Part 2 Noreen Evers
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the
circumstances.
(2) Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by
this Charter, the evidence shall be excluded if it is
established that, having regard to all the circumstances,
the admission of it in the proceedings would bring the
administration of justice into disrepute.
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of
all matters within the authority of Parliament including all
matters relating to the Yukon Territory and Northwest
Territories; and
(b) to the legislature and government of each province in
respect of all matters within the authority of the
legislature of each province.
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions
of the Constitution is, to the extent of the inconsistency,
of no force or effect.
9. Treaty Obligations.
Pg 33 of the Senate Report (supra Tab ___), the Senate makes
the following observations:
- The series of international agreements concluded
since 1912 have failed to achieve their ostensible aim of
reducing the supply of drugs;
- The international conventions constitute a two-tier
system that regulates the synthetic substances produced by
the North and prohibits the organic substances produced by
the South, while ignoring the real danger the substances
represent for public health;
- When cannabis was included in the international
conventions in 1925, there was no knowledge of its effects;
- The international classifications of drugs are
arbitrary and do not reflect the level of danger they
represent to health or to society;
- Canada should inform the international community of
the conclusions of our report and officially request the
declassification of cannabis and its derivatives (emphasis
added).
In R. v Parker (July 31, 2000), 2000 C28732 (ON C.A.) Crown
Authority, Volume 1 Tab 1 Pages 268, 269,
"Endnotes" para 11 the Ontario Court of Appeal address
Crown's concerns regarding Treaty Obligations:
11 In any event, the Constitution takes precedence over any
treaty obligations: Attorney-General for Canada v. Attorney
General for Ontario and Others, [1937] A.C. 326 (P.C.). Tab
_____
12 Canada acceded to the Covenant on May 19, 1976 and it
came into force in Canada on August 19, 1976.
13 The Crown, of course, claims that the legislation already
contains sufficient exemptions. In any event, if treaty
obligations are a matter more properly considered under s.
1, the Crown did bear the burden of proof on that issue.
10. CDSA 4 & 7 and 5 have been declared unconstitutional: In
the studies of the case law in the presentations of both
Crown and myself, the marihuana prohibition in CDSA 4, 7 and
5 have been found to be against Section 7 and Section 1
Charter rights (emphasis added):
R. v. Parker (O.C.J.) Toronto Region (The Honourable Judge
Patrick Sheppard on December 10, 1997) (supra) Page 12
"Mr. Parker will be granted immediate protection under
Section 24(l) of the Charter of a stay of proceeding with
respect to count I (cultivate a narcotic, Section 6(l)
N.C.A.) and the September 18, 1997 count (possession of a
controlled substance, Section 4(l) of the C.D.S.A). All
plant material (three plants) seized from him by the
Metropolitan Toronto Police Services on September 18, 1997
is to be returned to him forthwith..." "...It is ordered
pursuant to Section 52, that Section 4(1) and Section 7(l)
of the C.D.S.A. be read down so as to exempt from its ambit
persons possessing or cultivating Cannabis (a schedule II
substance) for their personal medically approved use.
R. v. Parker (July 31, 2000), 2000 (ON C.A.)
Date: 2000-07-31 Docket: C28732 Case supplied by Crown. Page
______ Para ____, 191_
[10] I have concluded that the trial judge was right in
finding that Parker needs marihuana to control the symptoms
of his epilepsy. I have also concluded that the prohibition
on the cultivation and possession of marihuana is
unconstitutional. Based on principles established by the
Supreme Court of Canada, particularly in R. v. Morgentaler,
[1988] 1 S.C.R. 30, where the court struck down the abortion
provisions of the Criminal Code, and Rodriguez v. British
Columbia (Attorney General), [1993] 3 S.C.R. 519, where the
court upheld the assisted suicide offence in the Criminal
Code, I have concluded that forcing Parker to choose between
his health and imprisonment violates his right to liberty
and security of the person. I have also found that these
violations of Parker's rights do not accord with the
principles of fundamental justice.
[11]..I would declare the prohibition on the possession of
marihuana in the Controlled Drugs and Substances Act (CDSA)
to be of no force and effect. However, since this would
leave a gap in the regulatory scheme until Parliament could
amend the legislation to comply with the Charter, I would
suspend the declaration of invalidity for a year. During
this period, the marihuana law remains in full force and
effect. Parker, however, cannot be deprived of his rights
during this year and therefore he is entitled to a personal
exemption from the possession offence under the Controlled
Drugs and Substances Act for possessing marihuana for his
medical needs. Since the Narcotic Control Act has already
been repealed by Parliament, there is no need to hold it
unconstitutional. If necessary, I would have found that
Parker was entitled to a personal exemption from the
cultivation offence for his medical needs."
7. Can any violations be saved by s. 1?
[191] The onus was on the Crown to establish that the
violations of Parker's rights could be saved under s. 1 of
the Canadian Charter of Rights and Freedoms. The Crown did
not suggest that the violations could be saved by s. 1. In
any event, many of the defects in the legislation that
contribute to the deprivations of Parker's rights
practically preclude the legislation from meeting the
proportionality test under s. 1.
[192] In particular, one of the purposes of the law is to
prevent harm to the health of Canadians and the resulting
costs to society. However, the broad nature of the marihuana
prohibition has the effect of impairing the health of Parker
and others who require it for medial purposes. In this
sense, the legislation works in opposition to one of the
primary objectives and thus could be described as
"Carbitrary" or "Cunfair" R. v. Keegstra (1990) 61 C.C.C.
(3d) 1 (S.C.C.) per Dickson C.J.C. at 53 and per McLachlin
J. (dissenting) at 114.
[193] The only possible basis for holding that the provision
of the Controlled Drugs and Substances Act constituted a
reasonable limit is that s. 56 tempers the facial
overbreadth of the prohibition. However, for the reasons of
L'Heureux-Dube J. and McLachlin J. in Committee for the
Commonwealth of Canada v. Canada, the plenary discretion
vested in the Minister precludes a finding that this is a
reasonable limit. Thus, whether the s. 56 exemption is
considered under s. 1 or s. 7, it cannot save the
legislation.
[194] Finally, the broad prohibition means that the section
fails the minimal impairment test: R. v. Heywood (1994), 94
C.C.C. (3d) 481 (S.C.C.) at 523. There is no need to
prosecute people like Parker who require marihuana for
medical purposes to achieve any of the three objectives
identified by the Crown: preventing harm, international
treaty obligations, and control of the trade in illicit
drugs. Less intrusive means are available to meet these
objectives. The Californian and Hawaiian legislative schemes
are but two examples of how these objectives might be
reconciled with the needs of patients requiring access to
marihuana.
Order: R. v. Parker (July 31, 2000), 2000 (ON C.A.)
Date: 2000-07-31 Docket: C28732 Tab ____
THIS COURT ORDERS that the remedy granted by the trial judge
is varied by declaring the marihuana prohibition in s. 4 of
the Controlled Drugs and Substances Act to be invalid. The
declaration of invalidity is suspended for a period of 12
months and the respondent is exempt from the marihuana
prohibition in s. 4 of the Controlled Drugs and Substances
Act during the period of suspended invalidity for possession
of marihuana for his medical needs. The part of the Sheppard
J.'s judgment reading in a medical exemption into the former
Narcotic Control Act and the Controlled Drugs and Substances
Act are set aside and the plants seized in the September
1997 search are ordered to be returned. In all other
respects, the Crown's appeal is dismissed.
R. v. Krieger (2000), Reasons for Decision 2000 ABQB 1012
Tab ____
"[44] I am satisfied that s. 7(1) of the CDSA deprives
Mr.Krieger and those who are similarly situated of their
rights under s. 7 of the Charter to the extent that it
prohibits these individuals from producing raw cannabis
marihuana for their own therapeutic purposes. I am also
convinced that such deprivation is not in accordance with
the principles of fundamental justice...
[55] I am prepared to agree with the Applicant that s. 7(1)
of the CDSA should be struck down to the extent that it
deals with production of cannabis marihuana. If s. 4 were
before me I, like the Ontario Court of Appeal in R. v.
Parker , supra , would strike down the prohibition against
possession of marihuana because to do otherwise would be, to
use Dr. Kalant's word, "inhumane" to Mr.Krieger under the
circumstances."
[56] I am troubled by the fact that the Canadian government
has not made arrangements for a legal source of cannabis
marihuana to be made available to persons who require it for
therapeutic use. Since Dr. Kalant indicated that he was able
to obtain cannabis marihuana for research purposes, it must
be available from some legitimate source. I trust that if I
put a stay of one year on the effect of my decision, similar
to that done by the Ontario Court of Appeal, this problem
will be solved within the year.
[57] With respect to Mr. Krieger , I am satisfied on the
evidence of the Crown's expert witness and Mr.Krieger
himself that it would be inhumane not to grant Mr. Krieger
an exemption from the prohibition in s. 7(1) of the CDSA
during the period of the suspended invalidity in order that
he may cultivate cannabis marihuana for his own medical use.
Pursuant to s. 24(1) of the Charter, I would stay the
proceedings against him under s. 7(1) of the CDSA.
Upheld at R. v. Krieger, 2003 ABCA 85 Order and Reasons for
Judgment
Date: 20030318 Dockets: 01-00011-A, 01-00288-A Tab _____
The further Order of the Alberta Court of Appeal dismissed
the Crown's appeal against Acton J.'s Krieger declaration
that the cultivation prohibition under s.7(1) of the CDSA
was of no force and effect with Justice Costigan ruling for
the panel: Costigan, J.A. (for the Court):
[1] The Respondent was charged with possession of marihuana
for the purpose of trafficking contrary to s. 5(2) of the
Controlled Drugs and Substances Act, S.C. 1996, c. 19 and
unlawful production of marihuana contrary to s. 7(1) of the
Act.
[2] The Crown appeals a voir dire ruling which struck down
s. 7(1) and also appeals the Respondent's acquittal by a
jury of the s. 5(2) charge.
[3] As to the voir dire ruling, the Crown says that the
trial judge applied the wrong test in finding that the
Respondent was deprived of his s.7 Charter right to security
of his person in the face of evidence that there were other
untried and effective legal alternative treatments. We are
not satisfied that the trial judge applied the wrong test,
nor are we satisfied that the evidence established other
effective alternatives. At best, the evidence on the
effectiveness of the alternatives was equivocal. In those
circumstances, the trial judge was entitled to find that the
Respondent's right to security of his person was infringed
by denial of a treatment which the evidence established was
effective.
[6] Nor are we satisfied that the trial judge imposed a
positive obligation on the Crown to ensure a supply. The
trial judge struck s. 7(1). Her order imposed no obligation.
[7] Therefore, we dismiss the appeal as it relates to the
voir dire ruling.
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the
circumstances.
(2) Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by
this Charter, the evidence shall be excluded if it is
established that, having regard to all the circumstances,
the admission of it in the proceedings would bring the
administration of justice into disrepute.
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of
all matters within the authority of Parliament including all
matters relating to the Yukon Territory and Northwest
Territories; and
(b) to the legislature and government of each province in
respect of all matters within the authority of the
legislature of each province.
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions
of the Constitution is, to the extent of the inconsistency,
of no force or effect.
9. Treaty Obligations.
Pg 33 of the Senate Report (supra Tab ___), the Senate makes
the following observations:
- The series of international agreements concluded
since 1912 have failed to achieve their ostensible aim of
reducing the supply of drugs;
- The international conventions constitute a two-tier
system that regulates the synthetic substances produced by
the North and prohibits the organic substances produced by
the South, while ignoring the real danger the substances
represent for public health;
- When cannabis was included in the international
conventions in 1925, there was no knowledge of its effects;
- The international classifications of drugs are
arbitrary and do not reflect the level of danger they
represent to health or to society;
- Canada should inform the international community of
the conclusions of our report and officially request the
declassification of cannabis and its derivatives (emphasis
added).
In R. v Parker (July 31, 2000), 2000 C28732 (ON C.A.) Crown
Authority, Volume 1 Tab 1 Pages 268, 269,
"Endnotes" para 11 the Ontario Court of Appeal address
Crown's concerns regarding Treaty Obligations:
11 In any event, the Constitution takes precedence over any
treaty obligations: Attorney-General for Canada v. Attorney
General for Ontario and Others, [1937] A.C. 326 (P.C.). Tab
_____
12 Canada acceded to the Covenant on May 19, 1976 and it
came into force in Canada on August 19, 1976.
13 The Crown, of course, claims that the legislation already
contains sufficient exemptions. In any event, if treaty
obligations are a matter more properly considered under s.
1, the Crown did bear the burden of proof on that issue.
10. CDSA 4 & 7 and 5 have been declared unconstitutional: In
the studies of the case law in the presentations of both
Crown and myself, the marihuana prohibition in CDSA 4, 7 and
5 have been found to be against Section 7 and Section 1
Charter rights (emphasis added):
R. v. Parker (O.C.J.) Toronto Region (The Honourable Judge
Patrick Sheppard on December 10, 1997) (supra) Page 12
"Mr. Parker will be granted immediate protection under
Section 24(l) of the Charter of a stay of proceeding with
respect to count I (cultivate a narcotic, Section 6(l)
N.C.A.) and the September 18, 1997 count (possession of a
controlled substance, Section 4(l) of the C.D.S.A). All
plant material (three plants) seized from him by the
Metropolitan Toronto Police Services on September 18, 1997
is to be returned to him forthwith..." "...It is ordered
pursuant to Section 52, that Section 4(1) and Section 7(l)
of the C.D.S.A. be read down so as to exempt from its ambit
persons possessing or cultivating Cannabis (a schedule II
substance) for their personal medically approved use.
R. v. Parker (July 31, 2000), 2000 (ON C.A.)
Date: 2000-07-31 Docket: C28732 Case supplied by Crown. Page
______ Para ____, 191_
[10] I have concluded that the trial judge was right in
finding that Parker needs marihuana to control the symptoms
of his epilepsy. I have also concluded that the prohibition
on the cultivation and possession of marihuana is
unconstitutional. Based on principles established by the
Supreme Court of Canada, particularly in R. v. Morgentaler,
[1988] 1 S.C.R. 30, where the court struck down the abortion
provisions of the Criminal Code, and Rodriguez v. British
Columbia (Attorney General), [1993] 3 S.C.R. 519, where the
court upheld the assisted suicide offence in the Criminal
Code, I have concluded that forcing Parker to choose between
his health and imprisonment violates his right to liberty
and security of the person. I have also found that these
violations of Parker's rights do not accord with the
principles of fundamental justice.
[11]..I would declare the prohibition on the possession of
marihuana in the Controlled Drugs and Substances Act (CDSA)
to be of no force and effect. However, since this would
leave a gap in the regulatory scheme until Parliament could
amend the legislation to comply with the Charter, I would
suspend the declaration of invalidity for a year. During
this period, the marihuana law remains in full force and
effect. Parker, however, cannot be deprived of his rights
during this year and therefore he is entitled to a personal
exemption from the possession offence under the Controlled
Drugs and Substances Act for possessing marihuana for his
medical needs. Since the Narcotic Control Act has already
been repealed by Parliament, there is no need to hold it
unconstitutional. If necessary, I would have found that
Parker was entitled to a personal exemption from the
cultivation offence for his medical needs."
7. Can any violations be saved by s. 1?
[191] The onus was on the Crown to establish that the
violations of Parker's rights could be saved under s. 1 of
the Canadian Charter of Rights and Freedoms. The Crown did
not suggest that the violations could be saved by s. 1. In
any event, many of the defects in the legislation that
contribute to the deprivations of Parker's rights
practically preclude the legislation from meeting the
proportionality test under s. 1.
[192] In particular, one of the purposes of the law is to
prevent harm to the health of Canadians and the resulting
costs to society. However, the broad nature of the marihuana
prohibition has the effect of impairing the health of Parker
and others who require it for medial purposes. In this
sense, the legislation works in opposition to one of the
primary objectives and thus could be described as
"Carbitrary" or "Cunfair" R. v. Keegstra (1990) 61 C.C.C.
(3d) 1 (S.C.C.) per Dickson C.J.C. at 53 and per McLachlin
J. (dissenting) at 114.
[193] The only possible basis for holding that the provision
of the Controlled Drugs and Substances Act constituted a
reasonable limit is that s. 56 tempers the facial
overbreadth of the prohibition. However, for the reasons of
L'Heureux-Dube J. and McLachlin J. in Committee for the
Commonwealth of Canada v. Canada, the plenary discretion
vested in the Minister precludes a finding that this is a
reasonable limit. Thus, whether the s. 56 exemption is
considered under s. 1 or s. 7, it cannot save the
legislation.
[194] Finally, the broad prohibition means that the section
fails the minimal impairment test: R. v. Heywood (1994), 94
C.C.C. (3d) 481 (S.C.C.) at 523. There is no need to
prosecute people like Parker who require marihuana for
medical purposes to achieve any of the three objectives
identified by the Crown: preventing harm, international
treaty obligations, and control of the trade in illicit
drugs. Less intrusive means are available to meet these
objectives. The Californian and Hawaiian legislative schemes
are but two examples of how these objectives might be
reconciled with the needs of patients requiring access to
marihuana.
Order: R. v. Parker (July 31, 2000), 2000 (ON C.A.)
Date: 2000-07-31 Docket: C28732 Tab ____
THIS COURT ORDERS that the remedy granted by the trial judge
is varied by declaring the marihuana prohibition in s. 4 of
the Controlled Drugs and Substances Act to be invalid. The
declaration of invalidity is suspended for a period of 12
months and the respondent is exempt from the marihuana
prohibition in s. 4 of the Controlled Drugs and Substances
Act during the period of suspended invalidity for possession
of marihuana for his medical needs. The part of the Sheppard
J.'s judgment reading in a medical exemption into the former
Narcotic Control Act and the Controlled Drugs and Substances
Act are set aside and the plants seized in the September
1997 search are ordered to be returned. In all other
respects, the Crown's appeal is dismissed.
R. v. Krieger (2000), Reasons for Decision 2000 ABQB 1012
Tab ____
"[44] I am satisfied that s. 7(1) of the CDSA deprives
Mr.Krieger and those who are similarly situated of their
rights under s. 7 of the Charter to the extent that it
prohibits these individuals from producing raw cannabis
marihuana for their own therapeutic purposes. I am also
convinced that such deprivation is not in accordance with
the principles of fundamental justice...
[55] I am prepared to agree with the Applicant that s. 7(1)
of the CDSA should be struck down to the extent that it
deals with production of cannabis marihuana. If s. 4 were
before me I, like the Ontario Court of Appeal in R. v.
Parker , supra , would strike down the prohibition against
possession of marihuana because to do otherwise would be, to
use Dr. Kalant's word, "inhumane" to Mr.Krieger under the
circumstances."
[56] I am troubled by the fact that the Canadian government
has not made arrangements for a legal source of cannabis
marihuana to be made available to persons who require it for
therapeutic use. Since Dr. Kalant indicated that he was able
to obtain cannabis marihuana for research purposes, it must
be available from some legitimate source. I trust that if I
put a stay of one year on the effect of my decision, similar
to that done by the Ontario Court of Appeal, this problem
will be solved within the year.
[57] With respect to Mr. Krieger , I am satisfied on the
evidence of the Crown's expert witness and Mr.Krieger
himself that it would be inhumane not to grant Mr. Krieger
an exemption from the prohibition in s. 7(1) of the CDSA
during the period of the suspended invalidity in order that
he may cultivate cannabis marihuana for his own medical use.
Pursuant to s. 24(1) of the Charter, I would stay the
proceedings against him under s. 7(1) of the CDSA.
Upheld at R. v. Krieger, 2003 ABCA 85 Order and Reasons for
Judgment
Date: 20030318 Dockets: 01-00011-A, 01-00288-A Tab _____
The further Order of the Alberta Court of Appeal dismissed
the Crown's appeal against Acton J.'s Krieger declaration
that the cultivation prohibition under s.7(1) of the CDSA
was of no force and effect with Justice Costigan ruling for
the panel: Costigan, J.A. (for the Court):
[1] The Respondent was charged with possession of marihuana
for the purpose of trafficking contrary to s. 5(2) of the
Controlled Drugs and Substances Act, S.C. 1996, c. 19 and
unlawful production of marihuana contrary to s. 7(1) of the
Act.
[2] The Crown appeals a voir dire ruling which struck down
s. 7(1) and also appeals the Respondent's acquittal by a
jury of the s. 5(2) charge.
[3] As to the voir dire ruling, the Crown says that the
trial judge applied the wrong test in finding that the
Respondent was deprived of his s.7 Charter right to security
of his person in the face of evidence that there were other
untried and effective legal alternative treatments. We are
not satisfied that the trial judge applied the wrong test,
nor are we satisfied that the evidence established other
effective alternatives. At best, the evidence on the
effectiveness of the alternatives was equivocal. In those
circumstances, the trial judge was entitled to find that the
Respondent's right to security of his person was infringed
by denial of a treatment which the evidence established was
effective.
[6] Nor are we satisfied that the trial judge imposed a
positive obligation on the Crown to ensure a supply. The
trial judge struck s. 7(1). Her order imposed no obligation.
[7] Therefore, we dismiss the appeal as it relates to the
voir dire ruling.
