Part 7 Noreen Evers
18. On December 03 2003 Health Canada reinstated part of the
Hitzig Ontario Court of Appeal repealed sections 34(2),
41(b) and 54 of the MMAR . Tab ____ Para
19. Because of an opinion (obiter dicta) at Ontario Court of
Appeal rulings at Hitzig and JP, and because of Judicial
Comity, Crown is again prosecuting for marihuana offences
that are unknown to law.
20. In R. v. Nielsen (14 September 2004), Brantford Doc. No.
04-1379 (Ont. Prov. Ct.)(supra Tab ____) Judge Edwards
stated he was bound by the Hitzig decision in the Ontario
Court of Appeal and ruled against a motion to quash.
21. HMTQ v. R. Johnson and S. Johnson, Decision on
Application, File #04-168 Elliot Lake (OCJ) 1 Feb 2004
Transcript of Proceeding before the Honourable Madame
Justice L. Serre at Elliot Lake Ontario February 1, 2005
held that:
"The Johnson's were charged with CDSA 4.(1), 7.(1), & 5.(2)
and applied for an application to quash as per s. 601(1) of
the CCC quashing all charges relating to marihuana under the
CDSA as unknown to law."
"Mr. Johnson contends that the decision of the Alberta Court
of Queens Bench in R v. Krieger on Dec 11, 2000 affirmed by
the Alberta Court of Appeal, leave to appeal sought by
Canada to the Supreme Court of Canada, dismissed, makes it
clear that section 7 of the CDSA has been declared of no
force and effect. Counsel for the prosecution argues that on
the date of the offence marijuana was a substance listed in
schedule II of the CDSA and was not "unknown to law". He
submitted that the application was without merit and that
the decision of the Ontario Court of Appeal in R. v. Hitzig,
October 7, 2003 cured the constitutional defect. He urges
the court to dismiss the application."
"Both the Krieger and the Parker judgments made it clear
that adopting the statements of the Court of Appeal in
Hitzig, any medical exemption to the criminal prohibition
against possession of marijuana would have to address not
just possession but also the means of obtaining the drug
needed for medical purposes".
"Therefore, the Ontario Court of Appeal targeted the
constitutional shortcomings it identified and made the
following ruling:
1. It declared the requirement for a second specialist to be
of no force and effect; and
2. It declared invalid sections which prevented DPL holders
to be compensated to grow for more than 1 ATP holder and to
combine their growing with more than 2 other DPL holders.
Given these corrective measures, the regulatory scheme MMAR,
as modified, became a constitutionally sound medical
exemption to the marijuana prohibition in S4 of the Act as
of October 7 2003. Therefore, the finite period of
invalidity began July 30, 2001 and ended with the decision
of the Ontario Court of Appeal on October 7, 2003.
Therefore, s.7(1), s.5(2), and s.4 remain constitutionally
valid. Part 1 of the application is dismissed."
JCT: Where'd she get this?
22. Judicial Comity is not to be followed:
In Re: Hansard Spruce Mills Ltd. (1954), 4 DLR 590 (BCSC).
Tab ____ Wilson J. sets out the situations in which it is
permissible to depart from the requirements of judicial
comity. Those situations are described as follows:
a. Subsequent decisions have affected the validity of the
impugned judgement;
b. It is demonstrated that some binding authority in case
law or some relevant statute was not considered;
c. the judgement was unconsidered, a nisi prius judgment
given in circumstances familiar to all trial judges, where
the exigencies of the trial require an immediate decision
without opportunity to fully consult authority.
PART IV
THE ISSUES AND THE LAW:
23. Where a Court of Appeal by final judgment has declared a
statute unconstitutional and of no force and effect but has
granted temporary validity that expired without
Parliamentary re-enactment does not that statute for all
legal purposes cease to have effect as law?
If the answer is: yes:
24. If such a statute no longer exists at law may, a Court
of Appeal at a subsequent sitting approximately three years
later, without statutory authority lawfully empower itself
to indirectly re-enact and grant constitutional validity to
such a statute?
25. Were the Medical Marihuana Access Regulations [MMAR]
were valid purposeful regulations having force of law when
the underlying law sought to be regulated was without force
and effect at the time of the promulgation, the former
having been declared unconstitutional and of no force and
effect?
26. What is the effect of the expiry of a temporary
Constitutional validity granted by a Court of Appeal?
27. May a Court of Appeal directly or indirectly in respect
of a statute that in law no longer exists read in or read
down that statute so as to constitutionally validate such a
non-existent law?
Where a Court of Appeal by final judgment has declared a
statute unconstitutional and of no force and effect but has
granted temporary validity that expired without
Parliamentary re-enactment does not that statute for all
legal purposes cease to have effect as law?
28. It is clear from the judgment of the Supreme Court of
Canada in Big M Drug Mart Ltd.[1985] 1 S.C.R. 295 that no
person may be charged or convicted under an unconstitutional
law and that any person may defend against the charge by
arguing the constitutional validity of the charge. Inclusive
is that any person may defend against a charge that is
founded upon a statute that has been declared
unconstitutional and of no force and effect, has ceased to
exist, and which has not subsequently been re-enacted by
Parliament.
If such a statute no longer exists at law may, a Court of
Appeal at a subsequent sitting approximately three years
later, without statutory authority lawfully empower itself
to indirectly re-enact and grant constitutional validity to
such a statute?
What is the effect of the expiry of a temporary
Constitutional validity granted by a Court of Appeal?
May a Court of Appeal directly or indirectly in respect of a
statute that in law no longer exists read in or read down
that statute so as to constitutionally validate such a non-
existent law?
29. In Re Manitoba [1985] 1 S.C.R. 721 the Supreme Court of
Canada determined that if before the expiry of the temporary
validity a statute is not re-enacted it ceases to have any
legal force and effect no law existing.. In respect of the
instant matter the Ontario Court of appeal in Parker v Q,
[2000] 49 O.R. (3d) 481 (C.A.) declared at paragraphs 10-12
and 210 that the prohibition against cultivation and
possession of Marihuana was unconstitutional CDSA s.7 and 4
being integral one to the other and inseparable the Court
rightly declared both to be in violation of Charter s.7
rights.. The Ontario Court of Appeal suspended for one year
the effect of the declaration of unconstitutionality by
granting temporary validity to those statutes during that
period of time. Is not such a suspension constitutionally
impermissible given Charter s 1, 7, and s. 52 of the
Constitution Act, 1982. That issue is in question at this
time and cannot be left for another day. It is submitted
that what is clear is that the applicant as an accused has
standing to attack these present charges as being for
offences unknown to law and as charged offences that
infringe and deny his s. 7 Charter rights.
30. In Schachter, [1992] 2 S.C.R. 679 and the more recent
case of Canadian Foundation for Children, Youth and the Law
v. Canada (Attorney General) Neutral citation: 2004 SCC 4.
File No.: 29113, 2003: June 6; 2004: January 30, the issue
before the Supreme Court of Canada was the question of when
it is permissible to read in and/or read down an "existing
law" so as to bring it within constitutional requirements.
It is no longer questionable that the common law power to
read in and/or read down conflicts with the mandatory terms
of s.52 of the Constitution Act , 1982. The applicant at
this time raises that issue. However, it is of note that
both of the above cited cases have application only where
and when the reading in or reading down is in respect of an
existing, enforceable having effect statute. Thus there
exists that additional issue. (underline emphasis added by
applicant) No judgment on all fours with the applicant's
present submissions can be found by this applicant, thus
viable constitutional issues are raised. In the case at bar
it is established that in respect of the involved statutes
and regulations neither had force and effect nor existed as
valid law.
31. Section 4(1) ceasing to have force and effect on July 31
2001, the objective purpose of the MMAR had ceased to exist.
The CDSA, Schedule substance sought to be regulated, was and
is marihuana, the possession and cultivation of which was no
longer prohibited. Marihuana was no longer a substance
within the very intent, purpose and objective of the
regulations. The MMAR were not stand alone provisions they
provided no prohibitions the validity of those regulations
required an underlying source, which was the prohibitions
found in CDSA s. 4 (1), 5 (1) ,7 (1) the Schedule substance
"marihuana" without which they had neither force nor effect.
The MMAR were ab-initio nullities.
32. It is the applicant's submission that as CDSA s. 4 and
7, were offences unknown to law and of no force and effect
on October 7, 2003. The Ontario Court of Appeal could
neither directly nor indirectly by any act of the Court give
breadth of life to either. Common reason and logic dictates
that non- existent no force and effect statutes and
regulations are not capable of correction or resurrection
except by Parliament and in respect of the latter by
Governor in Council.
33. In Parker (supra) The Court of appeal declared sections
4 (1) as it relates to the substance Marihuana in the
Schedule and s. 7(1) as it relates to the substance
marihuana in the Schedules of the CDSA, unconstitutional and
of no force and effect but suspended the effect of the
declarations for one year, that is to say until (July 31
2001). Sections 4 (1), 5 (1) and 7 (1) in and of themselves
remained in full force and effect and constitutionally valid
excepting when relative to the substance marihuana
prescribed in the schedules. No application by the Crown for
leave to appeal to the Supreme Court of Canada was sought.
On July 31 2001 and thereafter, actually since the CDSA
enactment in 1995, relative to the substance marihuana had
no legal existence. In Hitzig et al v Q, (2004) October 7
2003, DOCKET: C39532; C39738; C39740, on appeal from (2003)
171 C.C.C. (3d) 18, the Ontario Court of Appeal affirmed ,
"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 [sic]". The Section 4,
declared unconstitutionality related to the substance
prohibited, "marihuana" as set forth in the schedule. Absent
the inclusion of a substance the section 4 (1) prohibition
is meaningless.
34. Without consideration by the Court of the issue set
forth in paragraph 9, (supra), it must be noted that on
January 9 2003, the Ontario Superior Court of Justice, in
Hitzig et al v Her Majesty the Queen, Lederman (J) rendered
a decision declaring the Marihuana Medical Access
Regulations (MMAR) unconstitutional being in violation of
Charter s. 7 though suspending the effect of the said
declaration for a period of six months. Thus on July 10 2003
the MMAR, if not corrected by that date, as has been
conceded by the Crown became invalid.
35. The Crown appealed the judgment in Hitzig et al, and
sought before Carthy J.C.A., a stay of the Lederman (J.)
decision on the grounds that " Failure to sufficiently
address the issues raised by the Court by July 10, 2003
would result in the MMAR becoming invalid in Ontario". "A
stay of the decision was requested by the Crown pending the
appeal, but refused". The consequence of the denial of the
stay coupled with the Crown failure to address the issues
raised by Lederman (J) prior to July 10, 2003 resulted in
the MMAR becoming constitutionally invalid and of no force
and effect in Ontario. Thus the MMAR was without force and
effect for any purpose in Ontario. As a matter of law, for
purposes of enforcement or compliance therewith, the
regulations no longer existed, s. 52 Constitution Act 1982.
Clearly this situation was subject to the reasoning and
judgment of the Supreme Court of Canada in Re
Manitoba(supra) as regards the consequences of an expiration
of a temporary validity. The question then is what are the
legal consequences and sanctions relative to the appeal
taken in Hitzig et al and whether a Court of Appeal in such
circumstances has the constitutional or statutory power to
re-enact the specific provision or whether the regulating
body must promulgate new regulations or must Parliament
intervene in the enactment. It is the submission of the
applicant that the appeal relative to the MMAR at the point
of denial of the stay became academic and un-remedial. It
became an appeal wholly devoid of underpinning and one not
subject to adjudication, one which no judgment could cure.
