Hitzig v. Can., (2003) 177 O.A.C. 321 (CA)

• Judge: Doherty, Goudge and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 07, 2003
• Jurisdiction: Ontario
• Citations: (2003), 177 O.A.C. 321 (CA)

Hitzig v. Can. (2003), 177 O.A.C. 321 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. OC.025

Warren Hitzig, Alison Myrden, Mary- Lynne Chamney, Catherine Devries, Jari Dvorak, Stephen Van de Kemp, Deborah Anne Stultz-Giffin and Marco Renda (respondents/appellants in cross-appeal) v. Her Majesty The Queen (appellant/respondent in cross-appeal)

Terrance Parker (appellant/respondent in cross-appeal) v. Her Majesty The Queen (respondent/appellant in cross-appeal)

John C. Turmel and Marc J.J. Paquette (appellants/respondents in cross-appeal) v. Her Majesty The Queen (respondent/appellant in cross-appeal)

(C39532; C39738; C39740)

Indexed As: Hitzig et al. v. Canada

Ontario Court of Appeal

Doherty, Goudge and Simmons, JJ.A.

October 7, 2003.

Summary:

In 2000, in R. v. Parker, the Ontario Court of Appeal declared that the criminal prohibition against the possession of marihuana in s. 4 of the Controlled Drugs and Substances Act (CDSA) was of no force and effect, absent a constitutionally acceptable medical exemption from that prohibition. The court gave the Government of Canada one year to address the constitutional deficiency. The Government responded with the Marihuana Medical Access Regulations 2001 (MMAR). Those regulations permitted the possession, and in some cases, the production of marihuana by individuals who met the medical criteria established in the MMAR. Hitzig and seven others, Turmel and Paquette, and Parker (i.e., the same individual as in the earlier Parker case), commenced three civil proceedings, alleging that the MMAR regulations, in conjunction with prohibitions specified in the CDSA, violated their rights to liberty and security of the person as guaranteed by s. 7 of the Charter.

The Ontario Superior Court, per Lederman, J., in a decision reported [2003] O.T.C. 10, rejected Turmel's argument that the criminalization of the possession of marihuana violated the right to life of all persons. He held, however, that the MMAR violated the applicants' (except for Turmel's) right to liberty and their right to security of the person. In considering whether those threshold violations were in accord with the principles of fundamental justice, he focused on two issues: the eligibility conditions set by the MMAR (the eligibility issue); and the source of supply for those who did qualify for a medical exemption (the supply issue). Lederman, J., concluded that the eligibility process was not inconsistent with the principles of fundamental justice; however, the absence of a legal supply of marihuana for those persons who were entitled to possess marijuana under the MMAR forcing them to use black market sources offended basic tenets of the legal system and was inconsistent with the principles of fundamental justice. He further held that the infringement was not saved by s. 1. In the result, he declared the entire MMAR unconstitutional, but suspended the declaration for six months. The Government of Canada appealed the ruling on the supply issue and the Hitzig applicants cross-appealed the ruling on the eligibility issue. Parker, Turmel and Paquette appealed, alleging that Lederman, J., failed to address their claim that the criminal prohibition of the possession of marihuana amounted to a "genocidal violation" of the right to life found in s. 7. They also argued, having found that the MMAR were constitutionally inadequate, that Lederman J. should have declared s. 4 of the CDSA to be of no force and effect in accordance with the court's decision in R. v. Parker.

The Ontario Court of Appeal dismissed the Government's appeal and allowed the cross-appeal of the Hitzig applicants, but only in one specific respect. The court held that the scheme of medical exemption in the MMAR deprived those who needed to take marihuana for medical purposes of the right to liberty and security of the person contrary to s. 7 of the Charter. The absence of a legal supply of marihuana for people entitled to possess and use it under the MMAR (i.e., a scheme that depended on an illicit source of supply) was inconsistent with the principles of fundamental justice. The court held, however, that the eligibility requirements were not contrary to the principles of fundamental justice, except in one respect (i.e., the requirement that certain individuals obtain the approval of two specialists). The court held that the offensive aspects of the MMAR could not be justified under s. 1 of the Charter. As a remedy, the court declared the requirement for a second specialist as found in s. 4(2)(c) and 7 of the MMAR to be of no force and effect. With respect to the supply issue, the court declared ss. 34(2), 41(b) and 54 of the MMAR to be invalid, which would have the effect of removing sufficient barriers to supply that persons entitled to use marihuana for medicinal purposes would be reasonably able to meet their medical needs from licit sources. As a result, the MMAR as modified would become a constitutionally sound medical exemption to the marihuana prohibition in s. 4 of the CDSA. The court refused to suspend its declaration of invalidity. The court dismissed the Turmel, Parker and Paquette appeals.

Civil Rights - Topic 660.1

Liberty - Limitations on - Possession of a narcotic (incl. for purpose of trafficking, medicinal use, etc.) - [See Narcotic Control - Topic 6 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Narcotic Control - Topic 6 ].

Civil Rights - Topic 1396.1

Security of the person - Health care (incl. mental health) - Medicinal use of marijuana - [See Narcotic Control - Topic 6 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Narcotic Control - Topic 6 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See Narcotic Control - Topic 6 ].

Narcotic Control - Topic 6

General - Legislation - Exemptions - The Marihuana Medical Access Regulations (MMAR) enacted under the Controlled Drugs and Substances Act (CDSA) provided a medical exemption from conviction for possession of marihuana - The Ontario Court of Appeal held that the MMAR constituted a scheme of medical exemption which deprived those who needed medicinal marihuana of their rights to liberty and security of the person (Charter, s. 7) - Further, the absence of a legal supply of marihuana for qualifying individuals (i.e., a scheme which depended on illicit black market sources) was inconsistent with the principles of fundamental justice - The court held, however, that the stringent eligibility requirements were not contrary to the principles of fundamental justice, except in one respect (i.e., the requirement that certain individuals obtain the approval of two specialists) - The court held that the offensive aspects of the MMAR could not be justified under s. 1 of the Charter - As a remedy, the court declared the requirement for a second specialist and certain provisions which created barriers to licit supplies of marihuana to be of no force and effect such that the MMAR as modified would become a constitutionally sound medical exemption to the marihuana prohibition in s. 4 of the CDSA - The court refused to suspend its declaration of invalidity.

Cases Noticed:

R. v. Parker (T.) (2000), 135 O.A.C. 1; 146 C.C.C.(3d) 193 (C.A.), refd to. [para. 1].

R. v. Clay (C.J.) (2000), 135 O.A.C. 66; 146 C.C.C.(3d) 276 (C.A.), refd to. [para. 12, footnote 4].

R. v. Malmo-Levine (D.) et al. (2000), 138 B.C.A.C. 218; 206 A.P.R. 218; 145 C.C.C.(3d) 225 (C.A.), refd to. [para. 12, footnote 4].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para. 30].

Wakeford v. Canada (2002), 155 O.A.C. 78; 58 O.R.(3d) 65 (C.A.), leave to appeal dismissed (2002), 305 N.R. 397 (S.C.C.), refd to. [para. 34, footnote 7].

Child and Family Services of Winnipeg Central v. K.L.W., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161, refd to. [para. 75].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161; 135 C.C.C.(3d) 257, refd to. [para. 75].

R. v. Malmo-Levine (D.) et al. (2000), 138 B.C.A.C. 218; 226 W.A.C. 218; 145 C.C.C.(3d) 225 (C.A.), refd to. [para. 75].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 190 D.L.R.(4th) 513; 23 Admin. L.R.(3d) 175, refd to. [para. 76].

Gosselin v . Québec (Procureur général) (2002), 298 N.R. 1 (S.C.C.), refd to. [para. 76].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 31 C.R.R. 1; 37 C.C.C.(3d) 449; 62 C.R.(3d) 1, refd to. [para. 78].

R. v. Clay (C.J.) (2000), 135 O.A.C. 66; 146 C.C.C.(3d) 276 (C.A.), leave to appeal granted (2001), 268 N.R. 394; 149 O.A.C. 199 (S.C.C.), refd to. [para. 81].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1; 24 C.R.(4th) 281, refd to. [para. 95].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 111].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203; 161 D.L.R.(4th) 385, refd to. [para. 112].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83; 19 D.L.R.(4th) 1; [1985] 4 W.W.R. 385, refd to. [para. 112].

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. l; 95 A.P.R. 1; 125 D.L.R.(3d) 1, refd to. [para. 112].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201; 133 C.C.C.(3d) 257; 24 C.R.(5th) 365, refd to. [para. 112].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173; [1989] 1 W.W.R. 577; 44 C.C.C.(3d) 513; 67 C.R.(3d) 1, refd to. [para. 114].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 119].

R. v. Pan (R.W.); R. v. Sawyer (B.) (1999), 120 O.A.C. 1; 134 C.C.C.(3d) 1 (C.A.), refd to. [para. 119].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1; 45 C.C.C.(3d) 57; [1989] 1 W.W.R. 97; 66 C.R.(3d) 97; 55 D.L.R.(4th) 481, refd to. [para. 120].

R. v. Krieger (G.W.) (2000), 307 A.R. 349; 225 D.L.R.(4th) 164 (Q.B.), affd. (2002), 327 A.R. 88; 225 D.L.R.(4th) 183 (C.A.), refd to. [para. 122].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243; 80 C.C.C.(3d) 492; 20 C.R.(4th) 57; 11 Admin. L.R.(2d) 1; 14 C.R.R.(2d) 234, refd to. [para. 133].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1; 92 C.L.L.C. 14,036; 10 C.R.R.(2d) 1, refd to. [para. 167].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 74].

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 4 [para. 1 et seq.].

Controlled Drugs and Substances Act Regulations (Can.), Marihuana Medical Access Regulations, generally [para. 44]; sect. 4(2)(c), sect. 7 [para. 159]; sect. 34(2), sect. 41(b), sect. 54 [para. 165].

Marihuana Medical Access Regulations - see Controlled Drugs and Substances Act Regulations (Can.).

Counsel:

Alan Young, Paul Burstein and Leora R. Shemesh, for the respondents/appellants in cross-appeal;

Croft Michaelson, Christopher Leafloor and Vanita Goela, for Her Majesty The Queen, the appellant/respondent in cross-appeal;

Terrance Parker, in person;

John C. Turmel, in person and Marc J.J. Paquette, submissions in writing.

This appeal was heard on July 29, 30 and 31, 2003, before Doherty, Goudge and Simmons, JJ.A., of the Ontario Court of Appeal. The following decision of the court was released on October 7, 2003.