Docket: T-2030-13
Citation: 2016 FC 236
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BETWEEN:
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NEIL ALLARD,
TANYA BEEMISH,
DAVID HEBERT
AND SHAWN DAVEY
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA
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Defendant
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REASONS
FOR JUDGMENT
TABLE OF CONTENTS
PHELAN J.
I.
Introduction
[1]
This is a Charter challenge to the
current medical marihuana regime under the Marihuana for Medical Purposes
Regulations, SOR/2013-119 [MMPR] brought by four individuals. It is
important to bear in mind what this litigation is about, and equally, what it
is not about.
[2]
This case is not about the legalization of
marihuana generally or the liberalization of its recreational or life-style
use. Nor is it about the commercialization of marihuana for such purposes.
This
case is about the access to marihuana for medical purposes by persons who are
ill, including those suffering severe pain, and/or life-threatening neurological
conditions. Such persons also encompass those in the very last stages of their
life.
[3]
This is another decision in a line of cases
starting with R v Parker, (2000) 49 OR (3d) 481, 188 DLR (4th) 385
(ONCA) [Parker], and culminating in R v Smith, 2015 SCC 34,
[2015] 2 S.C.R. 602 [Smith], that have examined, often with a critical eye,
the efforts of government to regulate the use of marihuana for medical purposes
and the various barriers and impediments to accessing this necessary drug.
[4]
Like other cases, this most recent attempt at
restricting access founders on the shoals of the Canadian Charter of Rights
and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c 11 [the Charter],
particularly s 7, and is not saved by s 1.
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1. The Canadian Charter of Rights
and Freedoms guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
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1. La Charte
canadienne des droits et libertés garantit les droits et libertés qui y
sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans
des limites qui soient raisonnables et dont la justification puisse se
démontrer dans le cadre d’une société libre et démocratique.
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…
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…
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7. Everyone has 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.
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7.
Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne
peut être porté atteinte à ce droit qu’en conformité avec les principes de
justice fondamentale.
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[5]
The Court has concluded that the Plaintiffs’
liberty and security interest are engaged by the access restrictions imposed by
the MMPR and that the access restrictions have not been proven to be in
accordance with the principles of fundamental justice.
II.
Summary/Overview
[6]
The Plaintiffs are four individuals, who have a
medical requirement for marihuana to deal with certain physical conditions from
which they suffer. Their lives have been adversely impacted by the imposition
of the relatively new regime to control the use of marihuana for medical
purposes.
[7]
The focus of this litigation is the most recent
response of the federal government to the teachings of Parker that
effectively mandated a regime to make marihuana available for medical purposes
to persons in need. The Court in Parker held that the criminal
prohibition against the possession of marihuana in s 4 of the Controlled
Drugs and Substances Act, SC 1996 c 19 [CDSA], was of no legal effect
absent a constitutionally acceptable medical exemption from that prohibition.
[8]
The federal government previously put in place
the Marihuana Medical Access Regulations, SOR/2001-227 [MMAR] in 2001,
repealed the MMAR on March 31, 2014, and put in place a substantially different
regime under the MMPR.
For
purposes of this case, the terms “cannabis” and “marihuana” (marijuana) are
used interchangeably.
[9]
The fact finding process in this case was
challenging due to volume and relevancy. The case, on consent, proceeded as a
summary trial where affidavit evidence was taken as “read” into the record and
only those witnesses whom a party wished to cross-examine appeared in Court.
There was a large volume of evidence, not subject to cross-examination, which
nevertheless had to be assessed with a critical focus on relevancy and weight.
A list of the witnesses for the parties, both lay and expert, is attached as
Schedule A.
[10]
The previous jurisprudence on marihuana for
medical purposes under the MMAR was extremely helpful in establishing the
relationship between s 7 interests and the consumption of marihuana for medical
purposes. After the trial concluded, the Supreme Court rendered its decision in
Smith (discussed more fully later). That decision held that the former medical
access regime’s limitation to the use of only dried marihuana unjustifiably violated
the guarantees in s 7. This trial was reopened to permit the parties to
make submissions on the effect of the Smith decision on the present case.
[11]
That decision reaffirms the connection between s
7 rights and the restrictions on the use of marihuana and disposes of the
question of the methods of consumption issue raised as one of the numerous
issues in this trial. The restriction to dried marihuana under the MMPR is void
for the same reasons it was held to be void under the MMAR in Smith.
[12]
On the issue of the proper dosages and the
alleged therapeutic effects of different strains of marihuana, there remains
significant scientific debate on this topic. A clear theme running through the
evidence of this trial is that despite the lengthy period for which marihuana
for medical purposes has been available, there is a paucity of evidence,
particularly from government, in respect of its use and effects. Marihuana is
not treated as a “medicine” by statute,
regulation or policy, and the information gap posed a significant problem. In
addition to methods of consumption, the evidence adduced during the course of
the litigation focused on the Plaintiffs’ access to marihuana considering
dosages, strains, cultivation, cost economics and the administration of the
drug in other jurisdictions.
[13]
The anecdotal evidence of the Plaintiffs on the
impact of different strains is accepted but its weight is not significant. The
Court is not in any position to prescribe or condone different medical
treatments. The Defendant asks the Court to conclude that, given the high level
of use of medical marihuana (significantly more than some other countries),
Canadian medical practitioners are, in effect, overprescribing medical
marihuana. There is insufficient evidence for the Court to reach that
conclusion much less ground a s 1 finding on that basis.
[14]
To the extent that affordability was advanced as
a ground of s 7 violation, it has not been made out. More importantly, it is
not necessary to make such a finding. Affordability can be a barrier to access,
particularly where it is a choice made to expend funds on medical treatment to
the detriment of other basic needs. However, this case does not turn on a right
to “cheap drugs”, nor a right “to grow one’s own”, nor do the Plaintiffs seek to establish
such a positive right from government.
[15]
The evidence does establish that under the
single source system of a Licensed Producer [LP] there is no guarantee that the
necessary quality, strain and quantity will be available when needed at some
acceptable level of pricing (through such mechanisms as flexible pricing or
discount pricing) – due to the structure of the regulations and the
characteristics of the market.
[16]
Ultimately, considering that liberty and
security interests are engaged, the Court has found that the evidence of each
Plaintiff’s individual circumstances was sufficient to demonstrate that the
regulatory restrictions in the MMPR upon the individuals (including but not
limited to the prohibitions against certain methods of consumption and plant
growth by a patient or his or her delegate) does not bear a connection to the
objective of the legislation and is therefore arbitrary. The access restrictions
did not prove to reduce risk to health and safety or to improve access to
marihuana – the purported objectives of the regulation. In the alternative,
even if some connection is found, the restriction is still overbroad and does
not minimally impair s 7 rights.
III.
Background
A.
Regulatory Scheme
[17]
Drugs and controlled substances are primarily
regulated by the CDSA, the Food and Drugs Act, RSC 1985 c F-27 [FDA] and
their related regulations.
Cannabis
(marihuana) is a controlled substance scheduled under the CDSA and a narcotic
subject to the Narcotic Control Regulations, CRC c 1041 [NCR].
[18]
Subsequent to the Ontario Court of Appeal’s
decision in Parker referred to earlier, which in practical terms
mandated a constitutionally acceptable medical exemption for the use of
marihuana, the federal government [Canada] enacted the MMAR. These regulations
have been amended numerous times in response to decisions from various courts.
B.
MMAR
[19]
The MMAR, prior to its repeal and replacement
with the MMPR, permitted individuals who had the support of a medical
practitioner to obtain an Authorization to Possess [ATP] marihuana for medical
purposes from Health Canada.
[20]
The MMAR did not set any limit on the daily
dosage a doctor could authorize – however, it did impose a cap on the amount of
marihuana that an ATP holder could possess at 30 times (30x) one’s daily
dosage.
[21]
Under the MMAR, ATP license holders could obtain
lawful access to marihuana in one of three ways:
1.
through a Personal-Use Production Licence
[PUPL], which permitted the individual ATP license holder to grow a certain
quantity of marihuana for his or her own use;
2.
through a Designated Person Production Licence
[DPPL] that permitted a person designated by an ATP license holder to produce
marihuana for up to two (2) ATP licence holders; or
3.
through purchasing dried marihuana directly from
Health Canada which had contracted with a private company to produce and
distribute medical marihuana.
[22]
The production of marihuana under a PUPL or DPPL
could only be conducted at the site designated on that licence.
Cultivation could be indoors or outdoors, although not
both at the same time.
[23]
There were no restrictions as to the location of
the production facility beyond the fact that if outdoors, it could not be
adjacent to a school, public playground, day care facility or other public
place frequented mainly by persons less than 18 years of age.
There
were mandatory compliance requirements that licence holders had to meet
including compliance with all local by-laws.
[24]
The number of plants that could be grown by a
person with a production licence was calculated using a formula set out in the
MMAR based primarily on the ATP licence holder’s authorized daily dose. The
MMAR permitted up to four production licences to be issued in respect of the
same site.
[25]
There was significant growth in ATPs between
2002 and the end of 2013 from 455 to 37,151, and in PUPLs from 326 to 28,228.
Growth was expected to continue.
[26]
As of December 31, 2013, the average daily
dosage was 18.22 grams per day, which permitted an individual to grow 89
plants. This level of daily dosage was significantly higher than in Israel or
the Netherlands – two countries used in this case by Canada as comparators to suggest
that daily dosage is a problem in this country.
[27]
The MMAR provided for an inspection system under
which Health Canada inspectors were required to either obtain consent to enter
a dwelling or secure a warrant. As part of the Defendant’s justification for
the new system, Health Canada estimated that the inspection of all residential
growing operations in existence in 2013 would cost $55 million. The number has
little relevance in the absence of evidence to show that the inspection of all
sites annually is reasonably justified. Health Canada produced no evidence of
the amount of inspections necessary to ensure compliance with the regulations.
[28]
As evident in the justification for the new
MMPR, program costs were a significant, if not dominant, priority. The
administrative cost of operating the MMAR program and supplying dried marihuana
became significant as demand increased.
[29]
In 2005-06 the cost of that program was $5
million per year. By 2012 that cost was projected to increase to over $15
million per year. As Health Canada subsidized the cost of the marihuana it sold
to the extent of 50% of product cost, the annual $15 million cost included this
subsidy.
C.
MMPR
[30]
The Defendant, through the evidence of the then
Director of the Bureau of Medical Cannabis/Director of Medical Marihuana
Regulatory Reform [Director] contended that concerns about the MMAR led to government
reform. She was the Defendant’s key witness on the rationale for changes in the
medical marihuana regime as incorporated in the MMPR.
A
series of decisions including Hitzig v Canada (Attorney General) (2003),
231 DLR (4th) 104 (ONCA) [Hitzig], Sfetkopoulos v Canada (Attorney
General), 2008 FC 33, [2008] 3 FCR 399 [Sfetkopoulos], R v Beren,
2009 BCSC 429, 192 CRR (2d) 79 [Beren], had required changes to the
regulatory regime to lessen the restrictions on cultivation and facilitate
access to marihuana for medical purposes.
[31]
The Director contended that the concerns arising
from the MMAR included: the rapid increase in the number of individuals
authorized to possess and produce increasing amounts of marihuana; the fact
that the majority of medical marihuana was grown in dwelling houses, which were
not constructed to support large scale production; and the unintended negative
impacts on public health, safety and security (which covered such matters as
mould, fires, thefts, harms from fertilizers, odours and diversion to the black
market).
She
further contended that some MMAR program participants had expressed
dissatisfaction due to regulatory wait times.
Finally,
she stated that the program was becoming an administrative and financial burden
for the federal government.
[32]
While the Director asserted that Health Canada
had received complaint letters from certain BC and Ontario districts, fire
officials and neighbours of PUPL holders, these references were vague and not
extensive. The reference to municipality feedback consisted of eight instances:
a BC fire chief, a BC mayor, a BC municipality, an Ontario municipal fire
authority, an administrative officer in a BC district, a large BC community, a
BC district and an Ontario Police Services official.
[33]
Against this background, the Director
acknowledged in cross-examination that:
•
Health Canada, despite having data for the
kilograms of marihuana produced by MMAR licensees, had no data with respect to
public safety issues including fires, thefts, harms arising from fertilizers or
other chemicals used in gardens and no effort had been made to collect such
data;
•
Health Canada had no statistics relating to
incidents in which people who produced their own marihuana became sick from it;
•
the federal government was and would continue to
be the major beneficiary of the move to the MMPR in terms of cost savings, and
the persons who were and would continue to be most impacted were the patients
due to the increase in cost;
•
Health Canada had no information that the
Plaintiffs or a substantial number of licensees ever over-produced their
licences, diverted marihuana to the black market, produced unsafely, caused
smells, had any fires, produced any mouldy marihuana or suffered any negative
health consequences from consuming their medicine.
[34]
Despite this lack of data and information,
Health Canada began the process to develop a new medical marihuana regime by
2010. The key principles of this new regime included:
•
treat marihuana as much as possible like any
other medication (but not as a pharmaceutical drug);
•
restore Health Canada's role as a regulator and
eliminate the government role in supplying and distributing marihuana for
medical purposes;
•
create a new supply and distribution system
using fully regulated, inspected and audited LPs;
•
phase out personal and designated production and
institute mechanisms for compliance and enforcement;
•
reduce the risk of abuse and exploitation of the
regulatory regime and improve access to marihuana for medical purposes;
•
address the public health and safety risks that
police, fire authorities and municipalities had expressed to Health Canada; and
•
provide physicians with up-to-date information
on the use of marihuana for medical purposes.
[35]
Health Canada examined different possibilities
and issues. It also engaged in a consultation process that included online
consultation, meetings with stakeholders and consultations following a draft
publication in the Canada Gazette. However, the particulars of the policy
process are not particularly relevant to the Court’s consideration of the
impact of the MMPR on the Plaintiffs’ Charter rights.
[36]
The Court’s role is only to determine if the
policy or regulations comply with the Charter, not if their development
was adequate. Even a bad policy may be Charter compliant. The Supreme
Court of Canada in Canada (Attorney General) v PHS Community Services Society,
2011 SCC 44 at para 105, [2011] 3 S.C.R. 134 [PHS], stated the following on
the role of the court:
… It is for the relevant governments, not
the Court, to make criminal and health policy. However, when a policy is
translated into law or state action, those laws and actions are subject to
scrutiny under the Charter: Chaoulli, at para. 89, per
Deschamps J., at para. 107, per McLachlin C.J. and Major J., and at
para. 183, per Binnie and LeBel JJ.; Rodriguez, at pp. 589-90, per
Sopinka J. The issue before the Court at this point is not whether harm
reduction or abstinence-based programmes are the best approach to resolving
illegal drug use. It is simply whether Canada has limited the rights of the
claimants in a manner that does not comply with the Charter.
[37]
Similarly, the issue before the Court is not
whether the LP regime (MMPR) or the personal cultivation regime (MMAR) is the
best approach for access to medical cannabis. It is simply whether Canada has
limited the rights of the Plaintiffs in a manner that does not comply with the Charter.
[38]
In the end, the MMPR completely reformed the
medical marihuana access regime, most substantially invalidating all PUPLs and
DPPLs and the amount an individual is authorized to possess. It dispossessed
licensees of the ability to control the medical marihuana they consumed.
[39]
Justice Manson in his March 21, 2014 Order [the
Manson Order] (in which he kept the MMAR largely in place for qualified
persons) (Allard v Canada, 2014 FC 280, 451 FTR 45) summarized the
situation as follows:
[15] The MMPR mandates that dried
marihuana be produced by a Licensed Producer [LP], pursuant to section 12 of
the MMPR. Individuals who formerly were or could be issued an ATP must register
the prescription of a medical practitioner with an LP to obtain dried
marihuana. If they do so, section 3 authorizes them to obtain and possess
marihuana produced by that LP. The amount authorized for possession under
section 5 is lower than under the MMAR: either 150 grams or 30 times the amount
prescribed for daily consumption by the individual’s medical practitioner,
whichever is less.
[16] An LP is required to meet various
quality and security measures as per sections 12-101. This includes provisions
in sections 13 and 14 which state that the production site may not be outdoors
or in a dwelling-place.
IV.
Judicial Context
[40]
As of 1999, it was only possible for individuals
in Canada to possess marihuana for medical purposes by way of s 56 of the CDSA
which allows the Minister of Health to exempt any person or class of persons
from the application of the CDSA or its regulations if necessary for a medical
or scientific purpose or if it is otherwise in the public interest.
[41]
In 2000, the Ontario Court of Appeal, in Parker,
dealt with an accused charged with cultivation of marihuana under the former Narcotic
Control Act, RSC 1985 c N-1, and with possession of marihuana under the
CDSA. He needed the marihuana to control his epilepsy. As there was no legal
source of the type of marihuana he required, Parker grew his own.
[42]
The Ontario Court of Appeal upheld the trial
finding that the prohibition against marihuana in s 4 of the CDSA infringed
Parker’s s 7 Charter rights. The Court of Appeal declared the
prohibition on the possession of marihuana in the CDSA to be of no force and
effect, but suspended the declaration for one year.
Based
on the principles established by the Supreme Court of Canada in R v Morgentaler,
[1988] 1 S.C.R. 30 [Morgentaler] and Rodriguez v British Columbia
(Attorney General), [1993] 3 S.C.R. 519, the Court concluded that forcing Parker
to choose between his health and imprisonment violated his right to liberty and
security of the person. This violation did not accord with the principles of
fundamental justice nor was the unfettered discretion of the Minister to
provide an exemption under s 56 of the CDSA consistent with the principles of fundamental
justice.
[43]
Following upon Parker, the federal
government promulgated the MMAR, outlined earlier in these Reasons.
[44]
In Hitzig, the Ontario Court of Appeal
dealt with three civil applications challenging the constitutionality of the
MMAR. By the time the government brought in the MMAR in 2001, it had decided
that government-supplied marihuana from its Prairie Plant Systems (the only
authorized grower of marihuana), which typically supplied marihuana to those
who could not grow their own or have a designate, would be available only for
research purposes.
[45]
The Court, in declaring certain provisions of
the MMAR invalid, allowed all DPPL holders to be compensated to grow for more
than one ATP holder and to combine their growing with more than two other DPPL
holders. The Court also acknowledged that the government could choose to
address the constitutional difficulty of marihuana supply by an approach
fundamentally different from that contemplated by the MMAR.
[46]
This Court in Sfetkopoulos heard a
judicial review application to declare invalid s 41(b.1) of the MMAR, which
restricted a designated licensee to producing medical marihuana for only one
user. The substantive issue was whether the remedial steps taken by Canada had
brought the MMAR into conformity with the Charter requirements
identified in Parker and Hitzig.
[47]
As those cases held, the Charter requires
that government not hinder access to marihuana for no good reason for those
with a demonstrated need to obtain and use this substance.
Justice
Strayer, following the reasoning in those two decisions, concluded that s 41(b.1)
constituted an impermissible restriction on s 7 liberty and security rights of
the applicants. The comments of Justice Strayer are prescient to this case.
[48]
The “liberty interest”
identified by Justice Strayer would include:
•
the right to choose, on medical advice, to use
marihuana for the treatment of serious conditions (which right implies a right
of access to marihuana); and
•
the right not to have one’s physical liberty
endangered by the risk of imprisonment from having to access marihuana
illegally.
The “security interest” included similar rights for those
with a medical need to have access to medication without undue interference
(this Court’s emphasis).
[49]
With respect to the “principles
of fundamental justice”, Justice Strayer held that the limitation on DPPLs
and therefore the limitation on access did little or nothing to enhance the
state’s interest. As such, it was arbitrary.
[50]
The Court critically examined the limitations on
DPPLs and found them lacking justification. The government’s justification - to
some extent similar to the Regulatory Impact Analysis Statement [RIAS] in the
present case - included: the need to control distribution of an unapproved
drug; the desire to minimize risk of diversion to non-authorized use;
consistency with international obligations; and movement toward a supply model
where there would be product standards and regulated production with the advice
of physicians.
[51]
The government’s concern about the risk of
diversion had to be justified, and it was found not to be.
[52]
On the issue of the movement to a supply model,
the Court stated that:
[18] … That may well be a laudable goal
and if ever reached would make unnecessary litigation such as the present case.
But we do not know when this new age will dawn and in the meantime the courts,
in their wisdom, have concluded that persons with serious conditions for which
marihuana provides some therapy should have reasonable access to it. It is no
answer to say that someday there may be a better system. Nor does the hope for
the future explain why a designated producer must be restricted to one
customer.
In the present
case, one of the issues is why a customer must be restricted to a single
supply.
[53]
The restraint on access was not in accordance
with the principles of fundamental justice because it did not respond to the
concerns motivating the Hitzig decision and left ATP holders, who are
unable to grow for themselves and who cannot engage a designated producer due
to MMAR restrictions, to seek marihuana in the black market.
[54]
In Justice Strayer’s view (one which could with
slight adaption be replicated here):
[19] … it is not tenable for the
government, consistently with the right established in other courts for
qualified medical users to have reasonable access to marihuana, to force them
either to buy from the government contractor, grow their own or be limited to
the unnecessarily restrictive system of designated producers. At the moment,
their only alternative is to acquire marihuana illicitly and that, according to
Hitzig, is inconsistent with the rule of law and therefore with the
principles of fundamental justice.
As seen earlier,
the MMPR limits a patient to a single government-approved contractor and
eliminates the ability to grow one’s own marihuana or to engage one’s own
designated producer. That system is likewise not tenable.
[55]
The Court found s 41(b.1) to be arbitrary,
contrary to the principles of fundamental justice, not rationally connected to its
objectives and a disproportional restraint to any state interests promoted.
The
decision was upheld on appeal. The Federal Court of Appeal agreed in law and
fact with the Federal Court’s decision.
[56]
In 2009, the BCSC rendered its decision in Beren,
dealing with a challenge to s 5 and 7 of the CDSA. It focused on the failure of
the MMAR to provide practical access to medical marihuana for those whose
medical conditions would appear to fall within the exemption provided, despite
the amendments following Hitzig and a change in policy with respect to
the availability of medical marihuana for qualified patients through government
supply.
[57]
The Court in Beren largely adopted the Court’s
reasoning in Hitzig in respect of “fundamental
justice” and Justice Strayer’s reasoning in Sfetkopoulos in
respect of impediments to supply.
Following
Sfetkopoulos and Beren, the MMAR was amended to further
facilitate access to medical marihuana.
[58]
In the context of the MMAR at the time of its replacement
by the MMPR, the judicial teachings were that access for approved medical
patients was mandated by the Charter and that restrictions on access,
use and supply were to be strictly limited. It is evident that Canada struggled
with these two conflicting notions of access and control, as well as the
direction toward greater access.
As
seen in its structure and evident from a review of its operation, the MMPR
moved in the opposite direction.
[59]
Even after the MMPR had been enacted,
significant developments affecting the MMAR moved through the Court system. In Smith,
first decided by the British Columbia Supreme Court, the accused argued that
the CDSA and MMAR could not constitutionally prohibit rendering dried cannabis
into oils and other substances. The case was an attack on the MMAR provision
(also found in the MMPR) that only dried cannabis can be used. The trial judge
found against the limitation to dried marihuana.
[60]
The matter moved through to the Supreme Court in
Smith. The appeal required the Court to decide whether a medical access
regime that only permits access to dried marihuana unjustifiably violates the
guarantee of life, liberty and security of the person contrary to s 7 of the Charter.
[61]
The Supreme Court reaffirmed the lower court
decision that the medical marihuana regime engaged s 7 rights. More
specifically, the legislative scheme’s restriction of medical marihuana to
dried marihuana limited s 7 rights in several ways:
•
the prohibition on possession of cannabis
derivatives infringed Smith’s liberty interest by exposing him to the threat of
imprisonment on convictions under the CDSA;
•
the prohibition engages the liberty interests of
medical marihuana users as they could face criminal sanctions if they produce
or possess cannabis products other than dried marihuana;
•
the prohibition on possession of active cannabis
compounds for medical purposes limits liberty by foreclosing reasonable medical
choices through the threat of criminal prosecution. Specifically, the state
prevents people who have already established a legitimate need for marihuana –
a need the legislative scheme purports to accommodate – from choosing the
method of administration;
•
the right to security of the person is infringed
by forcing a person to choose between a legal but inadequate treatment and an
illegal but more effective choice of administration of marihuana; and
•
the prohibitions on non-dried medical marihuana
were also arbitrary because they undermined the health and safety of medical
marihuana users by diminishing the quality of their medical care. The effect of
the prohibition, which in reality limited usage to smoking marihuana,
contradicted the objective of the medical marihuana regime.
[62]
Germane to the present case, the Supreme Court
accepted the trial court’s conclusion that the evidence did not establish a
connection between the restriction and the promotion of health and safety. A
general proposition of the Defendant is that the MMPR is justified on health
and safety grounds and addresses such concerns as diversion of medical
marihuana into the illegal market – a fact not supported by the evidentiary
record in Smith.
[63]
On the matter of s 1 justification, the Supreme
Court in Smith stated:
[29] The remaining question is whether
the Crown has shown this violation of s. 7 to be reasonable and demonstrably
justified under s. 1 of the Charter. As explained in Bedford,
the s. 1 analysis focuses on the furtherance of the public interest and thus
differs from the s. 7 analysis, which is focused on the infringement of the
individual rights: para. 125. However, in this case, the objective of the
prohibition is the same in both analyses: the protection of health and safety.
It follows that the same disconnect between the prohibition and its object that
renders it arbitrary under s. 7 frustrates the requirement under s. 1 that the
limit on the right be rationally connected to a pressing objective (R. v.
Oakes, [1986] 1 S.C.R. 103). Like the courts below, we conclude that the
infringement of s. 7 is not justified under s. 1 of the Charter.
[64]
The Smith decision confirmed the
teachings of the prior jurisprudence in respect of improving access to medical
marihuana but dealt specifically with one aspect of the challenge to the MMPR –
the restriction to dried marihuana.
The
current challenge to the MMPR is more broadly based and attacks the very
foundation and operation of the MMPR as an integrated regulatory scheme.
V.
Factual Background
[65]
In the context of the earlier background, the
medical marihuana regime under the MMPR and the trial evidence must be
assessed.
A.
Medical Marihuana Use
[66]
The medical benefits of marihuana were largely
undisputed at trial and have been recognized in previous cases. It is therefore
not necessary to exhaust all the medical evidence that was adduced in the
course of this litigation. It is important to note, however, that aspects of
the therapeutic benefit and dosage remain disputed for particular illnesses and
individuals. The following is a brief overview of some of the medical findings:
•
Marihuana has medicinal value for certain
individuals, particularly in terms of pain relief, reducing nausea and
stimulating appetite;
•
Conditions that allow for medical marihuana use,
inter alia, include: chronic neuropathic pain, HIV, multiple sclerosis,
Parkinson's disease, Tourette syndrome and Fibromyalgia. It is also used in the
context of palliative care for end-of-life patients;
•
There is limited research and scientific
knowledge on marihuana as a medicine; and
•
Although disputed, there are risks with
consuming marihuana. Accordingly, there is a need for studies of adverse
effects in long-term users of marihuana for medical purposes.
(1)
Dosage
[67]
It was agreed by the experts that there is no
possibility of overdose death from cannabis consumption by humans, whether the
consumption is oral, inhaled or topical. Conversely, medically appropriate
dosages of cannabis were an issue of significant debate. The Defendant suggested
that overdosing pursuant to over-prescription was a serious problem. Dosages
were also relevant when determining methods of consumption. The position of the
experts regarding dosage more generally is summarized below.
[68]
Dr. Pate - Plaintiffs’ expert on botany and
pharmacology - stated that there is little scientific research on the efficacy
of marihuana products or the medically appropriate dosages. He agreed that
marihuana overdoses can produce side effects that are “extremely
unpleasant” and postulated that orally ingesting “cannabis-based medicines” may require “lesser dosages” - one reason why oral ingestion
results in the amelioration of unwanted side effects. Pate further admitted
that this was difficult to confirm because it would depend on the case at hand
including the route of administration, the effect desired and the individual
patient tolerance.
[69]
Dr. Baruch - Defendant’s expert on cannabis use
in Israel - gave evidence based on his research and experience in Israel. He
stated that physicians in Israel may recommend medical marihuana starting at 20
grams per month and the dose can be increased, with the support of another physician,
up to a maximum dose of 100 grams per month. Medically appropriate maximum
dosage should not exceed five grams per day. Dosages beyond this amount do not
provide any additional therapeutic benefit and may result in adverse effects.
Consumption amounts to 1 gram per day in Israel and only 86 permits for an
amount of marihuana exceeding 100 grams have been issued, which represents less
than 0.5 percent of authorized patients. Of these 86 exemptions, none exceed
200 grams per month.
[70]
Dr. Baruch noted that “there
is cumulating evidence that the response to escalating doses of cannabis has an
inverted U shape […] as the dose increases above a certain point the
effectiveness of cannabis decrease and risk side effects increase […] This is
one more reason why physicians prescribing cannabis should be extra cautious
when using escalating doses especially when reaching high doses (above 2 g per
day)” [as written].
Finally,
Dr. Baruch commented on the growing literature concerning the development of
tolerance, dependence and withdrawal from cannabis use, especially among heavy
cannabis users.
[71]
Dr. Daenick – Defendant’s expert on cannabis use
and dosage - stated that in his experience, most of his patients generally use
3-5 grams a day, only when necessary, with some patients using much less. He
noted that there are no medical indications for the use of amounts in excess of
5 grams a day. The College of Family Physicians of Canada agrees that 1-3 grams
per day is a medically appropriate dosage. In his expert report, Dr. Daenick
states that despite the fact that there is no medical reason for dosages over 5
grams per day, only a quarter of patients under the MMAR were approved for 1-5 grams
per day. The majority were approved for over 10 grams per day.
[72]
Dr. Daenick opined on several reasons for these
high dosages, these reasons were not factually supported.
[73]
Dr. Ferris – Plaintiffs’ rebuttal expert on use
and dosage - generally agrees that doses of 3-5 grams of cannabis per day are
adequate for most patients. However, the dose for oral consumption is 2.5 times
the inhaled consumption dose, thus the prescribed range for patients consuming
marihuana via edibles can easily be 10-12.5 grams per day. Tolerance, genetics
and access to low or high-potency strains, also needs to be considered to
determine dosage. Dosage is determined through doctor patient interactions and
dialogues that result in a dosage that works for the particular patient’s
medical issues.
[74]
Dr. Kalant – Defendant’s expert on medical
marihuana use - opined that dosages beyond 5 grams per day do not provide any
additional therapeutic benefit and may result in adverse effects. Specifically,
he testified that a number of studies of medical marihuana have found that
progressive increases in dosage at first increase the therapeutic effect, but
further increases lead to loss of therapeutic effect and replacement by adverse
effects. He accepted and elaborated on the inverted U-shape phenomenon
described by Dr. Baruch.
[75]
Dr. Kalant touched upon a problem that has run
throughout this case – that despite the government having exerted control over
medical marihuana, there is a surprising lack of research to justify many of
the assumptions relied on by government. He acknowledged that there is
insufficient evidence on which to base scientifically reasoned dosage ranges
for different medical uses and acknowledged that patients can develop
significant levels of tolerance to the effects of particular dosages.
[76]
Dr. Clarke – Plaintiffs’ rebuttal expert on
cannabis use - commented that high potency of cannabis in the medical context
means that a patient needs to consume less to achieve medical efficacy, lowering
the chances of adverse side effects. Medical users do not want to overconsume
and they want to avoid side effects.
[77]
Finally, the Bureau of Medical Cannabis in the
Netherlands estimates that the average daily dosage of medical marihuana in
that country is about 0.68 grams per patient. However, this data must be
approached with caution considering the particulars of that regime including
the access to coffee shops selling marihuana. The availability of marihuana in
that generally unenforced environment calls into question the weight given to
some of the evidence from that Bureau.
[78]
In my view, the weight of the evidence presented
in this Court is that:
•
the medically appropriate dose may depend on
individual tolerance, particular potency of strains (e.g. the CBD and THC
rations), the route of administration and the content of the edibles;
•
Canada has an exceedingly high dosage and the reasons
suggested for this were vastly speculative;
•
many of the experts agree that there is a
U-shape effect, where after a certain amount, the medicinal effect of the
cannabis is limited;
•
the recommended amount is largely agreed upon as
1-5 grams per day; and
•
there is insufficient evidence to determine why
dosages in Canada are so high and what the effect on patients would be if they
were to consume less than currently prescribed.
(2)
Methods of Consumption
[79]
Much of the debate regarding methods of
consumption and the legal prohibition against non-dried marihuana has been
dealt with in Smith. The finding that the dry marihuana restriction was
more dangerous to one’s health than other forms of consumption undermines the
Defendant’s position that the MMPR - which maintained the dried marihuana
restriction - were focused on public health and safety.
[80]
It is useful to touch on some of the evidence on
this issue presented in this case.
Dr.
Pate provided evidence explaining how the cannabis plant is harvested for its
medicinal resin compounds inside the glandular trichomes of the plant. The glandular
trichomes containing the therapeutically active chemical compounds can be
isolated from the plant matter in different ways thus eliminating most of the
plant matter in the final product, resulting in resin (“hash”,
“kit” or “pollen”)
or extracts (oil, butter).
[81]
There are multiple ways to ingest the active
compounds of cannabis, which have different risks and benefits: inhalation
(rapid onset with short-term relief), oral ingestion (gradual onset with longer-term
relief), topical (assists skin conditions and joint pain with no psychoactive
effects), and trans-mucosal (rapid onset with short-term relief, without
smoking). Ingesting the resin can be more effective than other forms of administration.
As mentioned earlier, Dr. Pate also stated that an individual may consume less
cannabis if in edible form depending on a number of factors, including intended
benefit and tolerance.
[82]
Dr. Baruch stated that in Israel, licenced
individuals may purchase marihuana in the form of cannabis buds or cannabis oil
(extract), and children who require marihuana for medical purposes are provided
with cannabis cookies made using dried cannabis. Cannabis oil was introduced
for religious reasons. There is little to no difference between the quantities
of marihuana a patient must consume through inhalation compared to oral
ingestion to obtain the same effect.
[83]
Dr. Kalant states that there is no scientific
evidence that a particular method of consumption is required to treat a
particular medical condition, or that certain forms of consumption are more
efficacious than others. Dr. Kalant was unable to find a single scientific
study comparing the therapeutic effects of undried versus dried cannabis.
[84]
According to Dr. Kalant, the restriction to
dried marihuana could not be justified. In like manner, there was insufficient
evidence that other forms of consumption are particularly effective. Any such
evidence was anecdotal. However, it was the Defendant’s burden to justify
restrictions to particular forms of consumption.
(3)
Strains
[85]
In much the same vein as the issue of
consumption, there is a lack of scientific research relating to medicinal uses
of different strains. Thus, much of the evidence relied upon was anecdotal including
the conclusions by the experts.
[86]
The Ontario Court of Appeal in R v Mernagh,
2013 ONCA 67, at paras 63-65, stated the following on anecdotal evidence when
commenting on a trial judge’s findings not being supported by evidence:
63 Mr.
Mernagh, both on the application and on this appeal, fundamentally misconceived
the nature of the evidentiary foundation required in a case of this kind. He
relies on the passage at para. 9 of Hitzig, which states: "[T]he
courts, relying on evidence of individuals' personal experiences and anecdotal
evidence have determined that some seriously ill persons derive substantial
medical benefit from the use of marihuana." He wrongly takes this to mean
that anecdotal evidence of serious illness, and the relief of symptoms through
marihuana use, is sufficient to establish a person's own medical need to use
marihuana. This interpretation misunderstands the scope for anecdotal evidence
in Charter analysis and over-reads the passage in Hitzig.
64 The
reference to anecdotal evidence in Hitzig recognizes nothing more than
that for the purposes of judicial fact-finding, anecdotal evidence has been
used to establish the general proposition that marihuana can have some medical
benefit for some people. Anecdotal evidence, in a sense, compensates for
scientific evidence that might otherwise have been used for that purpose. In
the absence of more and better studies about the therapeutic value of
marihuana, anecdotal evidence may be a reasonable substitute.
65 Mr.
Mernagh's lay evidence was sufficient to show that he was not a recreational
user and that his s. 7 right to security of the person was engaged. However, it
was not sufficient to show that he fit the medical criteria in the MMAR,
and was therefore entitled to a physician's declaration in support of an
application for an exemption. [footnotes omitted]
[87]
In light of the above comments and in the
absence of more and better studies about the therapeutic value of strain
efficacy, anecdotal evidence is a reasonable substitute in this case. This is
because there is a concordance between the anecdotal evidence and objective
scientific evidence that different strains have a greater percentage of the
active ingredient THC. The issue is not without controversy.
[88]
Dr. Pate, on behalf of the Plaintiffs, stated
that cannabis has a number of phenotypes (strains) that are created by breeding
different varieties of the plant with each other. Different strains produce
differing effects and levels of efficacy on the patient, depending on the
individual and the medical condition. The differing effects and levels of
efficacy are probably caused by varying amounts, ratios and synergistic effects
of the therapeutically active compounds.
[89]
I accept Dr. Baruch’s statement that Israel is
recognized as perhaps the leading country in the world in terms of cannabis
research. Dr. Baruch has had great success in managing to create strains of
cannabis that are significantly potent (24% THC). The medicine is stable, which
means that if the strain is said to have certain levels of CBD or THC, it in
fact does. The average supply in Israel affects a high quality product.
[90]
However, according to the evidence of Catherine
Sandvos, legal counsel and the Deputy Manager of the Bureau of Medicinal
Cannabis [BMC], part of the Netherlands Department of Health Division, it is
the understanding of the BMC that patient preference for a particular variety
is a matter of taste that is unrelated to efficacy. There are currently five
varieties of dried marihuana with differing levels of THC and CBD available for
medical use for patients in the Netherlands.
[91]
The Defendant’s witness, Dr. Kalant, agrees that
different strains may have different chemical compositions, but is of the view
that there is a lack of scientific research as to whether different strains
have different effects for particular patients and illnesses. Dr. Kalant states
that “it is not at all clear that the large number of
so-called strains advertised on the internet are in fact distinct strains as
defined botanically”. These advertisements are not accompanied by any
evidence that they meet the criteria or that they have been analysed chemically
for their contents of various cannabinoids. The alleged medical efficacy of
particular strains is not the result of clinical testing or scientific research
but is instead “based either on subjective anecdotal
reports or promotional advertising by producers”.
Dr.
Kalant states that there is no scientific evidence to support the anecdotal
claims that certain strains are useful for certain medical conditions. All that
is known is that THC to CBD ratios result in different levels of
psychoactivity.
[92]
Zachary Walsh - the Plaintiffs’ expert on
affordability and access - also commented on strains based on the result of his
survey, stating:
•
A large proportion of the respondents reported
that access to specific strains of cannabis was very important to their symptom
relief;
•
Whether or not the empirical work will
correspond with the patient reports remains to be seen, but patients
consistently, across samples, report that a diversity of strains is important.
There is basic science showing different cannabinoid levels across different
strains;
•
There is a scientific reason to believe that
different strains would have different physiological effects and there are also
“entourage effects”, referring to the concurrent
effects of these diverse cannabinoids that vary across strains.
The treatment of
survey evidence is discussed later.
[93]
The evidence is that the use of medical
marihuana has both physical and psychological effects on patients. The relief
given is influenced in part by the patient’s perspective and cannot be
callously dismissed as something akin to a placebo. The lack of access to
different strains does appear to have an adverse effect on some patients
including some of the Plaintiffs in this matter.
B.
Marihuana Cultivation
[94]
Remo Colasanti was the Plaintiffs’ expert
witness in cannabis cultivation. He opined on how to produce cannabis indoors
in various ways in a residential area without interfering with neighbours’
rights in relation to odour, public safety, fire and electrical safety and
mould, and without risks to the producer and those around them. His evidence is
given less weight than might otherwise be the case because he, like a number of
“expert witnesses”, was so committed to one side of the debate, that the
objectivity which this Court needed was undermined. However, his evidence
assisted the Court in relation to the details of how the cannabis plant is
cultivated and provided context for some of the concerns asserted by the
Defendant to justify the MMPR’s provisions. It also touched upon the
prohibition against “growing one’s own”
marihuana.
[95]
Cannabis needs light, water and nutrients to
survive and grow. It can be grown outdoors or indoors. Lighting and physical
space are the primary determinants for overall yield in indoor cannabis
production, not the number of plants. Small amounts of cannabis can be produced
in small spaces such as closets, grow tents and growth chambers.
[96]
There are two primary stages in the plant’s life
cycle: vegetative growth and flowering. Each stage is characterized by
differing amount of light. The sun provides the light needed to grow outdoors
and in greenhouses. For indoor production, different types of lights are used
including a) fluorescent, b) LED, and c) high intensity lights designed for
indoor plant cultivation.
[97]
Colasanti testified that larger plants are less
work and can produce the necessary amount of cannabis. He also opined that with
the right lighting and physical space, an individual could obtain the same
yield from 6 plants as from 600.
[98]
He also gave evidence regarding the infamous (at
least in this litigation) “Bloom Box”. The Bloom
Box is an example of a self-contained hydroponic grow box that can be used to
safely and inexpensively grow cannabis without odour and does not use excessive
amounts of power. It costs $3,300 plus tax. I find the purpose of this evidence
was to illustrate that marihuana can be cultivated effectively, safely and
cheaply without massive investment or the measures necessary to address the
hazards associated with large growing operations.
[99]
Dr. Thomas Baumann - the Plaintiffs’ expert
witness on horticulture - is a horticulturist and Professor of Agriculture at
the University of the Fraser Valley. He provided an expert opinion with respect
to general and specific issues or concerns involved in the production or
cultivation of plants for food, enjoyment, health purposes, personal use or
family use, and limitations thereon.
[100] On cultivation, Dr. Baumann states that the technology and equipment
that exists today enables a person to grow any plant either outside (in soil or
in greenhouses) or indoors, safely with respect to themselves and others, and
without damage to the building or structure in which production takes place.
Use of proper electrical connections, water management, environmental controls
(humidity and temperature) and compliance with all laws and regulations is
required no matter the kind of plant being produced. (The cost of cultivation
is discussed below in affordability and access.)
C.
Risk of Cultivation
[101] The risk of cultivation of marihuana was a major plank in the
Defendant’s case that any interference with s 7 rights was in accordance with
principles of fundamental justice or otherwise justified in a free and
democratic society (s 1).
The
Defendant canvassed the risks of cultivation through “expert” witnesses. By way
of overview, it is necessary for the Court to provide some context for its
consideration of social science and other “non-hard”
science expert witnesses. Many “expert” witnesses were so imbued with a belief
for or against marihuana - almost a religious fervour - that the Court had to
approach such evidence with a significant degree of caution and scepticism.
[102] It is important to recognize the standard necessary for admission of
expert opinion evidence:
50 Courts must be vigilant to guard
against such impermissible evidence. It is trite law that expert witnesses
should not give opinion evidence on matters for which they possess no special
skill, knowledge or training, nor on matters that are commonplace, for which no
special skill, knowledge or training is required.
(Johnson v Milton (Town), 2008 ONCA
440)
[103] In the leading case, R v Mohan, [1994] 2 S.C.R. 9 [Mohan],
the Supreme Court provided criteria on the admission of expert evidence that
advances a novel scientific theory. Although the experts in the present trial
did not advance a novel scientific theory, and the expert qualifications were
not objected to during the course of the trial, it is still necessary to
evaluate their probative value. Since Mohan, the courts have provided
guidance on this evaluation.
[104] An expert witness should provide independent assistance to the court
and should not assume the role of an advocate (Carmen Alfano Family Trust
(Trustee of) v Piersanti, [2012] OJ No 2042 at paras 96-120 (ONCA)). An
expert should state the facts or assumptions upon which his or her opinion is
based and should not omit to consider material facts which weaken his or her
opinion. In R v Abbey, 2009 ONCA 624 [Abbey], the Ontario Court
of Appeal provided the following guidance when assessing the opinion of an
expert witness in this context:
119 As
with scientifically based opinion evidence, there is no closed list of the
factors relevant to the reliability of an opinion like that offered by Dr.
Totten. I would suggest, however, that the following are some questions that
may be relevant to the reliability inquiry where an opinion like that offered
by Dr. Totten is put forward:
* To what extent is the field in which the opinion is offered a
recognized discipline, profession or area of specialized training?
* To what extent is the work within that field subject to quality
assurance measures and appropriate independent review by others in the field?
* What are the particular expert's qualifications within that
discipline, profession or area of specialized training?
* To the extent that the opinion rests on data accumulated
through various means such as interviews, is the data accurately recorded, stored
and available?
* To what extent are the reasoning processes underlying the
opinion and the methods used to gather the relevant information clearly
explained by the witness and susceptible to critical examination by a jury?
* To what extent has the expert arrived at his or her opinion
using methodologies accepted by those working in the particular field in which
the opinion is advanced?
* To what extent do the accepted methodologies promote and
enhance the reliability of the information gathered and relied on by the
expert?
* To what extent has the witness, in advancing the opinion,
honoured the boundaries and limits of the discipline from which his or her
expertise arises?
* To what extent is the proffered opinion based on data and other
information gathered independently of the specific case or, more broadly, the
litigation process?
120 The
significance of testing the expert's methodologies against those accepted in
the field was highlighted in Kumho Tire Co. at p. 152:
The objective of that requirement
[the gatekeeper function] is to ensure the reliability and relevancy of expert
testimony. It is to make certain that an expert, whether basing testimony
upon professional studies or personal experience, employs in the courtroom the
same level of intellectual rigour that characterizes the practice of an expert
in the relevant field. [Emphasis added.]
[105] The Supreme Court most recently applied the Abbey framework
and extensively commented on expert opinion evidence in White Burgess
Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, [2015] 2 S.C.R. 182:
[22] Abbey (ONCA) introduced
helpful analytical clarity by dividing the inquiry into two steps. With minor
adjustments, I would adopt that approach.
[23] At the first step, the proponent
of the evidence must establish the threshold requirements of admissibility.
These are the four Mohan factors (relevance, necessity, absence of an
exclusionary rule and a properly qualified expert) and in addition, in the case
of an opinion based on novel or contested science or science used for a novel
purpose, the reliability of the underlying science for that purpose: J.-L.J.,
at paras. 33, 35-36 and 47; Trochym, at para. 27; Lederman, Bryant and
Fuerst, at pp. 788-89 and 800-801. Relevance at this threshold stage refers to logical
relevance: Abbey (ONCA), at para. 82; J.-L.J., at para. 47.
Evidence that does not meet these threshold requirements should be excluded.
Note that I would retain necessity as a threshold requirement: D.D., at
para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th
ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283, 85 C.R. (6th)
290, at para. 13; R. v. C. (M.), 2014 ONCA 611, 13 C.R. (7th) 396, at
para. 72.
[24] At the second discretionary
gatekeeping step, the judge balances the potential risks and benefits of
admitting the evidence in order to decide whether the potential benefits
justify the risks. The required balancing exercise has been described in
various ways. In Mohan, Sopinka J. spoke of the “reliability versus
effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about
“relevance, reliability and necessity” being “measured against the
counterweights of consumption of time, prejudice and confusion”: para. 47.
Doherty J.A. summed it up well in Abbey, stating that the “trial judge
must decide whether expert evidence that meets the preconditions to
admissibility is sufficiently beneficial to the trial process to warrant its
admission despite the potential harm to the trial process that may flow from
the admission of the expert evidence”: para. 76.
[106] The Court went on to discuss the nature of an expert’s duty to the
court and where it fits into the framework:
[27] One influential statement of the
elements of this duty are found in the English case National Justice
Compania Naviera S.A. v. Prudential Assurance Co., [1993] 2 Lloyd’s Rep. 68
(Q.B.). Following an 87-day trial, Cresswell J. believed that a
misunderstanding of the duties and responsibilities of expert witnesses
contributed to the length of the trial. He listed in obiter dictum
duties and responsibilities of experts, the first two of which have
particularly influenced the development of Canadian law:
1. Expert evidence presented to the Court should be, and should be
seen to be, the independent product of the expert uninfluenced as to form or
content by the exigencies of litigation ….
2. An expert witness should provide independent assistance to the
Court by way of objective unbiased opinion in relation to matters within
his [or her] expertise . . . . An expert witness in the High Court should never
assume the role of an advocate. [Emphasis added; citation omitted; p. 81.]
(These duties were endorsed on appeal:
[1995] 1 Lloyd’s Rep. 455 (C.A.), at p. 496.)
…
[32] Underlying the various
formulations of the duty are three related concepts: impartiality, independence
and absence of bias. The expert’s opinion must be impartial in the sense that
it reflects an objective assessment of the questions at hand. It must be
independent in the sense that it is the product of the expert’s independent
judgment, uninfluenced by who has retained him or her or the outcome of the
litigation. It must be unbiased in the sense that it does not unfairly favour
one party’s position over another. The acid test is whether the expert’s
opinion would not change regardless of which party retained him or her: P.
Michell and R. Mandhane, “The Uncertain Duty of the Expert Witness” (2005), 42 Alta.
L. Rev. 635, at pp. 638-39. These concepts, of course, must be applied to
the realities of adversary litigation. Experts are generally retained,
instructed and paid by one of the adversaries. These facts alone do not
undermine the expert’s independence, impartiality and freedom from bias.
As to admissibility
or weight, the following comments were provided:
[45] Following what I take to be the
dominant view in the Canadian cases, I would hold that an expert’s lack of
independence and impartiality goes to the admissibility of the evidence in
addition to being considered in relation to the weight to be given to the
evidence if admitted. That approach seems to me to be more in line with the
basic structure of our law relating to expert evidence and with the importance
our jurisprudence has attached to the gatekeeping role of trial judges. Binnie
J. summed up the Canadian approach well in J.-L.J.: “The admissibility
of the expert evidence should be scrutinized at the time it is proffered, and
not allowed too easy an entry on the basis that all of the frailties could go
at the end of the day to weight rather than admissibility” (para. 28).
…
[54] Finding that expert evidence meets
the basic threshold does not end the inquiry. Consistent with the structure of
the analysis developed following Mohan which I have discussed earlier,
the judge must still take concerns about the expert’s independence and
impartiality into account in weighing the evidence at the gatekeeping stage. At
this point, relevance, necessity, reliability and absence of bias can helpfully
be seen as part of a sliding scale where a basic level must first be achieved
in order to meet the admissibility threshold and thereafter continue to play a
role in weighing the overall competing considerations in admitting the
evidence. At the end of the day, the judge must be satisfied that the potential
helpfulness of the evidence is not outweighed by the risk of the dangers
materializing that are associated with expert evidence.
[107] Finally, I note that opinion evidence is worthless and arguably
irrelevant if there is an absence of factual foundation for the opinion (R v
J.-L.J., 2000 SCC 51 at para 59, [2000] 2 S.C.R. 600).
[108] Bearing in mind these principles, the evidence of some of the
“experts” on both sides will be given little or no weight. Some had their
evidence shredded in cross-examination; this was particularly true of some of
the Defendant’s non-technical “experts”.
[109] The risks of cannabis production presented during the course of the
litigation can appropriately be assessed in four separate categories: mould and
other contamination; fire; home invasion, violence and diversion; and community
impacts.
D.
Mould and Other Contamination
[110] Dr. Miller was the Defendant’s expert witness on mould. He is an
expert on fungal physiology. He stated that marihuana plants release a
significantly larger amount of moisture than most houseplants – in particular, one
marihuana plant adds as much moisture as approximately seven to ten house
plants. He outlined that the average residential dwelling in Canada was not
constructed to deal with the humidity produced by hundreds of marihuana plants.
If cultivation occurred in a multiunit residential building, in addition to mould
damage, the chance of contaminants and odour transfer would be common.
[111] Dr. Miller stated that mould damage in houses can cause negative
health impacts and that plants are only one possible source of moisture (along
with showers, cooking and other common domestic activities). Moisture problems
can be addressed by “adding point source ventilation to
remove excess moisture from growing plants” and by an “engineered solution”.
[112] Dr. Miller’s evidence establishes that mould, while an issue, is one
which can be handled without undue difficulty or complexity.
[113] Mr. Schut - a rebuttal witness of the Plaintiffs on mould
remediation - was adduced as an expert in mould prevention techniques and technologies,
and remediation of mould infested buildings. He is the manager of Enviromold, a
company that specializes in preventing and controlling mould and remediating
premises that have suffered from mould damage. He has inspected and been in
charge of cleaning up and remediating over 50 marihuana grow operations in his
10 year career. In his view, there is no difference between growing 20 marihuana
plants and 20 tomato plants in an indoor garden. A properly built indoor garden
will address the humidity and ventilation issues that exist in a facility and
in particular, in the room in which the production occurs. Such improvements
upon the condition of a building or residence can be made by fixing any prior
existing ventilation problems that might result in mould damage. In many
respects, his evidence was consistent with Dr. Miller on the use of ventilation
for remediation.
[114] Several other witnesses also addressed mould as an issue. It was
acknowledged that different areas of the country, such as the Lower Mainland of
British Columbia including the Fraser Valley, present greater mould issues than
other regions given the prevalence of natural dampness.
It
is a problem throughout the evidence that the evidence about the Lower Mainland
predominated often to the near exclusion of the rest of the country. However,
the MMPR and its justification operates across the country.
[115] The evidence establishes that mould issues are often local in nature
but more importantly are remediable – a matter which is more amenable to local
regulation. It hardly justifies the type of regulation at issue.
E.
Fire
[116]
The Defendant relied heavily on both the risk of
fire and crime (home invasion and diversion) as its justification for the MMPR.
On both these topics the Defendant’s experts exhibited a significant degree of
bias against marihuana generally. There was a lack of objectivity both in data
and analysis. If there was any “expertise”, it was overshadowed by the lack of
credibility of those witnesses.
[117] The Defendant relied on the evidence of the Fire Chief for Surrey,
British Columbia, Mr. Garis, to advance its position regarding fire risk in
marihuana cultivation. He testified that inspections of MMAR residential
growing operations in Surrey revealed widespread problems with respect to
improper wiring and electrical panels, unpermitted structural modifications and
the visible presence of mould. His Report set out data compiled from
inspections carried out at illicit and MMAR residential growing operations in
Surrey.
[118] His evidence was seriously undermined in cross-examination and in the
rebuttal expert evidence of the Plaintiffs. Moreover, the evidence was not
credible and was biased. As explained later, this Court cannot put any
significant weight on his Report.
[119] Mr. Moen, Fire Captain and Acting Battalion Chief of the City of
Fort McMurray, was a rebuttal witness of the Plaintiffs. He is of the view that
Chief Garis ignored alternative evidence or explanations for the cause of fires
at illegal grow operations. The numbers of fires at all grow sites, which
includes illegal sites, has stayed the same or gone down since the number of
MMAR licenced growers has increased exponentially. According to Garis’ own fire
statistics, Moen was of the view there is no difference between the estimated
fire risk of houses that have a licenced grow site and other houses in British
Columbia.
[120] A theme that ran through some of the evidence of the Defendant was
that there was little or no difference between the risks from an illegal grow
op and that of a properly licenced and code-compliant MMAR site. The
statistical evidence does not support the conclusion that an illegal, covert
operation would present the same risk as an open, legal operation.
[121] Mr. Boileau, a certified Red Seal journeyman electrician, was also a
rebuttal witness of the Plaintiffs. His expert opinion is that electrical
contractors are able to (and do) perform electrical installations at indoor marihuana
grow facilities under permit for holders of MMAR licences, and those
installations are inspected in compliance with the Safety Standards Act,
[SBC 2003] Chapter 39.
[122] The Defendant’s fire risk evidence was weak and inconsistent. I
prefer the evidence of the Plaintiffs.
F.
Home Invasion/Violence/Diversion
[123] Corporal Shane Holmquist, a member of the RCMP’s Coordinated
Marijuana Enforcement Team, was the key so-called “expert” witness for the
Defendant. He provided evidence on mould and contamination, fire, home invasion
and violence, diversion and community impacts.
[124] On home invasion and violence, what he described as his most “qualified” expertise, Holmquist stated that
residential marihuana growing operations, whether legal or illicit, are at risk
of home invasions and theft because of the monetary value of marihuana. There
have been instances where “grow rips” have resulted
in serious injuries to the occupants of the residence.
[125] On diversion, he stated that under the MMAR it was difficult for law
enforcement to detect diversion because of the “cover”
provided by the individuals’ authorizations to produce and possess.
[126] Holmquist was the most egregious example of the so-called expert
discussed earlier in paragraph 101. He was shown, in cross-examination, to be
so philosophically against marihuana in any form or use that his Report lacked
balance and objectivity. He possessed none of the qualifications of the usual
expert witness. His assumptions and analysis were shown to be flawed. His
methodologies were not shown to be accepted by those working in his field. The
factual basis of his various opinions was uncovered as inaccurate. I can give
this evidence little or no weight. It does not establish that there was a sound
basis for the new regulatory scheme.
G.
Community Impacts
[127] The Defendant relied on Larry Dybvig’s evidence (an expert on
property values) to provide findings relating to the community impacts of
personal cultivation. He is a professional appraiser. Specifically, Dybvig
provided evidence on property values testifying that marihuana growing sites
usually require by-law compliance, inspection and remediation to deal with
various problems caused by cultivating marihuana in homes not designed for that
purpose. It is noted that his evidence only relates to illicit marihuana grow
operations and therefore is irrelevant to this case.
[128] Mr. Wilkins, an insurance broker with LMG Insurance Brokers (the
insurance company is Lloyds of London), was a rebuttal expert for the
Plaintiffs. He stated that in the course of his work between 2010 to the
present, he has arranged for building insurance for approximately 300 MMAR
cannabis growers who grow inside their residences, in outbuildings and at
commercial properties. He provided expert evidence on the issue of insurability
of legal MMAR sites, including risks of fire and theft at MMAR grow sites. He
stated that the cannabis garden facilities he insures are properly and safely
installed according to applicable by-laws and codes.
His
evidence speaks to the workability of the MMAR in terms of community impacts. It
also demonstrates that the MMAR sites did not pose the same problems as the illicit
sites discussed by Dybvig.
H.
Other Witnesses
[129] Eric Nash was both a fact witness and a rebuttal expert witness for
the Plaintiffs. His fact evidence included his personal cultivation history. In
rebuttal, Nash provided opinions with respect to reports tendered from Corporal
Holmquist, Chief Garis, John Miller and Larry Dybvig. Specifically, he
commented on the 17 MMAR sites that he has visited and the 400 MMAR growers
that he has communicated with. All these sites had professionally installed
ventilation and electrical equipment, were clean and well maintained and had
been inspected by municipal by-law officers. None of the sites had issues with
mould, fire, security or otherwise. In his opinion, with professional advice
and proper ventilation, installation and monitoring, indoor cannabis production
can and does take place safely and securely in residential homes and properties
under the MMAR. Based on his experience visiting illegal sites for criminal
cases to provide an expert opinion, there is no comparison between illegal and
legal grows. That evidence is consistent with other expert evidence accepted by
the Court.
[130] Professor Susan Boyd provided an expert rebuttal report to the
opinions given by Holmquist and Garis. She is a Distinguished Professor at the
University of Victoria, where she teaches and conducts research within the
Faculty of Human and Social Development. She is the co-author of the book Killer
Weed: Marijuana Grow Ops, Media and Justice, in which she systematically
studies and compares media and justice portrayals of cannabis use and
production in Canada. In her Report, Professor Boyd comprehensively details
what proper research should entail. She stated that Mr. Garis and Corporal
Holmquist did not have evidence for their conclusions.
Her
conclusion is the same as this Court’s, as seen earlier.
VI.
The Plaintiffs
[131] While the justification for the MMPR system is a vital part of this
case, the evidence of the individual Plaintiffs is important in comparing the
rights infringement caused by the MMPR with its objective.
A.
Neil Allard
[132]
Mr. Allard, a 60 year old man, was declared
permanently retired in 1999 after working with Veterans Affairs Canada. He is
diagnosed with “Myalgic Encephalomylitis”, a
neuro-immune disorder, and clinical depression. He has used cannabis since
1998; it alleviates his pain and assists with his symptoms, such as headaches.
In
2004, Mr. Allard received his first ATP and its limits were based on a dosage
level of 5 grams a day. Currently, he is prescribed a dosage of 20 grams of cannabis
per day. He requires about 600 grams per month. He holds a PUPL and cultivates
marihuana in his residence.
[133] At trial, he testified that his current daily use varies between 10
to 20 grams. His methods of consumption largely include vaporizing; however, he
also juices and uses edibles and oils to meet his medical needs. Particularly,
he finds that consuming cannabis juice (non-psychoactive) relieves his nausea,
cramping and other gastro-intestinal symptoms and improves his energy and
cognitive abilities. He uses cannabis oil topically to treat skin, back and
body pain and itchiness.
[134] Mr. Allard grows approximately a dozen different strains. His
evidence is that the number and type of strains changes over time due to him
developing a tolerance. He also states that some of the strains that he has
tried are ineffective in relieving symptoms and some strains make him feel
worse. Further, knowing he has a continuous safe supply of cannabis reduces his
stress and anxiety levels – he derives therapeutic benefit from cultivating
including stress reduction and meditative benefit.
B.
Shawn Davey and Brian Alexander
[135]
Mr. Davey is 38 years old. In 2000, he was
involved in a serious accident resulting in permanent brain injury that reduced
his cognitive abilities. He experiences constant major pain, numbness and
memory and balance problems. He has used cannabis since 2002; it relieves his
pain without the side effects of prescription drugs.
[136] Together Mr. Davey and Brian Alexander, also an MMAR patient,
cultivate cannabis in an outbuilding located on a leased agricultural land
reserve. They are both PUPL holders.
[137] Since 2013, Mr. Davey’s prescription for cannabis has been 25 grams
per day. His initial dosage was 1 or 2 grams but that has increased through the
years. He states that his dosage is high on the recommendation of his doctor,
as he needs large quantities to make cannabis butter for his edibles. His
evidence underscores that the amount of cannabis used bears a relationship to
the method of consumption.
[138] Mr. Davey estimates that 90% of his cannabis intake is through
edibles - cookies made from cannabis butter - because they relieve pain for
longer periods of time and allow him to sleep through the night. He estimates that
he uses his vaporizer or smokes approximately every half hour through the day
and it provides rapid onset pain relief. He also uses the cannabis oil for
topical applications for body pain and consumes cannabis tea on occasion. His
evidence is consistent with that in Smith.
[139] Mr. Davey has used a variety of different strains and through trial
and error, has found that one particular strain is especially effective for
him. He did not find that ineffective strains worsen his condition. Davey
derives therapeutic benefit from his involvement in the cultivation. His
anxiety is reduced knowing what goes into his body.
C.
Tanya Beemish and Dave Hebert
[140] Tanya Beemish is 27 years old. David Hebert, her common law spouse,
is 32 years old. Ms. Beemish, who intended to appear at trial, was so ill that
even alternatives to attendance in court, were not feasible. Her evidence, on
consent, was presented by her common law spouse.
[141] Ms. Beemish has Type 1 Diabetes and a related complication of gastroparesis.
Her symptoms include extreme nausea, continuous vomiting, pain, lack of appetite
and sleeplessness. She states cannabis effectively treats her nausea and
discomfort, stimulates her appetite, helps with her anxiety and depression and
reduces the unpleasant negative effects of her other medications.
[142] Ms. Beemish is no longer able to work and since November 2013, she
has spent most of her time hospitalized. She is not permitted to use medical marihuana
in the hospital, which aggravates her suffering. The Manson Order did not cover
Ms. Beemish or Mr. Hebert, as they needed to relocate residences due to
financial issues and could not meet the residency requirements of the MMAR.
[143] Prior to their relocation, Mr. Hebert held a DPPL and cultivated
cannabis for Ms. Beemish. Ms. Beemish is authorized to use up to 5 grams a day.
Her use depends on the severity of her symptoms and ranges from 2-15 grams.
[144] She consumes cannabis primarily by smoking and vaporizing, partly because
eating is difficult in her condition. She also drinks cannabis juice. Mr. Hebert
occasionally bakes Ms. Beemish brownies with cannabis butter; however, this is
rare as solid foods are difficult for Ms. Beemish to consume.
[145] Mr. Hebert grew six strains for Ms. Beemish and documented their
effectiveness. Her most effective strain is “whiteberry”
along with “blueberry”. The other strains were
not ineffective. Whiteberry is a difficult strain to purchase on the black
market and is the most expensive.
[146] The Court accepts each of the Plaintiffs’ evidence as true. They
established their need for medical marihuana and the benefits from its use in
different forms of consumption. They confirm, if only anecdotally, the benefits
of different strains. They also establish the importance of easy access to
their own medical marihuana, assurance of its supply, control over their health
care and therapeutic benefit from cultivation.
[147] They also establish that many of these benefits under the MMAR are
lost to them under the MMPR, and the adverse effects they feel from the MMPR.
These adverse effects such as access, include as well matters of affordability and
availability.
D.
Affordability
[148] The expert evidence of Professor Grootendorst and Professor Walsh
provided context for the application of cost in the access to medical marihuana
analysis. The parties had extremely divergent analyses of the costs. In sum, the
Defendant, considering the medically agreed upon dosages, concluded that
affordability was not an issue for the Plaintiffs; the Plaintiffs provided a
detailed chart illustrating the cost for each Plaintiff based on varying
dosages and prices concluding that even at 5 grams a day at $5 per gram, two of
the three Plaintiffs would be significantly adversely impacted.
[149] Dr. Zachary Walsh, PhD., R. Psych is an Assistant Professor at the
Department of Psychology of the University of British Columbia, Okanagan Campus.
In his evidence, he references a study he conducted entitled: Cannabis
Access for Medical Purposes: Patient Characteristics, Patterns of Use and
Barriers to Access [CAMPS survey], which involved drafting a detailed
survey and collecting the results from 628 medical cannabis patients. It was
not a clinical trial. He also refers to two articles he co-authored and published.
[150] While the study was designed to characterize medical cannabis users
and their experience accessing medical cannabis, it is the largest study of
medical users in Canada to date. The rationale for the study rested in part on
the observation that rates of registration in the MMAR were well below
estimates of medical cannabis use. The researchers felt that this discrepancy
reflected factors that warranted further examination and highlighted potential
barriers to access. Overall, those with the worst health had greater levels of
barriers related to affordability. Financial saving was among the most widely
noted motives for self-production.
[151] Importantly, Dr. Walsh assessed affordability in the CAMPS survey in
two categories: (1) the patient’s ability to pay for the amount of cannabis
that he or she needed to address his or her medical needs; and, (2) the extent
to which people had to choose between their medicine and the other necessities
of life. During examination, Dr. Walsh stated that affordability is not an
absolute ability to afford based on the amount of money one has – it would be
the type of choices and lifestyle constraints that would be implied by the
cost.
[152] Amongst other conclusions, the CAMPS survey indicated that the
lowest income groups have the most difficulty affording medicine. A large
number of those people choose between obtaining their medicine and other
necessities. The people with the poorest health have the greatest difficulty
affording their medicine and are the most likely to choose between their
medicine and other necessities.
[153] This would make those with the poorest health the most vulnerable to
the unregulated pricing regime under the MMPR.
[154] With regards to access and the source of cannabis, almost 1/3 of the
respondents in the CAMPS survey reported to be self-producing, of whom 50% were
licensed to produce for personal use. Among self-producers, the most important
reason for self-producing was quality (39%), followed by price (36%), avoiding
the black market (29%), selection of specific strain of cannabis (24%) and
safety (12%). It was noted that most medical cannabis users continue to obtain
their cannabis from an illicit source.
[155] Professor Grootendorst is an associate professor at the University
of Toronto, Faculty of Pharmacy. His research and teaching focus on health
economics. He expects the price of commercially sourced medical marihuana to
decline over time. This expectation is conditional on the size of the market
for medical marihuana supplied by LPs growing sufficiently large over time. He
discussed several possible scenarios depending on the fraction of users who do
not procure their medical marihuana from LPs. Although Professor Grootendorst
had limited knowledge of cannabis supply, access, cultivation and the
legislative regime, his evidence is useful when considering affordability and
access generally.
[156] Professor Grootendorst’s evidence considered the different costs to
the user of cultivation, including private costs (comprised of money costs and
opportunity costs) and external costs. With respect to LPs, he stated that the
average production costs over time will lower because of learning by doing,
lower prices for skilled labour, economies of scale and technological
innovation. He cautions that this cost reduction could be affected if patients
are exempted from the MMAR and continue to cultivate on their own. It is noted
that he is not aware of the percentage of users who cultivate versus purchase
and did not have specific knowledge of the industry or its nuances.
[157] Professor Grootendorst’s evidence is somewhat speculative. The
lowering of costs of medical marihuana essentially assumes an open and
competitive market. Grootendorst’s assumptions of competitive behaviour are
suspect in the MMPR structure which limits suppliers through a licence system.
Absent some form of price controls, the limited number of licensed suppliers
can set the price of medical marihuana with few competitive restraints – an
aspect of access.
E.
Access/Availability
[158] Mike King, a fact witness of the Plaintiffs, contacted 15 LPs and
recorded the number of strains they produce, the price range in dollars per
gram, the availability of new client accounts and the requirements to qualify
for compassionate pricing for each LP.
[159] The Plaintiffs state that a fair summary of his findings is that
availability of medical marihuana from LPs is sporadic, with many either out of
stock or not accepting new customers. He found that while some offered
discounted pricing, the availability of such pricing varied widely and was
limited by various criteria. This evidence is accepted as of the time Mr. King
conducted his survey. Other evidence suggests that these issues were moving
targets with no certainty as to pricing for medical marihuana.
[160] Mr. Jason Wilcoz and Ms. Danielle Lukiv were plaintiff witnesses who
provided affidavit evidence on the correspondence they received from MMAR
patients. I would give their evidence little weight and find that the issues
around the MMPR are more adequately addressed by the other evidence.
[161] Jamie Shaw, the president and CEO of the Canadian Association of
Medical Cannabis Dispensaries [CAMCD], a non-profit society registered in
Ontario, and the Communications Coordinator for the BC Compassion Club Society
[BCCCS], a non-profit society in British Columbia, provided evidence on
dispensaries.
[162] Although dispensaries were not a focus of the parties’ submissions,
I find Ms. Shaw’s evidence to be extremely important as dispensaries are at the
heart of cannabis access. Particularly, she states that with the pronouncement
of the proposed regulation, consultation was denied and a number of
dispensaries closed in 2012 and 2013 due to the potential that the new system
would not serve their membership. However, in March 2014, the number of
dispensaries was estimated at 36. Over the last year, this number has increased
exponentially and is now estimated at around 103 across Canada.
[163] Although not legal under any past or previous medical marihuana
regulations, current trends in dispensary growth suggest a connection between
the restrictions to access under the MMPR and the need for patients to obtain
their medical marihuana from illicit sources.
F.
Cost of Cultivation
[164] It is not disputed that cultivation is also a cost that impedes
access. The Plaintiffs gave evidence on their personal financial ability to
cultivate and purchase their consumption requirements.
[165] Cultivation of cannabis involves a calculation of the yield expected
from the plant and the growing stage of each plant. One may have numerous
plants with a small yield or few plants with a large yield. Mr. Allard is
currently authorized to produce 98 plants. His method of cultivation yields
approximately 28 grams per plant. He is currently growing 23 plants and has
grown up to 75 plants at one time, 20-30 of which were clones (all at different
stages of growth).
[166] Mr. Allard estimates that his total financial cost for all the
equipment and construction at his three different cultivation sites totaled
$35,000. His expenses to cultivate his cannabis are $230 per month. He can
currently finance his cultivation with some financial freedom; however, his
income will decrease when he turns 65 and it is accepted that this financial
freedom will no longer exist. Considering his daily dosage of 20 grams per day,
at a hypothetical price of $5 a gram, the cost under the MMPR would exceed his
current total tax pension income.
[167] Mr. Davey and Mr. Alexander estimate that the production costs
amount to between $1 and $2 dollars per gram. The initial setup cost was
$27,040 and Mr. Davey spends $750 month. Mr. Alexander estimates that the outbuilding
would likely have cost between $50,000 and $60,000 to build.
[168] These Plaintiffs argue that to purchase this current dosage from an
LP at $5 per gram would cost Mr. Davey $3,750 a month. A high quality strain
would cost him $7,500 a month. His current monthly income is approximately
$5,100 and his current monthly expenses including cultivation total $3,747.
[169] Mr. Hebert stated his monthly production cost was about $110 and his
set up cost was $4,225.97. He produced on average 130 grams per month.
Currently, Mr. Hebert buys a specific strain from the black market at a
discounted rate of $4-5 per gram and this is adequate because Ms. Beemish’s
consumption is restricted due to her hospital stay. It is accepted that at this
rate and consumption amount, they would be able to access a LP; however, the
desired strain is not available at that price.
[170] Other witnesses commented on the cost of setting up a small,
efficient, safe cannabis garden in a dwelling and concluded that it could be
done for about $2,000.
[171] Overall, with respect to affordability, I find that it is a barrier
to access. The scope of this barrier is not easily qualified as the definition
of affordability reflects the individualized nature of such determination. On
access, the evidence adduced was similar to affordability, where a detailed
factual finding cannot be made. It can be concluded, however, that there is no
guarantee that quality and strain availability at price flexibility (discount
pricing) will be accessible when needed.
VII.
Analysis
A.
Section 7 Rights and Interests
[172] Any interpretation of s 7 is to be generous and liberal. The Supreme
Court has stated that a “rights enhancing”
approach is to be conducted when assessing these rights. It should also be
noted that to trigger Charter protections, the effects on the interests
under section 7 must be more than trivial - they must be serious (Chaoulli v
Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791 at para 123 [Chaoulli]).
[173] The Plaintiffs argue that the MMPR takes away the ability of the
patient to produce cannabis for themselves compelling them to purchase from a LP,
whether or not the LP has adequate supply or the required strains, and whether
the patient can afford it. This places patients in the position of having to
choose between their liberty and their health in order to have access to an
adequate supply of medicine.
[174] A critical restriction under the MMPR (in addition to the usage
restriction to dried marihuana) is that medical marihuana patients must
purchase their marihuana from LPs and that is the only legal access option.
[175] Additionally, the Plaintiffs submit that section 7 permits the
government to regulate commercial behaviour in this area but does not permit
the government to criminalize individual non-commercial patient conduct such as
personal production of cannabis-based products.
(1)
Liberty Interest
(a)
Law
[176] In Blencoe v British Columbia (Human Rights Commission), 2000
SCC 44, [2000] 2 S.C.R. 307 [Blencoe], the majority of the Supreme Court interpreted
the scope of this right, broadly stating that although an individual has the
right to make fundamental personal choices free from state interference, such
personal autonomy is not synonymous with unconstrained freedom (para 54). In
that case, freedom from the type of anxiety, stress and stigma suffered by the
respondent in a thirty month delay in the processing of a human rights
complaint was not elevated to the stature of a constitutionally protected
section 7 right.
[177] One of the most cogent statements on the right to liberty is found
in Morgentaler where Wilson J at page 166 held that the right to liberty,
“properly construed, grants the individual a degree of
autonomy in making decisions of fundamental personal importance.” It
also guarantees to every individual a degree of personal autonomy over
important decisions intimately affecting their private lives.
[178] The jurisprudence in respect of medical marihuana has established
that the prohibition against marihuana engages s 7 liberty interests. The
scheme of regulating access to medical marihuana must properly address that
liberty interest.
[179] In Parker, the Court considered the liberty interest in two
ways: first, the threat of criminal prosecution and possible imprisonment; and
second, the right to make a decision of fundamental importance, including the
choice of medication to alleviate the effects of an illness with
life-threatening consequences.
[180] Expanding on Parker, the Court in Hitzig held that a
liberty interest was at risk in the context of this medical exemption due to
the threat of criminal prosecution and imprisonment arising from the need to
possess and use. The risk manifested itself in several ways, including barriers
to access and eligibility hurdles, as well as the consequences of straying
outside the conditions set for possession for those who had an ATP. In other
words, the scheme itself stood between individuals and their right to make fundamentally
important personal decisions, unimpeded by state action interfering with the
right to liberty.
91 As R.
v. Parker, supra points out, the liberty interest of these
individuals can be considered in two ways. First, viewed more narrowly, their right
to liberty is at risk in the context of this medical exemption due to the
threat of criminal prosecution and imprisonment arising from their need to
possess and use marihuana for medial purposes. This risk manifests itself in
several ways. The risk clearly exists for those who do not have an ATP because
they cannot clear the eligibility hurdles set up by the MMAR. It also exists
for those with medical need who do not have an ATP for any other reason
(although in each case that other reason may be a factor in assessing
compliance with the principles of fundamental justice). Further, even for those
with an ATP, this aspect of the liberty interest is at risk should they stray
outside the conditions set for their possession by the MMAR. For example, the MMAR
authorize an ATP holder to possess marihuana, but only in a strictly limited
quantity, beyond which there is no exemption.
(Hitzig, para 91)
(b)
Positions - Summary
[181] The Plaintiffs submit that criminalizing personal production of
medical cannabis is a severe infringement on autonomy that deprives them of
control over their bodily integrity “free from”
state interference. Further, the removal of personal production as a supply
option will inevitably leave patients unable to afford sufficient quantities of
medicine, constituting “state action that causes
physical and psychological suffering”. The Plaintiffs submit that for
some patients, this may either hasten or lead to their death.
[182] Specifically, the Plaintiffs submit that the personal production of
medical cannabis involves individual autonomy, dignity and the right to make
fundamental personal choices free from state interference, thereby impacting or
engaging liberty.
[183] They go on to state that the consumption of cannabis for medical
purposes implicates the section 7 right to security of the person because
imposing criminal consequences on medical marihuana consumers creates serious
state-induced psychological stress. (This is more appropriately a security
interest argument).
[184] The constitutionally viable exemption to provide reasonable access
to medically approved patients was determined by the courts to include the
right to produce for oneself, and this led to the MMAR enabling personal
production in order to achieve that reasonable access.
[185] The Defendant denies that the MMAR engages the Plaintiffs’ personal
decision liberty interest because the issues of lack of affordability or access
to suitable strains under the LP regime does not engage the liberty interest.
The Defendant denies that matters of individual autonomy, dignity and the right
to make fundamental choices are engaged by the MMPR.
[186] Canada acknowledges only that the MMPR engages the Plaintiffs’
liberty interest in the limited sense that they do face the possibility of
being sanctioned with imprisonment if they choose to cultivate their own
marihuana or buy it from the black market as opposed to availing themselves of
the lawful option to purchase from LPs. These activities are criminal offences
under the CDSA.
(c)
Analysis
[187] In my view, the liberty interest is engaged in two distinct ways –
the right not to have one’s physical liberty endangered by the risk of
imprisonment and the right to make decisions of fundamental personal
importance. Previous jurisprudence has established that choice of medication
including cannabis to alleviate the effects of an illness with life-threatening
consequences is a decision of fundamental personal importance. In relation to
this particular state action, the MMPR, I find that the analysis can be
conducted in three different ways.
[188] Firstly, following the Hitzig analysis, liberty is at risk
for those who cannot access the LP regime if they cultivate or purchase outside
the regime for any reason, including affordability, dosage and strain
preference, as they risk conviction and imprisonment. The risk is also
manifested if they stray outside the conditions set for their possession by the
MMPR – possessing more than 150 grams.
[189] Secondly, the scheme stands between the Plaintiffs and their right
to make this decision of fundamental importance unimpeded by state action.
Decisions of fundamental importance, particularly in the medical context, were
most recently canvased in Carter v Canada, 2015 SCC 5, [2015] 1 S.C.R. 331:
[67] The law has long protected
patient autonomy in medical decision-making. In A.C. v. Manitoba
(Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181,
a majority of this Court, per Abella J. (the dissent not disagreeing on this
point), endorsed the “tenacious relevance in our legal system of the principle
that competent individuals are — and should be — free to make decisions about
their bodily integrity” (para. 39). This right to “decide one’s own fate”
entitles adults to direct the course of their own medical care (para. 40): it
is this principle that underlies the concept of “informed consent” and is
protected by s. 7’s guarantee of liberty and security of the person (para. 100;
see also R. v. Parker (2000), 49 O.R. (3d) 481 (C.A.)). As noted in Fleming
v. Reid (1991), 4 O.R. (3d) 74 (C.A.), the right of medical
self-determination is not vitiated by the fact that serious risks or
consequences, including death, may flow from the patient’s decision. It is
this same principle that is at work in the cases dealing with the right to
refuse consent to medical treatment, or to demand that treatment be withdrawn
or discontinued: see, e.g., Ciarlariello v. Schacter, [1993] 2 S.C.R.
119; Malette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.); and Nancy B.
v. Hôtel-Dieu de Québec (1992), 86 D.L.R. (4th) 385 (Que. Sup. Ct.).
[Emphasis added]
[190] The case law decided under the MMAR applies to the analysis of the
MMPR’s constitutionality as the case law addressed the limitations and
prohibitions imposed on medical marihuana including the cultivation,
distribution and use, finding such limitations to engage section 7 rights. The
limitations in the MMPR are more impeding than the MMAR in prohibiting home
growth, invalidating PUPL and DPPLs and limiting the amount an individual is
authorized to possess.
[191] While the patient is presented with a means of access, the simple
interference with making a decision about bodily integrity and medical care has
been held to trench on liberty. As held in Hitzig at para 93:
93 Here,
as in Parker, there is no doubt that the decision by those with the medical
need to do so to take marihuana to treat the symptoms of their serious medical
conditions is one of fundamental personal importance. While this scheme of
medical exemption accords them a medical exemption, it does so only if they
undertake an onerous application process and can comply with its stringent
conditions. Thus, the scheme itself stands between these individuals and
their right to make this fundamentally important personal decision unimpeded by
state action. Hence the right to liberty in this broader sense is also
implicated by the MMAR. [Emphasis added]
[192] The Plaintiffs argue that there is a right to direct the course of
one’s medical treatment and not have it imposed by the government, either
directly or by way of delegation. It is accepted that those taking medical
marihuana to treat symptoms of their serious medical condition are making a
decision of fundamental importance. Although this decision is not prohibited,
it is restricted by the MMPR and it is that restriction that engages the liberty
interest. The reason the restriction is not trivial is due to the underlying
context of medical decision making.
[193] It is important to acknowledge that the decision of fundamental
importance, the subject decision, is about the access to marihuana for medical
purposes, and that access, while not prohibited, is restricted. The issue is
the scope of the restrictions to access. The analysis does not concern the
decision to cultivate or to access cannabis for medical purposes illicitly.
[194] Justice Strayer stated in Sfetkopoulos at para 10, that “liberty” comprehends the right to make decisions of
fundamental personal importance including the right to choose on medical advice
to use marihuana for treatment of serious conditions, and that right implies a
right of access to such marihuana. It would also include the right not to have
one’s physical liberty endangered by the risk of imprisonment from having such
access illicitly. At the time of both Sfekopoulos and Hitzig,
there was a regime in place to access marihuana legally, and similar to the
case at hand, that regime had limitations. The limitations were assessed at the
second stage of the section 7 analysis.
[195] Third and most convincingly, the individuals are restricted under
the MMPR to purchasing from a LP. The decision to cultivate cannabis for
medical purposes or purchase cannabis from the black market, such as a store
front dispensary, could result in criminal prosecution. Any offence that
includes incarceration in the range of possible sanctions engages liberty (Re
BC Motor Vehicle Act, [1985] 2 S.C.R. 486 at p 515). Both parties are in
agreement that, at the least, the liberty interest is engaged due to the threat
of criminal prosecution and incarceration if the Plaintiffs or approved patients
decide to access their marihuana outside the regulatory regime.
The
maximum penalty for producing cannabis is 14 years in prison.
[196] The above analysis of the MMPR’s engagement of the liberty interest
is consistent with the Supreme Court’s recent decision in Smith –
although that case dealt with the MMAR and more narrowly focused on the
prohibitions on the means of consumption. The Court held that:
a)
the prohibition on possession of cannabis
derivatives infringes Smith’s liberty interest by exposing him to the threat of
imprisonment on conviction under s 4(1) or 5(2) of the CDSA; and
b)
the prohibition limits liberty by foreclosing
reasonable medical choices through the threat of criminal prosecution.
The Plaintiffs have
made their case that their liberty interests are engaged by the MMPR regime.
(2)
Security Interest
(a)
Law
[197]
The security of the person will only be violated
where the state interferes in profoundly intimate and personal choices (Blencoe
at paras 83 and 86). This interest is comprised of both physical integrity and
psychological integrity.
[198] On physical integrity, the Supreme Court’s statement in Morgentaler
is often referenced - the security of the person will be engaged by deprivation
by means of a criminal sanction of access to medication reasonably required for
the treatment of a medical condition that threatens life or health. In Parker,
the Court specifically stated that the choice of medication to alleviate the
effects of an illness with life-threatening consequences is a decision of
fundamental personal importance.
[199] The security of the person interest is engaged, even independently
of criminal sanction, by the establishment of a regulatory regime which
restricts access to marihuana. This was true of the MMAR and is true of the
MMPR. The Ontario Court of Appeal in Hitzig articulated this principle
as follows:
95 In
this case, the MMAR, with their strict conditions for eligibility and their
restrictive provisions relating to a source of supply, clearly present an
impediment to access to marihuana by those who need it for their serious
medical conditions. By putting these regulatory constraints on that access,
the MMAR can be said to implicate the right to security of the person even
without considering the criminal sanctions which support the regulatory
structure. Those sanctions apply not only to those who need to take
marihuana but do not have an ATP or who cannot comply with its conditions. They
also apply to anyone who would supply marihuana to them unless that person has
met the limiting terms required to obtain a DPL. As seen in Rodriguez v.
British Columbia (A.G.), [1993] 3 S.C.R. 519, a criminal sanction
applied to another who would assist an individual in a fundamental choice
affecting his or her personal autonomy can constitute an interference with that
individual's security of the person. Thus, we conclude that the MMAR
implicate the right of security of the person of those with the medical need to
take marihuana.
…
104 Even
apart from these criminal sanctions for non-compliance, the MMAR constitute
significant state interference with the human dignity of those who need
marihuana for medical purposes. To take the medication they require they
must apply for an ATP, comply with the detailed requirements of that process,
and then attempt to acquire their medication in the very limited ways
contemplated by the MMAR. These constraints are imposed by the state as part
of the justice system's control of access to marihuana. As such, they are state
actions sufficient to constitute a deprivation of the security of the person of
those who must take marihuana for medical purposes. They are state actions
within the administration of justice that stand between those in medical need
and the marihuana they require.
[Court
underlining]
(b)
Positions - Summary
[200] The Plaintiffs submit that security of the person is engaged because
it encompasses personal autonomy involving control over one’s bodily integrity,
free from state interference, such as interference with an individual’s
physical or psychological integrity, causing physical or serious psychological
suffering.
[201] With respect to the security interest, the Defendant states that the
MMPR does not engage this interest for the same reasons it does not engage
fundamental decision making – it is the Plaintiffs’ attitude toward LPs rather
than their ability to access the cannabis under the MMPR that is at the heart
of this challenge, not their lack of affordability or suitable strains under
the regime.
(c)
Analysis
[202] The Hitzig analysis applies to this case, albeit the regime
in Hitzig – the MMAR – is distinguishable from the MMPR. The common and
significant factor is that constraints are imposed in both regimes. In Hitzig,
in addition to the patients having no legal source of supply, many long term
users of medical marihuana were unable to produce their own and could not
obtain a designate to produce it for them.
[203] In the present case, one cannot cultivate for oneself or purchase
the marihuana from a supplier that is not registered as a LP. As a result of
these restrictions, if one cannot access a LP for any reason, that person’s
security is engaged as there would be no access to their medication resulting
in physical or psychological suffering.
The
Defendant’s specific concerns about choice in relation to access considering
dosage and strain and affordability are dealt with below.
(3)
Affordability and Access Discussion
[204] Affordability as a barrier to accessing cannabis for medical
purposes was a major issue in this case raised by the Plaintiffs, rebutted by
the Defendant and therefore must be addressed. As the litigation developed, its
importance plateaued. The cost of purchasing from LPs and the cost of personal
cultivation have very little to do with the engagement of liberty and security
interests except as it relates to the economic dimensions of access. This case
is about the restriction on access imposed by the MMPR regime. Costs are a
consequence of the regime; not an independent grounds.
[205] This is not a case about economic interests. Specifically, the
Plaintiffs are not requesting to place a positive obligation on the government
to subsidize the cost of accessing cannabis for medical purposes. As stated
earlier, this is not a case about the entitlement to inexpensive medication.
[206] However, the interests have an economic dimension due to restriction
of access caused by affordability. Although affordability (as defined by both
Dr. Walsh and Dr. Grootendorst) encompasses a choice, this choice is only
necessary due to state action, which must be Charter compliant. It is
not a lifestyle choice or a preference choice as argued by the Defendant.
[207] A choice argument was put forward by the government in PHS,
where it argued that any negative health risks drug users may suffer if Insite
is unable to provide them with health services, are not caused by the CDSA’s
prohibition on possession of illegal drugs, but rather are the consequences of
the drug users’ decision to use illegal drugs (para 97). The relevant portion
of the Supreme Court’s response is found at paras 103 to 105:
[103] The third way to view Canada’s
choice argument is as a matter of government policy. Canada argues that the
decision to allow supervised injection is a policy question, and thus immune
from Charter review.
[104] The answer, once again, is that
policy is not relevant at the stage of determining whether a law or state
action limits a Charter right. The place for such arguments is when
considering the principles of fundamental justice or at the s. 1 stage of
justification if a Charter breach has been established.
[105] The issue of illegal drug use and
addiction is a complex one which attracts a variety of social, political,
scientific and moral reactions. There is room for disagreement between
reasonable people concerning how addiction should be treated. It is for the
relevant governments, not the Court, to make criminal and health policy. However,
when a policy is translated into law or state action, those laws and actions
are subject to scrutiny under the Charter: Chaoulli, at para.
89, per Deschamps J., at para. 107, per McLachlin C.J. and Major
J., and at para. 183, per Binnie and LeBel JJ.; Rodriguez, at pp.
589-90, per Sopinka J. The issue before the Court at this point is
not whether harm reduction or abstinence-based programmes are the best approach
to resolving illegal drug use. It is simply whether Canada has limited the
rights of the claimants in a manner that does not comply with the Charter.
[Court
underlining]
[208] Similar to PHS, the issue before this Court is not whether
the MMPR is the best policy; it is whether the restrictions imposed by the MMPR
limit the Plaintiffs in a manner that is Charter compliant. The
Defendant argues that the Plaintiffs are able to afford the cannabis with the LP
regime. Their strain preference is not supported medically and therefore the LP
regime adequately facilitates this access. As a result, the MMPR does not
engage liberty or security interests except by the concession mentioned
earlier.
[209] The Court does not find the Defendant’s arguments to be sound. It is
argued that the evidence does not establish that purchasing marihuana in
medically appropriate amounts is prohibitively expensive for anyone. This is a
skewed assumption for two reasons. First, the Court is not to determine what is
expensive and what is not. It is to determine whether affordability is a
barrier to access and whether affordability is inherently about a choice. If
this choice involves access to medicine, the case law establishes that the
choice is of fundamental personal importance.
[210] Secondly, this assumption implies that the average MMAR patient, who
is currently authorized to consume approximately 18 grams a day, will suffice
on 1 to 5 grams a day. This conclusion cannot be made by the Court because such
a conclusion ignores the evidence on tolerance, method of consumption and other
personal characteristics and needs of the individual. The Court is in no
position to establish the maximum dosages which should be made available.
[211] It is unnecessary to debate whether the Plaintiffs’ preference of
one strain versus another is medically established. There is enough anecdotal
evidence that the type of strain affects the patients’ choice in treating their
illnesses. Additionally, there is enough evidence that currently, the LP regime
may not have an adequate supply of a patient’s dose amount in their preference of
strain.
[212] The Plaintiffs have established that the MMPR has undermined the
health and safety of medical marihuana users by diminishing the quality of
their health care through severe restrictions on access to medical marihuana.
It is the restriction that engages s 7 interests.
[213] Overall, the question is whether these limitations are in accordance
with the principles of fundamental justice. It is clear that section 7 liberty
and security of the person rights are both engaged.
B.
Principles of Fundamental Justice
[214]
As stated in Carter at para 71, section 7
does not promise that the state will never interfere with a person’s life,
liberty or security of the person; rather, the state will not do so in a way
that violates the principles of fundamental justice.
(1)
Objective of the Legislation
[215] All three principles of fundamental justice compare the rights
infringement caused by the law with the objective of the law, not with the
law’s effectiveness (Canada (Attorney General) v Bedford, 2013 SCC 72,
[2013] 3 S.C.R. 1101 [Bedford] at para 123). The Supreme Court has
cautioned against defining the objective too broadly as it becomes difficult to
say that means used to further it are overbroad or disproportionate. In Bedford,
the Court held that the object of the prohibition should be confined to
measures directly targeted by the law.
[216] The objective of the CDSA was defined in PHS at para 129,
adopting R v Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571 [Malmo-Levine],
as the protection of health and public safety. This objective was also adopted
by the Supreme Court in Smith. In Smith, the object of the
restriction to dried marihuana was defined as simply “the
protection of health and safety” (para 24).
[217] The Defendant submitted that the objective of the MMPR is the
protection of health and safety of patients who are medically qualified to
consume cannabis for medical purposes.
[218] The Defendant submits that the MMPR’s RIAS states that the overall
objective of the regulation is “to reduce the risks
to public health, security and safety of Canadians, while significantly
improving the way in which individuals access marihuana for medical purposes”
(Court underlining). More specifically, by treating marihuana like other
prescription medications in Canada, the MMPR is intended to address many, if
not all, of the significant negative consequences that resulted from the MMAR.
It attempts to provide access to dried marihuana for medical purposes in a way
that minimizes the health and safety risks associated with its production and
consumption.
[219] Although the Supreme Court recently stated that the objective of the
CDSA is the protection of health and safety, the objective of the MMPR is more
specific and I agree with the definition provided by the Defendant. This
definition does not alter the objective of the CDSA; the MMPR supports the
application of the Act.
[220] In sum, the objective has two parts, as discussed in closing
submissions; one is the reduction of the risk to public health and safety, and
the other is to improve the way in which a person who needs marihuana gains
access to cannabis.
[221] It is important to note that the second part of the objective can be
viewed as a direct comparison to the old regime. The MMPR was said by the
Defendant to address many, if not all, of the significant negative consequences
that resulted from the MMAR.
(2)
Section 1 v Section 7
[222]
The objective of the prohibition is the same in
both section 1 and 7 analyses and therefore, similar to Smith and the
other marihuana cases, the evidence should be considered at the section 7
stage:
[29] The remaining question is whether
the Crown has shown this violation of s. 7 to be reasonable and demonstrably
justified under s. 1 of the Charter. As explained in Bedford,
the s. 1 analysis focuses on the furtherance of the public interest and thus
differs from the s. 7 analysis, which is focused on the infringement of the
individual rights: para. 125. However, in this case, the objective of the
prohibition is the same in both analyses: the protection of health and safety.
It follows that the same disconnect between the prohibition and its object that
renders it arbitrary under s. 7 frustrates the requirement under s. 1 that the
limit on the right be rationally connected to a pressing objective (R. v.
Oakes, [1986] 1 S.C.R. 103). Like the courts below, we conclude that the
infringement of s. 7 is not justified under s. 1 of the Charter.
[Smith at para 29]
[223] This issue was fully canvassed in Bedford:
[124] This Court has previously
identified parallels between the rules against arbitrariness, overbreadth, and
gross disproportionality under s. 7 and elements of the s. 1 analysis for
justification of laws that violate Charter rights. These parallels
should not be allowed to obscure the crucial differences between the two
sections.
[125] Section 7 and s. 1 ask different
questions. The question under s. 7 is whether the law’s negative effect on
life, liberty, or security of the person is in accordance with the principles
of fundamental justice. With respect to the principles of arbitrariness,
overbreadth, and gross disproportionality, the specific questions are whether
the law’s purpose, taken at face value, is connected to its effects and whether
the negative effect is grossly disproportionate to the law’s purpose. Under s.
1, the question is different — whether the negative impact of a law on the
rights of individuals is proportionate to the pressing and substantial goal of
the law in furthering the public interest. The question of justification on
the basis of an overarching public goal is at the heart of s. 1, but it plays
no part in the s. 7 analysis, which is concerned with the narrower question of
whether the impugned law infringes individual rights.
[126] As a consequence of the different
questions they address, s. 7 and s. 1 work in different ways. Under s. 1, the
government bears the burden of showing that a law that breaches an individual’s
rights can be justified having regard to the government’s goal. Because the
question is whether the broader public interest justifies the infringement of
individual rights, the law’s goal must be pressing and substantial. The
“rational connection” branch of the s. 1 analysis asks whether the law was a
rational means for the legislature to pursue its objective. “Minimal
impairment” asks whether the legislature could have designed a law that
infringes rights to a lesser extent; it considers the legislature’s reasonable
alternatives. At the final stage of the s. 1 analysis, the court is required
to weigh the negative impact of the law on people’s rights against the beneficial
impact of the law in terms of achieving its goal for the greater public good.
The impacts are judged both qualitatively and quantitatively. Unlike
individual claimants, the Crown is well placed to call the social science and
expert evidence required to justify the law’s impact in terms of society as a
whole.
[127] By contrast, under s. 7, the
claimant bears the burden of establishing that the law deprives her of life,
liberty or security of the person, in a manner that is not connected to the law’s
object or in a manner that is grossly disproportionate to the law’s object.
The inquiry into the purpose of the law focuses on the nature of the object,
not on its efficacy. The inquiry into the impact on life, liberty or security
of the person is not quantitative — for example, how many people are negatively
impacted — but qualitative. An arbitrary, overbroad, or grossly
disproportionate impact on one person suffices to establish a breach of s. 7.
To require s. 7 claimants to establish the efficacy of the law versus its
deleterious consequences on members of society as a whole, would impose the
government’s s. 1 burden on claimants under s. 7. That cannot be right.
[128] In brief, although the concepts
under s. 7 and s. 1 are rooted in similar concerns, they are analytically
distinct.
[129] It has been said that a law that
violates s. 7 is unlikely to be justified under s. 1 of the Charter (Motor
Vehicle Reference, at p. 518). The significance of the fundamental rights
protected by s. 7 supports this observation. Nevertheless, the jurisprudence
has also recognized that there may be some cases where s. 1 has a role to play
(see, e.g., Malmo-Levine, at paras. 96-98). Depending on the importance
of the legislative goal and the nature of the s. 7 infringement in a particular
case, the possibility that the government could establish that a s. 7 violation
is justified under s. 1 of the Charter cannot be discounted.
[224] Considering the commentary in Bedford, it is necessary to
evaluate the evidence at the second stage of section 7 due to the manner in
which evidence was adduced in this trial. If the Court was to consider the
evidence in section 1, the section 7 analyses would be incomplete as the health
and safety issues as they pertain to the public are relevant to the objective
of the MMPR. This complicates the burden of proof issue; however, the result is
the same either way, as the evidence is the same applied in either section.
(3)
Arbitrariness
(a)
Law
[225] The most recent statement of the Court on this principle is in Carter
at para 83:
[83] The principle of fundamental
justice that forbids arbitrariness targets the situation where there is no
rational connection between the object of the law and the limit it imposes on
life, liberty or security of the person: Bedford, at para. 111. An
arbitrary law is one that is not capable of fulfilling its objectives. It
exacts a constitutional price in terms of rights, without furthering the public
good that is said to be the object of the law.
[226] In Morgentaler, the effect of the law actually contravened
the objective of the law. In Chaoulli, the four-judge majority found
that the prohibition was arbitrary because there was no real connection on the
facts between the effect and the objective of the law. In PHS, the
Minister’s decision was contrary to the objectives of the drug possession laws.
[227] Arbitrariness was elaborated on in Bedford at para 111:
[111] Arbitrariness asks whether there is
a direct connection between the purpose of the law and the impugned effect on
the individual, in the sense that the effect on the individual bears some
relation to the law’s purpose. There must be a rational connection between the
object of the measure that causes the s. 7 deprivation, and the limits it
imposes on life, liberty, or security of the person (Stewart, at p. 136). A
law that imposes limits on these interests in a way that bears no connection
to its objective arbitrarily impinges on those interests. Thus, in Chaoulli,
the law was arbitrary because the prohibition of private health insurance was
held to be unrelated to the objective of protecting the public health system.
(b)
Positions – Summary
[228] The Plaintiffs submit that the impugned restrictions compel
patients, under the threat of criminal sanction to (a) purchase from LPs
irrespective of their individual ability to do so; (b) possess artificially
limited quantities of medicine thus denying them the ability to travel for work
or pleasure, or requiring them to make multiple orders per month from LPs; and
(c) ingest the medicinal compounds in unnecessarily restrictive, less effective
and more harmful ways.
[229] The Plaintiffs argue that the restrictions are arbitrary because
they will cause, not prevent, harm to health and safety. The evidence at trial
failed to show that public safety will be advanced in any significant way by
the removal of the ability to lawfully and safely continue to personally produce
medical cannabis. Further, the evidence demonstrated that in so doing, the
Defendant will put the health and safety of some patients at risk because the
exemption proposed by the MMPR will not allow Plaintiffs access to adequate
supplies of medicine.
[230] Specifically, patient health and safety will be harmed because (a)
patients will either go without sufficient medicine or be impoverished or break
the law to produce it; (b) patients, fearful of criminal charges, will no
longer have their production sites inspected for safety and will go back
underground as they did in the period before being able to obtain licensing,
causing risks of harm to public health and safety; (c) patients are forced
under the threat of criminal sanction to consume medicine in less effective and
more harmful ways; and (d) as patients will be criminalised for possessing
reasonable quantities of medicinal cannabis, they must either go without or
continually order/replenish their supply, leading to gaps in supply.
[231] The Defendant states that the restriction on personal cultivation is
not arbitrary because it is a rational response to the genuine health and
safety concerns associated with the residential cultivation of marihuana for
medical purposes. Extensive evidence before the Court is of the real risks
associated with the personal cultivation of medical marihuana. Several of the
Plaintiffs’ witnesses concede that unless properly constructed and inspected,
the cultivation of medical marihuana in residential dwellings can be a risky,
unsafe endeavour. Others concede that some medical cannabis growers abused
their personal and designated production licences by diverting their cannabis to
the illicit market.
[232] Several of the Defendant’s experts address these various risks and
abuses in their reports and provide cogent examples of the problems that may
arise in home cultivation sites. Further, the evidence from international
medical marihuana regimes suggest a trend away from home cultivation in favour
of commercial production because of the risks and abuses associated with the
personal production of medical marihuana.
(c)
Analysis
[233] Both parties’ submissions on the issue of arbitrariness do not hit
the mark. The Defendant has mischaracterized the evidence and disregarded the
admissions on cross-examination. Although the Plaintiffs have not proved their
statements or directed the Court to any evidence on their assertions, I find
the restriction in the MMPR to bear no connection to the objective of the law.
[234] First, considering how the MMPR impacts each Plaintiff, the effects
of the restrictions are contrary to the objective of the MMPR to improve access.
[235] Second, there is no real connection between restricting access to
cannabis for medical purposes to purchasing from LPs and the objectives of reducing
risks to health and safety and improving access. The health and safety concerns
that the law purports to disparage were not established and there was inadequate
evidence to conclude that access was overall improved. In fact, access was
further restricted.
(d)
Impact on the Plaintiffs
[236]
Access to cannabis for medical purposes is not
improved for the Plaintiffs under the MMPR. By limiting their access to
purchasing from LPs, the health and safety of the Plaintiffs is also
diminished. Although I find that the Plaintiffs might not be forced to resort
to the black market and break the law, the MMPR force them to choose between
their medication and other basic necessities without a rational connection to
the objective.
[237] At his current consumption under the MMPR, Mr. Allard would be
spending his entire income on cannabis for medical purposes, which would impact
his health and safety. Without the restricted access of the MMPR, he is able to
access his medication without impacting his health and safety. This is one
example of the consequences which flow from the restricted access under the
MMPR.
The
same analysis applies to Mr. Davey, who would be spending over seventy percent
of his income (at $5 a gram, $3,750 a month and his monthly income is $5,100)
on purchasing cannabis, negatively impacting his health and safety and also
reducing his capacity to provide for his other health needs.
[238] At five grams a day, her prescribed amount, if Ms. Beemish purchased
from an LP at $5 a gram, it would exceed her monthly income. It is likely,
however, that Ms. Beemish might qualify for one of the discounts for low income
or disabled individuals. Such discounts are not guaranteed nor imposed by
regulation. Further, Ms. Beemish finds that a particular strain is more
effective for treatment and this positively impacts her health. The MMPR regime
does not guarantee this strain even if she consistently qualified for some
subsidized form of LP programs. Consuming a less-effective strain would
negatively affect her health and safety. Without the restriction, she was able
to access the most beneficial medication for her health.
(e)
Response to Defendant’s Position
[239] With respect to health and safety risks, the Defendant submits that
the witnesses provided cogent evidence to illustrate the risks associated with
cannabis growing operations.
[240] I find that the evidence was insufficient and largely did not
distinguish between legal cannabis growing operations under the MMAR and
illegal growing operations. Additionally, there was limited, if any, expert
evidence that convincingly asserted that these risks exist across the country
and to a magnitude that mandates state interference.
[241] For fire risk as noted earlier, the Defendant relies on the expert
evidence of Len Garis, the Fire Chief of Surrey, British Columbia. This
evidence is unreliable for many reasons. Most importantly, this witness was not
credible and was biased. He was an active public advocate against cannabis
cultivation. His Report provided no analysis or context for the Court to
accurately judge the purported fire risks. Instead, it was painfully obvious
that his entire study was motivated to support a cause – his own personal view
against residential growing operations.
[242] During Mr. Garis’ testimony, it was acknowledged that the risk of
kitchen fires is higher than the risk of fires caused by residential cannabis
cultivation (the Fire Commissioner Office fire statistics did not include a
single fire at a legal medical cannabis production site between 2001 and 2012).
He provided very little information on legal cultivation operations and focused
his entire evidence on Surrey, British Columbia. Finally, he admitted that if a
certified electrician carried out the modifications necessary at a production
site, the alleged risk can be addressed.
[243] Although the Defendant relies on Ms. Ritchot’s evidence of other
cities, who conducted similar but vastly smaller studies, no context is
provided for the Court to adequately assess the studies and thus little weight
is given to this evidence.
[244] The Plaintiffs’ rebuttal witness, Mr. Boileau, provided useful
evidence that contextualized this risk under the MMAR regime. If in compliance
with the Safety Standards Act, electrical installations at legal indoor
marihuana grow facilities by MMAR license holders are just as safe as any other
electrical installation at any other type of facility.
[245] For the specific health issue of toxic mould, the Defendant relied
on the expert evidence of Dr. Miller. Dr. Miller noted that each marihuana
plant added as much moisture to a house as approximately seven to ten
houseplants. He specifically expressed concern with growing in a multi-unit
residential building. The Plaintiffs’ witnesses, Mr. Schut, Mr. Colasanti and
Mr. Nash, stated that proper steps must be taken to remove the excess moisture.
I find that although mould appears to be a valid concern, the evidence
demonstrates that the concern is extinguished with a proper ventilation system.
[246] On risk arising from the monetary value of marihuana, there was no
evidence of actual theft or related risk. The Defendant’s argument was
speculative at best, relying on the street value of marihuana at $5-$10 per
gram.
[247] Regarding the potential criminal abuses of MMAR license holders, the
evidence did not establish that this was a warranted risk. Importantly, I do
not rely on any evidence by Corporal Holmquist as his examples were exposed
under cross-examination as incomplete. The limited incidents listed in his Report
cannot support his conclusions as they are not fully researched, lack important
details and are not contextually analyzed. His conclusions are result-oriented
and exhibit a biased analysis.
[248] The Defendant also argues that the restriction is consistent with
international medical marihuana regimes. Concerns about diversion to the
illegal market led to the development of the specific regimes in different
countries. I note that the evidence at trial confirmed that each country was
continuously changing their structures and administration to address the needs
of patients requiring medical marihuana while the drug remains a banned
substance federally.
[249] Canada, like some of the countries referred to in evidence, is a
signatory to a number of international drug control conventions (see Hitzig,
at paras 32 and 33). However it is not particularly helpful for this Court to
focus on the systems in place in other countries as the policies and legal
structures in place are vastly different region by region. Importantly, there
was limited evidence of the concerns of non-commercial publicly regulated
cannabis cultivation. The issues in this case are governed by Charter
obligations, not international ones.
[250] I do not find the treatment of cannabis consistent with other plant-based
medicines. Although the Natural Health Products Regulations,
SOR/2003-196 [NHPR], state that natural health products cannot contain a
controlled substance, it is beneficial to recognize that the NHPR regulate the
sale of these products to the public, not the personal cultivation and
subsequent consumption of them.
[251] Additionally, despite the stated objective of treating medical
marihuana as a medicine, the MMPR does not treat marihuana for medical purposes
in the same way as other psychoactive drugs. It is not regulated through the
FDA drug approval process and is not subject to the controls on safety and
efficacy. The Defendant conceded that there are no “lethal
doses” associated with the drug unlike other drugs.
[252] Taking the evidence in comparison to the objective of the MMPR
outlined in the RIAS, the only consequence of the MMPR remaining largely
unchallenged is that of government cost savings. The regulatory cost burden has
significantly been transferred to the LPs. Cost savings, while a legitimate policy
goal, cannot, in this case, trump the Plaintiffs’ Charter rights and
form a Charter-compliant justification for the MMPR.
[253] Overall, viewed from the different perspectives, the law is
arbitrary as the limits it imposes on section 7 interests bear no rational
connection to its objective. Considering the Plaintiffs’ situations, the MMPR
does not reduce risk to their health and safety, nor does it improve their
access to cannabis. In response to the Defendant’s primary defense that health
and safety risks of cultivation are reduced by the MMPR, the evidence does not
qualify this risk. Many of the risks purported to be significant were not
proved to exist, including fire, home invasion/violence/diversion and community
impacts.
[254] The law is therefore arbitrary.
(4)
Overbreadth
(a)
Law
[255] Carter states the following on
overbreadth:
[85] The overbreadth inquiry asks
whether a law that takes away rights in a way that generally supports the
object of the law, goes too far by denying the rights of some individuals in a
way that bears no relation to the object: Bedford, at paras. 101 and
112-13. Like the other principles of fundamental justice under s. 7,
overbreadth is not concerned with competing social interests or ancillary
benefits to the general population. A law that is drawn broadly to target
conduct that bears no relation to its purpose “in order to make enforcement
more practical” may therefore be overbroad (see Bedford, at para. 113).
The question is not whether Parliament has chosen the least restrictive
means, but whether the chosen means infringe life, liberty or security of the
person in a way that has no connection with the mischief contemplated by the
legislature. The focus is not on broad social impacts, but on the impact
of the measure on the individuals whose life, liberty or security of the person
is trammelled.
(Court
underlining)
[256] The Supreme Court in Bedford provided helpful guidance on
this principle:
[112] Overbreadth deals with a law
that is so broad in scope that it includes some conduct that bears no relation
to its purpose. In this sense, the law is arbitrary in part. At its
core, overbreadth addresses the situation where there is no rational connection
between the purposes of the law and some, but not all, of its impacts.
For instance, the law at issue in Demers required unfit accused to
attend repeated review board hearings. The law was only disconnected from its
purpose insofar as it applied to permanently unfit accused; for temporarily
unfit accused, the effects were related to the purpose.
[113] Overbreadth allows courts to
recognize that the law is rational in some cases, but that it overreaches in
its effect in others. Despite this recognition of the scope of the law as a
whole, the focus remains on the individual and whether the effect on the
individual is rationally connected to the law’s purpose. For example,
where a law is drawn broadly and targets some conduct that bears no relation to
its purpose in order to make enforcement more practical, there is still no
connection between the purpose of the law and its effect on the specific
individual. Enforcement practicality may be a justification for an
overbroad law, to be analyzed under s. 1 of the Charter.
…
[118] An ancillary question, which
applies to both arbitrariness and overbreadth, concerns how significant the
lack of correspondence between the objective of the infringing provision and
its effects must be. Questions have arisen as to whether a law is arbitrary or
overbroad when its effects are inconsistent with its objective, or
whether, more broadly, a law is arbitrary or overbroad whenever its effects are
unnecessary for its objective (see, e.g., Chaoulli, at paras.
233-34).
[119] As noted above, the root question
is whether the law is inherently bad because there is no connection, in
whole or in part, between its effects and its purpose. This standard is not
easily met. The evidence may, as in Morgentaler, show that the effect
actually undermines the objective and is therefore “inconsistent” with the
objective. Or the evidence may, as in Chaoulli, show that there is
simply no connection on the facts between the effect and the objective, and the
effect is therefore “unnecessary”. Regardless of how the judge describes this
lack of connection, the ultimate question remains whether the evidence
establishes that the law violates basic norms because there is no connection
between its effect and its purpose. This is a matter to be determined on a
case-by-case basis, in light of the evidence.
[Court
underlining]
[257] In sum, the law goes too far and interferes with some conduct that
bears no connection to its objectives.
(b)
Positions - Summary
[258] The Plaintiffs submit that in this case, the Defendant conceded at
trial that the impugned restrictions apply to persons whose conduct did not
implicate the objectives of protecting health and safety. None of the patient
witnesses engage in diversion, and there was no evidence that any had suffered
any harm to either their health or safety, or caused any harm to public health
or safety, as a result of their cannabis cultivation and consumption. Health
Canada was unable to produce any significant records of any such problems
generally throughout the history of the MMAR.
The
Plaintiffs’ factual argument is accurate.
[259] If the evidence of possible harms associated with personal
production of cannabis and cannabis-based medicines is accepted, the blanket
prohibition catches people outside of the class of persons who are suffering
and/or causing such harms and is, therefore, overbroad. The blanket prohibition
on production, possessing more than 150 grams and consuming forms other than
dried marihuana is not proven to be connected to the objective of protecting
health and safety.
[260] The evidence establishes that the great majority of patients were
able to produce their own cannabis as medicine without any threat to their own health
and safety or that of the public. It follows that the limitation on their
rights is not connected to the objective of protecting public safety and
health. The law punishes everyone who produces cannabis as medicine for
themselves, possesses more than 150 grams or possesses/produces cannabis-based
medicines without distinguishing between those who do so safely and securely
without any risk to public safety or health.
[261] In response, the Defendant states that it is only required to
establish that the personal cultivation of cannabis gives rise to a reasoned
apprehension of harm and the evidence of harms set out goes far beyond that
standard. Additionally, the Defendant states that the Plaintiffs do not dispute
that the personal residential cultivation of medical marihuana entails some
inherent risk and the extensive health and safety precautions for commercial LPs
are necessary. The aforementioned undermines the contention that the
restriction on personal cultivation is overly broad.
[262] The Defendant submits that it has implemented a complex regulatory
regime, and the public health and safety objectives of that regime cannot be
achieved in the context of home cultivation. The Defendant further submits that
it is simply not possible to determine who is a “good” or “bad” grower without
an elaborate system of regulatory and inspection requirements.
[263] The Defendant submits that home cultivation requires an expansive
and complex regime and without such regime, the inherent risks would persist.
Thus the demand is a plea for a de facto subsidization of personal
production and such positive obligations are not protected by the Charter.
[264] There is evidence with respect to the extraordinary cost associated
with Health Canada’s inspection of a handful of the MMAR residential growing
operations. If the medical marihuana program continues to grow at its current
pace, it is reasonable to expect tens of thousands of additional home growing
operations will materialize. In order to inspect these sites, Health Canada
would have to hire numerous inspectors, increasing the cost of the regime. The
Defendant also references the costs of inspections to local municipalities to
ensure compliance with by-laws. This cost is submitted to be borne by the
Canadian public. Even if inspections were economically or logistically
feasible, there are still privacy issues that may present hurdles to such
inspections.
[265] In contrast to the difficulties of inspecting personal production
sites, the regulatory oversight of LPs is achievable and Health Canada conducts
four different types of inspections at these facilities.
[266] Relying on the goodwill and best efforts of individual growers to
adhere to appropriate health and safety protocols is not a viable means by which
a stable, consistent and safe medicine can be produced. Rigorous regular
testing conducted by trained individuals is necessary to detect the presence of
microbial contaminants and address other safety concerns.
(c)
Analysis
[267] If this Court was to accept that there was some rational connection
between the purposes of the law and some, but not all, of its impacts, the
restriction would still be overbroad. As explained in the arbitrary analysis,
there is no rational connection between the object of the law and the limits it
imposes; however, it can be argued that eliminating cultivation essentially
eliminates all risk associated with that activity and thus, there is a rational
connection between the objective and this impact. The Court addresses this
argument below.
[268] Firstly, although there was evidence of MMPR participants and the LP
market growing, there was no direct evidence on how the law has improved access
compared to the MMAR. It may be reasonable to assume, given the previous
decisions of the Court in Stefkopolous and Beren that some
individual patients benefit from the LP regime, as they can avoid the time
commitment necessary for cultivation and are not limited to purchasing from
Health Canada. However, there is no evidence to qualify this assumption as an
improvement in access over the previous regime.
[269] Secondly, with respect to health and safety, the Defendant
extensively relies on the cost of inspections necessary to reduce risk if
cultivation was permitted. I find that this cost consideration, if necessary to
discuss, is to be engaged at the section 1 stage. To the extent that the Court
considers cost of the regime when justifying an infringement, it does so with
scepticism. The reason for scepticism – the all too easy position that budgets
trump rights - is well set out in the following paragraph:
72 The result of all this, it seems
to me, is that courts will continue to look with strong scepticism at attempts
to justify infringements of Charter rights on the basis of budgetary
constraints. To do otherwise would devalue the Charter because there
are always budgetary constraints and there are always other
pressing government priorities. Nevertheless, the courts cannot close their
eyes to the periodic occurrence of financial emergencies when measures must be
taken to juggle priorities to see a government through the crisis. It cannot
be said that in weighing a delay in the timetable for implementing pay equity
against the closing of hundreds of hospital beds, as here, a government is
engaged in an exercise “whose sole purpose is financial”. The weighing
exercise has as much to do with social values as it has to do with dollars. In
the present case, the “potential impact” is $24 million, amounting to more than
10 percent of the projected budgetary deficit for 1991-92. The delayed
implementation of pay equity is an extremely serious matter, but so too (for
example) is the layoff of 1,300 permanent, 350 part-time and 350 seasonal
employees, and the deprivation to the public of the services they provided.
Newfoundland (Treasury Board) v N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381
[270] Thirdly, if the risks to health and safety are accepted particularly
mould, fire and potential criminal abuse, the restriction has no connection to
outdoor cultivation as the evidence adduced was largely in the context of
indoor cultivation at residential dwellings. More obviously, the restriction
catches those whose health and safety were never at risk. Additionally, indoor
cultivation issues can be addressed. As mentioned above, the restriction is
contrary to both elements of the objective.
[271] Therefore, in addition to being arbitrary, the law is overbroad.
(5)
Grossly Disproportionate
(a)
Law
[272] The Supreme Court in Bedford stated the following with
respect to gross disproportionality:
[120] Gross disproportionality asks a
different question from arbitrariness and overbreadth. It targets the second
fundamental evil: the law’s effects on life, liberty or security of the person
are so grossly disproportionate to its purposes that they cannot rationally be
supported. The rule against gross disproportionality only applies in
extreme cases where the seriousness of the deprivation is totally out of sync
with the objective of the measure. This idea is captured by the
hypothetical of a law with the purpose of keeping the streets clean that
imposes a sentence of life imprisonment for spitting on the sidewalk. The
connection between the draconian impact of the law and its object must be
entirely outside the norms accepted in our free and democratic society.
[121] Gross disproportionality under s. 7
of the Charter does not consider the beneficial effects of the
law for society. It balances the negative effect on the individual against
the purpose of the law, not against societal benefit that might flow
from the law. As this Court said in Malmo-Levine:
In effect, the exercise undertaken by
Braidwood J.A. was to balance the law’s salutary and deleterious effects. In
our view, with respect, that is a function that is more properly reserved for
s. 1. These are the types of social and economic harms that generally have no
place in s. 7. [para. 181]
[122] Thus, gross disproportionality is
not concerned with the number of people who experience grossly disproportionate
effects; a grossly disproportionate effect on one person is sufficient to
violate the norm.
[Court
underlining]
(b)
Positions – Summary
[273] The Plaintiffs submit that the state does not have a legitimate
interest in prohibiting medicinal marihuana patients from producing medicine
for their own personal consumption, possessing more than 150 grams or choosing
modes of ingestion other than smoking the dried cannabis. Even if those
interests are legitimate, the criminalization of the conduct is far too extreme
of a response.
[274] In this aspect of section 7, the Court is concerned with the
negative effect on the individual balanced against the purpose of the
restriction. A grossly disproportionate effect on one patient alone is
sufficient to violate this principle of fundamental justice. Here, the purpose
of the law is to protect the health and safety of medical cannabis consumers
(or the public, on a broader conception of the objective). The negative effects
of the law on patients include the imposition of criminality; the attendant
negatives that flow from criminalizing; the stripping away of autonomy and
choice in medical decision-making; tacitly forcing some patients to choose
between an adequate supply of medicine and institutionalized poverty; the
forced ingestion of cannabis medicine by smoking or vaporization with the
attendant harms on account of the restrictions on permissible forms of
marihuana; and the removal of the benefits of oral and topical modes of
ingestion.
[275] The Plaintiffs submit that the restriction’s negative impact on
liberty and security of the person is very high. The law imposes unnecessary
suffering on some patients, deprives them of self-determination in respect of
what they do with their own bodies and confines their choice in how to ingest
cannabis to options that are more harmful, less effective and often impractical
or impossible.
[276] Further, those who are unable to afford LP prices will continue to
be placed in a position where they have to choose between their liberty and
their health. Patient health will be negatively impacted if they are unable to
access sufficient amounts of the medicine. The Plaintiffs use the example of
Ms. Beemish and Mr. Hebert. It is submitted that Ms. Beemish is suffering
grossly disproportionate consequences by having to go without her medicine to
the point of lengthy hospitalization, and both are at a risk of grossly
disproportionate consequences if Mr. Hebert decides to continue to produce for
her notwithstanding the lack of authority to do so under the MMPR.
[277] The Defendant states that the possibility of incarceration as a
deterrent for deliberately growing marihuana is not grossly disproportionate to
its purposes, particularly given the lack of mandatory minimum sentence. In Malmo-Levine,
the Supreme Court stated at paragraph 158 that “the
lack of any mandatory minimum sentence together with the existence of
well-established sentencing principles mean that the mere availability of
imprisonment on a marihuana charge cannot, without more, violate the principle
against gross disproportionality”.
(c)
Analysis
[278] It is unnecessary to conduct an analysis on gross disproportionality
after considering arbitrariness and overbreadth. The considerations assessed
under those principles are sufficient to deem the restriction contrary to the
principles of fundamental justice.
C.
Section 1
[279] As outlined above, the objective of the prohibition is the same in
both section 7 and section 1 analyses. Accordingly, the same disconnect between
the prohibition and its object that renders the restrictions arbitrary or
overbroad under section 7 frustrates the requirement under section 1 that the
limit on the right be rationally connected to a pressing objective and minimally
impairing.
[280] The s 1 analysis applicable in the present case is well supported by
the Supreme Court’s reasons in Smith at paragraph 29:
[29] The remaining question is whether
the Crown has shown this violation of s. 7 to be reasonable and demonstrably
justified under s. 1 of the Charter. As explained in Bedford,
the s. 1 analysis focuses on the furtherance of the public interest and thus
differs from the s. 7 analysis, which is focused on the infringement of the
individual rights: para. 125. However, in this case, the objective of the
prohibition is the same in both analyses: the protection of health and safety.
It follows that the same disconnect between the prohibition and its object that
renders it arbitrary under s. 7 frustrates the requirement under s. 1 that the
limit on the right be rationally connected to a pressing objective (R. v.
Oakes, [1986] 1 S.C.R. 103). Like the courts below, we conclude that the
infringement of s. 7 is not justified under s. 1 of the Charter.
[281] A “minimal impairment” type of
analysis is appropriate at this s 1 stage as set out in Bedford at paras
161 and 162:
[161] The appellant Attorneys General
have not seriously argued that the laws, if found to infringe s. 7, can be
justified under s. 1 of the Charter. Only the Attorney General of
Canada addressed this in his factum, and then, only briefly. I therefore find
it unnecessary to engage in a full s. 1 analysis for each of the impugned
provisions. However, some of their arguments under s. 7 of the Charter
are properly addressed at this stage of the analysis.
[162] In particular, the Attorneys
General attempt to justify the living on the avails provision on the basis that
it must be drafted broadly in order to capture all exploitative relationships,
which can be difficult to identify. However, the law not only catches drivers
and bodyguards, who may actually be pimps, but it also catches clearly
non-exploitative relationships, such as receptionists or accountants who work
with prostitutes. The law is therefore not minimally impairing. Nor, at the
final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes
from taking measures that would increase their safety, and possibly save their
lives, outweighed by the law’s positive effect of protecting prostitutes from
exploitative relationships.
[282] I agree that the Plaintiffs have, on a balance of probabilities,
demonstrated that cannabis can be produced safely and securely with limited
risk to public safety and consistently with the promotion of public health. I
again emphasize that the object of the restriction is not to eliminate the risk
to health and safety but to reduce it, and on that conception, there are very
simple measures that can be taken to minimally impact the section 7 interests.
[283] Accepting that fire, mould, diversion, theft and violence are risks
that inherently exist to a certain degree - although I note that these risks
were not detailed - this significant restriction punishes those who are able to
safely produce by abiding with local laws and taking simple precautions to
reduce such risk. A complete restriction is not minimal impairment. As
mentioned above, the mould and fire risks are addressed by complying with the Safety
Standards Act and installing proper ventilation systems. Further, as
demonstrated by the Plaintiffs, a security system reduces risk of theft and
violence. Finally, risk of diversion is also present in the LP regime; thus, it
is not demonstrated how this restriction has the effect of reducing this risk.
[284] The Defendant’s s 1 argument must fail for the same reasons that I
have found the restriction arbitrary and overbroad.
[285] I conclude that the infringement of section 7 is not justified under
section 1 of the Charter.
D.
Possession Limits – Specific Issue
[286]
The Plaintiffs argue the 150 gram restriction is
overbreadth and disproportional, while the Defendant approaches the restriction
separately. Specifically, the Plaintiffs argue that the 150 gram possession
restriction limits their freedom of movement and ability to travel; that the
state does not have a legitimate interest in this prohibition; and that it does
not acknowledge those who possess it safely without endangering others.
[287] I agree with the Defendant, in the section 7 analysis, that the
burden is on the Plaintiffs to establish that the 150 gram possession limit
impacts them in a significant way. Although the Plaintiffs may have to purchase
their marihuana more frequently and restrict the number of days they travel or
transport the drug because of this restriction, the cap is not overbroad or
grossly disproportionate because it bears a connection to the objective – it
reduces the implied risk of theft, violence and diversion for which there has
been no substantial or persuasive evidence.
[288] Overall, this restriction is significantly different than the
restriction on cultivation as the cultivation restriction is a complete ban
without minimal impairment that affects individuals adversely to the
legislation’s objective. The possession cap still allows one to possess more
than their necessary amount of marihuana. There is nothing stopping Parliament
from legislating cultivation in a similar way that ensures that significant
measures are taken to reduce risk, such as mandatory installation of security
or ventilation systems (assuming that these measures are constitutionally sound).
VIII.
Conclusion
[289]
For all these reasons, the Court has concluded
that the Plaintiffs have established that their s 7 Charter rights have
been infringed by the MMPR and that such infringement is not in accordance with
the principles of fundamental justice or otherwise justified under s 1.
IX.
Disposition and Remedy
[290] For these reasons, I find that the MMPR regime infringes the Plaintiffs’
s 7 Charter rights and such infringement is not justified.
[291] In several decisions regarding the MMAR, the Courts have struck out either
certain provisions or certain words in certain provisions, but otherwise left
the structure of the regulation in place. Most of these decisions related to
criminal charges where such narrow, feasible and effective excising was
appropriate.
[292] In the present case, the attack has been on the structure of the new
regulation. It would not be feasible or effective to strike certain words or
provisions. That exercise would eviscerate the regulation and leave nothing
practical in place.
The
Defendant has recognized the integrated nature of the MMPR provisions.
[293] It is neither feasible nor appropriate to order the Defendant to
reinstate the MMAR (as amended by current jurisprudence). It is not the role of
the Court to impose regulations. The MMAR may be a useful model for subsequent
consideration; however, it is not the only model, nor is a MMAR-type regime the
only medical marihuana regime, as experience from other countries has shown.
[294] The remedy considerations are further complicated by the fact that
there is no attack on the underlying legislation. Striking down the MMPR merely
leaves a legislative gap where possession of marihuana continues as a criminal
offence. Absent a replacement regulation or exemption, those in need of medical
marihuana – and access to a Charter compliant medical marihuana regime
is legally required – face potential criminal charges.
[295] It would be possible for the Court to suspend the operation of the provisions
which make it an offence to possess, use, grow and/or distribute marihuana for
those persons holding a medical prescription or medical authorization. However,
this is a blunt instrument which may not be necessary if a Charter
compliant regime were put in place or different legislation were passed.
[296] The appropriate resolution, following the declaration of invalidity
of the MMPR, is to suspend the operation of the declaration of invalidity to
permit Canada to enact a new or parallel medical marihuana regime. As this
regime was created by regulation, the legislative process is simpler than the
requirement for Parliament to pass a new law.
[297] The declaration will be suspended for six (6) months to allow the
government to respond to the declaration of invalidity.
[298] The Plaintiffs have been successful and have brought a case that
benefits the public at large. They shall have their costs on a substantial
indemnity basis in an amount to be fixed by the Court.
"Michael L. Phelan"
Vancouver,
British Columbia
February 24, 2016
SCHEDULE A
PLAINTIFFS’
LAY WITNESSES
|
Neil Allard
|
Plaintiff
|
|
Shawn
Davey/Brian Alexander
|
Plaintiffs
|
|
Tanya
Beemish/Dave Hebert
|
Plaintiffs
|
|
Mike King
|
Fact Witness
on LP situation
|
|
Jason Wilcox
|
Fact Witness
on MMAR Coalition
|
|
Danielle
Lukiv
|
Fact Witness
on MMAR Complaints
|
|
Jamie Shaw
|
Fact Witness
on Dispensaries in Canada
|
|
Eric Nash
|
Fact Witness
on MMAR/MMPR
|
PLAINTIFFS’ EXPERT WITNESSES
|
Zachary
Walsh
|
Expert on
Affordability and Access and on Medical Evidence including Strain and Dosage
|
|
David Pate
|
Expert on
Botany and Pharmacology
|
|
Caroline
Farris
|
Rebuttal
Expert on Use and Dosage
|
|
Robert
Clarke
|
Rebuttal
Expert on Cannabis Use
|
|
Remo
Colasanti
|
Expert on
Cultivation
|
|
Thomas
Baumann
|
Expert on
Horticulture
|
|
Eric Nash
|
Expert on
MMAR/MMPR
|
|
Jason Schut
|
Rebuttal
Expert on Mould Remediation
|
|
Tim Moen
|
Rebuttal
Expert on Fire Risk
|
|
Robert
Boileau
|
Rebuttal
Expert on Fire Safety
|
|
Scott
Wilkens
|
Expert on
Insuring Properties
|
|
Susan Boyd
|
Key Rebuttal
Expert (Community Impacts)
|
|
Paul
Armentano
|
Rebuttal
Expert (United States)
|
DEFENDANT’S LAY WITNESSES
|
Jocelyn Kula
|
Fact Witness
on Regulatory Structure
|
|
Eric Ormsby
|
Fact Witness
on Treatment of Other Drugs
|
|
Jeannie
Ritchot
|
Fact Witness
on MMPR and MMAR
|
|
Todd Cain
|
Fact Witness
on MMPR and Industry Status
|
DEFENDANT’S EXPERT WITNESSES
|
Dr. Grootendorst
|
Expert on
Cost Economics
|
|
Yehuda
Baruch
|
Expert on
Cannabis Use in Israel
|
|
Paul Daenick
|
Expert on
Cannabis Use and Dosage
|
|
Harold
Kalant
|
Expert on
Medical Cannabis Use
|
|
John David
Miller
|
Expert on
Mould
|
|
Len Garis
|
Expert on
Fire Risk
|
|
Shane
Holmquist
|
Expert on
Safety Risk
|
|
Larry Dybvig
|
Expert on
Property Value
|
|
Catherine
Sandovos
|
Expert on
Regulatory Structure (Netherlands)
|
|
Hendrik J.
Van Den Bos
|
Expert on
Medical Practises (Netherlands)
|
|
Richard
Bardenstein
|
Expert on
Regulatory Structure (Israel)
|
|
Mahmoud
ElSohly
|
Expert on US
Preferred Cultivation (United States)
|
|
Lynn Mehler
|
Expert on
Legislative Structure (United States)
|
|
Robert Mikos
|
Expert on
Marihuana Law (United States)
|
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