R. v. Parker (T.), (2000) 135 O.A.C. 1 (CA)

• Judge: Catzman, Charron and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 31, 2000
• Jurisdiction: Ontario
• Citations: (2000), 135 O.A.C. 1 (CA);2000 CanLII 5762 (ON CA);2000 CanLII 5762 (NS CA);49 OR (3d) 481;188 DLR (4th) 385;146 CCC (3d) 193;37 CR (5th) 97;[2000] OJ No 2787 (QL);135 OAC 1;47 WCB (2d) 116;75 CRR (2d) 233

R. v. Parker (T.) (2000), 135 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. JL.070

Her Majesty the Queen (appellant) v. Terrance Parker (respondent)

(C28732)

Indexed As: R. v. Parker (T.)

Ontario Court of Appeal

Catzman, Charron and Rosenberg, JJ.A.

July 31, 2000.

Summary:

Parker suffered from a very severe form of epilepsy since childhood. For close to 40 years he experienced frequent, serious and potentially life-threatening seizures. Surgery for the problem was a failure and conven­tional medication only moderately successful. He found that by smoking marijuana he could substantially reduce the incidence of seizures. Since he had no legal source of marijuana, he grew his own. On two occa­sions, the police searched his home and seized the marijuana. He was first charged with cultivating marijuana under the Narcotic Control Act. By the time of the second investigation, that Act had been repealed and he was charged with possession of marijuana under the new Controlled Drugs and Sub­stances Act. Parker alleged that the prohibi­tion on the cultivation and possession of marijuana in the two statutes was uncon­stitutional. Specifically, Parker claimed that the legislation infringed his rights as guaran­teed by s. 7 of the Charter because he faced the threat of imprisonment in order to keep his health.

The Ontario Court (General Division) concluded that Parker required marijuana to control his epilepsy and that the prohibition against marijuana infringed Parker's rights under s. 7 of the Charter. The trial judge stayed the cultivation and possession charges against Parker. Further, the trial judge read into the legislation an exemption for persons possessing or cultivating marijuana for their "personal medically approved use". The Crown appealed, arguing that the trial judge made a factual error in finding that Parker required marijuana for medical purposes. The Crown also argued that the legislation was valid and that there were legal means by which Parker could obtain marijuana. The Crown argued, inter alia, that Parker could have applied for a special exemption from the Minister of Health under s. 56 of the Controlled Drugs and Substances Act. Fur­ther, the Crown argued that the remedy granted by the trial judge was wrong and he should not have, in effect, amended the legislation, which was a matter for Par­liament.

The Ontario Court of Appeal held that the trial judge was right in finding that Parker needed marijuana to control the symptoms of his epilepsy. The court held that the prohibi­tion on the cultivation and possession of marijuana was unconstitutional. Forcing Parker to choose between his health and imprisonment violated his right to liberty and security of the person and those violations did not accord with the principles of funda­mental justice. The court held that the possi­bility of an exemption under s. 56 of the Controlled Drugs and Substances Act depen­dent upon the unfettered and unstructured discretion of the Minister of Health was not consistent with the principles of fundamental justice. Accordingly, the court upheld the trial judge's decision to stay the charges against Parker. The court, however, dis­agreed with the remedy of reading in a medical use exemption. Rather, the court declared the prohibition on the possession of marijuana in the Controlled Drugs and Sub­stances Act to be of no force and effect, but suspended the declaration of invalidity for a year. Parker, however, was entitled to a personal exemption from the possession offence under the Controlled Drugs and Substances Act for possessing marijuana for his medical needs. Since the Narcotic Con­trol Act had already been repealed by Par­liament, the court found it unnecessary to hold it unconstitutional. If necessary, the court would have found that Parker was entitled to a personal exemption from the cultivation offence for his medical needs.

Civil Rights - Topic 660

Liberty - Limitations on - Cultivation of marijuana - [See first Civil Rights - Topic 660.1 and Narcotic Control - Topic 6 ].

Civil Rights - Topic 660.1

Liberty - Limitations on - Possession of a narcotic - Parker, who smoked marijuana to control his epileptic seizures, was charged with cultivating marijuana (Nar­cotic Control Act) and possession (Con­trolled Drugs and Substances Act (CDSA)) - The Ontario Court of Appeal held that the prohibitions on the cultivation and possession of marijuana were uncon­stitutional - Forcing Parker to choose between his health and imprisonment violated his right to liberty and security of the person contrary to the principles of fundamental justice (Charter, s. 7) - The court declared the prohibition on the pos­session of marijuana to be of no force and effect, but suspended the declaration of invalidity for a year - Parker was granted a personal exemption from the possession offence under the CDSA - Since the Nar­cotic Control Act was repealed, it was unnecessary to hold it unconstitutional - Had the cultivation provision under the CDSA been before the court it would have been found invalid - See paragraphs 1 to 210.

Civil Rights - Topic 660.1

Liberty - Limitations on - Possession of a narcotic - [See Narcotic Control - Topic 6 ].

Civil Rights - Topic 681

Liberty - Principles of fundamental justice - General - The Ontario Court of Appeal listed the principles of fundamental justice applicable where the criminal law inter­sects with medical treatment - See para­graph 117.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See first Civil Rights - Topic 660.1 and Nar­cotic Control - Topic 6 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - Parker, who smoked marijuana to control his epileptic seizures, was charged with cultivating marijuana (Narcotic Control Act) and possession (Controlled Drugs and Substances Act) - He appealed his convic­tions alleging that the prohibitions violated s. 7 of the Charter - The Ontario Court of Appeal held that the prohibitions on the cultivation and possession of marijuana were overly broad in that they failed to include an exemption for medical use - See paragraphs 143 to 153.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - Parker, who smoked marijuana to control his epileptic seizures, was charged with cul­tivating marijuana (Narcotic Control Act) and possession (Controlled Drugs and Substances Act (CDSA)) - The Ontario Court of Appeal held that the prohibitions on the cultivation and possession of mari­juana were unconstitutional as being con­trary to s. 7 of the Charter - Further, the process under s. 56 of the CDSA for ob­taining a special exemption did not accord with the principles of fundamental justice -The court held that the violations of Parker's rights could not be saved by s. 1 of the Charter - See paragraphs 191 to 194.

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Conferring of rights - Reading in - Parker, who smoked marijuana to control his epileptic seizures, was charged with cultivating marijuana (Narcotic Control Act) and possession (Controlled Drugs and Sub­stances Act (CDSA)) - A trial judge de­clared that the prohibitions were uncon­stitutional and as a remedy read in an exemption for persons possessing or culti­vating marijuana for their personal medi­cally approved use - The Ontario Court of Appeal held that this was not an ap­propriate case for reading in - Rather, the appropriate remedy was to strike down the prohibition on simple possession of mariju­ana in s. 4 of the CDSA - The court sus­pended the declaration of invalidity for one year - Parker was granted a constitutional exemption during the period of suspended invalidity - See paragraphs 195 to 209.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See Civil Rights - Topic 8380.8 ].

Civil Rights - Topic 8380.8

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Statute deemed inapplicable (incl. doctrine of constitutional exemption) - Parker, who smoked marijuana to control his epileptic seizures, was charged with cultivating marijuana (Narcotic Control Act) and possession (Controlled Drugs and Sub­stances Act (CDSA)) - The Ontario Court of Appeal held that the prohibitions on the cultivation and possession of marijuana were unconstitutional - The court declared the prohibition on the possession of mari­juana to be of no force and effect, but suspended the declaration of invalidity for a year - The court, however, granted Parker, a personal exemption from the possession offence under the CDSA for possessing marijuana for his medical needs - See paragraphs 1 to 210.

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - The Ontario Court of Appeal discussed the relationship between s. 1 and s. 7 of the Charter - See para­graphs 118 to 121.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues -Parker, who smoked marijuana to control his epileptic seizures, was charged with cultivating marijuana (Narcotic Control Act) and possession (Controlled Drugs and Substances Act) - Parker argued that the prohibitions on the cultivation and posses­sion of marijuana were unconstitutional as being contrary to s. 7 of the Charter - The Ontario Court of Appeal stated that it was open to Parker to challenge the validity of the marijuana prohibition not only on the basis that it infringed his s. 7 rights be­cause of his particular illness, but that it also infringed the rights of others suffering other illnesses - See paragraphs 78 to 80.

Constitutional Law - Topic 2507.1

Determination of validity of statutes or acts - General principles - Reading in - [See Civil Rights - Topic 8380.1 ].

Constitutional Law - Topic 2507.2

Determination of validity of statutes or acts - General principles - Declaration of in­validity - [See Civil Rights - Topic 8380.1 ].

Narcotic Control - Topic 6

General - Legislation - Exemptions - Parker, who smoked marijuana to control his epileptic seizures, was charged with cultivating marijuana (Narcotic Control Act) and possession (Controlled Drugs and Substances Act (CDSA)) - Parker argued that the prohibitions on the cultivation and possession of marijuana were un­constitutional as being contrary to s. 7 of the Charter - The Crown argued, inter alia, that there were legal means of obtaining marijuana such as obtaining a special exemption from the Minister of Health under s. 56 of the CDSA - The Ontario Court of Appeal held that notwithstanding the theo­retical availability of the s. 56 process, the marijuana prohibition did not accord with the principles of fundamental justice - The possibility of an exemption under s. 56 dependent upon the unfettered and un­structured discretion of the Minister of Health was not consistent with the prin­ciples of fundamental justice - See para­graphs 10, 166 to 191.

Narcotic Control - Topic 574

Offences - Possession - General - [See first Civil Rights - Topic 660.1 ].

Narcotic Control - Topic 831

Offences - Cultivation or production - General - [See first Civil Rights - Topic 660.1 ].

Cases Noticed:

R. v. Clay (C.J.) (2000), 135 O.A.C. 66 (C.A.), refd to. [para. 1].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 10].

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, refd to. [para. 10].

Ford v. Quebec (Attorney General) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69; 54 D.L.R.(4th) 577, refd to. [para. 36, foot­note 1].

R. v. Caine, [1998] B.C.J. No. 885 (Prov. Ct.), refd to. [para. 40, footnote 3].

R. v. Malmo-Levine (D.) et al. (2000), 138 B.C.A.C. 218; 226 W.A.C. 218 (C.A.), refd to. [para. 40, footnote 3].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 78].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 82].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V. (1999), 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25; 177 D.L.R.(4th) 124 (S.C.C.), refd to. [para. 85].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 89].

R.B. v. Children's Aid Society of Metro­politan Toronto - see Sheena B., Re.

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 89].

Prostitution Reference - see Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code.

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V. (1997), 171 N.B.R.(2d) 185; 437 A.P.R. 185; 145 D.L.R.(4th) 349 (C.A.), refd to. [para. 91].

R. v. Monney (I.), [1999] 1 S.C.R. 652; 237 N.R. 157; 119 O.A.C. 272; 133 C.C.C.(3d) 129, refd to. [para. 94].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 94].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), refd to. [para. 102].

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. 112].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 113].

R. v. Pan (R.W.) (1999), 120 O.A.C. 1; 134 C.C.C.(3d) 1 (C.A.), leave to appeal granted (2000), 252 N.R. 198 (S.C.C.), refd to. [para. 113, footnote 7].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [para. 116, footnote 8].

R. v. Mills (B.J.) (2000), 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201; 139 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 118].

R. v. Hauser, [1979] 1 S.C.R. 984; 26 N.R. 541; 16 A.R. 91; 46 C.C.C.(2d) 481, refd to. [para. 128].

R. v. Hamon (R.) (1993), 58 Q.A.C. 241; 85 C.C.C.(3d) 490 (C.A.), refd to. [para. 134].

Malette v. Shulman (1990), 37 O.A.C. 281; 67 D.L.R.(4th) 321 (C.A.), refd to. [para. 135].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 136].

Airedale National Health Service Trust v. Bland, [1993] A.C. 789; 149 N.R. 321 (H.L.), refd to. [para. 138].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 61 C.C.C.(3d) 1, refd to. [para. 144, footnote 9].

Canada (Attorney General) v. Ontario (Attorney General) et al., [1937] A.C. 326 (P.C.), refd to. [para. 147, footnote 11].

R. v. Varga (E.) (1994), 72 O.A.C. 141; 90 C.C.C.(3d) 484 (C.A.), refd to. [para. 169].

Wakeford v. Canada (1998), 76 O.T.C. 1; 166 D.L.R.(4th) 131 (Sup. Ct.), refd to. [para. 170].

Wakeford v. Canada (1999), 96 O.T.C. 108; 173 D.L.R.(4th) 726 (Sup. Ct.), refd to. [para. 170].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 180].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 186].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270; 61 D.L.R.(4th) 385, refd to. [para. 189, footnote 20].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161; 94 C.C.C.(3d) 481, refd to. [para. 194].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 198].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 198].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 201].

Statutes Noticed:

California Compassionate Use Act of 1996, generally [para. 140, Appendix I].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 118]; sect. 7 [para. 76].

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 4(1) [para. 13]; sect. 56 [para. 166].

Hawaii (State), Medical Use of Marihuana Act, generally [Appendix II].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 4(2), sect. 6(1) [para. 13].

United Nations, International Covenant of Economic, Social and Cultural Rights (1976), 993 U.N.T.S. 3, article 12 [para. 148].

United Nations, Single Convention on Narcotic Drugs, generally [para. 127].

Authors and Works Noticed:

House of Lords Select Committee on Science and Technology, Cannabis: The Scientific and Medical Evidence (1998), generally [para. 125]; para. 8.7 [para. 142].

Counsel:

Kevin R. Wilson, for the appellant;

Richard P. Macklin and Aaron B. Harnett, for the respondent;

Ed Morgan, for the intervener.

This appeal was heard on October 6 to 8, 1999, by Catzman, Charron and Rosenberg, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Rosenberg, J.A., and released on July 31, 2000.