Part 3 Noreen Evers
CDSA 5:
R. c. St-Maurice
Citation : 2002 CanLII 41648 (QC C.Q.) Date: December 19,
2002 Tab 8
Quebec Judge Cadieux acquits members of the Montreal
Compassion club of possession for the purpose of
trafficking:
[2] They are jointly charged with having had in their
possession for the purpose of trafficking a substance
inscribed in annexes II and VII of the Controlled Drugs and
Substances Act (CDSA)...
[5] Nevertheless, the principal question to be litigated is
whether the use of marihuana for therapeutic purposes and
the interdiction in section 5 of the Controlled Drugs and
Substances Act against distributing marihuana to sick and
suffering people while there is no legal source from which
these persons may procure the substance.
d) Article 7: Right to life, liberty, security
---
[213] The applicants submit that the prohibitionist
provisions of section 5 of the CDSA, with respect to the use
of marihuana for therapeutic purposes, does violate the
right to life, liberty and the security of the person as
guaranteed by Section 7 of the Charter in that they deprive
the sick of their liberty to choose a necessary and
beneficial medical treatment and deprives them of access to
a reasonable medical treatment required to relieve a large
number of ailments and that this violation does not conform
to the principles of fundamental justice.
[214] The intervenor, Attorney General of Canada, pleads
that there is no violation of rights because the State has a
manifest interest in edicting these prohibitions, and also,
because section 56 foresees a valid mechanism that permits
individuals to consume marihuana for medical purposes.
[216] The violation must touch life, liberty or the security
of the person and must be sufficiently important to justify
constitutional protection.
i) The right to liberty
[221] The right to liberty does not aim only at the absence
of physical constraint. As mentioned by Justice Wilson in
Morgentaler, it includes <<the right to take fundamental
personal decisions without intervention by the State.>>
[222] Judge Laforest, with the support of his colleagues,
used similar terms in B.(R.) and subsequently wrote in
Godbout: <<I am rather of the opinion that the autonomy
protected by the right to liberty guaranteed by section 7
does not hold that the subjects that can be justly qualified
as fundamentally or essentially personal and that involved,
by their very nature, fundamental choices participating of
the essential nature of what the enjoyment of dignity and of
individual independence signify.>>
[223] This definition of right to liberty applies to sick
and suffering people who could benefit from the use of
marihuana as a therapeutic product, and who would want to
exercise their choice after having discussions with their
treating physicians and after having obtained their medical
recommendation. By preventing with these prohibitionist
provisions the exercise of this choice, the State violates
the right to liberty of these people, right that the
applicants have status to invoke given the criminal
proceedings now going on against them.
ii) The right to security
[226] In Morgentaler, Judge Beetz wrote: << If a provision
of criminal law prevents a person from obtaining an
appropriate medical treatment when their life or health is
in danger, the State has therefore intervened and that
intervention constitutes a violation of the security of the
person of this man or woman. The <<security of the person>>
must include a right to medical treatment of a condition
dangerous for life or health, without the menace of penal
repression. If a law of Parliament forces a person whose
life or health is in danger to choose between, on the one
hand, the perpetration of a crime to obtain the efficacious
medical treatment in good time and, on the other hand, an
inadequate treatment or no treatment at all, the right to
the security of the person is violated.>>
[227] Judge Wilson is <<in agreement with the Chief Judge
and Judge Beetz to say that the right of each to the
security of his person is guaranteed by section 7 of the
Charter protects both physical and psychological integrity
of the person. The medical treatments or surgeries imposed
by the State immediately come to mind as examples of
manifest violation of the corporal integrity.>.
[228] In Rodriguez, Judge Sopinka, expressing the majority
opinion, wrote: <<In my opinion, we can see that the reasons
of our Court in Morgentaler contain a notion of personal
autonomy that includes, at least, control over the integrity
of one's person without any intervention by the State...
Judge Lamer in Renvoi expressed the opinion that <<section 7
also enters into play when the State restrains the security
of the person by violating the control that the individual
exercises on his physical or mental integrity and by
suppressing that control>> There is therefore no doubt that
the notion of security of the person includes personal
autonomy, at least with respect to the right to make choices
respecting one's own body, the control over the proper
physical and mental integrity, and fundamental human
dignity, all at least the absence of penal prohibitions that
are obstacles to it.
[229] The intervention of the State which prevents a sick or
suffering person from having access to marihuana as a
therapeutic product while there exists no legal source from
which this person could procure some marijuana, deprives
this person of an efficient medical treatment in good time
and violates the physical integrity of this person. It's the
case when the scientific community has recognized the
efficacity of marihuana to relieve the symptoms associated
with the illness of this person or to his medical treatment
and after having discussed the benefits and risks associated
with the medical use of marihuana with his treating
physician, the patient has chosen this treatment according
to the recommendation of his doctor, but cannot have access.
iii) The principles of fundamental justice
[230] Jurisprudence recognizes the <<harm principle>> as one
of the principles of fundamental justice. This principle was
proposed and commented upon by the philosopher John Stuart
Mill in his essay <<On Liberty>> where he wrote: <<That
principle is, that the sole end for which mankind are
warranted, individually or collectively, in interfering with
the liberty of action of any of their number, is self-
protection. That the only purpose for which power can be
rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others...
To justify that, the conduct from which it is desired to
deter him, must be calculated to produce evil to someone
else.>>
[231] Judge Lamer in Renvoi declared: <<A law which permits
declaring guilty someone who really hasn't done anything
wrong violates the principles of fundamental justice and, if
it entails a prison term, such a law violates the right to
liberty guaranteed in section 7 of the Canadian Charter.
[238] In the Krieger case, Judge Acton invalidated the
section prohibiting the production of marihuana for personal
therapeutic uses and accorded an exemption during the period
of suspension of the declaration of invalidity. As to the
section prohibiting the traffic and possession for the
purpose of trafficking, the judge refused to invalidate
because Krieger took it upon himself to distribute cannabis
without insisting on a medical recommendation.
[246] Like Judge Acton in the Krieger case, we can ask
ourselves as to the reasonableness of the character of a
system of exemptions permitting possession and cultivation
of marihuana while there exists no legal source in Canada
from where the holder of an exemption may obtain dried
marihuana to consume or viable seeds to cultivate.
[317] As to the constitutional question, I have concluded
that the interdiction edicted by section 5 of the CDSA
against distributing, for therapeutic purposes, marihuana to
sick and suffering people for whom this substance is
necessary for medical reasons, according to the
recommendation of their treating physician, while there is
no legal source from which these persons might producer this
substance, violates the rights and liberties guaranteed in
the Canadian Charter of Rights and Liberties, more
particularly the right to life, to liberty and to the
security of the person guaranteed by section 7 and that this
interdiction does not conform with the principles of
fundamental justice.
[318] I have concluded that this restriction is not
reasonable nor justified according to the criteria of
section 1 of the Charter and in consequence, a stay of
proceedings with respect to the three counts in the
indictment is the only just and appropriate remedy given the
circumstances.
Gilles Cadieux, J.C.Q.
In Regina v Leon Edward Smith & Colby Budda;
File No: 118904; Registry: Victoria;
Provincial Court of British Columbia,
Judge Chaperson,
Dated September 7th 2004
Tab ___
The judgment held that in the circumstances the prohibition
against cultivation and possession for purposes of
trafficking are unconstitutional and an absolute stay of
proceedings was entered.
11. At Krieger (supra) and St. Maurice (supra) CDSA 4, 7 and
5 as pertaining to the prohibition of marihuana were found
to be against Charter rights. There were no requirements put
on the government.
12. Crown withdrew charges because there was no prohibition:
May 13 2004 The Toronto Trio at the Section 56 Compassion
Club of Ryan-Champagne-Wallace who were charged during a
certain time frame (1 Aug 2001 - 7 Oct 2003) filed to quash
their charges for cultivation and possession for the purpose
of trafficking of marijuana. Crown withdrew the charges. Tab
____
2004 May 13 Bruce Ryan's motion to quash Ontario Court of
Justice
2004 Jun 09 Crown's Decision to withdraw against Bruce Ryan
and Pierre Champagne (Ontario Court of Justice)
2004 Jun 10 (Toronto Sun) Newspaper article, Trio's pot case
nixed
2004 Oct 19 Judge Sheppard rules Hitzig bars Trio's pot
return.
2004 Oct 25 Judge Sheppard rules no jurisdiction on S.24 pot
claim
2004 Oct 26 (Toronto Sun) Newspaper Article: Court backs pot
growers.
13. BC Courts have ruled there is no prohibition of
marihuana. At R v. Masse.
Date:. 20030904. 2003
BCPC 0328. File No:. 62876-1 Tab _______
Judge Chen notes:
[63] I agree with the reasons of Rogin, J. in the appellate
decision of J.P. The MMAR cannot "save" s.4 and cannot halt
the operation of a declaration made one year less a day
prior to their enactment. The suspension of Rosenberg J.'s
declaration of the invalidity of the marihuana prohibition
in s.4 of the Controlled Drugs and Substances Act in Parker
expired on July 31, 2001. There is nothing in that decision
to indicate that the declaration would be rendered
ineffective if regulations were passed before July 31, 2001
allowing medical users of marihuana access to the drug. The
court's declaration of invalidity was unconditional, subject
only to the proviso that its operation was suspended for one
year.
[64] Rogin's reasoning in the J.P. appellate decision was
simply this: S.4 of the Controlled Drugs and Substances Act
has not been re-enacted as it relates to marihuana. Once the
declaration of invalidity took effect, s.4 as it related to
marihuana became a nullity. It ceased to exist and could not
exist again unless re-enacted. As a result, there was no
longer any prohibition or penalty in the Act for simple
possession of marihuana. The MMAR themselves do not contain
any prohibition or penalty for simple possession of
marihuana.
