could not unduly limit reasonable access to marijuana for medical purposes. The Court of Appeal struck down those three regulations thus removing the barriers to reasonable access.
[6] Two months after Hitzig was decided, the Government re-enacted two of those three regulations struck down by the Court of Appeal but implemented a policy where the Government would maintain a supply of marijuana and allow eligible persons to seek access to that supply. Permissive regulations were enacted to allow the Government to distribute marijuana from its supply without contravening any laws. The regulations neither required the Government to have a supply of marijuana nor to provide one. It merely permitted eligible persons to seek access to the Government’s supply and permitted the Government to supply marijuana.
[7] Mr. Long submits that re-enacting the regulations already found to have unduly restricted access renders the exemption constitutionally unacceptable. He submits that it cannot be saved by resort to a permissive policy that merely allows the Government to supply marijuana but does not entitle seriously ill persons to marijuana from the Government supply nor does it require the Government to have such a supply. It is the Government’s present policy and not any law that ameliorates the effect of regulations already found to unduly restrict access.  He submits that a Court cannot take into account a policy in assessing the constitutionality of the medical marijuana exemption. He submits that a law that is unconstitutional cannot be saved by resort to a policy which can be changed at any time.
[8] Mr. Long submits that the exemption is unconstitutional and therefore, as per Parker, so too is the criminal prohibition.
[9] The Crown responds to Mr. Long by arguing that there is no evidence that Mr. Long is in need of medical marijuana and that he has not provided any factual basis for his claim that the current exemption violates the Charter. The Crown argues that the current regime, post Hitzig, is constitutionally acceptable. It was arrived out after broad and exten-sive consultation. The Crown submits that the current regime meets the Government’s constitutional obligations to those in need of medical marijuana while still meeting its re-sponsibilities and international obligations to control marijuana. The Crown argues that I must consider the policy while assessing the medical marijuana exemption. They are to be viewed together.
[10] This case raises the question of whether the Government has fashioned a constitu-tionally acceptable exemption to the criminal prohibition on marijuana possession in section 4(1) of  the CDSA. If so, then the criminal prohibition on possession of marijuana is constitutional. Is the medical marijuana regime set up by Parliament post Hitzig constitutionally acceptable?
THE LEGISLATIVE SCHEME
[11] Section 4(1) of the CDSA provides that no person shall possess marijuana except as authorized by the regulations. Those who violate s. 4(1) can be imprisoned.
[12] Section 55 of the CDSA empowers the Governor-in Council to make regulations exempting persons, or classes of persons, from the application of the Act or regulations on such terms as are set out in the regulations.
[13] Section 56. of the CDSA confers broad power on the Minister of Health to exempt any person from the CDSA or its regulations where the Minister is of the opinion that doing so is necessary or in the public interest.
PARKER
[14] In the July 2000 decision of Parker, the Ontario Court of Appeal held that the law prohibiting possession of marijuana under the CDSA was unconstitutional. The Court found that, for some seriously ill people, the use of marijuana was effective in treating their symptoms.
[15] The Court held that a blanket prohibition on possession of marijuana violated section 7 of the Charter absent a constitutionally acceptable medical exemption for those with a legitimate medical need for marijuana (“medical marijuana”).
[16] Although s.56 of the CDSA empowered the Minister of Health to exempt persons from the criminal prohibition, s. 56 was constitutionally inadequate as an exemption as it was based on the unfettered discretion of the Minister. It did not matter whether a particular Minister was well intentioned or not or happened to exercise his or her discretion reasonably.  What mattered was the exemption amounted to unfettered discretion.
[17] The defence argues that unfettered discretion is akin to a departmental policy to supply marijuana and that neither can save an unconstitutional law.
[18] Having found the criminal prohibition unconstitutional absent a medical exemp-tion, the Court considered the remedy of “reading in” such an exemption. However, the Court agreed with the Crown submission at the time that, if it found a violation of s. 7 be-cause the legislation failed to provide an adequate exemption for medical use, the "only available remedy" was to strike down the criminal prohibition and suspend the finding of invalidity for a period of time to allow Parliament to craft a satisfactory medical exemption.
[19] The Court of Appeal stated that, while “reading in” was a potential remedy, it declined to do so in view of the numerous policy choices available to Parliament in creating a medical marijuana exemption. The choices ranged between decriminalizing marijuana, to the Government acting as the sole provider. Reading in was inappropriate if the question of how the statute ought to be extended to comply with the Charter could not be answered with a sufficient precision on the basis of constitutional analysis. The Court stated that “to read in an exemption in such circumstances would "amount to making ad hoc choices from a variety of options, none of which was pointed to with sufficient precision by the interaction between the statute in question and the requirements of the Constitution. This is the task of the legislature not the courts”.
[20] The Court suspended its declaration of invalidity for one year to allow the Gov-ernment to create a valid medical exemption to the criminal prohibition.
RESPONSE TO PARKER: THE CREATION OF A REGULATORY EXEMPTION
[21] One year less a day later after Parker was released, the Government enacted the Marijuana Medical Access Regulations (“MMAR”)  which created a regulatory exemption to the criminal prohibition on marijuana.
[22] The regulations prescribed who was eligible for medical marijuana. Eligible per-sons were issued Authorizations to Possess Marijuana  (“ATP”). ATP holders could apply for and obtain a licence to grow marijuana for themselves (“Personal-Use Production Li-cence or “PPL”) or they could nominate an eligible “designated person” who would be issued a “Designated-Person Production Licence (“DPL”). The MMAR made reference to obtaining marijuana from dealers licenced with the Government of Canada however there were no licenced dealers supplying marijuana to ATP holders.
[23] The MMAR contained three regulations that specifically prohibited DPL holders from:

1)    being compensated for growing marijuana for ATP holders (s.34(2));
2)    supplying marijuana to more than one ATP holder; and
3)    combining production with more than two other DPL holders.

THE COURT OF APPEAL DECISION IN HITZIG
[24] In 2003, the Ontario Court of Appeal reviewed the medical marijuana exemption in Hitzig .  
[25] By the time of the hearing of the Hitzig appeal, the Government developed and had implemented an “Interim Supply Policy” (“ISP”) where it supplied seeds and dried mari-juana to ATP holders who had not obtained either a PPL or a DPL. Two regulations were promulgated which allowed the Government to supply seeds and dried marijuana without contravening existing laws.
[26] The Crown advised the Court of Appeal of the ISP simply to make it aware of the state of affairs but did not ask the Court to consider the ISP in assessing the validity of the regulatory exemption.
[27] The Court found the three regulations relating to DPL holders noted above unduly restricted ATP holders’ access to a licit supply of marijuana . These three regulations reduced the likelihood of ATP holders finding persons willing to act as designated persons. Given the absence of any other lawful supply of marijuana, these restrictions inevitably forced some ATP holders to the illicit market to obtain marijuana.
[28] The Court held that the exemption was unconstitutional. Given the absence of a constitutionally acceptable exemption, the criminal prohibition on possession of marijuana in s.4(1) of the CDSA was unconstitutional in accordance with the decision in Parker.
[29] The Court of Appeal determined that the appropriate remedy was to strike out the three regulations in the MMAR that unduly limited access to medical marijuana. The Court declared section 34(2), 41(b) and 54 of the MMAR to be of no force or effect. This remedy removed the regulations which restricted access. As modified, the regulatory exemption created by the MMAR was constitutionally acceptable and therefore the law prohibiting possession of marijuana was constitutional.
[30] The Court of Appeal in Hitzig acknowledged that the Government could address the problem of supply in a manner different than that crafted by the Court of Appeal as long as it did not unduly restrict access to medical marijuana.

GOVERNMENT’S RESPONSE TO HITZIG

        Evidence of Carole Bouchard
[31] Ms. Carole Bouchard is an employee of Heath Canada. She is the Director of the Office of Controlled Substances within Health Canada’s “Drug Strategy and Controlled Substances Programme”. She is responsible for the administration of the CDSA and most of its  regulations including the management of Health Canada’s Medical Marijuana Access Division (“MMAD”) and the management and oversight of the MMAR and Health Canada’s Policy on the Supply of Marijuana Seeds and Dry Marijuana for medical purposes.

The Goal of Health Canada’s Medical Marijuana Programme

[32] According to Ms. Bouchard, the Medical Marijuana Programme began in 2001 under former Minister of Health, Allan Rock and has continued under successive Ministers. The Medical Marijuana Programme has three key elements. It:
(1) creates a regulatory framework to permit persons to possess and produce marijuana;
(2) encourages research into the safety and efficacy of medical marijuana; and  
(3) seeks to establish a consistent, reliable, legal source of marijuana for medical purposes in Canada.
[33] Since 2003, the Government’s policy development regarding medical marijuana has been guided by the goal of replicating the features of a traditional health care model. The Government’s goal was to:

1)    create a Government owned source of marijuana that complies with product standards accompanied by a longer term goal of phasing out personal cultivation;
2)    distribute marijuana to authorized persons through pharmacies
3)    monitor the risks and benefits of marijuana for medical purposes and educating patients and physicians
4)    improve post-market surveillance to monitor safety and efficacy.
[34] In the summer of 2003, pending the hearing of the Hitzig appeal, Health Canada implemented the ISP which provided authorized persons with the option of obtaining dry marijuana or seeds from a new Government supply. The Government entered into a contract with Prarie Plant Systems Inc. to produce marijuana on its behalf. The initial objective of the ISP was to render the exemption and therefore the criminal prohibition constitutional. The ISP was supposed to be in place only until the Hitzig appeal was heard.
[35] In order to implement the ISP, a regulation was promulgated on July 8, 2003 exempting dried marijuana produced under contract with the Government of Canada from the application of the FDA and its regulations. This regulation allowed the Government of Canada to distribute dried marijuana and seeds without violating any laws.   
[36] Health Canada established a Stakeholder Advisory Committee on Medical Mari-juana (the “Advisory Committee”) comprised of ATP holders, physicians, pharmacists, researchers, representatives of health care organizations, health care professionals and law enforcement officials.  The Advisory Committee was established prior to Hitzig . Its work was accelerated following the Court of Appeal’s decision in Hitzig.
[37] Two months after Hitzig was decided, the Government adopted a new approach to the supply of marijuana for medical purposes. The Government would permanently offer ATP holders who did not have a PPL or DPL the alternative of obtaining marijuana from a government supply. The Crown characterized the Government’s response to Hitzig as “en-trenching” the ISP policy. Access would no longer be a problem as long as the policy was being implemented. This new policy dated December 3, 2003 is called the “Policy on Supply of Marijuana Seeds and Dried Marijuana for Medical Purposes” (“the Supply Policy”) and it replaced the ISP of July 2003.
[38] In order to implement this policy, the Governor-in Council promulgated the neces-sary regulations  so that the Government was permitted to distribute dried marijuana and seeds without contravening any laws.
[39] As a result of this new Government supply of marijuana available for medical purposes, the Governor-in Council re-enacted two of the three regulations found by the Court of Appeal to have limited access. Sections 41(b) and 54 were re-enacted . Several less important regulations that existed were also repealed.
[40] According to Ms. Bouchard, these amendments to the MMAR post-Hitzig were meant to achieve five objectives.

1)     to give “national effect” to that part of the Hitzig ruling which struck down the prohibition on compensating DPL holders. To that end, the amendments:

    formally repealed s.34(2) which had been struck down by the Court of Appeal;

    added the word “provide” to s. 34(1)(e) of the MMAR which had already permitted DPL holders to “transfer, give or deliver directly” marijuana to ATP holders; and

    amended the Marijuana Exemption (FDA) Regulations to exempt marijuana produced by DPL holders

2) to enable ATP holders the option of having reasonable access to the Government’s supply of marijuana by:    

        amending s.5(1)(e) of the MMAR  to reflect the availability of a Government supply of dried marijuana;

        adding s. 70.1 to the MMAR to enable the Government’s supply of dried marijuana to be shipped directly to ATP holders .
3)    to maintain control over the distribution of marijuana and to respect Canada’s international obligations concerning cultivation and distribution of marijuana by

    re-enacting ss.41(b) and 54 of the MMAR struck down by the Court of Appeal

4)    to facilitate and enhance access to marijuana by repealing section 34 of the MMAR which required DPL holders to transfer marijuana directly to ATP holders and section 56 which required DPL holders to maintain particular records and books.

5)    to formally repeal the regulation requiring a second medical specialist that had been struck down by the Court of Appeal.

[41] The Supply policy enhances access beyond the ISP in that it:

1)    allows an applicant to receive both initial seeds and a four month initial supply of dried marijuana pending their first harvest whereas the ISP allowed for one or the other;

2)    eliminates the “one-time only” provision for seeds;

3)    eliminates the requirement that an ATP holder must exhaust all other sources before applying for access to the Government’s supply:

4)    allows for shipment of dried marijuana directly to ATP holders as opposed to their medical practitioners.
[42] Subsequent amendments were made to the MMAR to streamline eligibility and administrative requirements and to authorize the communication of information to the police The amendments also provide authority to conduct a limited pilot project to assess the feasibility of distributing marijuana through a pharmacy-based system without a prescription.
[43] According to Ms. Bouchard, since July 2007, the MMAD receives an average of 75 new applications for ATP and 78 renewal applications monthly. As of January 5, 2007, 1678 persons in Canada have ATPs. 1029 persons hold PPL licences and150 hold DPLs.
[44] As of January 5, 2007, 320 people were receiving dried marijuana from the Gov-ernment’s supply. 248 people had received seeds and 142 people have received a four month supply of dried marijuana pending their first harvest from seeds provided by Health Canada. The MMAD receives on average 37 applications for a supply of either dried marijuana or seeds from the Governments.  

IS THE MEDICAL MARIJUANA EXEMPTION CONSTITUTIONALLY ACCEPTABLE
[45] In my view, the amended MMAR creates a constitutionally unacceptable medical marijuana exemption.
[46] The amended exemption is premised upon the Government filling the void and supplying marijuana to some ATP holders so that reasonable access to marijuana for medical purposes will no longer be impeded. That is in fact the Government’s goal. Eligible persons who require access to the Government supply of marijuana are supposed to have access to that supply.
[47] To implement this new approach to the supply of marijuana, the Governor-in Council enacted permissive regulations which allows the Government to supply marijuana. It also re-enacted, for legitimate reasons, two of the three regulations that have been found to unduly limit lawful access to a reasonable supply of marijuana.
[48] Even though the criminal prohibition still exists and the overly restrictive regula-tions revived, in view of the policy being implemented through the permissive regulations, the exemption mechanism is presently working. Since the Government began supplying marijuana pursuant to the ISP and then the Supply Policy, the Government has had sufficient marijuana to accommodate every application for dried marijuana or seeds made by authorized persons. The Government providing an alternative source of supply is integral to the entire scheme. Access is no longer a problem due to the policy.
[49] The regulations merely permit the Government to supply marijuana, they do not require it nor do they entitle authorized persons to anything other than the right to ask the Government for access. This is in contrast to an eligible ATP holder applying for a licence to produce marijuana, be it a DPL or PPL. In those circumstances, the Minister effectively must issue the licence.
[50] In my view, a criminal prohibition together with a regulatory exemption that unduly restricts access to a licit supply of medical marijuana is unconstitutional and cannot be saved by resort to a policy, regardless of whether the policy is permitted by regulation. The fact the policy is permitted by the enabling regulations does not add much in my view. One can assume that a policy being implemented will be lawful. That does not alter the fact that the criminal prohibition on possession of marijuana is prescribed by law and the regula-tions which authorizes possession but unduly limits access is prescribed by law.
[51] If the law is unconstitutional as a result of creating unreasonable limitations on access, it cannot be rendered constitutional by resort to a policy.
[52] In R. v. Smith,  the Supreme Court held that the mandatory minimum seven year sentence for importing narcotics was unconstitutional as it amounted to cruel and unusual punishment contrary to the Charter. This was so regardless of the Crown policy in place to exercise its discretion not to seek that sentence where, in the Crown’s view, it was not warranted.
[53] Following the hearing of this matter, the Crown sent the Court a copy of the Little Sisters case  with an accompanying letter stating that it viewed the case as “dispositive” of the issue in its favour. The defence agreed that it was dispositive but asserted that it is was dispositive in its favour. Neither side made further submissions on this case.
[54] Little Sisters was a case where a Custom’s Law that prohibited the importation of material deemed obscene under the Criminal Code was being implemented by customs officials in a manner that targeted a store servicing the gay and lesbian communities. Cus-toms officers were detaining the store’s imported goods as obscene. The legislation required the importer to establish that the material imported was not obscene. The Appellants challenged the law on various bases including the reverse onus and on section 15. The Supreme Court held that the reverse onus was unconstitutional.
[55] The entire Court agreed that the law was being applied in a discriminatory manner. The issue was whether the source of the discriminatory implementation was the law itself or the manner in which it was being implemented.
[56] The essence of the majority decision was that the law (absent the reverse onus) was constitutional as it only permitted customs officials to detain obscene material.
[57] The dissent held that the law should contain a specific requirement that administra-tive policies must only permit the detention of obscene material. In short, the dissent held that the law must contain a provision requiring that the law be implemented constitutionally.
[58] The majority disagreed holding that there was no requirement that the law include a provision stating that it be administered or implemented constitutionally. Parliament was entitled to assume that it would.
[59] That is different in my view from our case. Little Sisters holds that Parliament can assume that a constitutional law will be implemented constitutionally. It does not state that a law that creates unconstitutional barriers can be rendered constitutional by being imple-mented fairly. Quite the opposite.
[60] In my view, Little Sisters supports Mr. Long’s position.
[61] That resort to a permissive policy cannot render an unconstitutional law constitu-tional is also consistent with sections 1 and 52 of the Charter which declares that the rights and freedoms guaranteed by the Charter are subject to such reasonable limits, prescribed by law and, any law that is inconsistent with the Charter is, to the extent of the inconsistency, of no force or effect. It is not any law, except as may be ameliorated by policy.
[62] It is trite to say that laws enjoy a qualitatively different status than policies. They circumscribe behaviour. They confer rights and privileges. They permit. They penalize, all with the force of law.
[63] There is nothing in the CDSA or the MMAR that requires the Government to supply marijuana to eligible, authorized persons. The law requires the Government to issue a licence to produce to eligible authorized persons who apply. For those who do not have a licence, the exemption does not require the Government to supply them with marijuana. Pursuant to the Policy being implemented, those persons are in fact receiving marijuana. Needless to say, there is nothing in the criminal prohibition or in the regulatory exemption that requires the Government to comply with its policy. There is nothing in the regulations that requires the government to enter in contracts with licenced dealers, or to provide a supply. They can stop tomorrow. Today – they are making a supply available.
[64] Reasonable access is now dependent on policy, not on law. On a law that has been found to have set up barriers to reasonable access. That is not a constitutionally acceptable exemption.
[65] I have reviewed the cases provided by the Crown which have reviewed and upheld the current exemption post-Hitzig . While those cases were helpful, none appear to have considered the issue raised by Mr. McAllister on Mr. Long’s behalf.
[66] The Crown submits that I must consider the policy of supplying marijuana in assessing the constitutionality of the entire exemption. For the reasons given, it is my view that a policy that ameliorates the effect of an unconstitutional law cannot render the law constitutional.
[67] If the government re-enacts regulations that have been found to unduly restrict access, and seeks to address the deficiency by being a supply source of marijuana, then it must take on the legal obligation to supply it.
[68] The exemption depends on the Government supplying marijuana which it is now doing only as a result of the policy. In my view, the exemption as re-enacted would only be constitutionally acceptable if the Government took on the obligation by law to supply mari-juana to those in need. Without such an obligation, the exemption is constitutionally unac-ceptable. This is more so where the cornerstone of the exemption depends on the Govern-ment supplying marijuana.
[69] Not taking on the obligation by law is not very different, from a legal standpoint, from the Government merely re-enacting provisions found to be unconstitutional but telling the public and the Courts not to worry as it would now supply marijuana despite the uncon-stitutional limitations.
[70] If the Government intends to criminalize possession of marijuana constitutionally, while limiting access to marijuana by re-enacting the regulations struck down in Hitzig, then it must simultaneously, by law, take on the obligation to supply marijuana.  They must remove the barriers to access or impose on itself the obligation to supply marijuana to eligi-ble authorized persons who do not obtain a licence, not simply as a matter of policy but as a matter of law.
[71] Had the Government obligated itself by law to supply marijuana in accordance with its policy, the regulatory exemption would be a constitutionally acceptable. Without that obligation, in my view, it is not.  


Released:     July 13, 2007
Signed: “Justice H. Borenstein”



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Last Modified:Friday, 20-Jul-2007 13:12:58 PDT 21517