Part 5 Noreen Evers
d. Hitzig v. Canada (2003), 171 C.C.C. (3d) 18 (Ont. Sup.
Ct) January 9, 2003 Crown's book of Authorities, Volume 1,
Tab 4, Page 25 (referred to as Hitzig/Lederman decision)
LEDERMAN J.:---
INTRODUCTION
[1] This is yet another legal proceeding arising from the
tension that presently exists in Canada between the criminal
and the medicinal use of marijuana. Although the Minister of
Justice has recently announced his intention to introduce
legislation to decriminalize the simple possession of less
than 30 grams of marijuana, its continuing criminal status
plays an important part in this case.
[2] These applications concern the constitutionality of the
Marihuana Medical Access Regulations, S.O.R./2001-227, made
by the Governor in Council on 14 June 2001 pursuant to
subsection 55(1) of Controlled Drugs and Substances Act,
S.C. 1996, c. 19. More particularly, at issue is whether
these regulations, in conjunction with prohibitions
specified in the Controlled Drugs and Substances Act [CDSA],
violate some or all of the applicants' rights to liberty and
security of the person as guaranteed by s. 7 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 [Charter]. These applications follow very much
in the footsteps of the Ontario Court of Appeal's 31 July
2000 decision in R. v. Parker (2000), 49 O.R. (3rd) 482
[Parker]. Indeed, the accused in the Parker case is one of
the applicants presently before this court.
[3] In Parker, the Court of Appeal held that a legislative
prohibition on the possession of marijuana without an
exception for medical use violated Terrance Parker's right
to liberty and security of the person. Mr. Parker's liberty
rights were infringed because he faced imprisonment upon
conviction for possession. The prohibition also denied him
the right to make decisions of fundamental personal
importance, namely to choose a medicine which alleviated the
effects of his epilepsy. His security of the person was also
violated because the marijuana prohibition forced him to
choose between committing a crime to obtain effective
medical treatment and inadequate medical treatment.
Page 26 [7] The Marihuana Medical Access Regulations [MMAR
or Regulations] came into force on July 30, 2001, one year
less a day after the Parker decision was released. While the
respondent claims that these Regulations establish a
framework which addresses the prior regime's constitutional
infirmities, the applicants contend that the MMAR are no
more constitutionally satisfactory than s. 56 of the CDSA.
[8] For the reasons given below, I find the MMAR to violate
the applicants' s. 7 rights to liberty and security of the
person in a manner inconsistent with the principles of
fundamental justice. The Regulations fail to provide
individuals who have a serious medical need to use marijuana
with a legal source and safe supply of their medicine. This
violation is not saved by s. 1 of the Charter. By way of
remedy, the MMAR are declared to be of no force and effect.
This declaration of unconstitutionality is suspended for six
months.
e. One cannot be required to submit to a process that is
unconstitutional. The principle that individuals do not have
to submit to unconstitutional regulatory regimes before
challenging them is recognized under s. 7 of the Charter.
Section 7 guarantees the "right to life, liberty and
security of the person and the right not to be deprived
thereof except in accordance with the principles of
fundamental justice". The Hitzig applicants had not applied
for government approval to possess marijuana because they
contended that the regulatory regime that controls access to
medical marijuana violated their right to security of the
person.
Lederman J. found at para. 117 that the "Individuals' s. 7
rights are engaged with respect to the MMAR as soon as they
wish to use marijuana for therapeutic purposes". He further
commented at para. 116 that: "Governments cannot insulate
their laws from constitutional scrutiny by claiming that
individuals have not 'engaged' a regulatory regime when it
is the regulations themselves which limit how those
individuals exercise their rights."
2003 Jan 09 - Order by Ontario Justice Lederman that MMAR
are constitutionally invalid and are of no force and effect.
Tab _____
f. Mar 31 2003, Ontario. On a motion to consolidate the
Hitzig AND Turmel-Paquette applications into the Terry
Parker case, Madam Justice K.M. Weiler of the Ontario Court
of Appeal ruled: "For the sake of clarity, the style of
proceedings is to reflect the name of Mr. Parker first in
the list of parties..."
g. Jun 25 2003 CARTHY J.A. refused to extend the suspension
to save the MMAR. In Parker, Turmel-Paquette, Hitzig et al
v. HMTQ, Carthy J.A. refused to extend the suspension of the
Lederman declaration of invalidity of the MMAR. The Crown
appealed believing the Court of Appeal can do Parliament's
job of bringing the MMAR back to life.
2003 June 25 Endorsement - Ontario Court of Appeal Docket:
M29602 C39738 Re: Terrance Parker/Hitzig et al/John C.
Turmel et al v. Queen Tab ______
h. On July 09 2003 the Justice Lederman suspension of the
MMAR invalidation expired. The Marijuana Medical Access
Regulations (MMAR) became of no force and effect at
midnight. In the vain hopes of pulling off a resurrection if
the appeal of the refusal to extend the suspension wins and
they extend it so the MMAR can be kept alive, the Ministry
of Justice announces it is shipping out the pot to Canada's
exemptees in compliance with the Lederman Order that has
come into effect. Though they have accepted the Lederman
Order about the necessity of providing the pot, they failed
to accept the Lederman Order about the invalidity of the
MMAR legislation. The MMAR law was gone like the CDSA law it
was trying to save two years too late. So, the artificial
MMAR heart didn't work to save the CDSA patient by July 31
2001 and the patient was declared dead. Now the artificial
MMAR heart that didn't save the CDSA is declared bad on July
9 2003. For the first time, both the CDSA ship and its MMAR
lifeboat are sunk.
There is no CDSA prohibition system, there is no MMAR
permission system, (as per Section 52, Constitution Act,
1982 and Interpretation Act 2(2) Tab _____
j. Aug 01 2003 COURT UPHOLDS CARTHY J.'S REFUSAL TO EXTEND
SUSPENSION OF MMAR INVALIDATION The Court of Appeal
dismissed the Crown's appeal in Parker et al (including
Hitzig) against Carthy's refusal to suspend the declaration
of invalidity: "We treat this as a request by the Crown for
a stay of the order of Lederman J....We do not propose to
make any order."
The Crown was still asking for a continued stay of the
Lederman Order to be able to argue that though the Order had
come into effect and repealed the MMAR, this later stay
would cancel that effect and unrepeal the MMAR. So, for
sure, the MMAR permission legislation was repealed on July 9
2003 and was not alive when the Ontario Court of Appeal
started the Hitzig operations on the bad parts out of the
MMAR cadaver.
Appeal book Endorsement Citation: Parker v. R., 2003 CanLII
3527 (ON C.A.) Date: 2003-08-01
Docket:M30070;C39738;C39532;C39740 Tab ______
k. 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) (supra) states:
i. [3] The appeals come from three civil applications heard
together by Lederman J. One application was brought on
behalf of Mr. Hitzig and seven others (the "Hitzig
application"). These applicants sought a declaration that
the MMAR were unconstitutional and a further declaration
that the prohibition against possession of marihuana in s. 4
of the CDSA was of "no force and effect" in accordance with
the decision of this court in R. v. Parker, supra.
JCT: Actually, it was 1) Parker, 2) Hitzig, 3) Turmel-Paquette
The second application was brought by Mr. Parker in person.
He also sought an order declaring the prohibition against
possession of marihuana in the CDSA unconstitutional, and
further asked the court to continue his personal exemption
from that prohibition and the prohibition against
cultivation of marihuana. The third application was brought
by Mr. Turmel and Mr. Paquette in person. This application
was broader than the Hitzig application. In addition to
challenging the MMAR,
Note: (In actual facts, Turmel, Paquette and Parker NEVER
challenged the MMAR. Their challenge was only to the CDSA.
Crown and the courts, through various judgments, {like this
one in Hitzig OCA} have IMPLIED that their challenges were
to the MMAR. They have always asserted the CDSA prohibition
was of no force and effect 1 Aug 2001)
http://www.cyberclass.net/turmel/timeline.htm
Tab _______ and attachments.
these applicants argued that the prohibition against the
possession of marihuana amounted to a "genocidal violation"
of the right to life in s. 7 of the Canadian Charter of
Rights and Freedoms of all persons, in that marihuana
consumption could prevent healthy people from becoming ill.
Messrs. Turmel and Paquette sought a declaration that the
possession prohibition was of no force and effect, and
requested "personal judicial exemptions" from that
prohibition.[2]
[4] In considering the merits of the s. 7 Charter claims
advanced on the applications, Lederman J. rejected Mr.
Turmel's contention that the criminalization of the
possession of marihuana violated the right to life of all
persons. He next analyzed the provisions of the MMAR and
concluded that the applicants, save Mr. Turmel, had
established a threshold violation of their right to liberty
and their right to security of the person. Lederman J.
completed his s. 7 analysis by considering whether those
threshold violations were in accord with the principles of
fundamental justice. He focused on two issues, the
eligibility conditions set by the MMAR and the source of
supply for those who did qualify for a medical exemption. He
concluded that the process put in place by the regulations
to determine eligibility for a licence to possess or grow
marihuana "might be cumbersome" and some of the criteria
"onerous", but that it was not inconsistent with the
principles of fundamental justice. He went on, however, to
hold that the absence of a legal supply of marihuana for
those persons who were entitled to possess under the MMAR
offended basic tenets of the legal system and was
inconsistent with the principles of fundamental justice. He
further held that the infringement was not saved by s. 1.
His judgment reads:
[1] This court orders and declares that the provision of the
Marijuana Medical Access Regulations, S.O.R./2001-227 made
by the Governor-in-Council on 14 June, 2001, pursuant to
subsection 55(1) of the Controlled Drugs and Substances Act,
SC 1996, c. 19 (the MMAR) are constitutionally invalid and
are of no force and effect;
[2] This court orders the suspension of the foregoing
declaration for a period of six months.
[5] The Government appeals, alleging error in the holding
that the Government's failure to provide a legal source of
medical marihuana for those entitled to possess it
constituted a violation of s. 7 of the Charter. The Hitzig
applicants support this aspect of the judgment below. They
cross-appeal, however, alleging that Lederman J. erred in
holding that the eligibility criteria in the MMAR did not
contravene s. 7 of the Charter. The Government resists the
cross-appeal, relying on the reasons below. In the course of
these proceedings, the issue raised on the Government's
appeal was referred to as the "supply" issue and the issue
raised on the cross-appeal was described as the
"eligibility" issue.
[6] Messrs. Parker, Turmel and Paquette appeal, alleging
that Lederman J. failed to address their claim that the
criminal prohibition of the possession of marihuana amounted
to a "genocidal violation" of the right to life found in s.
7. They also argue, having found that the MMAR were
constitutionally inadequate, that Lederman J. should have
declared s. 4 of the CDSA to be of no force and effect in
accordance with this court's decision in R. v. Parker,
supra. The Government resists these appeals and also
purports to cross-appeal, advancing the same argument it
raises on its appeal in the Hitzig application.
[7] The appeals and cross-appeals described above were heard
in a single proceeding along with four other related
appeals.[3] These reasons address only the appeals described
above. The other appeals are dealt with in separate reasons.
We will consider the appeal and cross-appeal arising out of
the Hitzig application first, followed by a consideration of
any unresolved issues arising out of the appeals brought by
Messrs. Parker, Turmel and Paquette.
ii. The Court of Appeal in Hitzig v. Canada (2003) (supra)
found that the regulatory constraints on access to medical
marijuana implicated the right to security of the person:
[140] The third attack on the eligibility conditions of the
MMAR, and the one focused on in the argument before us,
rests on the requirement that the physician support for a
medical exemption for individuals in category 2 and category
3 must come from specialists. Again, the Hitzig applicants
make two arguments in mounting the attack.
[141] First, they say that because marihuana is an untested
medication there is no justification for requiring medical
support beyond the individual's own general practitioner
since the specialist has no knowledge advantage. They say
that when this is combined with the practical difficulties
that exist in accessing specialists, particularly in rural
areas, the specialist requirements for categories 2 and 3
constitute an unreasonable barrier which significantly
interferes with those in medical need from accessing the
medication they require.
[165] Taking these considerations together, we conclude that
the remedy which most directly addresses the constitutional
deficiency presented by the absence of a licit supply of
marihuana is to declare invalid sections 34(2), 41(b) and 54
of the MMAR. This will allow all DPL holders to be
compensated, to grow for more than one ATP holder, and to
combine their growing with more than two other DPL holders.
Provided that the regulation of July 8, 2003 remains in
place and is acted upon, there is no need to declare that
the Government has a constitutional obligation to provide
the first seed to those DPL holders who do not have one
iii. The Court of Appeal in Hitzig v. Canada (2003) (supra)
recognized the reality of a suspension of Charder rights:
[175] Finally an order that is not suspended gives immediate
recognition to the s. 7 rights of those whose serious
illnesses necessitate that they use marihuana. Some of these
people are terminally ill. To suspend our remedy if they may
die in the meantime is, in our view, inconsistent with
fundamental Charter values.
Ct) January 9, 2003 Crown's book of Authorities, Volume 1,
Tab 4, Page 25 (referred to as Hitzig/Lederman decision)
LEDERMAN J.:---
INTRODUCTION
[1] This is yet another legal proceeding arising from the
tension that presently exists in Canada between the criminal
and the medicinal use of marijuana. Although the Minister of
Justice has recently announced his intention to introduce
legislation to decriminalize the simple possession of less
than 30 grams of marijuana, its continuing criminal status
plays an important part in this case.
[2] These applications concern the constitutionality of the
Marihuana Medical Access Regulations, S.O.R./2001-227, made
by the Governor in Council on 14 June 2001 pursuant to
subsection 55(1) of Controlled Drugs and Substances Act,
S.C. 1996, c. 19. More particularly, at issue is whether
these regulations, in conjunction with prohibitions
specified in the Controlled Drugs and Substances Act [CDSA],
violate some or all of the applicants' rights to liberty and
security of the person as guaranteed by s. 7 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 [Charter]. These applications follow very much
in the footsteps of the Ontario Court of Appeal's 31 July
2000 decision in R. v. Parker (2000), 49 O.R. (3rd) 482
[Parker]. Indeed, the accused in the Parker case is one of
the applicants presently before this court.
[3] In Parker, the Court of Appeal held that a legislative
prohibition on the possession of marijuana without an
exception for medical use violated Terrance Parker's right
to liberty and security of the person. Mr. Parker's liberty
rights were infringed because he faced imprisonment upon
conviction for possession. The prohibition also denied him
the right to make decisions of fundamental personal
importance, namely to choose a medicine which alleviated the
effects of his epilepsy. His security of the person was also
violated because the marijuana prohibition forced him to
choose between committing a crime to obtain effective
medical treatment and inadequate medical treatment.
Page 26 [7] The Marihuana Medical Access Regulations [MMAR
or Regulations] came into force on July 30, 2001, one year
less a day after the Parker decision was released. While the
respondent claims that these Regulations establish a
framework which addresses the prior regime's constitutional
infirmities, the applicants contend that the MMAR are no
more constitutionally satisfactory than s. 56 of the CDSA.
[8] For the reasons given below, I find the MMAR to violate
the applicants' s. 7 rights to liberty and security of the
person in a manner inconsistent with the principles of
fundamental justice. The Regulations fail to provide
individuals who have a serious medical need to use marijuana
with a legal source and safe supply of their medicine. This
violation is not saved by s. 1 of the Charter. By way of
remedy, the MMAR are declared to be of no force and effect.
This declaration of unconstitutionality is suspended for six
months.
e. One cannot be required to submit to a process that is
unconstitutional. The principle that individuals do not have
to submit to unconstitutional regulatory regimes before
challenging them is recognized under s. 7 of the Charter.
Section 7 guarantees the "right to life, liberty and
security of the person and the right not to be deprived
thereof except in accordance with the principles of
fundamental justice". The Hitzig applicants had not applied
for government approval to possess marijuana because they
contended that the regulatory regime that controls access to
medical marijuana violated their right to security of the
person.
Lederman J. found at para. 117 that the "Individuals' s. 7
rights are engaged with respect to the MMAR as soon as they
wish to use marijuana for therapeutic purposes". He further
commented at para. 116 that: "Governments cannot insulate
their laws from constitutional scrutiny by claiming that
individuals have not 'engaged' a regulatory regime when it
is the regulations themselves which limit how those
individuals exercise their rights."
2003 Jan 09 - Order by Ontario Justice Lederman that MMAR
are constitutionally invalid and are of no force and effect.
Tab _____
f. Mar 31 2003, Ontario. On a motion to consolidate the
Hitzig AND Turmel-Paquette applications into the Terry
Parker case, Madam Justice K.M. Weiler of the Ontario Court
of Appeal ruled: "For the sake of clarity, the style of
proceedings is to reflect the name of Mr. Parker first in
the list of parties..."
g. Jun 25 2003 CARTHY J.A. refused to extend the suspension
to save the MMAR. In Parker, Turmel-Paquette, Hitzig et al
v. HMTQ, Carthy J.A. refused to extend the suspension of the
Lederman declaration of invalidity of the MMAR. The Crown
appealed believing the Court of Appeal can do Parliament's
job of bringing the MMAR back to life.
2003 June 25 Endorsement - Ontario Court of Appeal Docket:
M29602 C39738 Re: Terrance Parker/Hitzig et al/John C.
Turmel et al v. Queen Tab ______
h. On July 09 2003 the Justice Lederman suspension of the
MMAR invalidation expired. The Marijuana Medical Access
Regulations (MMAR) became of no force and effect at
midnight. In the vain hopes of pulling off a resurrection if
the appeal of the refusal to extend the suspension wins and
they extend it so the MMAR can be kept alive, the Ministry
of Justice announces it is shipping out the pot to Canada's
exemptees in compliance with the Lederman Order that has
come into effect. Though they have accepted the Lederman
Order about the necessity of providing the pot, they failed
to accept the Lederman Order about the invalidity of the
MMAR legislation. The MMAR law was gone like the CDSA law it
was trying to save two years too late. So, the artificial
MMAR heart didn't work to save the CDSA patient by July 31
2001 and the patient was declared dead. Now the artificial
MMAR heart that didn't save the CDSA is declared bad on July
9 2003. For the first time, both the CDSA ship and its MMAR
lifeboat are sunk.
There is no CDSA prohibition system, there is no MMAR
permission system, (as per Section 52, Constitution Act,
1982 and Interpretation Act 2(2) Tab _____
j. Aug 01 2003 COURT UPHOLDS CARTHY J.'S REFUSAL TO EXTEND
SUSPENSION OF MMAR INVALIDATION The Court of Appeal
dismissed the Crown's appeal in Parker et al (including
Hitzig) against Carthy's refusal to suspend the declaration
of invalidity: "We treat this as a request by the Crown for
a stay of the order of Lederman J....We do not propose to
make any order."
The Crown was still asking for a continued stay of the
Lederman Order to be able to argue that though the Order had
come into effect and repealed the MMAR, this later stay
would cancel that effect and unrepeal the MMAR. So, for
sure, the MMAR permission legislation was repealed on July 9
2003 and was not alive when the Ontario Court of Appeal
started the Hitzig operations on the bad parts out of the
MMAR cadaver.
Appeal book Endorsement Citation: Parker v. R., 2003 CanLII
3527 (ON C.A.) Date: 2003-08-01
Docket:M30070;C39738;C39532;C39740 Tab ______
k. 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) (supra) states:
i. [3] The appeals come from three civil applications heard
together by Lederman J. One application was brought on
behalf of Mr. Hitzig and seven others (the "Hitzig
application"). These applicants sought a declaration that
the MMAR were unconstitutional and a further declaration
that the prohibition against possession of marihuana in s. 4
of the CDSA was of "no force and effect" in accordance with
the decision of this court in R. v. Parker, supra.
JCT: Actually, it was 1) Parker, 2) Hitzig, 3) Turmel-Paquette
The second application was brought by Mr. Parker in person.
He also sought an order declaring the prohibition against
possession of marihuana in the CDSA unconstitutional, and
further asked the court to continue his personal exemption
from that prohibition and the prohibition against
cultivation of marihuana. The third application was brought
by Mr. Turmel and Mr. Paquette in person. This application
was broader than the Hitzig application. In addition to
challenging the MMAR,
Note: (In actual facts, Turmel, Paquette and Parker NEVER
challenged the MMAR. Their challenge was only to the CDSA.
Crown and the courts, through various judgments, {like this
one in Hitzig OCA} have IMPLIED that their challenges were
to the MMAR. They have always asserted the CDSA prohibition
was of no force and effect 1 Aug 2001)
http://www.cyberclass.net/turmel/timeline.htm
Tab _______ and attachments.
these applicants argued that the prohibition against the
possession of marihuana amounted to a "genocidal violation"
of the right to life in s. 7 of the Canadian Charter of
Rights and Freedoms of all persons, in that marihuana
consumption could prevent healthy people from becoming ill.
Messrs. Turmel and Paquette sought a declaration that the
possession prohibition was of no force and effect, and
requested "personal judicial exemptions" from that
prohibition.[2]
[4] In considering the merits of the s. 7 Charter claims
advanced on the applications, Lederman J. rejected Mr.
Turmel's contention that the criminalization of the
possession of marihuana violated the right to life of all
persons. He next analyzed the provisions of the MMAR and
concluded that the applicants, save Mr. Turmel, had
established a threshold violation of their right to liberty
and their right to security of the person. Lederman J.
completed his s. 7 analysis by considering whether those
threshold violations were in accord with the principles of
fundamental justice. He focused on two issues, the
eligibility conditions set by the MMAR and the source of
supply for those who did qualify for a medical exemption. He
concluded that the process put in place by the regulations
to determine eligibility for a licence to possess or grow
marihuana "might be cumbersome" and some of the criteria
"onerous", but that it was not inconsistent with the
principles of fundamental justice. He went on, however, to
hold that the absence of a legal supply of marihuana for
those persons who were entitled to possess under the MMAR
offended basic tenets of the legal system and was
inconsistent with the principles of fundamental justice. He
further held that the infringement was not saved by s. 1.
His judgment reads:
[1] This court orders and declares that the provision of the
Marijuana Medical Access Regulations, S.O.R./2001-227 made
by the Governor-in-Council on 14 June, 2001, pursuant to
subsection 55(1) of the Controlled Drugs and Substances Act,
SC 1996, c. 19 (the MMAR) are constitutionally invalid and
are of no force and effect;
[2] This court orders the suspension of the foregoing
declaration for a period of six months.
[5] The Government appeals, alleging error in the holding
that the Government's failure to provide a legal source of
medical marihuana for those entitled to possess it
constituted a violation of s. 7 of the Charter. The Hitzig
applicants support this aspect of the judgment below. They
cross-appeal, however, alleging that Lederman J. erred in
holding that the eligibility criteria in the MMAR did not
contravene s. 7 of the Charter. The Government resists the
cross-appeal, relying on the reasons below. In the course of
these proceedings, the issue raised on the Government's
appeal was referred to as the "supply" issue and the issue
raised on the cross-appeal was described as the
"eligibility" issue.
[6] Messrs. Parker, Turmel and Paquette appeal, alleging
that Lederman J. failed to address their claim that the
criminal prohibition of the possession of marihuana amounted
to a "genocidal violation" of the right to life found in s.
7. They also argue, having found that the MMAR were
constitutionally inadequate, that Lederman J. should have
declared s. 4 of the CDSA to be of no force and effect in
accordance with this court's decision in R. v. Parker,
supra. The Government resists these appeals and also
purports to cross-appeal, advancing the same argument it
raises on its appeal in the Hitzig application.
[7] The appeals and cross-appeals described above were heard
in a single proceeding along with four other related
appeals.[3] These reasons address only the appeals described
above. The other appeals are dealt with in separate reasons.
We will consider the appeal and cross-appeal arising out of
the Hitzig application first, followed by a consideration of
any unresolved issues arising out of the appeals brought by
Messrs. Parker, Turmel and Paquette.
ii. The Court of Appeal in Hitzig v. Canada (2003) (supra)
found that the regulatory constraints on access to medical
marijuana implicated the right to security of the person:
[140] The third attack on the eligibility conditions of the
MMAR, and the one focused on in the argument before us,
rests on the requirement that the physician support for a
medical exemption for individuals in category 2 and category
3 must come from specialists. Again, the Hitzig applicants
make two arguments in mounting the attack.
[141] First, they say that because marihuana is an untested
medication there is no justification for requiring medical
support beyond the individual's own general practitioner
since the specialist has no knowledge advantage. They say
that when this is combined with the practical difficulties
that exist in accessing specialists, particularly in rural
areas, the specialist requirements for categories 2 and 3
constitute an unreasonable barrier which significantly
interferes with those in medical need from accessing the
medication they require.
[165] Taking these considerations together, we conclude that
the remedy which most directly addresses the constitutional
deficiency presented by the absence of a licit supply of
marihuana is to declare invalid sections 34(2), 41(b) and 54
of the MMAR. This will allow all DPL holders to be
compensated, to grow for more than one ATP holder, and to
combine their growing with more than two other DPL holders.
Provided that the regulation of July 8, 2003 remains in
place and is acted upon, there is no need to declare that
the Government has a constitutional obligation to provide
the first seed to those DPL holders who do not have one
iii. The Court of Appeal in Hitzig v. Canada (2003) (supra)
recognized the reality of a suspension of Charder rights:
[175] Finally an order that is not suspended gives immediate
recognition to the s. 7 rights of those whose serious
illnesses necessitate that they use marihuana. Some of these
people are terminally ill. To suspend our remedy if they may
die in the meantime is, in our view, inconsistent with
fundamental Charter values.
