R. v. Voss (R.) et al., 2013 ABCA 38

• Judge: Slatter, Rowbotham and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 30, 2013
• Citations: 2013 ABCA 38;(2013), 542 A.R. 202

R. v. Voss (R.) (2013), 542 A.R. 202; 566 W.A.C. 202 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.012

Her Majesty the Queen (respondent) v. Roman Voss and Elisha McDermott (appellants)

(1003-0316-A; 1003-0317-A; 2013 ABCA 38)

Indexed As: R. v. Voss (R.) et al.

Alberta Court of Appeal

Slatter, Rowbotham and O'Ferrall, JJ.A.

February 4, 2013.

Summary:

The accused appealed their convictions for possession and production of marijuana.

The Alberta Court of Appeal dismissed the appeals.

Civil Rights - Topic 1396.1

Security of the person - Health care (incl. mental health) - Medicinal use of marijuana - The accused (Voss and McDermott) appealed their convictions for possession and production of marijuana, asserting that the Controlled Drugs and Substances Act impaired their constitutional rights because the process for applying for a medical exemption was bureaucratic, frustrating, complex, plagued by delay, and inconvenient - They asserted that the process was inadequate because of both supply and access defects - The Alberta Court of Appeal stated that "Apart altogether from the lack of any adequate evidentiary support for these complaints, and the live question of whether the appellants have standing to challenge a regime they never tried to use, these arguments are without merit. The Charter is there to protect the fundamental rights of Canadians. Mere administrative inconvenience, or the wish to be free from government regulation, does not entitle the appellants to pick and choose which statutes will be binding on them. Further, the fact that the appellant McDermott subsequently obtained a licence shows that the bureaucratic obstacles were not insurmountable." - See paragraph 7.

Narcotic Control - Topic 6

General - Legislation - Exemptions - [See Civil Rights - Topic 1396.1 ].

Narcotic Control - Topic 6

General - Legislation - Exemptions - The accused appealed their convictions for possession and production of marijuana, asserting that because R. v. Parker (T.) (2000 Ont. C.A.) and R. v. Krieger (G.W.) (2003 Alta. C.A.) had found constitutional flaws in the medical marijuana provisions, Parliament was required to re-enact the provisions of the Controlled Drugs and Substances Act in order to bring them back into force - The accused asserted that under s. 2(2) of the federal Interpretation Act, an enactment that expired or "otherwise ceased to have effect" was deemed to have been repealed - They asserted that the effect of Parker and Krieger was to effectively repeal those portions of the Act that created the offence of possessing marijuana and the federal government's passage of the Marihuana Medical Access Regulations in 2003 had not revived the provisions (Parker and Krieger had suspended the declaration of invalidity for one year to allow Parliament to respond) - Hitzig et al. v. Canada (2003 Ont. C.A.) found some continuing problems with the Regulations, but rather than striking out the entire regulatory scheme, struck down the offending provisions - The Alberta Court of Appeal rejected the argument - The finding of constitutional invalidity because of the inadequacies in the Regulations did not result in a repeal of the Act - The Act might have been unenforceable in some provinces for a short period with respect to those with relevant medical problems, but when the identified inadequacies were remedied by the new Regulations, any constitutional problems disappeared - It was unnecessary for Parliament to re-enact the Act - See paragraphs 3 to 5.

Narcotic Control - Topic 6

General - Legislation - Exemptions - The accused appealed their convictions for possession and production of marijuana, relying on Sfetkopoulos et al. v. Canada (Attorney General) (2008 F.C.A.) and R. v. Beren (M.D.) et al. (2009 B.C.S.C.) which held a provision of the Marihuana Medical Access Regulations to be unconstitutional - That provision authorized only one licensed supplier of medical marijuana in Canada - The accused asserted that if one aspect of the regulatory regime was constitutionally inadequate, the entire regime failed because the Charter required a "workable exemption" - They asserted that as there was no effective medical exemption, the entire offence was unenforceable against them - The Alberta Court of Appeal held that the argument was without merit as it depended on a misunderstanding of the limited effect of Sfetkopoulos and Beren - Severing offending provisions did not affect the validity of the entire regulatory regime - See paragraph 6.

Narcotic Control - Topic 6

General - Legislation - Exemptions - The accused (Voss and McDermott) appealed their convictions for possession and production of marijuana, asserting that it was difficult to find a physician that would support their personal assertions that McDermott was in need of medical marijuana and that generally it was burdensome to obtain a medical exemption - They asserted that because few physicians wanted to participate in the process, they had to only assert medical need to obtain a constitutional exemption - The Alberta Court of Appeal stated that "This, however, is not the law. In [R. v. Malmo-Levine (D.) et al.] the Supreme Court of Canada confirmed that there is no free standing Charter right to a lifestyle involving the recreational consumption of marihuana, nor is there any right to self-medicate. Whatever the difficulties, the appellant McDermott was ultimately able to find a physician to support her application. The provisions of the [Controlled Drugs and Substances Act] are valid, and the onus is on the appellants to prove that they are entitled to an exemption. That they can do by successfully applying for a permit under the Regulations, or providing a court with sufficient facts and valid legal arguments to show that they are otherwise entitled to an exemption. The appellants have failed to do so." - See paragraph 8.

Narcotic Control - Topic 574

Offences - Possession - General - [See Civil Rights - Topic 1396.1 and second, third and fourth Narcotic Control - Topic 6 ].

Narcotic Control - Topic 831

Offences - Cultivation or production - General - [See Civil Rights - Topic 1396.1 and second, third and fourth Narcotic Control - Topic 6 ].

Statutes - Topic 6902

Operation and effect - Commencement, duration and repeal - Repeal - What constitutes a repeal - [See second Narcotic Control - Topic 6 ].

Cases Noticed:

R. v. Parker (T.) (2000), 135 O.A.C. 1; 146 C.C.C.(3d) 193; 49 O.R.(3d) 481 (C.A.), refd to. [para. 3].

R. v. Krieger (G.W.) (2002), 327 A.R. 88; 296 W.A.C. 88; 18 Alta. L.R.(4th) 227; 2003 ABCA 85, leave to appeal refused [2003] 3 S.C.R. viii; 327 N.R. 390; 361 A.R. 176; 339 W.A.C. 176, refd to. [para. 3].

Hitzig et al. v. Canada (2003), 177 O.A.C. 321; 231 D.L.R.(4th) 104; 177 C.C.C.(3d) 449 (C.A.), leave to appeal refused [2004] 1 S.C.R. x; 327 N.R. 390, refd to. [para. 3].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 5].

Kubby v. R. et al. (2005), 220 B.C.A.C. 246; 362 W.A.C. 246; 2005 BCCA 640, refd to. [para. 5].

R. v. LeClair (T.T.) (2010), 364 N.B.R.(2d) 106; 937 A.P.R. 106; 2010 NBQB 237, leave to appeal refused (2012), 391 N.B.R.(2d) 399 (C.A.); 1013 A.P.R. 399; 2012 NBCA 51, leave to appeal refused 2013 SCC 34936, refd to. [para. 5].

Sfetkopoulos et al. v. Canada (Attorney General) (2008), 382 N.R. 71; 2008 FCA 328, refd to. [para. 6].

R. v. Beren (M.D.) et al., [2009] B.C.T.C. Uned. 429; 192 C.R.R.(2d) 79; 2009 BCSC 429, refd to. [para. 6].

R. v. Parker (T.) (2011), 286 O.A.C. 219; 283 C.C.C.(3d) 43; 2011 ONCA 819, leave to appeal refused (2012), 440 N.R. 388; 2012 SCC 34756, refd to. [para. 6].

Counsel:

M.B. Dion, for the respondent;

Roman Voss and Elisha McDermott appeared in person.

These appeals were heard on January 30, 2013, by Slatter, Rowbotham and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the court at Edmonton, Alberta on February 4, 2013.