Part 6 Noreen Evers
Delays also entail taking physicians to court:
Lillico v. College of Physicians and Surgeons of British
Columbia and others, 2004 BCHRT 74 Date: August 4, 2004
File: 1300
In the matter of the Human Rights Code, R.S.B.C. 1996, c.
210 (as amended) Tab ____
A recent email from Marc Paquette to MedPot-discuss group 23
Feb 2005 Tab ___ also speaks of the delays:
- explained to Mrs Levac most of ALL the ordeals I have been
through with "Hellth" Canada since I had my first medical
marijuana exemption in March 2000."
"I also told Mrs Levac that since they have changed their
regulations to the MMAR in August 2001, EVERYONE should have
had exemptions of at least "1" year.... but those that kept
their original "grandfather" Section 56 exemption (before
August 1st 2001) were still forced to renew their exemptions
every 6 months until February 2003!"
"I told her that Mrs Lasher was suppose to send my "my last"
Section 56 rewall (renewal) form since February 1st..which I
NEVER received yet and my exemption expires soon."
"I said: "It wouldn't look too good for "Hellth" Canada
trying to explain to a federal court judge why I can't be
issued a 13th exemption".....
"I decried to Mrs Levac on how Valerie Lasher stressed me in
the phone call, with a complete lack of compassion and
indifference towards my health conditions, by the fact that
she stressed that I will not have my original exemption
anymore and be forced to apply for an MMAR exemption."
"Why should I be forced to have a specialist sign for a 13th
exemption when I only needed "1" doctor for 12 exemptions?"
"I also told her that permanently ill people deserve
permanent exemptions"
iv. The Court of Appeal in Hitzig v. Canada (2003) (supra)
"revived" the MMAR and implied to have "revived" the
marihuana prohibition in the CDSA:
[170] First, if we do not suspend our order, there will
immediately be a constitutionally valid exemption in effect
and the marihuana prohibition in s. 4 of the CDSA will
immediately be constitutionally valid and of full force and
effect. In R. v. Parker, supra, this court declared the
prohibition invalid as of July 31, 2001 if by that date the
Government had not enacted a constitutionally sound medical
exemption. Our decision in this case confirms that it did
not do so. Hence the marihuana prohibition in s. 4 has been
of no force or effect since July 31, 2001. Since the July 8,
2003 regulation did not address the eligibility deficiency,
that alone could not have cured the problem. However, our
order has the result of constitutionalizing the medical
exemption created by the Government. As a result, the
marihuana prohibition in s. 4 is no longer inconsistent with
the provisions of the Constitution. Although Parliament may
subsequently choose to change it, that prohibition is now no
longer invalid, but is of full force and effect. Those who
establish medical need are simply exempted from it. This
consequence removes the cloud of uncertainty from the
marihuana prohibition in s. 4 of the CDSA - a cloud which we
were told in argument has created very considerable
confusion for courts and law enforcement agencies alike. A
suspension of our remedy would simply have continued that
undesirable uncertainty for a further period of time.
xiii. The Court of Appeal in Hitzig v. Canada (2003) (supra)
Order Tab _____
xiv. The Hitzig applicants apply for leave to appeal to the
Supreme court on 2003 December 07 Tab ____
1) Hitzig Application for Leave to Appeal to Supreme Court
2) Crown Memorandum in Response
3) Hitzig Reply
17. At R. v. J.P. (2003) Docket: C40043 Ontario Court of
Appeal 7 October 2003 Tab ____, the same Hitzig Ontario
Court of Appeal implied that because they have "fixed" the
MMAR, the marihuana prohibition in the CDSA is now
constitutionally sound and is now valid:
[3] Section 4 of the Controlled Drug and Substances Act,
S.C. 1996, c. 19 ("CDSA") states:
Except as authorized under the regulations, no person shall
possess a substance included in Schedule I, II or III.
[4] Marihuana is a Schedule II drug.
[5] On July 31, 2000, in R. v. Parker (2000), 146 C.C.C.
(3d) 193, this court held that the prohibition against
possession of marihuana in s. 4 of the CDSA was
unconstitutional, absent a constitutionally acceptable
medical exemption to that prohibition. The court's order
read in part:
This court orders that the remedy granted by the trial judge
is varied by declaring the marihuana prohibition in s. 4 of
the Controlled Drug and Substances Act to be invalid. The
declaration of invalidity is suspended for a period of
twelve months.
[6] By virtue of the order in Parker, the criminal
prohibition against the possession of marihuana in s. 4 of
the CDSA remained in effect until July 31, 2001.
[7] On July 30, 2001, the government brought into force the
Marihuana Medical Access Regulations S.O.R./2001-227
("MMAR"). These regulations purported to alter the criminal
prohibition against the possession of marihuana set out in
s. 4 of the CDSA by adding provisions that permitted
possession and cultivation of marihuana for medical purposes
by those who had received the requisite authorizations under
the MMAR.
[8] In Hitzig v. Her Majesty the Queen (C39532; C39738;
C39740), released concurrently with these reasons, the court
determined that the MMAR as enacted did not provide a
constitutionally acceptable medical exemption to the
criminal prohibition against possession of marihuana. The
court deleted the constitutionally offensive provisions of
the MMAR, leaving a constitutionally valid medical exemption
and a constitutional prohibition against possession of
marihuana in s. 4 of the CDSA.
[9] The respondent's alleged possession of marihuana has
nothing to do with medical need. He did not argue that the
MMAR did not provide a constitutionally acceptable medical
exemption to the criminal prohibition against possession. He
submitted that even if the MMAR provided a constitutionally
acceptable medical exemption, they did not have any effect
on the declaration of the invalidity of s. 4 of the CDSA
made in Parker, supra. He submitted that by its terms, the
Parker order took effect on July 31, 2001, rendering s. 4 of
no force and effect as it applied to marihuana, and absent a
re-enactment of that section, there was no crime of
possession of marihuana in Ontario from July 31, 2001
forward.
[10] For different reasons, the trial court and the Superior
Court held that regardless of the constitutional validity of
the medical exemption created by the MMAR, those regulations
could not have any effect on the declaration of invalidity
made with respect to s. 4 of the CDSA in Parker, supra. Both
courts held that consequent upon that declaration, there was
no crime of possession of marihuana in existence on the day
the respondent was charged.
[11] This court enjoys an advantage over the trial court and
the Superior Court. Having held in Hitzig, supra, that the
MMAR did not create a constitutionally valid medical
exemption, we can determine the merits of the respondent's
claim that there was no charge of possession of marihuana in
existence on April 12, 2002 on that basis. Viewed in light
of our holding in Hitzig, the analysis of the respondent's
claim becomes straightforward. As of April 12, 2002 when the
respondent was charged, the prohibition against possession
of marihuana in s. 4 of the CDSA was subject to the
exemption created by the MMAR. As we have held, the MMAR did
not create a constitutionally acceptable medical exemption.
In Parker, this court made it clear that the criminal
prohibition against possession of marihuana, absent a
constitutionally acceptable medical exemption, was of no
force and effect. As of April 12, 2002, there was no
constitutionally acceptable medical exemption. It follows
that as of that date the offence of possession of marihuana
in s. 4 of the CDSA was of no force and effect. The
respondent could not be prosecuted.
[12] The Crown attempts to counter this straightforward
analysis with a novel argument. It submits that as long as
the Government moved to cure the constitutional defect
identified by the court in the criminal prohibition against
possession of marihuana, during the time when the court's
order in Parker, supra, was suspended, the possession
offence in s. 4 of the CDSA remained in full force and
effect, even if it was eventually determined that the
Government's attempts to create a valid medical exemption
were inadequate. As we understand this argument, the offence
of possession of marihuana would only become of no force and
effect if the court so declared it and either did not
suspend its declaration or the Government did not alter the
prohibition during the suspension period to bring it into
compliance with the Charter.
[13] Applying this argument to the facts of the case, the
Government submits that as the MMAR came into force before
the one-year suspension had expired, the possession offence
remained in effect unless and until the MMAR was found to be
constitutionally inadequate. Lederman J. made that finding
in Hitzig v. Canada (2003), 171 C.C.C. (3d) 18 (S.C.J.) in
January 2003, but suspended his declaration that the MMAR
was unconstitutional for six months. The Government argues
that this means that the possession prohibition continued
during the suspension period. The Government completes the
argument by pointing to the interim policy brought into
effect during the six-month suspension provided for by
Lederman J. According to the Government, that policy, which
further alters the nature of the possession prohibition,
keeps the possession offence in place unless and until the
courts declare that the interim policy does not provide an
adequate medical exemption. Furthermore, according to the
Crown's argument, if the court were to suspend that
declaration, the possession prohibition would remain in
effect during that suspension.
[14] The Crown's contention that the suspension of court
declarations somehow cascade one through the other to
preserve the validity of these charges is based on a
misunderstanding of the nature of the order in Parker,
supra, and the order made by Lederman J. in Hitzig. The
Parker order by its terms took effect one year after its
pronouncement. That order was never varied. After the MMAR
came into effect, the question was not whether the enactment
of the MMAR had any effect on the Parker order, but rather
whether the prohibition against possession of marihuana in
s. 4 of the CDSA, as modified by the MMAR, was
constitutional. If it was, the offence of possession was in
force. Paired with the suspension of the declaration in
Parker, this would have the effect of keeping the possession
prohibition in force continually. If the MMAR did not create
a constitutionally valid exception, as we have held, then
according to the ratio in Parker, the possession prohibition
in s. 4 was unconstitutional and of no force and effect. The
determination of whether there was an offence of possession
of marihuana in force as of April 2002 depended not on the
terms of the Parker order but on whether the Government had
cured the constitutional defect identified in Parker. It had
not.
[15] The order made by Lederman J. in Hitzig in January 2003
did not address the prohibition against possession in s. 4
of the CDSA. While, according to the ratio in Parker, supra,
Lederman J.'s determination that the MMAR did not provide an
adequate medical exemption meant that there was no
constitutional prohibition against possession of marihuana
in s. 4 of the CDSA, Lederman J. did not make that
declaration. Nothing in his order was relevant to whether
the offence of possession of marihuana existed in April
2002, when the respondent was charged. The suspension of
that order could have no effect on the status of the offence
of possession of marihuana.
[16] The policy put in place in July 2003, fourteen months
after these charges were laid, was irrelevant to whether the
offence of possession of marihuana existed in April 2002. An
accused must be able to know on the day that he is charged
whether the offence with which he is charged exists. The
accused cannot be told that the validity of the charge will
depend on what the Government may choose to do at some
future date. The determination of whether there was a crime
of possession of marihuana in force on the day the
respondent was charged turned on whether s. 4 combined with
the MMAR created a constitutional prohibition against the
possession of marihuana.
[29] The Superior Court judge treated this court's order in
Parker as the equivalent of a Parliamentary repeal of s. 4
of the CDSA as it applied to marihuana. We do not share that
interpretation. For convenience, we repeat the salient words
of the order:
The remedy granted by the trial judge is varied by declaring
the marihuana prohibition in s. 4 of the Control Drug and
Substances Act to be invalid.
[30] The order was directed at the marihuana prohibition in
s. 4 as it existed when Parker was decided. The authority to
make the declaration emanates from s. 52 of the Constitution
Act, 1982, which provides that:
Any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no
force or effect.
[31] The court in Parker, supra, declared that the marihuana
prohibition in s. 4 was inconsistent with the Charter and
consequently of no force or effect absent an adequate
medical exemption. In making the declaration, the court did
not and could not repeal or otherwise alter the terms of the
statute. The court could only declare the constitutionally
offensive part of the legislation to be of no force or
effect.
[32] By bringing forward the MMAR, the Government altered
the scope of the possession prohibition in s. 4 of the CDSA.
After the MMAR came into force, the question therefore
became whether the prohibition against possession of
marihuana as modified by the MMAR was constitutional. If it
was, then the possession prohibition was in force. If the
MMAR did not solve the constitutional problem, then the
possession prohibition, even as modified by the MMAR, was of
no force or effect.
[33] There was no need to amend or re-enact s. 4 of the CDSA
to address the constitutional problem in Parker. That
problem arose from the absence of a constitutionally
adequate medical exemption. As our order in Hitzig
demonstrates, the prohibition against possession of
marihuana in s. 4 is in force when there is a
constitutionally acceptable medical exemption in force.
Lillico v. College of Physicians and Surgeons of British
Columbia and others, 2004 BCHRT 74 Date: August 4, 2004
File: 1300
In the matter of the Human Rights Code, R.S.B.C. 1996, c.
210 (as amended) Tab ____
A recent email from Marc Paquette to MedPot-discuss group 23
Feb 2005 Tab ___ also speaks of the delays:
- explained to Mrs Levac most of ALL the ordeals I have been
through with "Hellth" Canada since I had my first medical
marijuana exemption in March 2000."
"I also told Mrs Levac that since they have changed their
regulations to the MMAR in August 2001, EVERYONE should have
had exemptions of at least "1" year.... but those that kept
their original "grandfather" Section 56 exemption (before
August 1st 2001) were still forced to renew their exemptions
every 6 months until February 2003!"
"I told her that Mrs Lasher was suppose to send my "my last"
Section 56 rewall (renewal) form since February 1st..which I
NEVER received yet and my exemption expires soon."
"I said: "It wouldn't look too good for "Hellth" Canada
trying to explain to a federal court judge why I can't be
issued a 13th exemption".....
"I decried to Mrs Levac on how Valerie Lasher stressed me in
the phone call, with a complete lack of compassion and
indifference towards my health conditions, by the fact that
she stressed that I will not have my original exemption
anymore and be forced to apply for an MMAR exemption."
"Why should I be forced to have a specialist sign for a 13th
exemption when I only needed "1" doctor for 12 exemptions?"
"I also told her that permanently ill people deserve
permanent exemptions"
iv. The Court of Appeal in Hitzig v. Canada (2003) (supra)
"revived" the MMAR and implied to have "revived" the
marihuana prohibition in the CDSA:
[170] First, if we do not suspend our order, there will
immediately be a constitutionally valid exemption in effect
and the marihuana prohibition in s. 4 of the CDSA will
immediately be constitutionally valid and of full force and
effect. In R. v. Parker, supra, this court declared the
prohibition invalid as of July 31, 2001 if by that date the
Government had not enacted a constitutionally sound medical
exemption. Our decision in this case confirms that it did
not do so. Hence the marihuana prohibition in s. 4 has been
of no force or effect since July 31, 2001. Since the July 8,
2003 regulation did not address the eligibility deficiency,
that alone could not have cured the problem. However, our
order has the result of constitutionalizing the medical
exemption created by the Government. As a result, the
marihuana prohibition in s. 4 is no longer inconsistent with
the provisions of the Constitution. Although Parliament may
subsequently choose to change it, that prohibition is now no
longer invalid, but is of full force and effect. Those who
establish medical need are simply exempted from it. This
consequence removes the cloud of uncertainty from the
marihuana prohibition in s. 4 of the CDSA - a cloud which we
were told in argument has created very considerable
confusion for courts and law enforcement agencies alike. A
suspension of our remedy would simply have continued that
undesirable uncertainty for a further period of time.
xiii. The Court of Appeal in Hitzig v. Canada (2003) (supra)
Order Tab _____
xiv. The Hitzig applicants apply for leave to appeal to the
Supreme court on 2003 December 07 Tab ____
1) Hitzig Application for Leave to Appeal to Supreme Court
2) Crown Memorandum in Response
3) Hitzig Reply
17. At R. v. J.P. (2003) Docket: C40043 Ontario Court of
Appeal 7 October 2003 Tab ____, the same Hitzig Ontario
Court of Appeal implied that because they have "fixed" the
MMAR, the marihuana prohibition in the CDSA is now
constitutionally sound and is now valid:
[3] Section 4 of the Controlled Drug and Substances Act,
S.C. 1996, c. 19 ("CDSA") states:
Except as authorized under the regulations, no person shall
possess a substance included in Schedule I, II or III.
[4] Marihuana is a Schedule II drug.
[5] On July 31, 2000, in R. v. Parker (2000), 146 C.C.C.
(3d) 193, this court held that the prohibition against
possession of marihuana in s. 4 of the CDSA was
unconstitutional, absent a constitutionally acceptable
medical exemption to that prohibition. The court's order
read in part:
This court orders that the remedy granted by the trial judge
is varied by declaring the marihuana prohibition in s. 4 of
the Controlled Drug and Substances Act to be invalid. The
declaration of invalidity is suspended for a period of
twelve months.
[6] By virtue of the order in Parker, the criminal
prohibition against the possession of marihuana in s. 4 of
the CDSA remained in effect until July 31, 2001.
[7] On July 30, 2001, the government brought into force the
Marihuana Medical Access Regulations S.O.R./2001-227
("MMAR"). These regulations purported to alter the criminal
prohibition against the possession of marihuana set out in
s. 4 of the CDSA by adding provisions that permitted
possession and cultivation of marihuana for medical purposes
by those who had received the requisite authorizations under
the MMAR.
[8] In Hitzig v. Her Majesty the Queen (C39532; C39738;
C39740), released concurrently with these reasons, the court
determined that the MMAR as enacted did not provide a
constitutionally acceptable medical exemption to the
criminal prohibition against possession of marihuana. The
court deleted the constitutionally offensive provisions of
the MMAR, leaving a constitutionally valid medical exemption
and a constitutional prohibition against possession of
marihuana in s. 4 of the CDSA.
[9] The respondent's alleged possession of marihuana has
nothing to do with medical need. He did not argue that the
MMAR did not provide a constitutionally acceptable medical
exemption to the criminal prohibition against possession. He
submitted that even if the MMAR provided a constitutionally
acceptable medical exemption, they did not have any effect
on the declaration of the invalidity of s. 4 of the CDSA
made in Parker, supra. He submitted that by its terms, the
Parker order took effect on July 31, 2001, rendering s. 4 of
no force and effect as it applied to marihuana, and absent a
re-enactment of that section, there was no crime of
possession of marihuana in Ontario from July 31, 2001
forward.
[10] For different reasons, the trial court and the Superior
Court held that regardless of the constitutional validity of
the medical exemption created by the MMAR, those regulations
could not have any effect on the declaration of invalidity
made with respect to s. 4 of the CDSA in Parker, supra. Both
courts held that consequent upon that declaration, there was
no crime of possession of marihuana in existence on the day
the respondent was charged.
[11] This court enjoys an advantage over the trial court and
the Superior Court. Having held in Hitzig, supra, that the
MMAR did not create a constitutionally valid medical
exemption, we can determine the merits of the respondent's
claim that there was no charge of possession of marihuana in
existence on April 12, 2002 on that basis. Viewed in light
of our holding in Hitzig, the analysis of the respondent's
claim becomes straightforward. As of April 12, 2002 when the
respondent was charged, the prohibition against possession
of marihuana in s. 4 of the CDSA was subject to the
exemption created by the MMAR. As we have held, the MMAR did
not create a constitutionally acceptable medical exemption.
In Parker, this court made it clear that the criminal
prohibition against possession of marihuana, absent a
constitutionally acceptable medical exemption, was of no
force and effect. As of April 12, 2002, there was no
constitutionally acceptable medical exemption. It follows
that as of that date the offence of possession of marihuana
in s. 4 of the CDSA was of no force and effect. The
respondent could not be prosecuted.
[12] The Crown attempts to counter this straightforward
analysis with a novel argument. It submits that as long as
the Government moved to cure the constitutional defect
identified by the court in the criminal prohibition against
possession of marihuana, during the time when the court's
order in Parker, supra, was suspended, the possession
offence in s. 4 of the CDSA remained in full force and
effect, even if it was eventually determined that the
Government's attempts to create a valid medical exemption
were inadequate. As we understand this argument, the offence
of possession of marihuana would only become of no force and
effect if the court so declared it and either did not
suspend its declaration or the Government did not alter the
prohibition during the suspension period to bring it into
compliance with the Charter.
[13] Applying this argument to the facts of the case, the
Government submits that as the MMAR came into force before
the one-year suspension had expired, the possession offence
remained in effect unless and until the MMAR was found to be
constitutionally inadequate. Lederman J. made that finding
in Hitzig v. Canada (2003), 171 C.C.C. (3d) 18 (S.C.J.) in
January 2003, but suspended his declaration that the MMAR
was unconstitutional for six months. The Government argues
that this means that the possession prohibition continued
during the suspension period. The Government completes the
argument by pointing to the interim policy brought into
effect during the six-month suspension provided for by
Lederman J. According to the Government, that policy, which
further alters the nature of the possession prohibition,
keeps the possession offence in place unless and until the
courts declare that the interim policy does not provide an
adequate medical exemption. Furthermore, according to the
Crown's argument, if the court were to suspend that
declaration, the possession prohibition would remain in
effect during that suspension.
[14] The Crown's contention that the suspension of court
declarations somehow cascade one through the other to
preserve the validity of these charges is based on a
misunderstanding of the nature of the order in Parker,
supra, and the order made by Lederman J. in Hitzig. The
Parker order by its terms took effect one year after its
pronouncement. That order was never varied. After the MMAR
came into effect, the question was not whether the enactment
of the MMAR had any effect on the Parker order, but rather
whether the prohibition against possession of marihuana in
s. 4 of the CDSA, as modified by the MMAR, was
constitutional. If it was, the offence of possession was in
force. Paired with the suspension of the declaration in
Parker, this would have the effect of keeping the possession
prohibition in force continually. If the MMAR did not create
a constitutionally valid exception, as we have held, then
according to the ratio in Parker, the possession prohibition
in s. 4 was unconstitutional and of no force and effect. The
determination of whether there was an offence of possession
of marihuana in force as of April 2002 depended not on the
terms of the Parker order but on whether the Government had
cured the constitutional defect identified in Parker. It had
not.
[15] The order made by Lederman J. in Hitzig in January 2003
did not address the prohibition against possession in s. 4
of the CDSA. While, according to the ratio in Parker, supra,
Lederman J.'s determination that the MMAR did not provide an
adequate medical exemption meant that there was no
constitutional prohibition against possession of marihuana
in s. 4 of the CDSA, Lederman J. did not make that
declaration. Nothing in his order was relevant to whether
the offence of possession of marihuana existed in April
2002, when the respondent was charged. The suspension of
that order could have no effect on the status of the offence
of possession of marihuana.
[16] The policy put in place in July 2003, fourteen months
after these charges were laid, was irrelevant to whether the
offence of possession of marihuana existed in April 2002. An
accused must be able to know on the day that he is charged
whether the offence with which he is charged exists. The
accused cannot be told that the validity of the charge will
depend on what the Government may choose to do at some
future date. The determination of whether there was a crime
of possession of marihuana in force on the day the
respondent was charged turned on whether s. 4 combined with
the MMAR created a constitutional prohibition against the
possession of marihuana.
[29] The Superior Court judge treated this court's order in
Parker as the equivalent of a Parliamentary repeal of s. 4
of the CDSA as it applied to marihuana. We do not share that
interpretation. For convenience, we repeat the salient words
of the order:
The remedy granted by the trial judge is varied by declaring
the marihuana prohibition in s. 4 of the Control Drug and
Substances Act to be invalid.
[30] The order was directed at the marihuana prohibition in
s. 4 as it existed when Parker was decided. The authority to
make the declaration emanates from s. 52 of the Constitution
Act, 1982, which provides that:
Any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no
force or effect.
[31] The court in Parker, supra, declared that the marihuana
prohibition in s. 4 was inconsistent with the Charter and
consequently of no force or effect absent an adequate
medical exemption. In making the declaration, the court did
not and could not repeal or otherwise alter the terms of the
statute. The court could only declare the constitutionally
offensive part of the legislation to be of no force or
effect.
[32] By bringing forward the MMAR, the Government altered
the scope of the possession prohibition in s. 4 of the CDSA.
After the MMAR came into force, the question therefore
became whether the prohibition against possession of
marihuana as modified by the MMAR was constitutional. If it
was, then the possession prohibition was in force. If the
MMAR did not solve the constitutional problem, then the
possession prohibition, even as modified by the MMAR, was of
no force or effect.
[33] There was no need to amend or re-enact s. 4 of the CDSA
to address the constitutional problem in Parker. That
problem arose from the absence of a constitutionally
adequate medical exemption. As our order in Hitzig
demonstrates, the prohibition against possession of
marihuana in s. 4 is in force when there is a
constitutionally acceptable medical exemption in force.
