JCT: You'll remember that we brought up the Long decision in
the Parker application for the return of his marijuana which
was seized by Canada Post. On the day after all my Supreme
Court of Canada applications that the law had never been
resurrected in 2003, Justice Borenstein ruled in R. v. Long
that the law had been invalidated again 2003 after the
resurrection.

http://yahoogroups.com/group/turmel/message/3385 is my post
"Parker needs factum on Long declaration of invalidity"
where I parsed Judge Borenstein's reasons for judgment.

Before going on to the Crown's argument against Long, here
is Borenstein J.'s final word on the remedy:

http://www.canlii.org/en/on/oncj/doc/2007/2007oncj341/2007oncj341.html
http://www.canlii.org/en/on/oncj/doc/2007/2007oncj341/2007oncj341.pdf

COURT FILE No.: Toronto
DATE: July 26, 2007
Citation: R. v. Long, 2007 ONCJ 341

ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- AND -
CLIFFORD LONG

Before Justice H. Borenstein
Heard on March 28 and May 2, and July 26, 2007
Reasons for Judgment
July 26, 2007

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

BORENSTEIN J.:

[1] On July 13, 2007, I ruled that the medical marijuana
exemption created by the Government was unconstitutional as
reasonable access depended on policy rather than law. Given
my finding, the question of remedy arises. The matter was
adjourned at the Crown's request so that further submissions
could be made with respect to what remedy or result should
follow.

[2] If I had the jurisdiction to do so, I would read into
the regulation an obligation on the Government to provide
eligible persons[1] with reasonable access to the
Government's supply of marijuana. That is the way the
exemption is intended to, and does in fact, operate. Yet the
Government is resistant to taking on that legal obligation.

[3] As I indicated in my ruling, had the Government
obligated itself by law to supply marijuana to eligible
persons, the regulatory exemption would be constitutionally
acceptable. Reading in that obligation would be seamless and
consistent with the exemption scheme created by the
Government and would respect the rights and interests of
all. It would maintain the ability of the Government to
criminalize possession of marijuana and would also ensure
that eligible exempt persons would be legally entitled to
reasonable access to marijuana for medical purposes.

[4] Creating such an obligation does no harm to the scheme
created by the Government. It would not erode the
Government's ability to enhance access or to be flexible in
the implementation of this obligation. The Government can
continue a consultative approach to the issue of supplying
marijuana for medical purposes. It can continue to change
the policy to streamline and improve it. Details of what
amounts to reasonable access can continue to be developed
through policy. Complaints by eligible persons about the
reasonableness of their access could be determined in the
context of an existing obligation to provide reasonable
access, nothing more.

[5] In my view, we are well past the time in Parker where
the numerous options of dealing with this issue rendered
reading in an inappropriate remedy. The Government has
chosen the manner in which it seeks to address the issue of
a medical marijuana exemption.

[6] In my view, reading in an obligation to provide
reasonable access to eligible persons would be the most
appropriate remedy. However, only a Superior Court has that
declaratory power.

[7] Turning now to the issue of striking down section (4)1
of the CDSA.

[8] The Crown submits that I have no jurisdiction to declare
s. 4(1) of the CDSA unconstitutional. I can find it to be
unconstitutional but I cannot declare it to be
unconstitutional. My jurisdiction is to deal with the issues
presented in the case before me. General declaratory powers
are the exclusive jurisdiction of the Superior Courts.

[9] I am not declaring the criminal prohibition
unconstitutional. The Court of Appeal did that in Parker.

JCT: Parker happened on July 30 2000.

That Court stated that the criminal prohibition on
possession of marijuana is unconstitutional absent a
constitutionally acceptable medical exemption.

JCT: No, it did not. That Court just declared that the
prohibition in Section 4(1) of the CDSA was invalid. It was
the Hitzig Court that added the words "absent a
constitutionally acceptable medical exemption?" to make the
Parker ruling less final.

Given my finding that the Government has not enacted a
constitutionally acceptable exemption, then, in accordance
with Parker, the law prohibiting possession of marijuana is
unconstitutional.

JCT: And never has so the prohibition remains invalid since
Parker, like my argument to the Supreme Court that was
rejected.

[10] Mr. Long is charged with a law that is
unconstitutional.

JCT: So was everyone else.

Even though he himself is not in medical need of marijuana,
it is certainly open to him to challenge the law on the
basis that it is unconstitutional [2]

JCT: We all did that. Parker and Krieger proved that the law
was bad, we all proved that the law remains dead.

It is well within his right to argue that the current
criminal prohibition is unconstitutional as it fails to
provide a constitutional exemption for those in medical need
- even though he is not one of those persons. Having
succeeded, he cannot be found guilty of a law that is
unconstitutional. Therefore, the charges against him will be
dismissed.

JCT: This should have applied to everyone busted since then.

Released: July 26, 2007
Signed: Justice H. Borenstein
[1] Eligible, authorized ATP holders who do not obtain a
licence to produce.
[2] See Canada (Minister of Justice) v. Borowski (1981), 64
C.C.C. (2d) 97, 130 D.L.R. (3d) 588 (SCC);
R. v. J.P. 2003 CanLII 17492 (ON C.A.), (2003) 14 CR (6th)
69 (Ont. CA)

JCT: So that's the Borenstein ruling in R.v.Long which we
raised for Judge Clement who will be ruling in Parker's
claim for the return of his pot on Nov 28 in Brampton. I
just received the Crown's Factum.

I doubt Brian McAllister will publish the Crown's arguments
in Long on the net but since Chris Leafloor is one of the
Crown's Court of Appeal lawyers, this should be a preview of
the arguments to be presented in the Crown's appeal of Long:
(I transcribed the notes when they are raised.)

ONTARIO COURT OF JUSTICE
(Criminal Division)
Between:
Terrance Parker
Applicant
and
Her Majesty the Queen
Respondent

RESPONDENT'S FACTUM ON R. V. LONG

PART I - RESPONDENT'S STATEMENT AS TO FACTS

1. On July 23 2007, the Applicant filed supplementary
submissions which asserted that pursuant to R.v.Long1, the
prohibition on the possession of marihuana is not longer
valid. The Respondent now files the following written
submissions in response.
{1} R.v.Long, [2007] O.J. No. 2774 (Ont.Ct.) decision of
Borenstein J. released on July 13 2007, tab 1; decision on
remedy in R.v.Long [2007] O.J. No. 2916 (Ont.Ct.) released
July 26 2007, Tab 2; The Crown has appealed this decision
(Notice of appeal filed on August 22 2007) and the appeal is
likely to be heard in or around March or April 2008.

PART II - ISSUES AND LAW

Overview

2. R.v.Long is not binding on other courts. The trial judge
accepted the fact that although he had no jurisdiction to
make a finding of unconstitutionality, he did not have the
jurisdiction to grant a declaration of invalidity2.
{2} Decision on remedy in R.v.Long, para. 2 and 8-9, Tab 2.

3. R.v.Long is wrongly decided for the following reasons:

(a) THe finding in Long that the Government must assume an
"obligation" to supply marijuana in order to create a
Charter-compliant regime is contrary to the governing
Ontario Court of Appeal authorities in R.v.Parker and
R.v.Hitzig.

JCT: It's civil Hitzig v. HMTQ, not criminal R. v. Hitzig.

(b) The finding in Long that Charter compliance can only be
achieved through regulation is contrary to the decision of
the Supreme Court of Canada in "Little Sisters."

(a) The authorities do not require the government to assume
an obligation top supply marijuana

4. Section 7 Charter analysis takes place in three stages3:
{3} R. v. White (1999) 135 CCC (3d) 257 (S.C.C.) Tab 3

(a) Determining whether there is a real or imminent
deprivation of life, liberty, security of the person, or a
combination of these interests;
(b) Identifying and defining the relevant principle or
principles of fundamental justice;
(c) Determining whether the deprivation has occurred in
accordance with the relevant principle or principles of
fundamental justice.

5. The onus at "each" of these stages is on the party
asserting the Charter infringement4.
{4} Cunningham v. Canada (1993) 80 CCC (3d) 492 (SCC) Tab 4

6. Long itself contains no actual s.7 analysis. It depends
entirely on the s.7 analyses of the Court of Appeal for
Ontario in R.v.Parker5 and R.v.Hitzig6. As will be shown,
the conclusions in Long do not follow from the s.7 analyses
in Parker and Hitzig.

7. Terrance Parker used cannabis to alleviate the symptoms
of his severe epilepsy.

JCT: Actually, he used it for more than to alleviate the
symptoms, he used it to prevent seizures. Just the Crown
fudging the facts their way a bit.

The Court of Appeal found that the cannabis prohibition
deprived Mr. Parker of his s.7 rights to liberty and
security of the person in the following ways:

"[92] Accordingly, I believe that I am justified in
considering Parker's liberty interest in at least two ways.
First, the threat of criminal prosecution and possible
imprisonment itself amounts to a risk of deprivation of
liberty and therefore must accord with the principles of
fundamental justice. Second, as this case arises in the
criminal law context (in that the state seeks to limit a
person's choice of treatment through threat of criminal
prosecution), "liberty includes the right to make decisions
of fundamental personal importance." Deprivation of this
right must also accord with the principles of fundamental
justice. I have little difficulty in concluding that "the
choice of medication to alleviate the effects of an illness
with life-threatening consequences is such a decision."
[emphasis added]
[...
"[97]... Deprivation by means of criminal sanction of access
to medication reasonably required for the treatment of a
medical condition that threatens life or health constitutes
a deprivation of security of the person8."
{8} R.v.Parker [2000] para. 97 Tab 5

8. The Court's focus was on serious medical need. It found
that the system in place at the time for accommodating such
serious medical need9
{9} This system relied on an interim policy under which the
Minister of Health could receive requests to exercise his
discretion under s.56 of the CDSA to provide an exemption
from the cannabis prohibition.

did not accord with the principles of fundamental justice
for the following reasons10:
{10} R. v. Parker [2000] para. 184-185, Tab 5

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

9. The government responded to these concerns by enacting
the Marihuana Medical Access Regulations (MMAR) which
provide both a detailed legislated standard for medical
necessity and a structured formal process for the exercise
of the Minister's discretion. Under the MMAR an applicant
demonstrating a medical need for cannabis and satisfying the
requirements of the application process is granted an
authorization to possess cannabis for medical use (ATP). The
applicant or caregiver can also apply for a license - a
personal use production license (PPL) or a designated-person
production license (DPL) - to cultivate cannabis for the
ATP-holder's medical use.

10. Approximately three years after its decision in Parker
the Court of Appeal considered the constitutionality of the
MMAR in R. v. Hitzig et al. The main issue in Hitzig as it
relates to Long was whether the MMAR adequately provided for
lawful access to cannabis for medical use. There was
evidence that the DPL provisions were not effective for all
ATP-holders and that it was necessary for some ATP-holders
to obtain cannabis from illegal suppliers. By the time
Hitzig was argued in the Court of Appeal Health Canada had
put into place an interim policy of providing cannabis to
some ATP-holders itself.12
{12} See R.v.Long at para.34-35. It is important to note
that the interim supply policy was only before the Court of
Appeal in Hitzig for the purpose of context for the Court -
see R. v. Hitzig at para 43:
[43] The Government did not ask the court to pass on the
constitutionality of the MMAR as modified by the interim
policy and it did not suggest that the interim policy should
have any effect on the outcome of the appeal. The interim
policy was put before the court so that we would be aware of
the current state of affairs."

11. In its s.7 analysis the Court of Appeal in Hitzig
identified the Rule of Law as the primary applicable
principle of fundamental justice and held for the following
reasons that the MMAR did not accord with that principle:13
{13} R.v.Hitzig para.117-118 Tab 6

"[117] A Government scheme that depends on the criminal
element to deliver the medically necessary product, and that
drives those in need of that product to the black market
strikes at the same values that underlie the state's
obligation to obey the law. The MMAR, far from placing the
Government in the position of a positive role model or on
the moral high ground, are calculated to bring the law into
disrepute and devalue the worth and dignity of those
individuals to whom the MMAR are applied. The Government's
obligation to obey the law must include an obligation to
promote compliance with and respect for the law.
[118] The inevitable consequences of "the absence of a legal
source of marihuana for those who have been determined to be
in medical need of the drug" are inconsistent with the
fundamental principle that the state must obey and promote
compliance with the law. In our view, "the absence of a
legal source of supply renders the MMAR inconsistent with
the principles of fundamental justice." [emphasis added]

12. The Court's focus was on ensuring a lawful source of
cannabis for ATP-holders so that they would not have to turn
to the black market. To achieve that end, the Court granted,
as a remedy, a tailored declaration of invalidity:

"[165]... we conclude that the remedy which most directly
addresses "the constitutional deficiency presented by the
absence of a licit supply of marihuana" is to declare
invalid sections 34(2), 41(b) and 54 of the MMAR. This will
allow all DPL holders to be compensated, to grow for more
than one ATP holder, and to combine their growing with more
than two other DPL holders. Provided that the regulation of
July 8, 2003 remains in place and is acted upon, there is no
need to declare that the Government has a constitutional
obligation to provide the first seed to those DPL holders
who do not have one." [emphasis added]

13. The Court expressly held, however, that this was not the
only option and that the government was free to come up with
its own answer to the access question:

"[172] Third, we acknowledge that the Government could
choose to address the constitutional difficulty by adopting
an approach fundamentally different from that contemplated
in the MMAR. The alternatives range from "the Government
acting as the sole provider," to the decriminalization of
all transactions that provide marihuana to an ATP holder.
Indeed, even if the Government is content with the solution
contained in the MMAR as modified by our order, it may seek
to impose reasonable limits, "provided they do not impede an
effective licit supply," for example on the amount of
compensation that a DPL holder can claim or on the size of
the operation that a DPL holder can undertake. [emphasis
added]

14. In accordance with this acknowledgment, Health Canada -
after consulting widely with ATP-holders, physicians,
pharmacists, researchers, representatives of health care
organisations, health care professionals and law enforcement
officials - crafted a modified access system that included
the following:
(a) the repeal of s.34(2) of the MMAR which had prohibited
ATP-holders from compensating DPL-holders;
(b) the broadening of the language of s.34(1) of the MMAR to
expand the means by which DPL-holders can provide cannabis
to ATP-holders;
(c) the entrenching of a system of government supply of
cannabis in the Policy on Supply of Marihuana Seeds and
Dried Marihuana for Medical Purposes; and
(d) the restoration of ss.41(b) and 54 of the MMAR which
restrict DPL-holders from holding more than one DPL or
producing cannabis in common with more than two other DPL-
holders.

15. The evidence in Long established that this system is
working fine. ATP-holders are getting their cannabis.

16. It is important to recognize that in Hitzig the Court of
Appeal did not equate a lawful of licit supply with a
guaranteed supply. The constitutional standard is reasonable
lawful access:

"[166] The declarations of invalidity we propose remove the
single unconstitutional barrier to eligibility and
sufficient barriers to supply that ATP holders will be
reasonably able to meet their medical needs from licit
sources. As a result, the MMAR as modified become a
constitutionally sound medical exemption to the marihuana
prohibition in s. 4 of the CDSA. While the record before us
sustains this conclusion, it is conceivable that, as events
unfold, further serious barriers could emerge either to
eligibility or to reasonable access to a licit source of
supply. Should that happen, the issue of the appropriate
remedy might have to be revisited in a future case."

17. The finding in Long that the government must not only
supply the cannabis it also "must take on the legal
obligation to supply it," is therefore simply mistaken.
Hitzig does not go so far. Hitzig simply requires reasonable
access to cannabis so that ATP-holders do not have to turn
to the black market. The government is free to structure the
system of access however it wishes, so long as it does not
"impede an effective licit supply." The system in place does
so. It is constitutionally sound.

JCT: Lawyers demanding reasonableness. Of course, what's
reasonable to math rejects like lawyers is another issue.
Justice Lederman said that having one doctor out of a
thousand provides reasonable access. Like I say, what
reasonable means to a bunch of math rejects isn't what
reasonable means to math graduates.

18. Gosselin v. Quebec, in which the Supreme Court of Canada
dealt with the issue of positive obligations and s.7 of the
Charter is instructive on this point:

"[81] Even if s.7 could be read to encompass economic
rights, a further hurdle emerges. Section 7 speaks of the
right not to be deprived of life, liberty, and security of
person, except in accordance with the principles of
fundamental justice. Nothing in the jurisprudence thus far
suggests that s.7 places a positive obligation on the state
to ensure that each person enjoys life, liberty or security
of the person. Rather, s.7 has been interpreted as
restricting the state's ability to deprive people of these.
Such a deprivation does not exist in the case at bar.
[82] I conclude that they do not."

19. The concern in Long that the government "can stop
[providing cannabis] tomorrow is illusory. Constitutionally
the government cannot stop providing cannabis tomorrow, or
at least not without providing some other constitutionally
satisfactory means of lawful access.

JCT: Sure they can stop providing tomorrow as long as the
prohibition against it dies at the same time.

If it did stop providing cannabis, then at that point, a
remedy might arise.

JCT: Not if the prohibition becomes invalid when they stop.

but the same would be true if it repealed the hypothetical
regulation suggested by the trial judge in Long obligating
the government to supply marihuana to eligible persons.

(b) Charter compliance does not require the enactment of
regulations

20. Long finds that in order to be Charter compliant, the
access regime requires not just formal government policy but
a binding law. The Supreme Court of Canada has said
otherwise. In Little Sisters Book and Art Emporium v. Canada
(where the regime in issue was the procedure for determining
whether imported materials were obscene) the court held as
follows:

"[138].. In the administration of the department the
Minister may supplement by directive the provisions of the
Customs Act for its implementation. The public service
responds to ministerial direction with no less alacrity than
it responds to statute or regulation. "In short, an
importer's rights may be protected in fact by statute,
regulation, ministerial direction or even departmental
practice. What is crucial, at the end of the day, is that
Charter rights are in fact respected. The modalities for
achieving that objective will vary with the context. There
is nothing unconstitutional about the option selected by
Parliament in this case."
"[139] All of this is to say that there are various methods
to ensure respect by the public service of the Charter
rights of importers. Each method has its advantages and
disadvantages. "The fact that Parliament opted for the more
flexible routes of delegated regulation and ministerial
directive is not, I think, a reason to invalidate the
legislation itself." [emphasis added]

21. What is crucial at the end of the day in this context is
that the Charter rights of ATP-holders are respected.25
{25} The Charter rights of recreational cannabis users such
as the Applicant do not enter into it. The Supreme Court of
Canada has held that the ss.4(1) prohibition of recreational
possession of cannabis is constitutionally sound. R. v.
Malmo-Levine, R. v. Caine, Tab 7.

JCT: The Supreme Court did not hold that prohibition of
possession is constitutionally sound (after it had been
invalidated by Parker), the court held that prohibition of
possession could be sound. But it was never re-enacted after
Parker struck it down.

The Government's chosen "modality" - the current access
system, including the supply policy - does so, by providing
the required reasonable access to cannabis for therapeutic
purposes.

JCT: Reasonable to a lawyer, not to a mathematician.

The fact that the government has opted to do so by way of
policy rather than regulation is, in the language of Little
Sisters, "not.. a reason to invalidate" s.4(1) of the CDSA.

22. Long equates the circumstances here with those in
R.v.Smith,but the comparison is misconceived. Smith already
forms part of the analysis in Parker. In Smith, the SCC held
that a facially unconstitutional mandatory minimum sentence
could not be rendered constitutional by the fact that
prosecutors routinely exercised a case-by-case prosecutorial
discretion that ameliorated it.27
{27} R.v.Smith (1987) 34 CCC (3d) 97 S.C.C. Tab 10

The Court of Appeal in Parker expressly relied on Smith in
support of its finding that the pre-MMAR system was
constitutionally inadequate:28
{28} R.v.Parker. As noted earlier, the pre-MMAR system was
an interim policy under which the Minister of Health could
receive requests to exercise his discretion under s.56 of
the CDSA to provide an exemption from the cannabis
prohibition.

"[187] In my view, [Smith] is a complete answer to the
Crown's submission. The court cannot delegate to anyone,
including the Minister, the avoidance of a violation of
Parker's rights. Section 56 of the CDSA fails to answer
Parker's case "because it puts an unfettered discretion in
the hands of the Minister" to determine what is in the best
interests of Parker and other persons like him and leaves it
to the Minister to avoid a violation of the patient's
security of the person." [emphasis added]

23. In other words, the Court of Appeal's Smith concern with
the system as it then existed wasn't that the Minister had a
discretion to make decisions, it was that it was an
unfettered discretion exercised in the absence of an
adequate legislated standard for medical necessity. The MMAR
fixed that, by providing a comprehensive legislated standard
for medical necessity and a detailed and principled
structure for the Minister's decisions.

24. As we now know, the MMAR left open the access problem
that the Court of Appeal later identified in Hitzig, but the
current system has fixed that too, by providing reasonable
access to cannabis to those ATP-holders who are unable to
either grow their own or to secure a designated grower.

JCT: Remember, that 99 out of 100 people who need it can't
get is still considered "reasonable access" in lawyer
thinking. Judge thinking for sure.

25. The fact the Minister assesses specific requests by
individual ATP-holders for cannabis is not an issue of the
system's structure, it's an issue of its implementation. The
structure of the present system, like the structure of the
customs system in Little Sisters, above, is constitutionally
sound. If an ATP-holder's request to be supplied with
cannabis is denied, he or she may then seek a civil remedy
in respect of that decision.

JCT: Unless they die during the years they wait for the
remedy to be processed through the courts.

The fact that it is possible to make an unconstitutional
decision within the system does not undermine the
constitutionality of the system.

JCT: The fact they can screw up doesn't mean the system is
screwed up? If it could be done perfectly, the fact they
screw up does mean the system is screwed up.

26. The fact that the MMAR include mandatory language in
some provisions does not - contrary to the assumption in
Long - create a constitutional requirement that all
ministerial decisions regarding access be mandatory. There
is nothing inherently unconstitutional about discretionary
decisions.34
{34} See Baker v. Minister of Citizenship [1999] 2 S.C.R.
817 at para.53 Tab 11. See to similar effect Arsenault-
Cameron v. Prince Edward Island [2000] 1 S.C.R. 3; Slaight
Communications v. Davidson [1989] 1 S.C.R. 1038; Eaton v.
Brant County Board of Education, [1997] 1 S.C.R. 241;
Eldrige v. British Columbia (Attorney General) [1997] 3
S.C.R. 624; United States v. Burns [2001] 1 S.C.R. 283; and
Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835.

PART III - ADDITIONAL ISSUES

27. The Respondent raises no additional issues other than
the additional issue raised in the Respondent's factum dated
March 13 2007.

PART IV - ORDER REQUESTED

28. The Respondent requests the following relief:
(a) An order dismissing the Applicant's application;
(b) An order granting costs to the Respondent; and
(c) Such other relief as this Honorable Court determines to
be just.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Toronto this 24th day of October 2007.

Christopher Leafloor
Of Counsel for the Respondent
Her Majesty The Queen

JCT: So that's the Crown's arguments against the Long
technicality. I have until the 13th to file anything I want
to say but I don't want to get involved in the technicality.
I say
1) Parker's Sheppard decision granting him an exemption to
cultivate implicitly grants him an exemption to possess;
2) Parker's Pitt decision extending the Court of Appeal's
exemption against criminal prosecution can't be set aside in
civil court so it's still valid;
3) the possession offence struck down in Parker's first
victory is still struck down because courts can't resurrect
penal sanctions that have been struck down, only Parliament;
4) the cultivation offence struck down in Krieger is still
struck down because a stay pending appeal can't still be in
force out of an appeal file that is closed.
5) As for Long, I'm not going to add any more. If Judge
Clement wants to avoid all these meritorious hot potato
arguments backing up Parker's right to possess his anti-
seizure medicine, he still has the option of going with the
Long technical gimme.

So we'll see what happens on Nov 28 in Brampton.



--
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
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