JCT: Parker's Section 24 claim for the return of marijuana
seized by Canada Post was complicated by last week's Long
case in Toronto where a judge ruled that the possession
offence has been unconstitutional since Dec 3 2003 whereas
we've argued it's remained dead since Terry Parker for
possession and then Krieger Day for cultivation too.

My previous post details some supplementary written
representations pointing out the new case. It was decided
that using this brand new case would need extra argument and
so we'll be back on Sep 11 2007 to organize a date for my
factum claiming Long as an Ace, and the Crown's factum in
rebuttal. So here's the Long decision:

ONTARIO COURT OF JUSTICE
BETWEEN:

HER MAJESTY THE QUEEN

_ AND _

CLIFFORD LONG

Before Justice H. Borenstein
Heard on March 28 and May 2, 2006
Reasons for Judgment released on July 13, 2007

Chris De Sa and Jason Mitschele for the Crown
Brian McAllister for the accused Clifford Long

BORENSTEIN J.:

OVERVIEW

[1] On September 23, 2005, Clifford Long was a passenger in
a car that was stopped by the police for a seatbelt
infraction. He was allegedly in possession of three and a
half grams of marijuana at the time and has been charged
with possession of cannabis marijuana under 30 grams
contrary to s. 4(1) of the Controlled Drugs and Substances
Act ("CDSA").

[2] Mr. Long submits that the law prohibiting possession of
marijuana in s.4(1) of the CDSA is unconstitutional as
Parliament has failed to enact a constitutionally acceptable
medical marijuana exemption.

[3] In Parker, it was established that, if Parliament
intends to criminalize possession of marijuana, it can do so
only as long as there is a constitutionally acceptable
exemption for seriously ill persons who require marijuana to
alleviate symptoms associated with their illness ("medical
marijuana exemption").

[4] After Parker was decided, the Government attempted to
create a medical marijuana exemption by enacting the Medical
Marijuana Access Regulations ("MMAR").

[5] In Hitzig, the Court of Appeal found that that attempt
failed and was unconstitutional. Three regulations in the
MMAR in particular set up barriers that overly restricted
access to a licit supply of marijuana for medical purposes.
A constitutionally acceptable exemption could not unduly
limit reasonable access to marijuana for medical purposes.
The Court of Appeal struck down those three regulations thus
removing the barriers to reasonable access.

[6] Two months after Hitzig was decided, the Government re-
enacted two of those three regulations struck down by the
Court of Appeal but implemented a policy where the
Government would maintain a supply of marijuana and allow
eligible persons to seek access to that supply. Permissive
regulations were enacted to allow the Government to
distribute marijuana from its supply without contravening
any laws. The regulations neither required the Government to
have a supply of marijuana nor to provide one. It merely
permitted eligible persons to seek access to the
Government's supply and permitted the Government to supply
marijuana.

[7] Mr. Long submits that re-enacting the regulations
already found to have unduly restricted access renders the
exemption constitutionally unacceptable.

JCT: This is the "gimme" from the Government lawyers.

He submits that it cannot be saved by resort to a permissive
policy that merely allows the Government to supply marijuana
but does not entitle seriously ill persons to marijuana from
the Government supply nor does it require the Government to
have such a supply.

JCT: Nothing but losing the prohibition forces them to keep
a supply.

It is the Government's present policy and not any law that
ameliorates the effect of regulations already found to
unduly restrict access. He submits that a Court cannot take
into account a policy in assessing the constitutionality of
the medical marijuana exemption. He submits that a law that
is unconstitutional cannot be saved by resort to a policy
which can be changed at any time.

JCT: So if it's a exemption from policy, it's no good. It
must be an exemption from law?

[8] Mr. Long submits that the exemption is unconstitutional
and therefore, as per Parker, so too is the criminal
prohibition.

[9] The Crown responds to Mr. Long by arguing that there is
no evidence that Mr. Long is in need of medical marijuana
and that he has not provided any factual basis for his claim
that the current exemption violates the Charter. The Crown
argues that the current regime, post Hitzig, is
constitutionally acceptable. It was arrived out after broad
and extensive consultation. The Crown submits that the
current regime meets the Government's constitutional
obligations to those in need of medical marijuana while
still meeting its responsibilities and international
obligations to control marijuana. The Crown argues that I
must consider the policy while assessing the medical
marijuana exemption. They are to be viewed together.

[10] This case raises the question of whether the Government
has fashioned a constitutionally acceptable exemption to the
criminal prohibition on marijuana possession in section 4(1)
of the CDSA. If so, then the criminal prohibition on
possession of marijuana is constitutional.

JCT: Presuming it can be resurrected by the Hitzig Court
once it was declared of no force and effect, not absent.

Is the medical marijuana regime set up by Parliament post
Hitzig constitutionally acceptable?

THE LEGISLATIVE SCHEME

[11] Section 4(1) of the CDSA provides that no person shall
possess marijuana except as authorized by the regulations.
Those who violate s. 4(1) can be imprisoned.

[12] Section 55 of the CDSA empowers the Governor-in-Council
to make regulations exempting persons, or classes of
persons, from the application of the Act or regulations on
such terms as are set out in the regulations.

[13] Section 56. of the CDSA confers broad power on the
Minister of Health to exempt any person from the CDSA or its
regulations where the Minister is of the opinion that doing
so is necessary or in the public interest.

PARKER

[14] In the July 2000 decision of Parker, the Ontario Court
of Appeal held that the law prohibiting possession of
marijuana under the CDSA was unconstitutional. The Court
found that, for some seriously ill people, the use of
marijuana was effective in treating their symptoms.

[15] The Court held that a blanket prohibition on possession
of marijuana violated section 7 of the Charter absent a
constitutionally acceptable medical exemption for those with
a legitimate medical need for marijuana ("medical
marijuana").

[16] Although s.56 of the CDSA empowered the Minister of
Health to exempt persons from the criminal prohibition, s.
56 was constitutionally inadequate as an exemption as it was
based on the unfettered discretion of the Minister. It did
not matter whether a particular Minister was well
intentioned or not or happened to exercise his or her
discretion reasonably. What mattered was the exemption
amounted to unfettered discretion.

[17] The defence argues that unfettered discretion is akin
to a departmental policy to supply marijuana and that
neither can save an unconstitutional law.

[18] Having found the criminal prohibition unconstitutional
absent a medical exemption, the Court considered the remedy
of "reading in" such an exemption. However, the Court agreed
with the Crown submission at the time that, if it found a
violation of s. 7 because the legislation failed to provide
an adequate exemption for medical use, the "only available
remedy" was to strike down the criminal prohibition and
suspend the finding of invalidity for a period of time to
allow Parliament to craft a satisfactory medical exemption.

[19] The Court of Appeal stated that, while "reading in" was
a potential remedy, it declined to do so in view of the
numerous policy choices available to Parliament in creating
a medical marijuana exemption. The choices ranged between
decriminalizing marijuana, to the Government acting as the
sole provider. Reading in was inappropriate if the question
of how the statute ought to be extended to comply with the
Charter could not be answered with a sufficient precision on
the basis of constitutional analysis. The Court stated that
"to read in an exemption in such circumstances would "amount
to making ad hoc choices from a variety of options, none of
which was pointed to with sufficient precision by the
interaction between the statute in question and the
requirements of the Constitution. This is the task of the
legislature not the courts".

JCT: And yet the Hitzig Court deigned fix the exemption.

[20] The Court suspended its declaration of invalidity for
one year to allow the Government to create a valid medical
exemption to the criminal prohibition.

RESPONSE TO PARKER: THE CREATION OF A REGULATORY EXEMPTION

[21] One year less a day later after Parker was released,
the Government enacted the Marijuana Medical Access
Regulations ("MMAR") which created a regulatory exemption to
the criminal prohibition on marijuana.

[22] The regulations prescribed who was eligible for medical
marijuana. Eligible persons were issued Authorizations to
Possess Marijuana ("ATP"). ATP holders could apply for and
obtain a licence to grow marijuana for themselves
("Personal-Use Production Licence or "PPL") or they could
nominate an eligible "designated person" who would be issued
a "Designated-Person Production Licence ("DPL"). The MMAR
made reference to obtaining marijuana from dealers licenced
with the Government of Canada however there were no licenced
dealers supplying marijuana to ATP holders.

[23] The MMAR contained three regulations that specifically
prohibited DPL holders from:

1) being compensated for growing marijuana for ATP holders
(s.34(2));

2) supplying marijuana to more than one ATP holder; and

3) combining production with more than two other DPL
holders.

THE COURT OF APPEAL DECISION IN HITZIG

[24] In 2003, the Ontario Court of Appeal reviewed the
medical marijuana exemption in Hitzig.

[25] By the time of the hearing of the Hitzig appeal, the
Government developed and had implemented an "Interim Supply
Policy" ("ISP") where it supplied seeds and dried marijuana
to ATP holders who had not obtained either a PPL or a DPL.
Two regulations were promulgated which allowed the
Government to supply seeds and dried marijuana without
contravening existing laws.

[26] The Crown advised the Court of Appeal of the ISP simply
to make it aware of the state of affairs but did not ask the
Court to consider the ISP in assessing the validity of the
regulatory exemption.

[27] The Court found the three regulations relating to DPL
holders noted above unduly restricted ATP holders' access to
a licit supply of marijuana. These three regulations reduced
the likelihood of ATP holders finding persons willing to act
as designated persons. Given the absence of any other lawful
supply of marijuana, these restrictions inevitably forced
some ATP holders to the illicit market to obtain marijuana.

[28] The Court held that the exemption was unconstitutional.
Given the absence of a constitutionally acceptable
exemption, the criminal prohibition on possession of
marijuana in s.4(1) of the CDSA was unconstitutional in
accordance with the decision in Parker.

JCT: It was unconstitutional, it was struck down, it was
declared invalid, but the Hitzig Court only deemed it absent
until they could help Alan Young resurrect it.

[29] The Court of Appeal determined that the appropriate
remedy was to strike out the three regulations in the MMAR
that unduly limited access to medical marijuana. The Court
declared section 34(2), 41(b) and 54 of the MMAR to be of no
force or effect. This remedy removed the regulations which
restricted access. As modified, the regulatory exemption
created by the MMAR was constitutionally acceptable and
therefore the law prohibiting possession of marijuana was
constitutional.

JCT: Notice how Judge Borenstein goes though the same
chronological gymnastics as all our Crowns. How "was the law
constitutional" when it was just not constitutional. Once he
admitted it was not, he should have written "became once
again" constitutional. Not "was" again.

[30] The Court of Appeal in Hitzig acknowledged that the
Government could address the problem of supply in a manner
different than that crafted by the Court of Appeal as long
as it did not unduly restrict access to medical marijuana.

GOVERNMENT'S RESPONSE TO HITZIG

Evidence of Carole Bouchard

[31] Ms. Carole Bouchard is an employee of Heath Canada. She
is the Director of the Office of Controlled Substances
within Health Canada's "Drug Strategy and Controlled
Substances Programme". She is responsible for the
administration of the CDSA and most of its regulations
including the management of Health Canada's Medical
Marijuana Access Division ("MMAD") and the management and
oversight of the MMAR and Health Canada's Policy on the
Supply of Marijuana Seeds and Dry Marijuana for medical
purposes.

The Goal of Health Canada's Medical Marijuana Programme

[32] According to Ms. Bouchard, the Medical Marijuana
Programme began in 2001 under former Minister of Health,
Allan Rock and has continued under successive Ministers. The
Medical Marijuana Programme has three key elements. It:

(1) creates a regulatory framework to permit persons to
possess and produce marijuana;

(2) encourages research into the safety and efficacy of
medical marijuana; and

(3) seeks to establish a consistent, reliable, legal source
of marijuana for medical purposes in Canada.

[33] Since 2003, the Government's policy development
regarding medical marijuana has been guided by the goal of
replicating the features of a traditional health care model.
The Government's goal was to:

1) create a Government owned source of marijuana that
complies with product standards accompanied by a longer term
goal of phasing out personal cultivation;

2) distribute marijuana to authorized persons through
pharmacies

3) monitor the risks and benefits of marijuana for medical
purposes and educating patients and physicians

4) improve post-market surveillance to monitor safety and
efficacy.

[34] In the summer of 2003, pending the hearing of the
Hitzig appeal, Health Canada implemented the ISP which
provided authorized persons with the option of obtaining dry
marijuana or seeds from a new Government supply. The
Government entered into a contract with Prairie Plant
Systems Inc. to produce marijuana on its behalf. The initial
objective of the ISP was to render the exemption and
therefore the criminal prohibition constitutional. The ISP
was supposed to be in place only until the Hitzig appeal was
heard.

[35] In order to implement the ISP, a regulation was
promulgated on July 8, 2003 exempting dried marijuana
produced under contract with the Government of Canada from
the application of the FDA and its regulations. This
regulation allowed the Government of Canada to distribute
dried marijuana and seeds without violating any laws.

[36] Health Canada established a Stakeholder Advisory
Committee on Medical Marijuana (the "Advisory Committee")
comprised of ATP holders, physicians, pharmacists,
researchers, representatives of health care organizations,
health care professionals and law enforcement officials. The
Advisory Committee was established prior to Hitzig. Its work
was accelerated following the Court of Appeal's decision in
Hitzig.

[37] Two months after Hitzig was decided, the Government
adopted a new approach to the supply of marijuana for
medical purposes. The Government would permanently offer ATP
holders who did not have a PPL or DPL the alternative of
obtaining marijuana from a government supply. The Crown
characterized the Government's response to Hitzig as
"entrenching" the ISP policy. Access would no longer be a
problem as long as the policy was being implemented. This
new policy dated December 3, 2003 is called the "Policy on
Supply of Marijuana Seeds and Dried Marijuana for Medical
Purposes" ("the Supply Policy") and it replaced the ISP of
July 2003.

[38] In order to implement this policy, the Governor-in
Council promulgated the necessary regulations so that the
Government was permitted to distribute dried marijuana and
seeds without contravening any laws.

[39] As a result of this new Government supply of marijuana
available for medical purposes, the Governor-in Council re-
enacted two of the three regulations found by the Court of
Appeal to have limited access. Sections 41(b) and 54 were
re-enacted. Several less important regulations that existed
were also repealed.

[40] According to Ms. Bouchard, these amendments to the MMAR
post-Hitzig were meant to achieve five objectives.

1) to give "national effect" to that part of the Hitzig
ruling which struck down the prohibition on compensating DPL
holders. To that end, the amendments:
formally repealed s.34(2) which had been struck down by the
Court of Appeal;
added the word "provide" to s. 34(1)(e) of the MMAR which
had already permitted DPL holders to "transfer, give or
deliver directly" marijuana to ATP holders; and
amended the Marijuana Exemption (FDA) Regulations to exempt
marijuana produced by DPL holders

2) to enable ATP holders the option of having reasonable
access to the Government's supply of marijuana by:
amending s.5(1)(e) of the MMAR to reflect the availability
of a Government supply of dried marijuana;
adding s. 70.1 to the MMAR to enable the Government's supply
of dried marijuana to be shipped directly to ATP holders.

3) to maintain control over the distribution of marijuana
and to respect Canada's international obligations concerning
cultivation and distribution of marijuana by
re-enacting ss.41(b) and 54 of the MMAR struck down by the
Court of Appeal

4) to facilitate and enhance access to marijuana by
repealing section 34 of the MMAR which required DPL holders
to transfer marijuana directly to ATP holders and section 56
which required DPL holders to maintain particular records
and books.

5) to formally repeal the regulation requiring a second
medical specialist that had been struck down by the Court of
Appeal.

[41] The Supply policy enhances access beyond the ISP in
that it:

1) allows an applicant to receive both initial seeds and a
four month initial supply of dried marijuana pending their
first harvest whereas the ISP allowed for one or the other;

2) eliminates the "one-time only" provision for seeds;

3) eliminates the requirement that an ATP holder must
exhaust all other sources before applying for access to the
Government's supply:

4) allows for shipment of dried marijuana directly to ATP
holders as opposed to their medical practitioners.

[42] Subsequent amendments were made to the MMAR to
streamline eligibility and administrative requirements and
to authorize the communication of information to the police
The amendments also provide authority to conduct a limited
pilot project to assess the feasibility of distributing
marijuana through a pharmacy-based system without a
prescription.

[43] According to Ms. Bouchard, since July 2007, the MMAD
receives an average of 75 new applications for ATP and 78
renewal applications monthly. As of January 5, 2007, 1678
persons in Canada have ATPs. 1029 persons hold PPL licences
and150 hold DPLs.

[44] As of January 5, 2007, 320 people were receiving dried
marijuana from the Government's supply. 248 people had
received seeds and 142 people have received a four month
supply of dried marijuana pending their first harvest from
seeds provided by Health Canada. The MMAD receives on
average 37 applications for a supply of either dried
marijuana or seeds from the Governments.

IS THE MEDICAL MARIJUANA EXEMPTION CONSTITUTIONALLY
ACCEPTABLE

[45] In my view, the amended MMAR creates a constitutionally
unacceptable medical marijuana exemption.

JCT: So the "gimme" of the government re-installing what had
been declared unconstitutional makes it bad again.

[46] The amended exemption is premised upon the Government
filling the void and supplying marijuana to some ATP holders
so that reasonable access to marijuana for medical purposes
will no longer be impeded. That is in fact the Government's
goal. Eligible persons who require access to the Government
supply of marijuana are supposed to have access to that
supply.

[47] To implement this new approach to the supply of
marijuana, the Governor-in Council enacted permissive
regulations which allows the Government to supply marijuana.
It also re-enacted, for legitimate reasons, two of the three
regulations that have been found to unduly limit lawful
access to a reasonable supply of marijuana.

[48] Even though the criminal prohibition still exists and
the overly restrictive regulations revived, in view of the
policy being implemented through the permissive regulations,
the exemption mechanism is presently working. Since the
Government began supplying marijuana pursuant to the ISP and
then the Supply Policy, the Government has had sufficient
marijuana to accommodate every application for dried
marijuana or seeds made by authorized persons. The
Government providing an alternative source of supply is
integral to the entire scheme. Access is no longer a problem
due to the policy.

[49] The regulations merely permit the Government to supply
marijuana, they do not require it nor do they entitle
authorized persons to anything other than the right to ask
the Government for access. This is in contrast to an
eligible ATP holder applying for a licence to produce
marijuana, be it a DPL or PPL. In those circumstances, the
Minister effectively must issue the licence.

[50] In my view, a criminal prohibition together with a
regulatory exemption that unduly restricts access to a licit
supply of medical marijuana is unconstitutional and cannot
be saved by resort to a policy, regardless of whether the
policy is permitted by regulation. The fact the policy is
permitted by the enabling regulations does not add much in
my view. One can assume that a policy being implemented will
be lawful. That does not alter the fact that the criminal
prohibition on possession of marijuana is prescribed by law
and the regulations which authorizes possession but unduly
limits access is prescribed by law.

[51] If the law is unconstitutional as a result of creating
unreasonable limitations on access, it cannot be rendered
constitutional by resort to a policy.

JCT: Yet the Hitzig Court of Appeal said it could.

[52] In R. v. Smith, the Supreme Court held that the
mandatory minimum seven year sentence for importing
narcotics was unconstitutional as it amounted to cruel and
unusual punishment contrary to the Charter. This was so
regardless of the Crown policy in place to exercise its
discretion not to seek that sentence where, in the Crown's
view, it was not warranted.

[53] Following the hearing of this matter, the Crown sent
the Court a copy of the Little Sisters case with an
accompanying letter stating that it viewed the case as
"dispositive" of the issue in its favour. The defence agreed
that it was dispositive but asserted that it is was
dispositive in its favour. Neither side made further
submissions on this case.

[54] Little Sisters was a case where a Custom's Law that
prohibited the importation of material deemed obscene under
the Criminal Code was being implemented by customs officials
in a manner that targeted a store servicing the gay and
lesbian communities. Customs officers were detaining the
store's imported goods as obscene. The legislation required
the importer to establish that the material imported was not
obscene. The Appellants challenged the law on various bases
including the reverse onus and on section 15. The Supreme
Court held that the reverse onus was unconstitutional.

[55] The entire Court agreed that the law was being applied
in a discriminatory manner. The issue was whether the source
of the discriminatory implementation was the law itself or
the manner in which it was being implemented.

[56] The essence of the majority decision was that the law
(absent the reverse onus) was constitutional as it only
permitted customs officials to detain obscene material.

[57] The dissent held that the law should contain a specific
requirement that administrative policies must only permit
the detention of obscene material. In short, the dissent
held that the law must contain a provision requiring that
the law be implemented constitutionally.

[58] The majority disagreed holding that there was no
requirement that the law include a provision stating that it
be administered or implemented constitutionally. Parliament
was entitled to assume that it would.

[59] That is different in my view from our case. Little
Sisters holds that Parliament can assume that a
constitutional law will be implemented constitutionally. It
does not state that a law that creates unconstitutional
barriers can be rendered constitutional by being implemented
fairly. Quite the opposite.

[60] In my view, Little Sisters supports Mr. Long's
position.

[61] That resort to a permissive policy cannot render an
unconstitutional law constitutional is also consistent with
sections 1 and 52 of the Charter which declares that the
rights and freedoms guaranteed by the Charter are subject to
such reasonable limits, prescribed by law and, any law that
is inconsistent with the Charter is, to the extent of the
inconsistency, of no force or effect. It is not any law,
except as may be ameliorated by policy.

[62] It is trite to say that laws enjoy a qualitatively
different status than policies. They circumscribe behaviour.
They confer rights and privileges. They permit. They
penalize, all with the force of law.

[63] There is nothing in the CDSA or the MMAR that requires
the Government to supply marijuana to eligible, authorized
persons. The law requires the Government to issue a licence
to produce to eligible authorized persons who apply. For
those who do not have a licence, the exemption does not
require the Government to supply them with marijuana.
Pursuant to the Policy being implemented, those persons are
in fact receiving marijuana. Needless to say, there is
nothing in the criminal prohibition or in the regulatory
exemption that requires the Government to comply with its
policy. There is nothing in the regulations that requires
the government to enter in contracts with licenced dealers,
or to provide a supply. They can stop tomorrow. Today - they
are making a supply available.

[64] Reasonable access is now dependent on policy, not on
law. On a law that has been found to have set up barriers to
reasonable access. That is not a constitutionally acceptable
exemption.

[65] I have reviewed the cases provided by the Crown which
have reviewed and upheld the current exemption post-Hitzig.
While those cases were helpful, none appear to have
considered the issue raised by Mr. McAllister on Mr. Long's
behalf.

[66] The Crown submits that I must consider the policy of
supplying marijuana in assessing the constitutionality of
the entire exemption. For the reasons given, it is my view
that a policy that ameliorates the effect of an
unconstitutional law cannot render the law constitutional.

[67] If the government re-enacts regulations that have been
found to unduly restrict access, and seeks to address the
deficiency by being a supply source of marijuana, then it
must take on the legal obligation to supply it.

[68] The exemption depends on the Government supplying
marijuana which it is now doing only as a result of the
policy. In my view, the exemption as re-enacted would only
be constitutionally acceptable if the Government took on the
obligation by law to supply marijuana to those in need.
Without such an obligation, the exemption is
constitutionally unacceptable. This is more so where the
cornerstone of the exemption depends on the Government
supplying marijuana.

[69] Not taking on the obligation by law is not very
different, from a legal standpoint, from the Government
merely re-enacting provisions found to be unconstitutional
but telling the public and the Courts not to worry as it
would now supply marijuana despite the unconstitutional
limitations.

[70] If the Government intends to criminalize possession of
marijuana constitutionally, while limiting access to
marijuana by re-enacting the regulations struck down in
Hitzig, then it must simultaneously, by law, take on the
obligation to supply marijuana. They must remove the
barriers to access or impose on itself the obligation to
supply marijuana to eligible authorized persons who do not
obtain a licence, not simply as a matter of policy but as a
matter of law.

[71] Had the Government obligated itself by law to supply
marijuana in accordance with its policy, the regulatory
exemption would be a constitutionally acceptable. Without
that obligation, in my view, it is not.

Released: July 13, 2007
Signed: "Justice H. Borenstein"

JCT: So what do you think, was the law also dead because the
supply had to be guaranteed in law rather than policy? Is it
as good a reason as the Interpretation Act says a law that's
been invalidated is to be deemed repealed and the Hitzig
court couldn't unrepeal the Parker invalidation or could the
Hitzig court unrepeal what the Parker court struck down but
then the government put the bad conditions back causing it
become invalid 2 months after Hitzig had resurrected it?

Of course, it's easy for them to fix.


--
Abolitionist Debt Slave Leader John C."The Banking Systems Engineer"
Turmel for UNILETS interest-free time-based currency in U.N. resolution
C6 to Governments in the http://www.un.org/millennium/declaration.htm
http://www.cyberclass.net/turmel USENET blog: alt.fan.john-turmel