Part 4 Noreen Evers
[65] It may be that, had the MMAR been in existence at the
time of the Parker decision, the Ontario Court of Appeal may
have come to a different conclusion with respect to the
issue of whether the marihuana prohibition in s.4 infringed
on Mr. Parker's s.7 Charter rights. It is also possible the
court may still have come to the same conclusion on the
basis of the lack of any legal supply of marihuana, as was
found by Lederman, J. in Hitzig. However, that is all
immaterial to the application before me. In my view, s.4 of
the Controlled Drugs and Substances Act, as it applies to
marihuana, ceased to be valid legislation after July 31,
2001.
[66] If I am wrong in this, and it is possible for
regulations addressing the concerns raised in Parker to halt
the operation of the declaration of s.4's invalidity, then I
agree with the decision in Hitzig that the MMAR were
inadequate for this purpose because, as long as there is no
legal supply of marihuana for persons requiring it for
medical use, the infringement on s. 7 Charter rights
identified in Parker has not been cured. The enactment of
the Marijuana Exemption (Food and Drugs Act) Regulations on
July 8, 2003 may or may not address the concerns raised in
Hitzig but came too late to have any effect on the
declaration of invalidity in Parker. July 31, 2001 had, by
that time, already come and gone, and the legislation had
already been rendered invalid. Once invalid, it became a
nullity and could not be resuscitated; it could only be re-
enacted.
Disposition
[67] It follows therefore, that there is no offence known to
law at this time for simple possession of marihuana. The
application is allowed.
At R. v. Graham and Parks, 2003
BCPC 0369
Ruling on Application 2003-10-06
Tab _____
BC Judge Buller Bennett upholds the Masse decision:
19] After careful reading of the Masse decision and
submissions of counsel, I am not aware of any subsequent
decisions that have affected the validity of Judge Chen's
judgment. Also, Judge Chen thoroughly analyzed the existing
case law and statutes, so I could not conclude that it was
in any way a nisi prius judgment.
[20] Crown Counsel submits that I ought to depart from the
Masse decision because it was incorrect decided upon
questionable, non-binding authority. That, however, is not
the test. As I stated above, all relevant cases and statutes
were considered and analyzed. Although I would have come to
a different conclusion on those authorities than Judge Chen,
again according to Re: Hansard, that is not reason enough to
depart from his decision.
[21] Therefore, I must follow Masse and the conclusion that
section 4(1) of the Act as it related to the simple
possession of marihuana is invalid.
[24] Having found that the law is invalid, the spectre of
abuse of process raises its head. Is it an abuse of process
to prosecute under an invalid law? I take from Stavert and
Clarke that it most certainly is an abuse of process. I
agree with that conclusion.
14. Crown will not acknowledge previous Court's decisions.
In R. v. Graham and Parks, 2003 BCPC 0369 Ruling on
Application 2003-10-06 (supra) Tab _____ Judge Buller
Bennett notes:
[14] Crown Counsel submits that the law is still valid until
the British Columbia Court of Appeal or the Supreme Court of
Canada decides otherwise. Crown also relies on Hadwen.
and so continues to prosecute for a null and void law:
Queen v. Stavert, 2003 PESCTD 85 Date: 2003-10-23 Docket: S-
2-GC-03 Tab ______
R. v. Nielsen (14 September 2004), Brantford Doc. No. 04-
1379 (Ont. Prov. Ct.) Tab _____
HMTQ v. R. Johnson and S. Johnson, Decision on Application,
File #04-168 Elliot Lake (OCJ) Transcript of Proceeding
before the Honourable Madame Justice L. Serre at Elliot Lake
Ontario February 1, 2005. Tab _____
R. v. Evers (This application)
R. v. Tall (to be heard 24 March 2005 Courtenay Registry)
R. v. Whynott (to be heard 24 March 2005 Courtenay Registry)
15. Question: Why does Crown continue to prosecute a null
and void law, contrary to Section 32 and Section 52
Constitution Act, 1982 (supra)?
a. At R. v. Krieger (supra) Crown Attorney S. David
Frankel's Memorandum to the Supreme Court of Canada 2003 May
16 Tab _____ , (2003 May 16 S. David Frankel - clause and
signature page) Tab ____pleaded for Leave to Appeal the
Krieger invalidation of S.7 and S. 4 of the CDSA because:
[57].. as matters now stand s.7(1) has been declared of no
force and effect by the highest court in Alberta.
The Supreme Court of Canada dismissed Crown's appeal:
2003 Dec 23 Supreme Court of Canada Bulletin of Proceedings
- Krieger Tab ____
Trial judge finding that prohibition on production of
cannabis marihuana infringing accused's s. 7 Charter rights
and not saved by s. 1..."
"(Acton J.) Section 7(1) of the Controlled Drugs and
Substances Act, inasmuch as it relates to cannabis
marihuana, declared inconsistent with the Charter;
declaration suspended for one year; Respondent granted an
exemption from the application of s. 7(1); charge stayed"
"December 4, 2002 Court of Appeal of Alberta (Wittman,
Costigan and LoVecchio JJ.A.) appeal with respect to s. 7(1)
dismissed."
b. Question: Is the refusal to hear Krieger on the same day
as Malmo-Levine/Caine (where the court upheld the marihuana
laws) mean that the Court didn't feel it necessary to
address, again, the issues it had just ruled on --that being
the constitutionality of the (marijuana) laws? Because the
Krieger appeal was not heard, does that mean the decision by
the SCC in Malmo-Levine upholding the constitutionality of
the laws remain binding?
Answer: No
Reasons: Malmo Levine/Caine had charter challenges based
upon different reasons than from Krieger. (The cases are not
included for that reason). The SCC decision at Krieger
involved only the Crown appeal at Krieger.
(Evers Letter to ask the Chief Judge
Date: __________ Tab: ___________
c. Question: Does Crown believe that the MMAR save Parker
(and Krieger and St. Maurice) and therefore "fill the
void"?. That the "obiter dicta" at Hitzig v. Canada (2003),
177 C.C.C. (3d) 449 (Ont. C.A.) Crown's book of Authorities,
Volume 1, Tab 5 (dated at October 7, 2003) "saved" the CDSA?
Answer: Yes
16. THE MMAR:
BACKGROUND: The MMAR (Medical Marihuana Access Regulations)
never "saved" Parker (filled the void), and were declared
unconstitutional:
a. The Senate report (supra) at pg 23: This chapter reviews
the events that prompted the recent enactment of the
Marihuana Medical Access Regulations. One of the objectives
of the regulations is to provide a compassionate framework
of access to marijuana for seriously ill Canadians while
research regarding its therapeutic application continues.
Also discussed is the implementation of these regulations,
which came into force on 30 July 2001.
We have observed the following:
- The MMAR are not providing a compassionate framework for
access to marijuana for therapeutic purposes and are unduly
restricting the availability of marijuana to patients who
may receive health benefits from its use;
- The refusal of the medical community to act as gatekeepers
and the lack of access to legal sources of cannabis appear
to make the current regulatory scheme an "illusory"
legislative exemption and raises serious Charter
implications;
- In almost one year, only 255 people have been authorized
to possess marijuana for therapeutic purposes under the MMAR
and only 498 applications have been received this low
participation rate is of concern;
- Changes are urgently needed with regard to who is eligible
to use cannabis for therapeutic purposes and how such people
gain access to cannabis;
- Research on the safety and efficacy of cannabis has not
commenced in Canada because researchers are unable to obtain
the product needed to conduct their trials;
- No attempt has been made in Health Canada's current
research plan to acknowledge the considerable expertise
currently residing in the compassion clubs;
- The development of a Canadian source of research-grade
marijuana has been a failure.
b. In R. v Parker (July 31, 2000), 2000 C28732 (ON C.A.)
Crown Authority, Volume 1 Tab 1 Page 262, the Ontario Court
of Appeal address a concern regarding the process:
[189] I have one final concern with the availability of the
s. 56 process. An administrative structure made up of
unnecessary rules that results in an additional risk to the
health of the person is manifestly unfair and does not
conform to the principles of fundamental justice. We were
provided with little evidence as to the operation of the s.
56 procedure as established by the government. The Oscapella
affidavit includes the Interim Guidance Document, that is,
as I have indicated, to provide guidance for a s. 56
application. The document envisages a detailed application
and entitles the Minister to request further information.
Since the Crown declined the opportunity to present further
fresh evidence about s. 56, the only evidence as to the
actual operation of the programme comes from the cross-
examination of Mr. Oscapella, which was hearsay based on
information he had obtained from government employees,
presumably persons who could have provided evidence for the
Crown.20 Mr. Oscapella testified that, despite the statement
by the Minister in the House of Commons that he intended
there be a "15-day turnaround period", only two exemptions
had been granted as of June 9, 1999. As of August 26, 1999,
a further 15 applications were complete but had still not
been dealt with by the Minister as of the date of the cross-
examination on September 14th. These kinds of delays, which
may be due to the administrative procedure, would further
endanger the health of a person like Parker.
c. In R. v. Turmel, 2002 CanLII 13794 (QC C.S.)
Date: 2002-09-27 Docket: 550-01-003994-011 Tab _____
John Turmel was convicted of contempt of court for
publishing details of Health Canada stalling 94 "dormant"
Section 56 Marijuana Exemption applicants to death.
"[9]..he admits certain facts:
3. On November 7th, 2001, the defendant admitted in the
presence of many witnesses including Stephane Lamoureux, <I
got excited this is bigger than Walkerton>...
[23] On the 6th November 2001, Mrs. Cripps-Prawak testified
for the first time on the number of persons who applied
under the law. At that time, she mentioned that Health
Canada has 94 + dormant ; files [i.e.] meaning inactive.
[24] John C. Turmel testifies that he concluded from that
information that these 94 applicants were deceased. He then
believed that this situation created an urgency to act
rapidly in order to avoid more deaths. He therefore
published the information for different groups even though
he knew the existence of the publication ban."(Mrs. Cripps-
Prawak also testified that 15 of the 94 dormants had been
found deceased.)
time of the Parker decision, the Ontario Court of Appeal may
have come to a different conclusion with respect to the
issue of whether the marihuana prohibition in s.4 infringed
on Mr. Parker's s.7 Charter rights. It is also possible the
court may still have come to the same conclusion on the
basis of the lack of any legal supply of marihuana, as was
found by Lederman, J. in Hitzig. However, that is all
immaterial to the application before me. In my view, s.4 of
the Controlled Drugs and Substances Act, as it applies to
marihuana, ceased to be valid legislation after July 31,
2001.
[66] If I am wrong in this, and it is possible for
regulations addressing the concerns raised in Parker to halt
the operation of the declaration of s.4's invalidity, then I
agree with the decision in Hitzig that the MMAR were
inadequate for this purpose because, as long as there is no
legal supply of marihuana for persons requiring it for
medical use, the infringement on s. 7 Charter rights
identified in Parker has not been cured. The enactment of
the Marijuana Exemption (Food and Drugs Act) Regulations on
July 8, 2003 may or may not address the concerns raised in
Hitzig but came too late to have any effect on the
declaration of invalidity in Parker. July 31, 2001 had, by
that time, already come and gone, and the legislation had
already been rendered invalid. Once invalid, it became a
nullity and could not be resuscitated; it could only be re-
enacted.
Disposition
[67] It follows therefore, that there is no offence known to
law at this time for simple possession of marihuana. The
application is allowed.
At R. v. Graham and Parks, 2003
BCPC 0369
Ruling on Application 2003-10-06
Tab _____
BC Judge Buller Bennett upholds the Masse decision:
19] After careful reading of the Masse decision and
submissions of counsel, I am not aware of any subsequent
decisions that have affected the validity of Judge Chen's
judgment. Also, Judge Chen thoroughly analyzed the existing
case law and statutes, so I could not conclude that it was
in any way a nisi prius judgment.
[20] Crown Counsel submits that I ought to depart from the
Masse decision because it was incorrect decided upon
questionable, non-binding authority. That, however, is not
the test. As I stated above, all relevant cases and statutes
were considered and analyzed. Although I would have come to
a different conclusion on those authorities than Judge Chen,
again according to Re: Hansard, that is not reason enough to
depart from his decision.
[21] Therefore, I must follow Masse and the conclusion that
section 4(1) of the Act as it related to the simple
possession of marihuana is invalid.
[24] Having found that the law is invalid, the spectre of
abuse of process raises its head. Is it an abuse of process
to prosecute under an invalid law? I take from Stavert and
Clarke that it most certainly is an abuse of process. I
agree with that conclusion.
14. Crown will not acknowledge previous Court's decisions.
In R. v. Graham and Parks, 2003 BCPC 0369 Ruling on
Application 2003-10-06 (supra) Tab _____ Judge Buller
Bennett notes:
[14] Crown Counsel submits that the law is still valid until
the British Columbia Court of Appeal or the Supreme Court of
Canada decides otherwise. Crown also relies on Hadwen.
and so continues to prosecute for a null and void law:
Queen v. Stavert, 2003 PESCTD 85 Date: 2003-10-23 Docket: S-
2-GC-03 Tab ______
R. v. Nielsen (14 September 2004), Brantford Doc. No. 04-
1379 (Ont. Prov. Ct.) Tab _____
HMTQ v. R. Johnson and S. Johnson, Decision on Application,
File #04-168 Elliot Lake (OCJ) Transcript of Proceeding
before the Honourable Madame Justice L. Serre at Elliot Lake
Ontario February 1, 2005. Tab _____
R. v. Evers (This application)
R. v. Tall (to be heard 24 March 2005 Courtenay Registry)
R. v. Whynott (to be heard 24 March 2005 Courtenay Registry)
15. Question: Why does Crown continue to prosecute a null
and void law, contrary to Section 32 and Section 52
Constitution Act, 1982 (supra)?
a. At R. v. Krieger (supra) Crown Attorney S. David
Frankel's Memorandum to the Supreme Court of Canada 2003 May
16 Tab _____ , (2003 May 16 S. David Frankel - clause and
signature page) Tab ____pleaded for Leave to Appeal the
Krieger invalidation of S.7 and S. 4 of the CDSA because:
[57].. as matters now stand s.7(1) has been declared of no
force and effect by the highest court in Alberta.
The Supreme Court of Canada dismissed Crown's appeal:
2003 Dec 23 Supreme Court of Canada Bulletin of Proceedings
- Krieger Tab ____
Trial judge finding that prohibition on production of
cannabis marihuana infringing accused's s. 7 Charter rights
and not saved by s. 1..."
"(Acton J.) Section 7(1) of the Controlled Drugs and
Substances Act, inasmuch as it relates to cannabis
marihuana, declared inconsistent with the Charter;
declaration suspended for one year; Respondent granted an
exemption from the application of s. 7(1); charge stayed"
"December 4, 2002 Court of Appeal of Alberta (Wittman,
Costigan and LoVecchio JJ.A.) appeal with respect to s. 7(1)
dismissed."
b. Question: Is the refusal to hear Krieger on the same day
as Malmo-Levine/Caine (where the court upheld the marihuana
laws) mean that the Court didn't feel it necessary to
address, again, the issues it had just ruled on --that being
the constitutionality of the (marijuana) laws? Because the
Krieger appeal was not heard, does that mean the decision by
the SCC in Malmo-Levine upholding the constitutionality of
the laws remain binding?
Answer: No
Reasons: Malmo Levine/Caine had charter challenges based
upon different reasons than from Krieger. (The cases are not
included for that reason). The SCC decision at Krieger
involved only the Crown appeal at Krieger.
(Evers Letter to ask the Chief Judge
Date: __________ Tab: ___________
c. Question: Does Crown believe that the MMAR save Parker
(and Krieger and St. Maurice) and therefore "fill the
void"?. That the "obiter dicta" at Hitzig v. Canada (2003),
177 C.C.C. (3d) 449 (Ont. C.A.) Crown's book of Authorities,
Volume 1, Tab 5 (dated at October 7, 2003) "saved" the CDSA?
Answer: Yes
16. THE MMAR:
BACKGROUND: The MMAR (Medical Marihuana Access Regulations)
never "saved" Parker (filled the void), and were declared
unconstitutional:
a. The Senate report (supra) at pg 23: This chapter reviews
the events that prompted the recent enactment of the
Marihuana Medical Access Regulations. One of the objectives
of the regulations is to provide a compassionate framework
of access to marijuana for seriously ill Canadians while
research regarding its therapeutic application continues.
Also discussed is the implementation of these regulations,
which came into force on 30 July 2001.
We have observed the following:
- The MMAR are not providing a compassionate framework for
access to marijuana for therapeutic purposes and are unduly
restricting the availability of marijuana to patients who
may receive health benefits from its use;
- The refusal of the medical community to act as gatekeepers
and the lack of access to legal sources of cannabis appear
to make the current regulatory scheme an "illusory"
legislative exemption and raises serious Charter
implications;
- In almost one year, only 255 people have been authorized
to possess marijuana for therapeutic purposes under the MMAR
and only 498 applications have been received this low
participation rate is of concern;
- Changes are urgently needed with regard to who is eligible
to use cannabis for therapeutic purposes and how such people
gain access to cannabis;
- Research on the safety and efficacy of cannabis has not
commenced in Canada because researchers are unable to obtain
the product needed to conduct their trials;
- No attempt has been made in Health Canada's current
research plan to acknowledge the considerable expertise
currently residing in the compassion clubs;
- The development of a Canadian source of research-grade
marijuana has been a failure.
b. In R. v Parker (July 31, 2000), 2000 C28732 (ON C.A.)
Crown Authority, Volume 1 Tab 1 Page 262, the Ontario Court
of Appeal address a concern regarding the process:
[189] I have one final concern with the availability of the
s. 56 process. An administrative structure made up of
unnecessary rules that results in an additional risk to the
health of the person is manifestly unfair and does not
conform to the principles of fundamental justice. We were
provided with little evidence as to the operation of the s.
56 procedure as established by the government. The Oscapella
affidavit includes the Interim Guidance Document, that is,
as I have indicated, to provide guidance for a s. 56
application. The document envisages a detailed application
and entitles the Minister to request further information.
Since the Crown declined the opportunity to present further
fresh evidence about s. 56, the only evidence as to the
actual operation of the programme comes from the cross-
examination of Mr. Oscapella, which was hearsay based on
information he had obtained from government employees,
presumably persons who could have provided evidence for the
Crown.20 Mr. Oscapella testified that, despite the statement
by the Minister in the House of Commons that he intended
there be a "15-day turnaround period", only two exemptions
had been granted as of June 9, 1999. As of August 26, 1999,
a further 15 applications were complete but had still not
been dealt with by the Minister as of the date of the cross-
examination on September 14th. These kinds of delays, which
may be due to the administrative procedure, would further
endanger the health of a person like Parker.
c. In R. v. Turmel, 2002 CanLII 13794 (QC C.S.)
Date: 2002-09-27 Docket: 550-01-003994-011 Tab _____
John Turmel was convicted of contempt of court for
publishing details of Health Canada stalling 94 "dormant"
Section 56 Marijuana Exemption applicants to death.
"[9]..he admits certain facts:
3. On November 7th, 2001, the defendant admitted in the
presence of many witnesses including Stephane Lamoureux, <I
got excited this is bigger than Walkerton>...
[23] On the 6th November 2001, Mrs. Cripps-Prawak testified
for the first time on the number of persons who applied
under the law. At that time, she mentioned that Health
Canada has 94 + dormant ; files [i.e.] meaning inactive.
[24] John C. Turmel testifies that he concluded from that
information that these 94 applicants were deceased. He then
believed that this situation created an urgency to act
rapidly in order to avoid more deaths. He therefore
published the information for different groups even though
he knew the existence of the publication ban."(Mrs. Cripps-
Prawak also testified that 15 of the 94 dormants had been
found deceased.)
