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COURT FILE No.: 02-Y11520 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Edward J. Posliff, for the Crown - AND - J.P. Brian F. McAllister, for the applicant young person PHILLIPS, DOUGLAS W., J.: RULING

Introduction

[1] J.P., a young person within the meaning of the Young Offenders Act stands charged on two of a three count information no. #02-Y115 20: On count one, that on or about the 12th day of April, 2002 at the town of Kingsville in the Southwest region he unlawfully did have in his possession under 30 grams of a controlled substance, to wit: cannabis marihuana, contrary to s. 4(1) of the Controlled Drugs and Substance Act; and that On count two, while subject to a disposition made pursuant to paragraph 20(1)(j) of the Young Offenders Act to wit: a Probation Order issued in the Youth Court, Windsor, Ontario on the 18th day of March, 2002 by Judge M. Rawlins, did wilfully fail to comply with that Order to wit: the said young person shall abstain from the consumption of illegal substances as defined in the Controlled Drugs and Substances Act, contrary to s. 26 of the Young Offenders Act.

[2] The Applicant has brought an application related solely to the two foregoing counts. He asserts simply, that in consequence of the Ontario Court of Appeal decision Regina v Parker (2000), 146 C.C.C. (3d) 193 (Ont. C.A.), s. 4(1) of the Controlled Drugs and Substances Act no longer prohibits the simple possession of marihuana. It follows, if that is so, that he has been charged with offences unknown in law. Summary of facts

[3] I now summarize the facts cited by the Applicant in support of his claim.

[4] The Ontario Court of Appeal released the decision of R. v. Parker on July 31, 2000. Rosenberg J. A. wrote for the court, and concluded the judgement with the following disposition: "Accordingly, I would vary the remedy granted by the trial judge and declare the marihuana prohibition in s.4 of the Controlled Drugs and Substances Act to be invalid. I would suspend the declaration of invalidity for a period of twelve months from the release of these reasons. The respondent is exempt from the marihuana prohibition is s.4 of the Controlled Drugs and Substances Act during the period of suspended invalidity for possession of marihuana for his medical needs."

[5] The Crown has not obtained leave to appeal that judgment.

[6] More than twelve months have passed since the release of that judgment.

[7] It is submitted by the Applicant therefore, that Rosenberg, J. A.'s judgment had the effect of declaring invalid the marihuana prohibition in s. 4(1) effective on July 31, 2001 - twelve months after the release of the reasons in R. v. Parker. It is therefore argued that in keeping with s. 2(2) of the Interpretation Act , the enactment was deemed repealed. The timing of the repeal (if applicable) would be governed by s. 6(1) of the Interpretation Act .

[8] The Controlled Drugs and Substances Act was not amended by Parliament, and no prohibition on the simple possession of marihuana has been re-enacted.

[9] On June 14, 2001, the Marihuana Medical Access Regulations, SOR/2001-227, were published in the Canada Gazette, and came into force July 30, 2001.

[10] The offences for which the Applicant is charged are alleged to have been committed more than twelve months after the release of the Parker judgment.

[11] I have accepted the submission that the application is dependent on the law and hence that the specific facts of the Applicant's case are not germane to the determination of the application. The issue

[12] Did the declaration of invalidity determined in R. v. Parker, but suspended for a 12-month period, become effective in such way as to invalidate s.4 (1) of the Controlled Drugs and Substances Act, in respect of an offense alleged to have been committed after July 31, 2001?

[13] Did Parliament take steps during the period of suspension and before the effective date of the declaration of invalidity that were effectual in saving s.4 (1) of the statute? Standing

[14] While the accused Parker was a person who suffered epilepsy, and the Applicant here does not (as far as I am aware) the Court of Appeal determined that such was irrelevant to his standing to challenge constitutionality of the Controlled Drugs and Substances Act. The Court found: ".it is also open to Parker to challenge the validity of the legislation on the basis that it was overbroad or unconstitutional in some other way in its application to other persons. The Crown respondent appeared to concede this in the Clay appeal. In any event, that conclusion follows from the decisions of the Supreme Court of Canada in R. v., Big M Drug Mart Ltd., [1985] 1 SCR 295 and R. v. Morgentaler. In both cases, the accused were held to have standing to challenge the law under which they were charged although the alleged infringement of the Charter concerned the rights of some other person."

[15] As the Applicant has stipulated in his Factum: ". a defence founded upon the unconstitutionality of the charging legislation is open to anyone, regardless of whether the legislation is unconstitutional solely in its application to the particular accused. The fact that s. 4 of the CDSA was declared invalid because of the manner in which it affected Terrence Parker is not a bar to the applicant in this case, notwithstanding that this applicant is not advancing a medical need for marihuana."

[16] I am satisfied that this Applicant has standing to bring this application (not withstanding that the Applicant is not advancing a medical need for marihuana). Analysis of the Argument

[17] A careful review of Rosenberg J. A.'s opinion in R. v. Parker is crucial. In that case, the accused was charged inter alia with possession of marihuana under the Controlled Drugs and Substances Act. The accused suffered from a severe form of epilepsy. Surgery and conventional medication had failed to control his frequent serious and life-threatening seizures. The accused found that by smoking marihuana he could substantially reduce the incidence of seizures. Without a legal source from which to acquire it, he had grown it himself. Police searched his home and seized marihuana, resulting in charges. Parker challenged the constitutionality of the marihuana prohibition under s. 7 of the Canadian Charter of Rights and Freedoms.

[18] Dismissing a Crown appeal, Rosenberg J. A. made critical findings including: 1. That the prohibition on the cultivation and possession of marihuana is unconstitutional; 2. The Justice considered that fashioning a remedy required that Parliament address the issue. His exact language is particularly instructive: "I agree with the Crown that this is a matter for Parliament. Accordingly, I would declare the prohibition on the possession of marihuana in the Controlled Drugs and Substances Act, to be of no force and effect. However, since this would leave a gap in the regulatory scheme until Parliament could amend the legislation to comply with the Charter, I would suspend the declaration of invalidity for a year. During this period, the marihuana law remains in full force and effect."

[19] Rosenberg J. A. goes further and states in respect of a statutory exemption (referring to Section 56 of the Act) permitting marihuana possession : "I am also of the view that, subject to the availability of a s. 56 exemption, Parker has established that the similar prohibition on possession and cultivation of marihuana in the Controlled Drugs and Substances Act violates his rights under s.7 of the Charter." I will return later to address the significance of this determination (as it relates to the interpretation and consequence of s.56 of Act) to the application before the Court.

[20] Finally the Court of Appeal decision concludes: "Parker has established that the prohibition on possession of marihuana in the Controlled Drugs and Substances Act has deprived Parker of his right to security of the person and right to liberty in a manner that does not accord with the principles of fundamental justice."

[21] Having determined a Charter violation, the Court of Appeal decision discussed the appropriate remedy. In setting aside the Trial Judge's decision to "read in" a result, Rosenberg J. A. wrote: ".The Crown submits that, should this court find a violation of s.7 because the legislation fails to provide adequate exemptions for medical use, the "only available remedy" is to strike down those provisions and suspend the finding of invalidity for a sufficient period of time to allow Parliament to craft satisfactory medical exemptions."

[22] Simple possession of marihuana in s. 4(1) of the Controlled Drugs and Substances Act was struck down by the Court of Appeal. But the Court of Appeal went further in identifying whose task it was to address a remedy, writing: ".refusing to read in an exemption demonstrates a recognition of and respect for the different roles of the legislature and the courts. There is, in my view, no question that a medical exemption with adequate guidelines is possible. The fact that such exemptions exist in some states in the United States is testament to that. However, there are many options to consider and this is a matter within the legislative sphere. There is also a particular problem in the case of marihuana because of a lack of a legal source for the drug. This raises issues that can only be adequately addressed by Parliament."

[23] Repeatedly Rosenberg J. A. returns to the theme of Parliamentary authority to address the remedy: He wrote: ".To avoid an undue intrusion into the legislative sphere, any exemption crafted by a court should probably be the minimum necessary to cure the constitutional defect. However, faced with the need to open up the Controlled Drugs and Substances Act to address the constitutional defect Parliament has the resources to address the broader issue of medical use. By way of example only, people without the means to grow marihuana themselves, may be dependent upon caregivers to obtain the drug. This is a complex matter that, while not necessarily implicating Charter rights (although it may), is not something a court is equipped to deal with. Put another way, Parliament is not bound to legislate to the constitutional minimum. It can adopt the optimal and most progressive legislative scheme that it considers just. (Emphasis added) I also agree with the Crown that the declaration of invalidity should be suspended to provide Parliament with the opportunity to fill the void. .I would suspend the declaration of invalidity for 12 months. "

[24] In the wake of R. v. Parker and in accordance with s. 52 of the Constitution Act , the Court of Appeal suspended the declaration of validity for twelve months .

[25] As already noted, no appeal to the Court's determination was initiated. Parliament never re-enacted the s.4 prohibition or marihuana and no statutory amendments to the Controlled Drugs and Substances Act were proclaimed.

[26] The Applicant therefore argued as follows, that as of July 31, 2001, the Controlled Drugs and Substances Act at s.4 (1), could no longer be said to prohibit the simple possession of marihuana . This would be entirely consistent with the effect of a declaration that the statutory provision, against, simple possession of marihuana, was indeed invalid. However, that becomes now the issue: Can the declaration of invalidity truly be said to have taken effect?

[27] If it can be so said then the Applicant must succeed. If, however, it can be found by reason of an effective remedy having been applied (before the 12-month suspension applied in Parker) to cure the provision of its constitutional defects, then the statutory provision remains in effect and the young person stands charged with a legitimate offense known to law.

[28] In the wake of release of the reasons in R. v. Parker, July 31, 2000, Parliament had 12 months within which to remedy the constitutional breach. During that time the provisions of s.4 (1) of the Controlled Drugs and Substances Act remained valid and effective.

[29] What was done prior to July 31, 2001, the date upon which the declaration of invalidity would have had effect?

[30] The answer is that regulations were enacted namely the Marihuana Medical Access Regulations. Discussion of the implications of the Regulations

[31] Is the statutory prohibition against marihuana saved by the regulation scheme promulgated after R. v. Parker, i.e. the Marihuana Medical Access Regulations SOR/2001-227 ?

[32] The Applicant does not challenge the constitutionality of the regulations . In fact, the Applicant's argument concedes a recognition that these Regulations, ".may have been necessary" to address R. v. Parker. Further the Applicant has speculated that, had the Regulations been in place at the time R. v. Parker was considered, s.4 (1) of the Controlled Drugs and Substances Act would have perhaps been deemed constitutional.

[33] Clearly these Regulations were in response to R. v. Parker.

[34] While s.4 (1) of the Controlled Drugs and Substances Act remained valid (that is during the 12 months following R. v. Parker) steps were taken to create regulations providing exceptions to meet the deficiencies determined in R. v. Parker.

[35] The enactment of such Regulations clearly was contemplated (given the language of s. 4(1) of the Act which, to repeat, reads, in part: "Except as authorized under the Regulations."). Authority is vested in the Governor General in Council to enact regulations under the Controlled Drugs and Substances Act .

[36] To repeat: the Regulations were designed to meet the demands of R. v. Parker. Did the Regulations achieve that result? The Applicant did not put that in issue directly before this Court.

[37] The Regulations, designed to meet the needs of R. v. Parker, were brought into play in a timely enough fashion (albeit coming into force at the very end of the suspension period July 30th, 2001 ) pursuant to legitimate statutory authority. Wasn't that the point and purpose of the Court of Appeal's suspension? Wasn't Parliament to have the time and opportunity within which to fashion a remedy? But isn't that exactly what the government did in trying to save the provisions of the statute from invalidity?

[38] In answer, it may very well be that the Regulations do not meet the rigorous objectives of the Court of Appeal decision in R. v. Parker. Were the Regulations to fail to meet the required standards as stipulated in R. v. Parker, then the declaration (having been determined effective at the end of the twelve-month July 31, 2001) would be in place and the impugned section currently of no force and effect.

[39] The Applicant's submission distilled to its core, is that the Court of Appeal in Parker, having determined that s.4 (1) of the Act (as it applied to the possession of marihuana) was constitutionally invalid, and having suspended that finding for 12 months, had left Parliament with no choice but to amend or re-enact it (prior to lapse of the suspension) if Parliament were to preserve the prohibition on marihuana possession. As it turns out, Parliament did neither instead Regulations were enacted. In my view, that is entirely within Parliament's prerogative (i.e. Parliament could choose to do nothing and allow another mechanism, namely approval of a regulation by order-in council, to remedy the defect), provided that there is a correction addressing the underlying faults found in Parker. In this instance, it appears that Parliament acquiesced in the choice of the remedy, allowing enactment (clearly sanctioned by it) of a set of comprehensive regulations.

[40] Through this expedient, statutory amendment or re-enactment of the impugned section was avoided.

[41] But, and in my view this is the nub of the issue: Can Parliament provide a total discretion to the federal Cabinet (through the mechanism of a Govenor General-in-Council order) in creating the remedy to address Parker? How is that fundamentally different from the authority granting power to the Minister of Health to stipulated exemptions in s.56 of the Act? Regulations can be changed with every publication of the Canada Gazette, without consideration of Parliament and the debate that that would entail.

[42] Again, it is instructive on this point to return to the dicta in Parker. Rosenberg J. A. wrote: "I have concluded that the trial judge was right in finding that Parker needs marihuana to control the symptoms of his epilepsy. I have also concluded that the prohibition on the cultivation and possession of marihuana is unconstitutional. Based on principles established by the Supreme Court of Canada, particularly in R.v. Morgentaler, [1988] 1 S.C.R. 30, 37 C.C.C. (3d) 449, 44 D.L.R. (4th) 385, where the court struck down the abortion provisions of the Criminal Code, and Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, 85 C.C.C. (3d) 15, 107 D.L.R. (4th) 342, where the court upheld the assisted suicide offence in the Criminal Code, I have concluded that forcing Parker to choose between his health and imprisonment violates his right to liberty and security of the person. I have also found that these violations of Parker's rights do not accord with the principles of fundamental justice. In particular, I have concluded that the possibility of an exemption under s. 56 dependent upon the unfettered and unstructured discretion of the Minister of Health is not consistent with the principles of fundamental justice."

[43] Additionally in Parker Rosenberg J. A. addressed the Crown's defence having to do with the availability of a Ministerial exemption and wrote: " ...an important aspect of the Crown's defence of the Controlled Drugs and Substances Act was the availability of a Ministerial exemption under s.56 of the Act. Again, it may be that the availability of such an exemption is more properly dealt with under s. 1, in which cases the burden would be on the Crown to demonstrate the availability of such an exemption could save the prima facie violation of s7. This is of some importance, in view of the paucity of evidence on the operation of s.56...The question remains; does this unfettered discretion (referring to s. 56 of the Act) meet constitutional standards? In my view, notwithstanding the theoretical availability of the s.56 process, the marihuana prohibition does not accord with the principles of fundamental justice. In Morgentaler, Dickson C.J.C. found the therapeutic abortion scheme invalid in part because the provincial Ministers of Health could impose so many restrictions as to make therapeutic abortions unavailable in the province and because there was no standard provided in the section for the committee to use in determining whether the woman's health was in danger...The same must be said about s.56. It reposes in the Minister an absolute discretion based on the Minister's opinion whether an exception is "necessary for a medical...purpose", a phrase that is not defined in the Act.

[44] Finally, Rosenberg J. A. wrote: "In view of the lack of an adequate legislated standard for medical necessity and the vesting of an unfettered discretion in the Minister, the deprivation of Parker's right to security of the person does not accord with the principles of fundamental justice. In effect, whether or not Parker will be deprived of his security of the person is entirely dependent upon the exercise of ministerial discretion. While this may be sufficient legislative scheme for regulating access to marihuana for scientific purposes, it does not accord with fundamental justice where security of the person is at stake."

[45] Based on the opinion in Parker, it is the absence of suitable guidelines and structure in the legislation that leads to the Charter violation. It is not the ever present potential of unreasonable exercise of discretion at the ministerial level or the unwieldy administrative process that is the problem. These are cited as proof that the legislation itself, which can only be changed by Parliament, must contain suitable guidelines fettering the discretion of the cabinet or the Minister --- in such a way, that, if they comply with the legislation, a reasonable medical exemption system must be in place, and not just possibly could be.

[46] While Regulations were enacted, but the legislation was not amended, the "gap in the regulatory scheme" (to use the language of Rosenberg J. A. in Parker) was not addressed. In my view, the establishment by Parliament of suitable guidelines in legislation fettering administrative discretion was requisite, but lacking. This is simply not the sort of matter that Parliament can legitimately delegate to the federal cabinet, a Crown minister or administrative agency. Regulations, crafted to provide the solution (even were these fashioned to create sufficient standards governing exemptions) cannot be found to remedy the defects determined by the Parker dicta. Therefore, since a statutory framework with guiding principles was not enacted within the period of the suspension of the declaration of invalidity, it follows in my view that the declaration is now effectively in place.

Conclusion

[47] In light of that analysis the young person's application must succeed. Released: January 2, 2003 Signed: "Justice D. W. Phillips"