HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marko Ivancicevic
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Consumer Services and the Alcohol and Gaming Commission of Ontario
Respondents
DECISION
Adjudicator: Brian Eyolfson
Indexed As: Ivancicevic v. Ontario (Consumer Services)
APPEARANCES BY
Marko Ivancicevic, Applicant ) Natasha Persaud and
) M. Kate Stephenson, Counsel
Her Majesty the Queen in Right of Ontario )
as represented by the Minister of Consumer ) S. Zachary Green, Counsel
Services and the Alcohol and Gaming )
Commission of Ontario, Respondents )
INTRODUCTION
1The applicant, Marko Ivancicevic, has an Authorization to Possess (an “ATP”) marijuana pursuant to the federal government’s Marihuana Medical Access Regulations, SOR/2001-227 (the “MMARs”). He filed an Application on July 17, 2008, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in the area of services. The applicant challenges s. 45(2) of Regulation 719, Licences to Sell Liquor, R.R.O. 1990, (the “challenged provision”), under the Liquor Licence Act, R.S.O. 1990, c. L.19 (the “LLA”), which prohibits him from possessing or using marijuana in licensed establishments. The applicant seeks an order permitting him to smoke marijuana on the uncovered patios of licensed premises where tobacco smoking is permitted by law.
2The respondents submit that the challenged provision does not discriminate against the applicant for the following reasons: (1) the challenged provision does not deny equal treatment with respect to services to the applicant; (2) any differential treatment imposed on the applicant by the challenged provision is not discriminatory in a substantive sense; and (3) in any event, the challenged provision is a reasonable and bona fide health and safety requirement within the meaning of section 11 of the Code that protects the health and well-being of all persons in licensed premises.
3In his Application, the applicant named the Alcohol and Gaming Commission of Ontario (the “AGCO”) and Her Majesty the Queen in Right of Ontario as represented by the Minister of Consumer and Business Services as respondents. In their factum, the respondents clarified that, on November 18, 2009, ministerial responsibility for the LLA was transferred to the Minister of Consumer Services and submit that the Application should be amended. The style of cause has been amended accordingly.
Statutory context
4Section 45(2) of Regulation 719 under the LLA provides as follows:
45(2) The licence holder shall not permit a person to hold, offer for sale, sell, distribute or consume a controlled substance as defined in the Controlled Drugs and Substances Act (Canada) on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder. [emphasis added]
5Section 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”), defines a “controlled substance” in reference to five schedules, of which Schedule II includes “cannabis, its preparations, derivatives and similar synthetic preparations…” Section 4 of the CDSA prohibits possession of a controlled substance; however, eligible persons may be issued ATPs for dried marijuana, for medical purposes, pursuant to the federal MMARs. The MMARs are accompanied by a Regulatory Impact Analysis Statement (“RIAS”).
6Section 9(1) of the Smoke-Free Ontario Act, S.O. 1994, c. 10 (the “SFOA”), prohibits smoking “in any enclosed public place or enclosed workplace.” Section 13(2)(3) of the General Regulation, O. Reg. 48/06, under the SFOA, prescribes that smoking is prohibited on restaurant or bar patios if the “area is covered, in whole or in part, by a physical barrier of any size, whether temporary or permanent, that is capable of excluding rain or impeding airflow, or both.” Smoking tobacco is therefore only permitted on restaurant or bar patios that are totally uncovered.
WITNESSES
7The applicant gave evidence at the hearing. Alison Myrden, Derek Pedro, and Gerald Parker, who also have ATPs, testified on the applicant’s behalf, providing some additional general context to the Application. Daniel Alakas, from the AGCO, testified on behalf of the respondents. In addition, Drs. Mark Ware and Kenneth Ferslew testified as expert witnesses on behalf of the applicant and respondents, respectively.
EVIDENCE
The applicant
8The applicant testified that he was 28 years old and living in Toronto. He was born with several conditions, including club foot and the absence of a bone in his leg. In relation to this, he has had ten surgeries, including leg lengthening surgeries. His left ankle is fused and he has screws and pins throughout his leg. He also has scoliosis and Irritable Bowel Syndrome (“IBS”).
9The applicant testified that his scoliosis causes a severe amount of pain that comes and goes. He can be fine for a day, or several days, and then have a very bad day where he cannot get out of bed. With respect to his IBS, he testified that it is like having a “knot” in his stomach a lot of days, making it difficult to eat, especially in the mornings. Stress makes his condition worse.
10The applicant explained that he was prescribed various medications for pain, including codeine, morphine, Demerol, and eventually Percocet. He testified that these medications would help ease pain, but had negative effects; as he put it, they essentially left him wanting to stay on the couch all day and do nothing. His quality of life was greatly affected. With Demerol, he was not able to function. His ability to think was highly distorted, he had difficulty walking, and he was not able to go “hang out” with friends. He described it as a negative experience and testified that he did not want to be in that state. Also, as he got older, he grew tolerant to some medications, and he became allergic to codeine.
11The applicant testified that when he was about 16 years old, after his first surgery, he tried marijuana for recreational purposes. After the first couple of times, he started to realize that it was easing the pain in his leg. He also testified that, with respect to his IBS, marijuana helps relieve the “knots” in his stomach and helps him get up in the morning. He testified that if he was not using marijuana, his life would be “pretty rough” and he could not see himself going out much.
12The applicant first talked to his doctor about obtaining an ATP in 2005. He testified that it took him a while to get the courage to bring it up with his doctor; however, he was charged with possession of cannabis, so he spoke to his doctor and they proceeded with the application.
13The applicant provided copies of applications for ATPs under the MMARs completed by his doctor in 2007, 2008, and 2009. His doctor was required to declare that conventional treatments have been tried or considered, and have been found to be ineffective or medically inappropriate for the treatment of the applicant, and that a specialist has assessed the applicant’s case, concurs that conventional treatments are ineffective or medically inappropriate, and is aware that marijuana is being considered.
14The applicant testified that he received his first ATP in 2008, and explained that it has to be renewed every year. The applicant provided a copy of a card he received, with his photograph and personal information, including his home address, confirming that he has a valid ATP under the MMARs. The card also indicates that the applicant has a licence to produce marijuana. The card includes maximum quantities in terms of the number of marijuana plants the applicant can have indoors, the amount of marijuana the applicant can store indoors, and the amount he can possess at any time.
15The applicant testified that he uses marijuana when it is required, and wherever he is at that point in time. He explained that if he has stomach pains and it is getting to a point where he cannot handle it, he will “light one up”, if he is outside walking around, or sitting in a park, if there are no children around. He explained that he does not use marijuana in front of children, out of consideration for others, and because there is still a stigma attached to cannabis use. Also, he is not seeking to smoke cannabis indoors because he has an understanding and respect for other people. He is seeking to smoke it outdoors because the risk of harm is dramatically reduced.
16The applicant testified that his exemption is for 14 grams a day, and, generally, he has about that amount each day. Cigarettes are half a gram to a gram or more, and a gram and a half would generally be the maximum. On average, he smokes once every hour or two. On a good day, he could consume four or five cigarettes, but he is not able to predict when he will need that many. The only consistency is that mornings are worse and he has to consume at least two or three to “get on track.”
17The applicant testified that it takes him 10 or 12 minutes to consume a cigarette of about a gram. If his pain is not as extreme, where he does not need to consume a full joint, then he probably only consumes for three to five minutes. At times, he may only need a third or a quarter of a joint; other times, he may need a full joint or two, thereby doubling the amount he consumes and the time it takes. He testified that if he has to smoke two or more “back to back”, then, realistically, he is in no position to be out in the community. The only time he would be consuming that much away from home is if he had no choice but to be where he is.
18The applicant was asked how much he would smoke if he was on a restaurant patio for four hours enjoying the company of friends. He testified, on average, four to six at the most; maybe one an hour, so four within a four-hour time span.
19He testified that if he feels he needs it, but cannot have it, and has a pain, it gets worse. With his stomach, it “knots up harder” as time goes on and gets worse.
20The applicant testified that if he is outside a venue, because of the regulation, he goes outside of the area, around the corner, or just outside the front where the entrance is. When he does, he gets varying amounts and types of responses, from somebody just smiling and nodding, to people who give him a disgusting look like he is a criminal.
21The applicant also testified that he has run into several situations where he is consuming and stopped by police but not necessarily harassed. He has provided his exemption and generally communication is good. He testified, they will say, “sorry to bother you”, and, in some situations, “don’t do it out in the open”, and he will try to explain it does not really work that way. Different officers take different stances.
22The applicant described an instance at Ontario Place where he approached a couple of officers and security guards and said that he had a medical exemption. He explained that there was an outside area, probably 150 by 75 feet, with several people in one section, and an area where there was absolutely nobody. He asked if he could go over to that corner and was told “no” for two reasons. The first reason provided was that it was policy and the second was that they serve alcohol and could lose their licence under the LLA. The applicant testified that he tried to explain it was a human rights issue and the person he was speaking to got infuriated when he tried to explain that it was a medical need.
23The applicant was asked about his experiences at licensed premises. He referred to his Reply wherein he provided a non-exhaustive list of 16 locations, primarily in Toronto, where he states he was expressly refused the right to consume his medicine.
24He testified that he went to one establishment for a friend’s birthday. Upon entering, it was noticed that he had cannabis in his possession. He showed his exemption and they said, “that’s fine, no problem”, and let him in. Thirty or 45 minutes later, he needed to consume cannabis because his stomach was giving him problems. He asked the manager in charge if he could consume on the patio. He explained that there was a section with people seated, and another section with nobody. He testified that the manager said he’d love to accommodate him, but they have a liquor licence they have to abide by, and they could potentially be fined, or lose their licence, if someone saw him. The manager told him he could go just outside the door and he would advise people there that he had an exemption and to leave him alone.
25The applicant testified that he went to several concerts at the Rogers Centre. He went to the area where tobacco was being smoked and asked if he could consume marijuana. He was told that it was not allowed, again referring to their liquor licence and their policy. He had to walk around and stay several feet away from the entrance area which is a fairly large area.
26The applicant testified that the Molson Amphitheatre has a policy posted that says there is absolutely no tolerance of marijuana use. The applicant testified that one day, he found out the hard way, when he was out in the field area at the back consuming marijuana. A man threatened to kick him out. The applicant showed him his exemption but he said it did not matter. In the end, they allowed him to stay, but said he could not consume on the grounds, or they would ask him to leave. He left shortly after and missed the main band of the night because he did not want to get into a situation where he had to “defend” or stand there for an hour and debate “what should be”. Instead, he just left. He testified that if he had stayed and not consumed, his symptoms would have become worse. He was having leg and back pain.
27The applicant testified that he experienced the same scenario at four other establishments. At another establishment in Toronto, he had a different experience when he consumed marijuana without asking. Two security guards approached him and one asked, “that’s not what I think it is, is it?” The applicant said, “yes”, and showed them his exemption. He testified that they just kind of laughed, and one said, “it doesn’t mean anything to me.” He was told, “you can’t do that here.” After a couple of minutes, another three security guards arrived and he was surrounded by five, having a debate. He testified that he was a little intimidated and getting stressed out. Eventually, another two or three staff members arrived and he just wanted to get out of the situation. They threatened to call the police. He left the premises and consumed on the sidewalk. He went back in, but about ten minutes later, he was asked to leave.
28At a casino in Niagara Falls, there was a big wide open space and he wanted to go into a section where nobody else was and consume. One staff person said they never dealt with it before. About five minutes went by and he was told they were still trying to track someone down. Another ten minutes went by and a manager came over. The applicant explained there were two people “out there” and he wanted to go out into the corner and consume. The manager said he did not want complaints from customers going out there to enjoy a cigarette. The applicant testified that he tried to explain how he should be a little more accommodating, given the big wide open area with no one there. They spoke for another ten minutes and the manager then took him to an outside common area, not attached to their property, and said he could smoke there.
29The applicant then had an exchange of correspondence with Niagara Casinos, involving a debate about the RIAS. A letter to the applicant from Niagara Casinos, dated April 4, 2008, acknowledges the applicant’s request that “exemptees” be permitted to use medical marijuana on their smoking patios. The letter confirms that Niagara Casinos are not proposing to change their policy, which prohibits the use of marijuana at their properties, but indicates that they respect the rights of individuals under the MMARs to possess and produce marijuana. They state that “[t]hese rights must, however, be balanced with the rights of others, especially as it pertains to the use of marihuana in places where members of the public congregate.” They refer to the RIAS, which they state “sets forth limitations on the rights to possess and produce marihuana for medical purposes.” The portions of the RIAS that they refer to include the following:
The regulatory framework defines what activities are permitted. Since patients will be permitted to possess and produce marihuana it may occur that these activities will be performed where they may conflict with the rights of others. Patients may need to be cautioned to avoid, for example, smoking marihuana in public places, near children or any place where others might be exposed to the second-hand smoke without prior consent. …
Smoking marihuana for medical purposes in a public setting, thereby potentially exposing others to the drug’s effects, is unacceptable. Patients are therefore expected to use common sense when using this drug. The authorization simply allows possession, but does not give patients permission to use marihuana wherever or whenever he/she chooses; the rights of others must also be considered. …
30In response to the Casinos’ April 4, 2008 letter, the applicant wrote to the Casinos’ Director of Security, in part, as follows:
I am glad to know that you have read up on the MMAR, but the unfortunate fact about your email is that the “Regulatory Impact Analysis Statement” is not part of the regulations. It states below the title that, “This statement is not part of the Regulation.”
If the “Regulatory Impact Analysis Statement” were part of the regulations, I would also have to point out that just below the sections that you made reference to, it states “Since the Regulations do not regulate the actual use of the product, Health Canada does not propose to include mandatory restrictions relating to where or when marihuana may be used.”
I understand that the Casino’s allow people that have prescriptions from their Doctors to medicate on their property, so why would medical marijuana exemption holders be discriminated against in this fashion?
If people can inhale tobacco in your designated smoking area, which is legal, why can’t I use a substance that is legal for myself and the many other people who had to get their doctors approval?
31Niagara Casinos replied to the applicant, in part, as follows:
We recognize that the ‘Regulatory Impact Analysis Statement’ (RIAS) is not the ‘Marihuana Medical Access Regulation’ (MMAR) itself, however the RIAS does provide the public and exemptees with guidelines for how to apply the MMAR. The RIAS also clarifies the limits and scope of the MMAR as it relates to the rights of exemptees.
In response to your questions below, an important difference between medical marihuana and other, more conventional prescription medications is that smoking medical marihuana in a pubic place potentially exposes others to the drug effects.
It is not our intention to make medical marihuana exemption holders feel discriminated against. On the contrary, it is our hope that exemption holders recognize the concerns raised in the RIAS and understand that our policy is in the best interests of our patrons as a whole.
32In cross-examination, the applicant was also asked about a document titled “Information you should know about your Personal-Use Production Licence” and if he was aware that this is Health Canada’s position. He agreed, but stated that it is also not part of the regulations. The document contains a section which states as follows:
You are required to abide by all other federal, provincial and municipal legislation applicable to the activities authorized pursuant to this licence. Restrictions include, but are not limited to:
Legislation restricting smoking in public places,
Legislation regulating fire and safety standards,
Legislation regulating zoning and property use,
Policy restrictions regarding the use of the controlled substance in institutions or other private or public facilities.
33With respect to how he thought the law should be changed, the applicant testified that regulations would be acceptable if individuals with ATPs were allowed to produce their exemption “ID” upon entering a place where they know they are going to need to consume marijuana, and were able to smoke where tobacco smokers are able to smoke regularly. He testified that, in the majority of situations, children are not present. In cross-examination, he acknowledged that children are permitted to be on some licensed premises, and testified that he would look at the area around him before smoking.
34The applicant was asked if he had any objection to producing his card if asked, and indicated “yes and no.” He explained that there are two views and one shows his address. He referred to a “criminal element” and testified that he has heard of the theft, or attempted theft, of medical marijuana crops. He explained, therefore, that he has a problem showing people he does not know his address because it identifies his grow location. He suggested that the province should work with the federal government to come up with a card to be used as identification. He was asked if, in the absence of that change, he would object to showing his card, and testified that he always has it ready, and is always more than happy to show it and say why he has it.
35In cross-examination, the applicant testified that if a licensed premises has a patio, but does not allow tobacco smoke, he should be able to smoke marijuana. He testified that he has to use his medication and should have the same right to be able to consume his medication, wherever, the same as anyone else with a prescription, but he is not seeking the right to smoke inside. He does go to bars and restaurants that do not have patios, and he goes outside if he has to medicate.
Alison Myrden
36Ms. Myrden testified that she has multiple sclerosis (MS), and tic douloureux. She took many medications for her conditions, but they were not really effective and had terrible side-effects. She was one of the first persons to obtain a licence for medical marijuana in 2000, but does not have an authorization to produce marijuana. She testified that the effect of marijuana on her symptoms has been “miraculous.” She takes less medication, and does not have the problems associated with “the pills.”
37Ms. Myrden testified that she consumes marijuana, sometimes two or three times per hour, depending on the pain she is experiencing, and the effect is immediate. She consumes about 50 grams of marijuana a day, or roughly 30 cigarettes. She described having “horrible symptoms” when she does not use marijuana.
38When not at home, she medicates anywhere she can. She testified that she is very discreet and usually asks permission, if in public, and finds a place a little away from others. She testified that some try to accommodate her, and others tell her that she might as well leave, as they prefer that she not medicate on their property. Recently, three establishments in Burlington all denied her smoking and wanted her off their property, so she “completely left.” At another establishment, the owner accommodated her by allowing her to smoke where tobacco is smoked.
39Ms. Myrden testified that when she is denied the ability to medicate, she has no choice but to leave the property, otherwise her symptoms are unbearable. She testified that not being able to medicate on licensed premises has made her more of a “shut in”. She finds it is difficult to get out at all, and if she goes to a place where she cannot smoke, she gets worse and has horrible pain. She has to be very careful where she goes because she cannot handle the stress from all the “denials”, so she goes where she has been before because they know her and are very accommodating. She testified that the “denials” make her feel like a “second class” citizen, so it is depressing, and “rips the soul right out” of her. She does not know why people do not understand.
40Ms. Myrden was asked about those who say “just go across the street.” She testified that she thought her exemption was for using her medication where she deems appropriate, and she is mature enough to find an appropriate place. She does not want to be a “shut in”, or ostracized, and not able to smoke where people smoke tobacco. She testified that, sometimes, she is in a wheelchair and cannot “just go across the street.” Other times, she is with a walker, and shaking violently, and cannot.
41She testified that she usually only goes to places with patios, but sometimes goes to places with none, and some establishments will let her smoke indoors.
Derek Pedro
42Mr. Pedro testified that he has a variation of Ehlers-Danlos Syndrome, and experiences pain. He also has a history of migraine headaches. He tried various medications for his medical conditions which resulted in him not being able to do “too much.” He obtained his first ATP in 2003, and described cannabis as a “miracle”.
43Mr. Pedro testified that he smokes marijuana and puts it in butter, which is different than smoking it because it takes longer to get into his system. He consumes 32 grams per day, smoking approximately 26. A typical cigarette is from three quarters of a gram, to a gram and a half, and he smokes a minimum of 20 cigarettes per day. He smokes one every 40 minutes to every 1.5 hours. He carries his cannabis everywhere.
44With respect to medicating at restaurants, Mr. Pedro testified that “in the beginning” he could show his licence, let the owner know he is going downwind and not disturbing other customers, and there were not many that would be opposed. Now, he cannot even talk to an owner, and the staff does their “dirty work.” He testified that he was at an establishment in Burlington, and he was in the corner of a giant deck at the very far end. He did not want to leave and get back in a giant line-up. He was told he could not smoke and asked to speak to the owner. He was told that the owner would not allow it because he would get a $25,000 fine. He was told “it’s time to leave.”
45Mr. Pedro was asked, “why not just go to the parking lot?” He testified that he feels “pretty silly” and has to fight the line to get back in. If he sits in his car, he has to go into the restaurant smelling like cannabis. He testified he has had people say “you stink.” He described feeling like “a second class citizen”. He tries to not go to places where he is not allowed to smoke.
46Mr. Pedro testified that his experiences attempting to smoke marijuana have been stressful, to the point that he just does not want to try it. He will try when he is alone, but not with his daughter. He feels like he is “not part of the group” and “left out”. It makes him tense, stressed and depressed. Not recently has a restaurant said he could smoke. He testified that the fear of rejection with his child is worse than anything, so he will smoke outside with her, as he does not want to get “shot down” in a restaurant. He also testified that, when he is not on private property, he is open to police harassment, and referred to having to speak to police in front of his child.
47Mr. Pedro was asked what he does in winter when patios are closed. He testified that he has to smoke on the way, or go to his car. He will also smoke “out front.”
48With respect to showing his ATP card, Mr. Pedro expressed a concern about showing where his marijuana is grown.
Gerald Parker
49Mr. Parker testified that he had a workplace injury, requiring surgeries. He also has fibromyalgia. He obtained his first ATP in 2008, and is prescribed five grams of marijuana per day. It enables him to relax, control his pain, and not have to take medications that keep him up.
50Mr. Parker testified that he medicates five times a day. He may smoke two joints in the morning. Later, he may have a cookie or smoke a joint. He explained that he has to smoke it because it is the most immediate and most calibrated method. At home, he medicates in his garage with the door open.
51Mr. Parker testified that he does not go to restaurants or bars very often anymore because he is tired of being humiliated and attacked. He only goes to restaurants when he has no choice. He testified that he can sit in a bar and have a cookie, smoke a joint, or engage in any modality for the medication, and the same result can happen. He explained that it does not matter if he leaves or not because the legislation says that he cannot even be in possession of marijuana.
52Mr. Parker testified that he cannot go to a restaurant and have his rights like anyone else. He queried whether one would ever tell a diabetic to put away a needle. He testified that, because his medicine is not allowed to be used, he avoids “it.”
53Mr. Parker testified that he was not allowed to medicate at a concert and had to leave. He was with his son. He was told that he could leave the facility to smoke but he did not. He was upset and said it was wrong, but he did not want to “make a scene” so he left early. He was in pain for the next three days because of that.
54He does not have any objection to showing his ATP.
Daniel Alakas
55Mr. Alakas is employed as a Staff Sergeant with the Ontario Provincial Police. He is currently assigned as a legal advisor in the Investigation and Enforcement Bureau of the AGCO. He also acts as Legal Counsel for the Registrar of Alcohol and Gaming.
56Mr. Alakas testified that, as a police officer, he has had extensive involvement in the enforcement of the LLA and regulations, including laying charges. He has enforced the LLA in gaming establishments, such as Niagara Casinos. He has also enforced the LLA and regulations as a compliance officer with the AGCO. As Legal Counsel, he has conducted administrative hearings into alleged violations of the LLA and regulations. He has also provided training to AGCO liquor inspectors in the interpretation and application of the LLA and regulations, and in collecting evidence regarding violations.
57Mr. Alakas testified that, generally, liquor inspectors attend licensed premises and speak to the person in charge, examine if a valid licence and proper signage are posted, and determine if there are any violations of the LLA and regulations. In addition to periodic inspections, inspectors can also attend in response to complaints. Once there, they also inspect for compliance with the LLA and regulations. He explained that inspections are conducted to determine if licensees are in compliance with the LLA and regulations, but charges could be laid against both patrons and licensees.
58Mr. Alakas testified that if a liquor inspector observed or detected marijuana use on licensed premises, the inspector would first determine the source, and could speak to the patron who is consuming; however, they are not obligated to do so, depending on safety factors. Mr. Alakas testified that the inspector would then notify the licensee of the violation, and the licensee would likely approach the person consuming. In terms of possible consequences, Mr. Alakas testified that paperwork could be forwarded to the AGCO’s Legal Branch and Deputy Registrar for administrative action. Sanctioning of the licensee could involve a formal warning, licence suspension, or a monetary penalty.
59Mr. Alakas testified that if an inspector did approach a person consuming marijuana, the inspector would likely ask the person what they were consuming, and perhaps obtain identity if required for administrative sanction, determine how long the person was consuming, and where the marijuana was obtained. He testified that an inspector has no authority to tell the person to stop, just the authority to obtain the pertinent details. If the person refused to provide information, the inspector could call the police to attend. Inspectors have no authority to detain or hold a person, and have no powers of arrest further than an ordinary citizen. Also, both inspectors and licensees have no authority to compel production of an ATP. Police can demand production of the document, after the violation has already taken place, which puts the licensee’s position in jeopardy.
60Mr. Alakas was asked about individuals consuming marijuana voluntarily producing ATPs. He testified that there has to be some method to verify the authenticity of the document, and the document would have to have certain security features. Mr. Alakas testified that these documents may be seen once or twice in an entire career, and it is difficult to put the onus on licensees to verify the documents. In cross-examination, Mr. Alakas testified that he believes he has seen one ATP. He was asked if he was aware that they contain a hologram and indicated he was aware they contain one security measure. He also agreed ATPs have a photograph.
61Mr. Alakas was shown an AGCO document and agreed it was meant to assist licensees and staff in knowing whether a driver’s licence is valid or not. He agreed it was a tool to assist people in identifying fake ID. He also agreed that, recently, there was a directive or requirement involving mandatory server training for all liquor servers in licensed establishments. He believed the training covered issues such as identifying or taking the ID of patrons to verify their age.
62Mr. Alakas confirmed that the challenged provision speaks to “holding” as well as consumption, so entry and movement around a bar while holding marijuana is a violation as well.
Expert Witnesses
63Dr. Mark Ware testified as an expert witness on behalf of the applicant. He is a physician and works at the Pain Clinic at the Montreal General Hospital. He deals with chronic pain management and does clinical research. He is an Assistant Professor in the Departments of Anesthesia and Family Medicine, and an Associate Member of the Department of Pharmacology at McGill University. He is also Executive Director of the Canadian Consortium for the Investigation of Cannabinoids. His research focuses on the use of cannabinoids for pain treatment and management. He was a member of Health Canada’s Stakeholder Advisory Committee concerning a review of the MMARs.
64The applicant sought to qualify Dr. Ware as an expert in the use of marijuana for medical purposes, and in the effects of marijuana and marijuana smoking on the human body. The respondents did not dispute Dr. Ware’s expertise in relation to the effects of marijuana and marijuana smoking on persons who are consuming it for therapeutic medical purposes. The respondents submitted, however, that the scope of Dr. Ware’s expertise, in terms of the effects of marijuana and marijuana smoking on the human body, should be restricted to active inhalation, and not the effect on people who are taking “sidestream” smoke passively. After hearing submissions from the parties, Dr. Ware was qualified as an expert on the use of marijuana for medical purposes and the effects of marijuana and marijuana smoking on the human body, and I indicated that submissions could be made as to the appropriate weight to be given to his evidence.
65Dr. Kenneth Ferslew testified as an expert witness on behalf of the respondents. Dr. Ferslew is a Professor in the Department of Pharmacology at the James H. Quillen College of Medicine at East Tennessee State University. He is also a toxicologist and the Director of the Section of Toxicology at the University.
66Dr. Ferslew testified that his lab performs analytical, forensic and clinical toxicology services, and he is licensed by the State of Tennessee and the Government of the United States to be a Laboratory Director, and practices forensic toxicology. He primarily provides analytical toxicology, and clinical and forensic consultation, to the Veteran Affairs Medical Center at Mountain Home, Tennessee, as well as services to the Mountain States Health Alliance hospitals, and other hospitals in Upper East Tennessee and the region. His lab also performs anywhere from 250 to 300 forensic autopsies per year, and provides forensic interpretation to district attorneys.
67As a Professor in the Department of Pharmacology, Dr. Ferslew teaches pharmacology and toxicology to medical students and graduate students in the biomedical science programs, and has supervised doctoral candidates. He also teaches residents and interns in forensic, clinical, and analytical toxicology.
68Among various memberships in professional organizations, Dr. Ferslew is a Fellow of the American Academy of Forensic Sciences, Toxicology Section, and a Diplomate of the American Board of Forensic Toxicology. He is also a Member of the American College of Clinical Pharmacology, the American Society for Pharmacology and Experimental Therapeutics, and the International Cannabis Research Society.
69Dr. Ferslew’s doctoral dissertation involved clinical studies in the smoking of marijuana, and the effect on human psychomotor and cardiovascular performance. He has continued to conduct research in pharmacology and toxicology. He has acted as an expert witness many times, and testified that he has been involved in maybe a dozen cases involving the issue of passive versus active inhalation of cannabinoids.
70Dr. Ferslew was qualified as an expert in the pharmacology and toxicology of cannabis, including the toxicology of passive cannabinoid inhalation, and including the forensic toxicology of cannabinoids.
Medical Marijuana
71Dr. Ware explained that herbal cannabis is available in Canada under the MMARs. An ATP is not required for pharmaceutical versions, such as Marinol and Nabilone, which have been approved for treating nausea and vomiting associated with chemotherapy and for appetite stimulation in patients with HIV/AIDS, and Sativex, which has been approved for treating neuropathic pain associated with MS.
72Under the MMARs, there are a series of conditions for which “Category 1” approval can be obtained, with the signature of a family physician, including spinal cord disease, severe arthritis, epilepsy, multiple sclerosis, HIV/AIDS, and advanced cancer. “Category 2” is a “basket” for everything else, and requires the co-operation of a specialist who agrees in authorizing the use of cannabis. Symptoms treated include pain, muscle spasm, seizures, appetite loss and nausea.
73Dr. Ware explained that patients who use herbal cannabis and smoke it, as opposed to pill forms and oral-mucosal spray, have a much more rapid onset of action, in the order of minutes. Because it is absorbed into the lungs and straight into the bloodstream, it is far less metabolized by the liver, and more of the drug is available to the tissues where it is being distributed. Where patients have symptoms that require rapid relief, or very tight control of the amount of the drug, they find that inhaling it gives them a more precise means of controlling symptoms. Patients who have inhaled cannabis and then try an oral or a pharmaceutical preparation experience a very different effect. All of the pill forms, and the oral-mucosal spray, have a pharmacokinetic profile consistent with an orally-administered medication, with a relatively slow onset and long duration of action.
74Dr. Ware explained that the primary motive for patients who are genuinely using cannabis for a therapeutic purpose is not a psychoactive intoxicant effect, but to relieve symptoms and allow them to function as normally as possible. With respect to dose, Dr. Ware explained that the purpose of treatment is to use the lowest possible dose to obtain the symptom relief that is desired, and to avoid any psychoactive effect.
75When asked how often a person may need to use marijuana, Dr. Ware explained that there appears to be two major classifications of herbal cannabis use. One group uses it predominantly in the evening, or before bedtime, primarily as a sleep aid. Another group uses the drug through the course of the day, several times if necessary, to sustain function throughout the day. Depending on the condition, symptoms can be unpredictable and completely random. For treating nausea, it is used before meals or before taking medications. Dr. Ware testified that the clinical effects of THC, by inhalation, last one to two hours, and peak at between fifteen and twenty minutes.
76Dr. Ware testified that, within the context of knowing the daily amount, the patient determines, from the regulatory perspective, how frequently or how much to use during the day, given how they are feeling at the time; however, the physician should be aware of the frequency and amount that is being dosed by the patient. Dr. Ware’s understanding of the average daily amounts currently used by authorized users in Canada is approximately two to three grams per day.
77In terms of the impact on the lives of the patients that he treats, Dr. Ware testified that marijuana can mean the difference between being able to walk for periods during the day or being confined to a wheelchair, between using heavy-duty narcotics or reducing the dose and reducing the side-effects, or between being unable to sleep because of night spasms and having those spasms controlled, allowing sleep.
78Information on Health Canada’s website indicates that, as of June 5, 2009, 4,029 persons in Canada held ATPs pursuant to the MMARs, of whom 2,841 were also allowed to cultivate it for medical purposes. In Ontario, 1,631 persons held ATPs.
Marijuana smoke
79Although Dr. Ware and Dr. Ferslew disagreed in their conclusions, there was substantial agreement between the experts on a number of facts related to marijuana and marijuana smoke.
80The active ingredients in marijuana, or cannabis, are the cannabinoids. The one which has attracted the most interest as an analgesic, and a drug with medical properties outside of pain control, is tetrahydrocannabinol (THC). THC is the principal psychoactive constituent of marijuana.
81The effects of THC can include light-headedness, euphoria, ataxia or incoordination, reduction in cognitive ability, as well as relief of pain, nausea, sleeplessness, and anxiety. THC can also produce anxiety or panic, slow down reaction time, lead to difficulty concentrating, and impair short-term memory, motor coordination and driving performance. It can increase heart rate, cause changes in blood pressure, and stimulate appetite. At certain doses, it is a hallucinogen.
82With the burning or “pyrolizing” of marijuana, THC is made bioavailable in the smoke. The heating of the drug causes the oil, which cannabinoids are, to be volatilized, vaporized, or come off in a gas. Inhaling marijuana smoke introduces the drug into the body. THC that is volatized enters the lungs and is absorbed into the bloodstream.
83The amount of THC in the smoke is proportionate to the amount in the plant material; however, about 20 percent of the THC is lost in pyrolysis. Dr. Ware testified that, of the THC that is not destroyed in burning, about half would be consumed by the active inhaler (30 to 40 percent), and about half would be released as sidestream smoke (40 to 50 percent). Dr. Ferslew testified that 50 percent of the THC in a joint, upon pyrolysis, is available in the smoke to be absorbed, either actively or passively, so, 50 percent of the THC could potentially be available in the sidestream smoke, but there is a lot of variability to how much is in the sidestream smoke.
84The impact of THC is dose-dependent, such that a greater dose of THC produces a greater effect or response. With inhalation, there are two things that define dose: the concentration in the inhaled air and the duration of the inhalation. The effects of a given dose are extremely variable from person to person.
85In a closed environment, the active ingredient will distribute uniformly within the space that it is within. Opening up the environment will increase the air into which the THC-containing smoke can go and distribute. The concentrations will vary from the point source, where the concentration will be the highest, so proximity to the source has implications for passive inhalers. Other factors involved in assessing risk to passive inhalers include the THC content of the pyrolized cannabis, the quantity combusted, the duration of exposure, the volume of the area and the amount of air flow.
86No research has been published on the effects of sidestream marijuana smoke on passive inhalation in an open-air environment akin to an uncovered patio.
Exposure to marijuana smoke
Dr. Ware
87Dr. Ware was asked about passive inhalation of second-hand marijuana smoke in a space that is outdoors and has no cover, or partial cover. In terms of a risk that exposure to second-hand smoke in that environment could impair a person, or cause some intoxication, Dr. Ware testified that he thought that “the risk, if any, is miniscule.”
88In explaining his opinion, Dr. Ware testified that when cannabis is combusted, the cannabinoids come off in a gas. In a space that has no covering or closure, but is an infinite volume, the gas will distribute down to minute quantities. Dr. Ware testified that he imagines that to be happening rapidly in an outdoor patio with air moving through. He testified that this is supported by his knowledge of the literature. When studies are conducted with fairly intense conditions of cannabis smoke in small environments (eight-by-six-by-eight foot rooms with no doors or windows) there are measurable levels of cannabinoids in some participants. However, with a door opened, and the possibility for the gas to expand, the proportion of subjects testing positive drops dramatically.
89Dr. Ware testified that it is common sense that if you remove the walls and the roof, the reduction in risk is enormous in terms of somebody standing five or six feet away from someone using cannabis. The only condition in which he could think that there would be a risk of an individual becoming intoxicated is if the person was deliberately inhaling directly from either the end of the cigarette where it is burning, or directly inhaling the gas expired from the person’s lungs.
90Dr. Ware was referred to a document entitled “Estimating Passive Inhalation of THC in Open Space”. Dr. Ware testified that he did not prepare the document, but was familiar with the content and information source of the document. He also checked the accuracy of the calculations in the document. He explained that the document contains calculations, based on some of the published literature, on the amount of THC which can be calculated to be available from the herbal material, all the way through to the amount that is available in a room with a given volume, and the dose that might be expected to be inhaled by somebody in such conditions, exposed to passive smoke.
91Dr. Ware explained that the document begins with a series of assumptions. First, it is assumed that the amount of cannabis (dry plant marijuana) is 1.5 grams and, second, that it contains 20 percent THC.
92Dr. Ware testified that, according to Health Canada, a typical joint contains 0.5 grams, and up to one gram, of cannabis. Also, the joints typically discussed in the literature tend to be about 0.5 grams, although some manufactured in the U.S. are one gram. So 1.5 grams is a substantially large quantity of cannabis when one considers the size of a typical cigarette.
93With respect to potency, Dr. Ware testified that the RCMP reports that the average level of THC in street cannabis is between 8 and 10 percent. Health Canada’s cannabis is about 12 percent THC. Street users who grow hydroponic-grade cannabis, tested in illicit laboratories, report levels of THC between 15 and 20 percent. Dr. Ware testified, therefore, that 20 percent THC represent a very high-potency cannabis. (The applicant testified that when he purchases seeds, he is told generally what the level of THC is, and that it is about 16 to 20 percent.)
94Third, it is assumed that the amount of THC in the sidestream smoke is 50 percent, which Dr. Ware testified is probably the high end of what he’s seen from Mario Perez-Reyes’ work, which would suggest 40 to 50 percent. He testified that 50 percent is a fairly representative figure of the THC found in herbal cannabis that would be lost in sidestream smoke when it is burned and smoked under typical conditions.
95The document then relies on the following four studies (all were provided to the Tribunal): S. Niedbala et al., Passive Cannabis Smoke Exposure and Oral Fluid Testing, J. Analytical Toxicology, Vol. 28, October 2004 (“Niedbala”); M. Perez-Reyes et al., Passive inhalation of marihuana smoke and urinary excretions of cannabinoids, Clin. Pharmacol. Ther., Vol 34, No. 1, July 1983 (“Perez-Reyes”); A. Mason et al., Cannabinoid concentrations in Plasma After Passive Inhalation of Marijuana Smoke, J. Analytical Toxicology, Vol. 7, July/August 1983 (“Mason”); and, E. Cone et al., Passive Inhalation of Marijuana Smoke; Urinalysis and Room Air Levels of Delta-9-Tetrahydrocannabinol, J. Analytical Toxicology, Vol. 11, May/June 1987 (“Cone”). The document purports to set out the proportion of total THC inhaled by passive smokers in an enclosed space, from each of the four studies, as follows:
Niedbala: 0.07 percent
Perez-Reyes: 0.2 percent
Mason: 0.3 percent
Cone: 0.8 percent (as corrected by Dr. Ware)
Dr. Ware explained that the above percentages are calculations based on the total quantity of THC that would be liberated in the passive smoke and, based on the availability of the drug, the amount that would be absorbed by the passive subject. In cross-examination, Dr. Ware clarified that the above percentage calculations are not in the studies, but are based on data in the studies, and are an extrapolation from the data, based on certain assumptions. The validity of the assumptions underlying the numbers has not been tested.
96With respect to the Cone study, Dr. Ware explained that when four cigarettes were smoked with the door closed, it was estimated that subjects passively inhaled 0.82 milligrams of THC. With the door open, it was estimated that subjects passively inhaled 0.03 milligrams of THC, or 3.65 percent of the amount estimated to be inhaled with the door closed.
97Dr. Ware testified that, assuming 1.5 grams of cannabis contains 20 percent THC, then 300 milligrams of that cannabis is THC. Assuming 50 percent of that THC is lost by sidestream smoke, under fairly normal smoking conditions, then 150 milligrams of THC would be lost into the air. Referring to the above percentage calculations, based on the estimated amounts of available THC passively inhaled in the four studies, Dr. Ware testified that the following amounts would be estimated to be passively inhaled in a closed space, based on 150 milligrams of available THC (the Tribunal notes that the calculations below appear to be based on 300 milligrams of available THC):
Niedbala (0.07 percent): 0.21 mg
Perez-Reyes (0.2 percent): 0.6 mg
Mason (0.3 percent): 0.9 mg
Cone (0.8 percent): 2.4 mg
98Based on the Cone study, the following amounts would be estimated to be passively inhaled with a door open, based on 3.65 percent of the above amounts (the Tribunal notes that the calculations below appear to be based on 3.65 percent of 150 milligrams of available THC):
Niedbala: 0.00767 mg
Perez-Reyes: 0.0219 mg
Mason: 0.03285 mg
Cone: 0.0876 mg
Dr. Ware testified that these amounts are much, much lower than any dose that would be given under clinical conditions, and that the lowest prescribable dose of THC is 2.5 milligrams. In terms of impact, he testified that these amounts reflect a very, very low risk for somebody in an open patio environment, exposed to passive smoke.
99Dr. Ware testified that, with respect to the studies, the amount of THC that is absorbed by a person, even under relatively extreme conditions, is quite small. In an environment where there is no wall or roof, it is clear that the amount of THC that is available to a person standing next to a smoker is going to be dramatically reduced. Dr. Ware described the above figures as “clinically miniscule” and testified that he just did not see a logical way to extrapolate this to an intoxication.
100Dr. Ware testified that the literature is replete with attempts to correlate a level of THC in blood or plasma with intoxication. He testified that it is clear that blood levels of 2 to 5 nanograms per ml are required to have some clinical or pharmacological effect, and it is conjecture at what point that becomes an impairing level or intoxication.
101Dr. Ware testified that he has unpublished data where patients smoked a single inhalation of 25 milligrams of THC, blood levels of THC peaked at between 50 and 60 nanograms per ml, and they had two episodes of euphoria reported in the entire study. He testified that this leads him to believe that, to achieve a significant euphoria, THC levels in the order of 40 nanograms per ml and above would be required. With respect to psychomotor impairment, or the ability to do complex tasks like operate a vehicle, he believes that the plasma levels required to demonstrate that are lower, in the order of 2 to 5 nanograms per ml. Based on the estimates of the total quantity of THC absorbed, or available, and the time span in which that’s happening in the passive studies in closed spaces, or extrapolating from that in an open space, Dr. Ware suspects that the levels of plasma THC that would be obtained would be lower than what is required to demonstrate an impairment. If something close to those levels was achieved, it would be very transient because it is rapidly excreted or metabolized.
102Dr. Ware testified that tobacco smoking is related to death by cancer, predominantly cancers of the airways, and heart disease. Tobacco also causes respiratory illnesses, primarily emphysema and chronic obstructive pulmonary disease (“COPD”).
103With respect to a relationship between marijuana and cancer, Dr. Ware testified that there is contentious literature, and one can find studies that show a link and studies that show no association. He explained that some researchers feel there is insufficient evidence of a link, while others suggest further studies are required as existing studies are not sufficient to rule out an association. In his view, the existing research on the epidemiological risk, and the association between cannabis and cancer, does not support an association, even at some of the relatively high exposures of active cannabis smokers. In cross-examination, he clarified that there have now been several studies that suggest the absence of a link, rather than inconclusiveness.
104With respect to marijuana smoking and respiratory illnesses, Dr. Ware testified that, again, the evidence is not as strong as it is for tobacco. He explained that with studies concerning marijuana use, tobacco is a confounder, as a lot of cannabis users also use tobacco, either as a separate drug or as a mixture with cannabis. He testified that, where it’s possible to adjust for tobacco, the studies suggest that there is no evidence of an association between marijuana-only use and COPD or emphysema.
105With respect to heart disease, Dr. Ware testified that the only association he knows of between cannabis use and cardiovascular disease is one study that suggested there is an increase in heart attack risk within one hour of smoking cannabis. In his opinion, however, this does not indicate an increased risk of heart attack for someone exposed to sidestream marijuana smoke in an open air environment.
106Dr. Ware testified that, in his view, if the associations between active cannabis smoking and lung cancer, or COPD, are not there for active smokers, it is fair to assume that those risks do not exist for passive smokers, since the exposure is so much higher for the active user. He can only assume that the risks are much, much lower in the passive smoker, as the dose exposure is far, far lower. To his knowledge, with respect to cancer and respiratory illnesses, there are no epidemiological studies on the effects of cannabis on passive inhalers.
Dr. Ferslew
107Dr. Ferslew explained that THC is absorbed into the blood much faster if inhaled, as opposed to taken orally, and is rapidly distributed to body tissues. After inhalation, blood levels of THC drop very quickly, usually within a matter of minutes to an hour. Then there is a very slow secondary distribution and elimination, and THC can actually be eliminated over several hours. With very high doses, it can take days.
108Dr. Ferslew explained that THC is eliminated by two processes. It is excreted from the body as THC, and it is also metabolized, primarily by the liver, into carboxy-THC, making it water-soluble. The kidneys then help excrete it and it is eliminated.
109Dr. Ferslew testified that there is a “dose-response relationship”, in that the concentration of THC in the marijuana will be proportional to what is produced in the smoke, which is proportional to what is absorbed, and to the response produced.
110Dr. Ferslew testified that passive inhalation of THC can produce an effect in the body. It can produce systemic concentrations of THC, and if those concentrations are sufficient, and reach the cannabinoid receptors, they can elicit a pharmacodynamic response. The degree, extent, and duration of that response will depend on the concentrations produced, which is proportional to the dose.
111Dr. Ferslew testified that research by him and others has shown that passive inhalation can produce detectable concentrations of THC in the blood which is metabolized, producing significant concentrations of carboxy-THC in both blood and urine. Also, a “contact high” can be produced by passive inhalation, meaning a physiological and/or toxicological response, such as light-headedness, euphoria, ataxia, incoordination, or changes in cognitive ability, is produced in a person not actively intending to inhale the smoke.
112Dr. Ferslew referred to a number of studies conducted in closed environments, such as rooms and vehicles, rather than an uncovered space. He explained the research shows that blood levels of THC can be obtained from passive inhalation, and the concentration is proportional, in a dose-response manner, to the concentration of THC in the marijuana and thus produced in the smoke. He testified that one can try to extrapolate the data to other situations, but additional parameters may affect it.
113With respect to the concentration of THC in the cannabis in the controlled experiments, Dr. Ferslew testified that from 0.83 up to 10.4 percent THC was used, whereas hydroponic marijuana can be in the twenties.
114With respect to passive inhalation in an open air environment, Dr. Ferslew explained that, based on the “mass action of gases”, concentrations go from higher to lower. He emphasized that the concentration is going to be highest where the source is, and can vary from that point to an infinite volume, whereas in a closed room the air can be saturated with a fixed concentration of THC. In an open environment, the dose of THC to which an individual is exposed depends on where they are in that environment, as the concentration of THC in the passive smoke is higher closer to the generation. He testified that, although there will be a point where there is no THC, one cannot just consider a space to be infinite.
115Dr. Ferslew also explained that, in inhalation toxicology, an enclosed chamber can be saturated with a fixed concentration; however, these studies can only be done with animals. With humans, the closest that can be done is to try to simulate exposure to passive inhalation where someone is actively smoking the drug, in an “environment of exposure”. Source and exposure have to be considered and the number of people and cigarettes, concentration, and air changes would have an effect on the dose exposed.
116Dr. Ferslew testified that, in some of the human studies, there is fallacy in trying to define exposure by defining what the content in the air would be. In an environment that is changing, it is very hard to predict what the actual concentration is at any one point. Without a controlled experiment, he would not attempt to do it. To know what a person absorbed, or had effect from, one would not measure the air around them, but what was in their biological fluids and tissues, and what they were excreting. That is what produced the effect, and not the hypothetical of what they could be exposed to.
117With respect to the Cone study, Dr. Ferslew was asked how the estimated THC inhaled per subject was calculated. He explained that the estimates were based on the following assumptions set out in the study: “14 respirations per min by each subject; 500 ml volume of air exchange per subject breath; THC-air levels constant throughout the room.” Dr. Ferslew testified that it is an estimate of what could potentially be absorbed, but it does not define how much the person is actually exposed to. If the assumptions change, the estimates change, and the assumption of constant THC levels is affected by proximity to the source. He disagreed, and did not find validity, with predicting what would come from a single cigarette, from doing arithmetic with Cone’s numbers.
118In the Mason study, Dr. Ferslew explained that an individual was exposed to passive inhalation of four smoked cigarettes totalling 104.8 milligrams of THC during a 15-minute period. Blood and plasma concentrations increased and continued after exposure. An IV infusion of THC was also put directly into the subject’s bloodstream by infusing 3.2 micrograms per minute for 60 minutes (192 micrograms). The IV infusion created a plasma concentration profile that mimicked what was obtained in the 15-minute passive inhalation exposure. The study indicated, “[f]or this reason, it can be concluded that this was the dose of THC that was inhaled and absorbed.”
119Dr. Ferslew was asked if he could offer an opinion on the effect on a subject exposed to this amount of THC in the blood. He explained that, in the Mason study, the peak concentration of THC in the plasma was a little over 2 nanograms per ml in the IV infusion, and, in the passive inhalation, almost 4 nanograms per ml. He testified that when blood concentrations are greater than 1 nanogram per ml (or 2 nanograms per ml in plasma), effects can occur, depending on the biological variation of the person. He testified that he and others have had contact highs from concentrations comparable to the data in the Mason study. He testified that it could lead to impairment, depending on the individual and the situation. He explained that there is a 3-pronged approach to determining if a concentration of drugs would impair an individual: is there “misoperation”; is there a psychomotor assessment, by someone with knowledge of what impairment may present like, identifying an impairment; and, are there concentrations in the body that would or could potentially produce the impairment, and did it result in what happened.
120Dr. Ferslew was asked about the document entitled “Estimating Passive Inhalation of THC in Open Space” that Dr. Ware referred to, and if, in his opinion, the document was a valid way to model the amount of THC that could be inhaled by a passive smoker. He testified that it was not. He agreed with the assumptions of a 1.5 gram cigarette with 20 percent THC, and that 50 percent of the THC was potentially bioavailable in the smoke (150 milligrams). Beyond that, he did not want to make any calculations that the original authors did not make. He thought it was incorrect to do the calculations that were done in the document and did not agree with the remainder of the calculations. He explained that the data is calculated based on many assumptions of percentages that do not take into consideration some of the losses, or other things that can be done to account for the dose that was available by passive inhalation. In particular, Dr. Ferslew testified that he did not agree with the proportion of total THC inhaled, and the proportion inhaled with the door open, compared to the door closed, and that those calculations are in error and are fraught with misrepresentation. He testified that bioavailability is determined from a route of administration by measuring blood levels, or what is absorbed in the blood from the administered dose. He testified that one does not try to “back-calculate” from what is in the room, assuming the number and volume of respirations, and that the room air concentration is consistent.
121Dr. Ferslew testified that, compared to 150 milligrams of THC available in the smoke, in the applicant’s document, the Mason study provided that 99 milligrams were actually pyrolyzed and turned into smoke, and exposure to that produced measurable concentrations that could produce an effect. Dr. Ferslew testified that, although an open air environment would reduce it, he could not support the hypothetical calculations in the applicant’s document, as there are too many variables.
122In any event, Dr. Ferslew testified that the calculation of 87.6 micrograms in the applicant’s document, representing based on the Cone study the amount of THC inhaled by a passive smoker with the door open, is “just slightly less” than the 192 micrograms that the Mason study proved produces blood levels that are significant. He testified that 87.6 micrograms is enough, based on the Mason data, to produce “a level.”
123Dr. Ferslew was asked to comment on Dr. Ware’s opinion that, in an outdoor space, under a reasonable social situation, the risk of an adverse effect to a passive inhaler would be “minuscule”. Dr. Ferlew testified that if a passive inhaler exposed to marijuana smoke can smell it, then it can be absorbed. The degree and duration of an individual’s response and the amount that they would absorb from passive inhalation would be proportional to the dose that they are exposed to, absorb and distribute. If the dose is such that they can absorb THC comparable to the work of Mason, then they are going to get a level in their blood that could produce a pharmacological and potentially toxicological response. That response then puts them at risk because they are having a response to a passive inhalation of a compound and they may not know what it does to them. They may or may not perceive it but they have a drug in their blood that is reaching their receptors that is going to have a potential to produce a response and that response can be detrimental to their performance. Dr. Ferslew testified that an exposure in an open-air patio, to what are considered casual uses of THC, could produce a reasonable exposure where someone would inhale it and absorb it. He testified that the risk would be such that they could have a concentration that would produce a pharmacological or toxicological effect. Dr. Ferslew testified that he does not think that is miniscule.
124Dr. Ferslew testified that the Cone study tried to mimic exposures to help forensic toxicologists in the proper interpretation of results. He explained that none of his colleagues want to say that someone has actively used a drug when they did not because there are many legal consequences to smoking marijuana. Although it took 16 cigarettes (2.8 percent THC content) on six consecutive days, the Cone study obtained positive urine samples in passive inhalation subjects, “not unlike that observed following active smoking of one to two marijuana cigarettes by five of the same subjects.” With exposure to four cigarettes, positive results were only infrequently detected and concentrations were very low. The threshold amount necessary for subjects to produce cannabinoid-positive urine specimens was referred to as the 20 nanogram per ml detection level. Although, with the door open, THC levels in the room air, generally, were less than 10 percent of those found when the door was closed.
125Dr. Ferslew testified that, based on the Cone study, one could get “a positive urine” from passive inhalation and he has no doubt in his mind that he is risking somebody’s career, livelihood or legal consequences when he says they have cannabinoid in their urine, and that is a big risk.
126The Cone study concludes as follows:
Overall, these studies indicate the potential for passive inhalation of marijuana smoke to occur in human subjects, given sufficient time and intensity of smoke exposure, consequently leading to excretion of detectable levels of cannabinoids in urine. Irrespective of toxicological testing issues, individuals who wish to avoid absorption of a psychoactive substance, such as THC, should avoid environments in which marijuana is combusted.
127Dr. Ferslew testified that if passive smoke is in the air and you can smell it, you have the potential to absorb it. There’s a dose-response relationship and if you have it in your system, it can produce an effect. That is a risk. It is not miniscule.
128Dr. Ferslew was asked about research he did investigating the correlation between blood levels and effect, including psychomotor impairment. He testified that there was no direct correlation from the degree of impairment to the concentration of THC in the blood because it correlates more with brain level. The concentration of THC disappears or was below the level of detection (1 nanogram per ml in blood) within two hours, while impairment was still greater than control. He testified that there is no consensus in the forensic or medico-legal community as to what concentration constitutes impairment, and some people have tried to set it at 1, 2, and 5 nanograms per ml. He reiterated that it takes three prongs: did they do something to indicate impairment; were they measured to have psychomotor impairment; and, was there a level that could produce that.
129Dr. Ferslew confirmed that plasma concentrations in excess of 2 to 3 nanograms per ml (one to 1.5 nanograms per ml in whole blood) are concentrations at which impairment has been demonstrated to occur. Because of biological variability, he would not describe it as a threshold for impairment.
130In cross-examination, he agreed that, depending on THC concentration and blood levels, peak concentration occurs very quickly, and effects are usually felt within five to 15 minutes, but peak effect can occur anywhere from 15 minutes to an hour. After about an hour, metabolism and excretion take over. It takes anywhere from five to 15 days to eliminate 99.9 percent of the drug from blood. With respect to metabolites in urine, 80 to 90 percent is excreted within five days. A low dose of marijuana may be completely, or 99.99 percent, excreted from the body within a day or two. A high dose may take three, four or five days.
131Dr. Ferslew was asked about a person on a patio, exposed to passive marijuana smoke, testing positive. He testified that, with blood, there are no reported “cut-offs”. Depending on the method, most labs can measure down to 1, sometimes 0.5, nanogram per ml. With respect to urine, he referred to a two-step test in the U.S., with a primary screening test using a cut-off of 50 nanograms per ml of cannabinoids. A positive result is followed by a test for 11-nor-carboxy THC, with a cut-off of 15 nanograms per ml.
132Dr. Ferslew explained that when two drugs are combined the effect can be additive. If there is a synergism, two drugs when combined may produce a much greater effect. Dr. Ferslew testified that with THC and alcohol, and THC and “benzos”, there is a synergism. He testified that a passive inhaler, with alcohol in their system, could experience a synergistic effect if they absorb sufficient THC to produce a response. In cross-examination, he clarified that the effects of marijuana and alcohol are additive, and potentially synergistic, depending on the dose.
133Dr. Ferslew did not agree with Dr. Ware that cannabis smoke is less harmful than tobacco smoke, especially to the passive inhaler. With respect to carcinogenic potential and COPD, Dr. Ferslew testified that the literature is mixed, and there is mixed data on the relationship between marijuana smoking and COPD and/or emphysema.
ANALYSIS AND DECISION
Does the applicant have a disability within the meaning of the Code?
134In addition to the applicant’s testimony concerning his medical conditions, medical documents provided by the applicant confirm that he has a number of conditions, including IBS and fibular hemimelia, and that he has had numerous leg lengthening procedures, and experiences abdominal, back, and chronic leg pain.
135The respondents do not appear to dispute that the applicant has a disability within the meaning of the Code. “Disability” is defined in s. 10 of the Code, in part, as “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…” Having reviewed the applicant’s evidence, I find that his medical conditions constitute a disability within the meaning of the Code.
Is the Application with respect to “services” within the meaning of the Code?
136Section 1 of the Code provides that “[e]very person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of… disability.”
137The respondents submit that the challenged provision does not deny the applicant any equal treatment with respect to services offered by a licensed establishment. They also submit that the enactment of legislation is not a “service” within the meaning of the Code, and that the challenge in this Application is to the enactment of legislation, which is outside the jurisdiction of the Tribunal.
138The respondents rely on Malkowski v. Ontario (Human Rights Commission), 2006 CanLII 43415, [2006] O.J. No. 5140 (Div. Ct.), which upheld, on judicial review, a decision of the Commission to not refer a complaint to the Tribunal under the former s. 36(2) of the Code. In that case, the applicant, who is deaf, filed a complaint with the Commission, alleging that the failure of the Crown to include a requirement in Ontario’s Building Code, O. Reg. 403/97 that theatres be equipped with rear window captioning, violated the Code. The Building Code neither required nor prevented rear window captioning.
139I do not find Malkowski to be of assistance in the present case. In Malkowski, the Court noted that the Commission’s screening of complaints, under the former s. 36 of the Code, “is more broadly discretionary” and “[i]t is not necessarily unreasonable for the Commission to decide not to send even a good strong case to the Tribunal.” The Court stated that “[t]he issue is whether the procedure is appropriate and the evidence warrants it” and this is “a case where the procedure was reasonably found inappropriate in the particular circumstances.” The Court described the case as “a gateway decision and not a substantive one.”
140In particular, the Court in Malkowski noted that the Commission was not deciding whether “law-making is or is not a ‘service’” within the meaning of the Code. The Court noted that the evidence disclosed “no occasion of denial at all, so that there is no inference that the Commission acted upon some definition of services.” The Court found that the Commission made no decision on the meaning of “services” requiring review.
141The Court in Malkowski also noted that the applicant was challenging the underinclusiveness of the Building Code. The Court indicated that the Tribunal can apply the Code as prevailing over other provincial legislation that has a discriminatory effect; however, it is an entirely different matter to read in provisions that are not there. The Court found that the objective sought by the applicant could only be achieved through a Charter challenge.
142In explaining the primacy of the Code over other provincial legislation, the Court referred to the Supreme Court of Canada’s decision in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14. In Tranchemontagne, the Supreme Court explained as follows, at para. 34:
The importance of the Code is not merely an assertion of this Court. The Ontario legislature has seen fit to bind itself and all its agents through the Code: s. 47(1). Further, it has given the Code primacy over all other legislative enactments; s. 47(2). As a result of this primacy clause, where provisions of the Code conflict with provisions in another provincial law, it is the provisions of the Code that are to apply.
143With respect to the issue of whether or not the Application is with respect to services, the applicant submits that, unlike Malkowski, supra, this case is not about a failure to legislate. Rather, it is about a specific legislative act, in the course of providing liquor licensing services, and its substantive effect. The applicant also submits that the impugned law prohibits licensees from accommodating the applicant, whereas in Malkowski, the builders were free to accommodate if they chose to do so. He submits that, in the present case, liquor license holders are required to discriminate, or else face prosecution under the LLA.
144The applicant referred to a number of challenges to legislation that proceeded on the basis that the legislation constituted a service within the meaning of the Code, including Tranchemontagne (2006), supra, Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32, and Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 and 2006 HRTO 15, rev’d on other ground, Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (ON S.C.D.C.).
145In Braithwaite, the Divisional Court held that “services” can include a service provided to the broader public in Ontario and that clearly the Code also applies to discrimination by groups or government in the provision of services. The Court stated that even if the primary purpose of legislation is to provide only a public benefit, that is not determinative with respect to s. 1 of the Code. Referring to Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (ON C.A.), at para. 65 ff, and s. 9 of the Code, the Court stated that human rights law is concerned with both the purpose and the effect, or impact, of legislation. Moreover, human rights legislation is to be read in a broad, liberal and purposive manner: C.N.R. v. Canada (Human Rights Commission), 1987 1 S.C.R. 1114, 1987 CanLII 109 (S.C.C.), at para. 24.
146In Braithwaite, the Court also addressed the argument that the Code could not be used to attack legislation in light of Malkowski, supra. The Court held that the Tribunal had the power to determine whether the conduct of the Coroner, authorized by legislation, was consistent with the Code, given that s. 47(2) of the Code gives primacy to the Code.
147In the present case, the respondents submit that, as in Malkowski, there is no particular exercise of a statutory or regulatory power at issue apart from the enactment of legislation, nor does the challenged provision permit or authorize any conduct that denies equal treatment to the applicant in respect of the services offered by a licensed establishment.
148While “services” is not defined in the Code, it is to be interpreted in a broad and liberal manner, consistent with the purposes of the Code, which includes concern for the effect, or impact, of legislation. It is also clear that the Code has primacy over other provincial legislation, and binds the legislature and its agents (Code, s. 47).
149The respondents submit that the purpose of the challenged provision is to protect the health and well-being of all persons who are present in premises licensed under the LLA. The respondent Ministry has responsibility for the LLA and the challenged provision. The AGCO is responsible for the administration of the LLA and its regulations.
150In my view, the present Application is with respect to services within the meaning of the Code, and is within the jurisdiction of the Tribunal. I am satisfied that the legislation in question, concerning the regulation of licensed premises, is intended to benefit the public, and, in particular, staff and patrons of licensed premises in Ontario, including the applicant. I am also satisfied that the legislation has an effect or impact upon staff and patrons of licensed premises in Ontario, including the applicant. Unlike Malkowski, supra, where the legislation in question neither required nor prevented rear window captioning, the challenged provision in the present case requires that liquor licence holders not permit persons to hold or consume marijuana on their premises. Whether or not the challenged provision denies the applicant any equal treatment with respect to services on the basis of disability, contrary to the Code, is addressed below.
Has the applicant established a prima facie case of discrimination on the basis of disability in services?
The parties’ positions
151The applicant submits that a prima facie case is established if the impugned conduct or rule creates a barrier to the inclusion of people with disabilities. Referring to Brown v. Trebas Institute Ontario Inc., 2008 HRTO 10, at para. 40, the applicant submits that, with respect to services, the question is not only whether the service is available at all, but whether people with disabilities have access to the service “in both a dignified and as full a way as an able-bodied person.”
152The applicant submits that the relevant questions in this case are (1) whether the applicant is able to fully access and use the premises of a licensed establishment in the same way as people without disabilities, and (2) if not, whether the different treatment is as a result of his disability.
153The applicant submits that he needs to carry his medicine with him because he cannot predict when it will be needed; however, he is not allowed to bring it into licensed establishments, which means that he cannot go to such places. He submits that, even if he could bring it with him, he has to leave the premises if he needs to medicate, so he cannot enjoy the premises in the same way as other people. He submits that these circumstances occur because of his disability-related need, and that this clearly establishes a prima facie case of discrimination.
154The respondents submit that, in challenges to legislation and government policy, the discrimination analysis under the Code is the same as under the Charter. Referring to the Supreme Court of Canada’s decision in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 17, the respondents submit that not every distinction in treatment is discriminatory and, in order to constitute discrimination in a substantive sense, differential treatment must create a disadvantage by perpetuating prejudice or stereotyping.
155The respondents submit that, in the present case, any differential treatment caused by the challenged provision is not discriminatory in the substantive sense of perpetuating prejudice or stereotyping. They submit that the challenged provision corresponds with the true circumstances of persons who smoke marijuana, and generate sidestream smoke containing THC that can cause impairment in exposed third parties. They submit that this is the critical difference between persons who smoke marijuana and persons who smoke tobacco, which does not contain THC. They submit that it is also the critical difference between persons who palliate their disability by smoking marijuana and persons who medicate using drugs such as insulin, which is administered in a manner that poses no pharmacological risk to others.
156The respondents submit that the challenged provision is protective of public health and thus ameliorative in purpose and effect. They also submit that the nature and scope of the interest affected by the challenged provision (being able to smoke marijuana on the patio rather than outside a bar or restaurant) is not one that restricts access to a fundamental social institution, or affects a basic aspect of full membership in Canadian society. They submit that the applicant is not substantively excluded by the challenged provision, but rather must accept a minor restriction on his behaviour in order to avoid exposing other individuals to the risks associated with marijuana smoke. The respondents do not appear to address the applicant’s allegation that he is also subjected to discrimination in that the challenged provision does not permit him to possess marijuana on licensed premises.
Tranchemontagne
157After the Ontario Court of Appeal released its decision in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, the parties provided further written submissions on the appropriate discrimination analysis to be applied in the present case in light of the Court of Appeal’s decision.
158In Tranchemontagne, the Court of Appeal held that the test for establishing discrimination under the Code is consistently expressed in the jurisprudence as requiring a distinction based on a prohibited ground that creates a disadvantage (para. 74). At para. 75, the Court of Appeal referred to the Supreme Court of Canada’s decision in O’Malley, supra, wherein McIntyre J. described discrimination, in the case of adverse effect discrimination in employment, as follows, at p. 551:
It arises where an employer… adopts a rule or standard… which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force.
The Court of Appeal indicated that both the Code and s. 15 of the Charter are aimed at achieving substantive equality, and it is only where making a distinction on a prohibited ground has the effect of creating a disadvantage that concerns about substantive inequality are engaged (paras. 77 and 79).
159At para. 86, the Court of Appeal referred to the Supreme Court of Canada’s confirmation in Kapp, at para. 17, that, in the Charter context, the test to be applied for determining whether discrimination exists is the two-step test set out in Andrews:
Does the law create a distinction based on an enumerated or analogous ground?
Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
160The Court of Appeal noted that Andrews has been referred to with approval consistently in the human rights context, however, fundamental differences exist between the Charter and the Code, including differences in the specific exemptions or defences that are available. The Court held that, because of these differences, the precise nature of the evidence to be led and “the stringency of the test” may vary and depend on the context (paras. 87-89).
161The Court of Appeal explained that, in the human rights context, in most instances, it will be evident that a prima facie case of discrimination has been established based solely on the claimant’s evidence showing a distinction based on a prohibited ground that creates a disadvantage, as an inference of stereotyping or of perpetuating disadvantage or prejudice will generally arise based on that evidence alone (para. 90). However, in other instances a more “nuanced inquiry” may be necessary (para. 91).
162The Court of Appeal also held that, although establishing a prima facie case of discrimination involves demonstrating a distinction that creates a disadvantage by perpetuating prejudice or stereotyping, that does not mean that it is a “free-standing requirement” (para. 95). The Court of Appeal held, as follows, at para. 103:
So long as it is understood that the prima facie case test involves establishing substantive discrimination and that demonstrating a distinction that creates a disadvantage by perpetuating prejudice or stereotyping is the foundation of substantive discrimination, in my view, that is sufficient.
163Ultimately, the Court of Appeal held that the goal of protecting people from arbitrary or stereotypical treatment, or treatment that creates disadvantage by perpetuating prejudice, is incorporated into two stages of the prima facie case analysis: i) whether the treatment in issue “truly creates a disadvantage”; and ii) whether the protected ground “truly played a role in creating the disadvantage” (para. 104).
164In light of the Court of Appeal’s decision in Tranchemontagne, the applicant submits that there is no doubt that he faces a disadvantage because of the impugned regulation. He submits that this is a “true” disadvantage, as there is no suggestion that he benefits from the differential treatment that the regulation creates. The applicant also submits that there is truly a connection between the disadvantage and the prohibited ground of disability, since it is his disability that creates his need for medical marijuana. With respect to the requirement of prejudice and stereotyping, the applicant submits that this is not a case that requires a “nuanced” inquiry, since it is clear that people who use medical marijuana are subject to prejudice and stereotyping, which is perpetuated when they are excluded from otherwise public spaces.
165The respondents reiterate that to establish a prima facie case of discrimination, the applicant must demonstrate a distinction on a prohibited ground that creates a disadvantage by perpetuating prejudice or stereotyping, and that the applicant has not discharged his onus of demonstrating discrimination in the substantive sense.
Findings of fact and application of the law
166As indicated above, the applicant’s medical conditions constitute a disability within the meaning of the Code. Based on the documentary evidence, it is clear that the applicant has an ATP, pursuant to the MMARs, as a result of his medical conditions.
167I accept the applicant’s evidence, set out above, that he uses marijuana when it is required, and wherever he is at the time. He testified that, generally, he has about 14 grams of marijuana per day, which is consistent with the daily amount proposed by his doctor in his 2009 application for an ATP. He testified that, on average, he smokes once every hour or two, and if he was on a restaurant patio for four hours, he would smoke maybe one marijuana cigarette per hour, or four to six at the most. If he feels he needs it but cannot have it, his symptoms get worse.
168Dr. Ware explained that patients who use herbal cannabis and smoke it, as opposed to taking other forms, have a much more rapid onset of action. Where patients have symptoms that require rapid relief, or very tight control of the amount of the drug, they find that inhaling it gives them a more precise means of controlling symptoms. With respect to how often a person may need to use marijuana, Dr. Ware explained that one group of patients uses the drug through the course of the day, several times a day if need be, in order to sustain function through the day. He testified that, within the context of knowing the daily amount, the patient determines how frequently or how much to use, given how they are feeling at the time.
169In my view, it is clear, based on the evidence, that the applicant has a disability-related need to smoke marijuana. Further, I find that this need can arise throughout the day, including while the applicant is attending licensed premises in Ontario.
170With respect to the effect that the challenged provision has on the applicant’s disability-related need to smoke marijuana, the applicant gave evidence concerning his attendance at licensed premises in Ontario. He testified that, on a number of occasions, he explained that he had a medical exemption to smoke marijuana and asked if he could smoke marijuana on the premises but was refused. On more than one occasion he was told that he could not smoke marijuana on the premises because of a liquor licence. While the applicant was not precluded from attending a number of licensed premises with marijuana, having shown his ATP, he also testified that there have been situations where he has had marijuana with him and he is told to put it in his car. Mr. Alakas, on behalf of the respondents, was very clear that entering a bar while “holding” marijuana is a violation.
171In the circumstances, I am satisfied that the applicant has established a prima facie case of discrimination on the basis of disability in services. The applicant has a disability-related need to smoke marijuana. This need also requires that he carry marijuana with him, should he need to medicate. The challenged provision has the effect of requiring that the applicant leave licensed premises to medicate with marijuana should such a need arise while attending licensed premises. In particular, the applicant seeks to smoke marijuana for disability-related reasons in outdoor areas of licensed premises where individuals are permitted to smoke tobacco. As a result of the challenged provision, which prescribes that a licence holder shall not permit a person to consume a controlled substance on the premises, he is not permitted to do so. In some instances, he is not permitted to bring marijuana with him on to licensed premises.
172The challenged provision actually places conditions on liquor licensees. It states, in part, that a “licence holder shall not permit a person to hold, offer for sale, sell, distribute or consume a controlled substance… on the premises”. However, section 9 of the Code specifically prohibits both direct and indirect infringements of rights under the Code. Based on the evidence, the challenged provision clearly impacts upon the applicant. By requiring that license holders not permit persons to hold or consume marijuana, the challenged provision indirectly creates a barrier for persons like the applicant, who have a disability-related need to medicate with marijuana. As a result of the challenged provision, the applicant is denied equal access to and use of licensed premises on the basis of his disability, in that he is unable to attend and medicate on licensed premises, unlike persons with disabilities relying on other medications, or persons without disabilities.
173I do not agree with the respondents’ submissions that the applicant is not substantively excluded by the challenged provision, and that any inconvenience occasioned to the applicant by being required to leave premises temporarily to smoke marijuana is, at its highest, a minor or trivial burden on his ability to access the services of licensed establishments. I agree with the submissions of the applicant, in referring to Brown, supra, that the question is not only whether the service is available at all, but whether the applicant, who has a disability, has access to the service “in both a dignified and as full a way as an able-bodied person.”
174If the applicant needs to use his medicine while attending licensed premises, he has to leave the premises and cannot enjoy the premises as others can. He testified that he has cut out going to concerts and venues, and that he has taken out “parts of his life” because he does not want to deal with the stress of knowing he is not going to be able to use his cannabis, or, if smoking outside, he might not be allowed back in. He also testified that he has been harassed, and questioned himself and others with exemptions putting themselves in harms way, where they are a lot more vulnerable to being attacked and ridiculed, whereas there is some protection if one remains in the patio area of a licensed premises. He testified that the change he is looking for would make him feel “a part of society.”
175In the circumstances, I am satisfied that the challenged provision has the effect of creating a substantive disadvantage for the applicant as a result of his disability-related needs. The Court of Appeal held in Tranchemontagne, supra, that demonstrating a distinction that creates a disadvantage by perpetuating prejudice or stereotyping is not a free-standing requirement in establishing a prima facie case, and can be inferred in most instances in the human rights context based on evidence showing a distinction on a prohibited ground that creates a disadvantage. In my view, the disadvantage of having to leave licensed premises, or, in some instances, not being able to attend licensed premises with medication, satisfies this requirement.
176Moreover, there was plenty of evidence concerning stigma in the present case. For example, the applicant testified that he is subjected to scrutiny in relation to using marijuana, and there is a stigma that goes along with the medical use. He testified that it makes him feel quite degraded. He testified it feels very demeaning. With respect to stigma, the applicant also testified that the average cannabis consumer is generally labelled as a “pot head”. With respect to stereotypical views of marijuana users, he referred to people being seen as lazy and unproductive. In terms of beliefs and attitudes about marijuana that he has experienced, he referred to “reefer madness”, the belief that marijuana makes one insane, and people having a very “twisted” sense regarding the use of cannabis in general. He testified that there are so many negative connotations that even with a medical licence one is still scrutinized, even though it is being used for medical purposes.
177With respect to stigma, Dr. Ware testified that one of the organizations that he is a member of replaced the word “cannabis” in its name with “cannabinoid”, in order to avoid the stigma associated with “cannabis”. He testified that whenever one starts to discuss cannabinoids, even in the most scientific congresses, there is always a “giggle factor”, and it is inevitable that people make the link between smoked marijuana “on the street” and therapeutic cannabis use as medicine. He testified that, in his view, this association or stigma is perpetuated by stereotypes in the media. He testified that whenever a story is published in the newspapers of a medical cannabis issue, it is almost inevitably associated with a picture of somebody with sunglasses with a pot leaf and they are smoking a joint and there is no link between the picture and the text. He referred to the stigma as “cannabinoids equals marijuana equals people getting high.” He testified that having this association holds everybody back, including people who want to invest in programs, pharmaceutical companies, physicians and policy makers.
178I am satisfied that the applicant is subjected to stigma and prejudice in relation to his disability-related need to smoke marijuana. Based on the evidence, it appears that there are pervasive negative stereotypes about marijuana use that affect those who need to consume marijuana for medical reasons and call into question the legitimacy of their medical need. I am satisfied that, intentional or not, prejudice and stereotyping play a significant role, and are perpetuated, in the disadvantage the applicant experiences as a result of the challenged provision. I find that the applicant has established that the challenged provision is prima facie discriminatory in that it effectively prescribes that the applicant, who has a disability-related need to consume marijuana, may neither hold nor consume medical marijuana on licensed premises.
Justification
179While the onus of proving discrimination remains on the applicant throughout, the respondents have the onus of establishing statutory defences on a balance of probabilities. See Meiorin, supra, at para. 54, and Tranchemontagne, supra, ONCA, at paras. 109-119.
180The respondents submit that the challenged provision is justified under s. 11 of the Code. Section 11 of the Code provides, in part, as follows:
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminated because of such ground is not an infringement of a right.
(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements.
181In Meiorin and Grismer, the Supreme Court of Canada held that once an applicant establishes that a rule is prima facie discriminatory, the onus shifts to the respondent to prove on a balance of probabilities that the discriminatory rule has a reasonable and bona fide justification. In order to establish this justification, a respondent must show that:
(1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
(2) it adopted the standard in good faith, in the belief that it is necessary to the fulfilment of the purpose or goal; and
(3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 [“Grismer”], at para. 20.
Meiorin, supra, at para. 54.
Rational connection
182The respondents submit that the purpose of the challenged provision is to protect the health and well-being of all persons who are present in licensed premises by excluding controlled substances including marijuana. They submit that sidestream marijuana smoke can have psychoactive and pharmacological effects on persons who are exposed to it, and that preventing persons from smoking marijuana in licensed premises protects the staff and patrons of such premises from contact with marijuana smoke. They submit that protecting staff and patrons of licensed premises from the effects of contact with sidestream marijuana smoke is a valid and rational purpose.
183The applicant submits that the respondents have not asserted a valid purpose for the impugned regulation.
184The respondent Ministry has responsibility for the LLA. The LLA includes provisions relating to the issuance of liquor sales licenses and permits, responsible use, compliance, offences, and the making of regulations. The challenged provision, s. 45(2) of Regulation 719 under the LLA, prescribes that a liquor license holder “shall not permit a person to hold, offer for sale, sell, distribute or consume a controlled substance… on the premises…” Section 45(2) is preceded by s. 45(1) which prescribes that a liquor license holder “shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises…” Section 45 is contained under the heading “Conditions of Liquor Sales Licenses”, along with a number of other sections that appear to relate to health and safety issues and, to some extent, illegal activity. The provisions are rather extensive, and address various matters related to health and safety that may arise in the context of the sale of liquor.
185In Grismer, supra, the Supreme Court held as follows with respect to the first branch of the Meiorin test:
In this case, the question is whether the Superintendent’s goal (ensuring a reasonable level of highway safety) was rationally connected to his general function (issuing driver’s licences). There can be no question that a rational connection has been shown. Highway safety is indubitably connected to the licensing of drivers. Common sense and experience tell us that driver’s licences should only be issued to those who can demonstrate a reasonable degree of ability and safety in driving. (para. 28)
186In the present case, having carefully reviewed the legislative scheme, I am satisfied that the purpose of the challenged provision is the health and safety of all persons present in licensed establishments, and that this purpose is rationally connected to the licensing and regulation of the sale of liquor by the respondents. I am satisfied that the challenged provision has “a legitimate general purpose underlying it”. See Meiorin, supra, at para. 59. In my view, the first branch of the Meiorin test has been met.
Good faith
187With respect to the second branch of the Meiorin test, the respondents submit that, given the scientific evidence of the risk to passive inhalers from sidestream marijuana smoke, the Tribunal should conclude that the challenged provision represents a good faith attempt to mitigate that risk. They submit that the reasonable inference is that the Legislature enacted these restrictions to protect members of the public from the real risks associated with passive inhalation. They also submit that there is no evidence to support any allegation of bad faith in the making of this regulation, and the applicant did not allege bad faith. With respect to this latter submission, I agree with the applicant’s submission that the respondents bear the onus of establishing good faith.
188Referring to the Supreme Court of Canada’s decision in Thorne’s Hardware Ltd. v. Canada, 1983 CanLII 20 (SCC), [1983] 1 S.C.R. 106, at pp. 112-113, and the decision of the Ontario Court of Appeal in Ontario Federation of Anglers and Hunters v. Ontario (Ministry of Natural Resources) (2002), 211 D.L.R. (4th) 741, 2002 CanLII 41606, at para. 37, the respondents also submit that the application of the second branch of the Meiorin test must recognize the difference between a challenge to legislation and a challenge to private conduct, as governments do not give reasons for the enactment of legislation. They submit that the Legislature cannot come before the Tribunal and attest to its subjective good faith in making a law.
189The applicant submits that the broad rule was not necessary, nor could it have been believed to be necessary, simply to protect the public from second-hand marijuana smoke. Referring to Meiorin, supra, at para. 60, the applicant submits that the purpose of the good faith requirement is to ensure that an impugned rule or standard is not motivated by a discriminatory animus, and that, on this basis as well, the government has not met its burden. The applicant submits that there is an inherent concern that prohibition of marijuana smoking, even when it is for medical purposes, is a “knee-jerk” reaction, stemming from fears and prejudices, and that the respondents have failed to provide any evidence to rebut these concerns. The applicant also submits that there is no evidence to suggest that the government ever considered whether a complete ban on marijuana smoking, indoors and out, is necessary to protect the public.
190Having regard to the challenged provision in the context of the overall legislative scheme, I am satisfied that the challenged provision was adopted in good faith, in the belief that it is necessary for the health and safety of all persons present in licensed establishments. In addition, while the respondents bear the onus of establishing good faith, there is no evidence before me to suggest that the enactment of the challenged provision was “not thought to be reasonably necessary or was motivated by discriminatory animus”. See Meiorin, supra, at para. 60.
Is the challenged provision reasonably necessary to accomplish the legislative purpose?
191The respondents submit that the challenged provision is reasonably necessary to accomplish the legislative objective of protecting individuals from exposure to sidestream marijuana smoke, and that there are no reasonable alternatives that would meet this important public health objective. They submit that the evidence plainly establishes that the government had “a reasoned apprehension of harm” concerning the effects on patrons and employees of licensed establishments of sidestream marijuana smoke, and that no higher standard of proof is required.
192The respondents submit that, in determining whether a law, like the challenged provision, is justified under the Code, the Tribunal should be guided by the Supreme Court’s best efforts to address the complex and competing considerations that arise when legislation is challenged as discriminatory under the Charter. Referring to Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, at para. 69, the respondents submit that the Tribunal should recognize that the legislative function is entitled to deference in the policy-making and line-drawing that is an unavoidable part of legislating in the public interest. Referring to a number of decisions, including RJR-MacDonald v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at paras. 67-70, 80-81, 137, and 160, they submit that the Legislature is entitled to deference with respect to issues of public policy where the law is premised on complex and conflicting scientific evidence, and where it protects vulnerable persons, as in the present case. Finally, referring to Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at paras. 77 and 98, and R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 85, the respondents also submit that where there is competing and inconclusive scientific evidence of the harm sought to be prevented by legislation, as in this case, the government is entitled to rely on a “reasoned apprehension of harm.”
193With respect to deference, the applicant submits, and I agree, that the respondents’ position was rejected by the Supreme Court of Canada in Grismer, supra. In Grismer, the Court queried whether “the Meiorin test… places too high an evidentiary burden on the government, particularly in situations involving public safety.” The Court stated that the “obvious answer… is that it is the Legislature, not the Court, which has placed the evidentiary burden of showing reasonable necessity once prima facie discrimination has been made out.” (para. 43) The Court continued, as follows:
More fundamentally, is it really inappropriate to require a governmental body that rejects an application for a driver’s licence on the basis of disability to prove on a balance of probabilities that the denial is reasonably necessary to the standard of highway safety it has selected? The government authority knows why it makes the denial and is in the best position to defend it. The government must only establish its justification according to the relaxed standard of proof on a balance of probabilities. Common sense and intuitive reasoning are not excluded, but in a case where accommodation is flatly refused there must be some evidence to link the outright refusal of even the possibility of accommodation with an undue safety risk. If the government agency can show that accommodation is impossible without risking safety or that it imposes some other form of undue hardship, then it can maintain the absolute prohibition. If not, it is under an obligation to accommodate the claimant by allowing the person an opportunity to show that he or she does not present an undue threat to safety. (para. 43)
I also note that, in Tranchemontagne, supra, SCC, the Supreme Court held that “whether a provision is constitutionally permissible, and whether it is consistent with the Code, are two separate questions involving two different kinds of scrutiny.” The Court held that when a tribunal or court applies s. 47 of the Code to render another law inapplicable, “it is simply applying the tie-breaker supplied by, and amended according to the desires of, the legislature itself” (para. 36).
194With respect to the respondents’ submission that they are entitled to rely on a “reasoned apprehension of harm”, in my view, the Supreme Court clearly articulated in Meiorin, supra, and Grismer, supra, what is required in order to establish that a prima facie discriminatory provision is “reasonably necessary”. As set out above, in Grismer, the Court held that, although there must be “some evidence” to link the refusal of even the possibility of accommodation with an undue risk, common sense and intuitive reasoning are not excluded.
195In the present case, the respondents have the burden of demonstrating that not permitting individuals with ATPs to possess and smoke marijuana for medical purposes on licensed premises is reasonably necessary, and that accommodation of individuals with ATPs would result in undue hardship, within the meaning of s. 11 of the Code. As the Supreme Court has emphasized, “some hardship is acceptable; it is only ‘undue’ hardship that satisfies this test.” See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, at p. 984.
196The respondents submit that the challenged provision is a reasonable and bona fide health and safety requirement within the meaning of s. 11 of the Code. They also submit that the harms the legislation is directed to are the harms of an adverse pharmacological effect, and of causing third parties to produce detectable levels of THC in their bodies.
197In terms of a risk that exposure to second-hand marijuana smoke, in an uncovered outdoor space, could impair a person, or cause some intoxication, Dr. Ware testified that he thought “the risk, if any, is miniscule.” With respect to the applicant’s document entitled “Estimating Passive Inhalation of THC in Open Space”, Dr. Ware testified that the ultimate calculations, estimating amounts passively inhaled in an open door environment, reflect a very, very low risk, in terms of impact, for somebody in an open patio environment, exposed to passive smoke. He described the figures as “clinically miniscule”, and testified that he just did not see a logical way to extrapolate this to an intoxication.
198In cross-examination, with respect to his characterization of the level of risk associated with the passive inhalation of sidestream marijuana smoke on an open air patio as “minuscule”, Dr. Ware agreed that the risk depends, in part, on the THC content of the cannabis being combusted. He testified that there are many risk factors, and agreed that they also include the number and size of cigarettes, proximity of the cigarette to the passive inhaler, duration of exposure, volume of the area, and amount of air flow. He clarified that he was not saying that, no matter what any of these factors are, there is a miniscule risk of a pharmacological effect on a passive inhaler. He agreed that the risk will necessarily depend on all of the variables. Dr. Ware testified that, based on the experiments where the amount of THC absorbed has been calculated, he believes that the risk is low with the amounts reported, and becomes so low as to be minuscule, in an open air patio, in reasonable social circumstances.
199Dr. Ferslew testified that passive inhalation of THC can produce an effect in the body. If concentrations of THC are sufficient, a pharmacodynamic response can be elicited. Dr. Ferslew testified that, in his opinion, in an open air environment, the concentration of exposure depends on the number of smokers and the proximity to them, the THC content in the cigarettes, and the duration of exposure. The degree of risk and absorption of THC will be proportional to the exposure.
200Dr. Ferslew testified that research by him and others has shown that passive inhalation can produce detectable concentrations of THC in the blood, which is metabolized, producing significant concentrations of carboxy-THC in both blood and urine. Also, a “contact high” can be produced by passive inhalation, meaning a physiological and/or toxicological response. However, the research referred to did not include environments akin to an open-air patio.
201Dr. Ferslew testified that plasma concentrations in excess of 2 to 3 nanograms per ml, or 1 to 1.5 nanograms per ml in whole blood, are concentrations at which impairment has been demonstrated to occur. He was asked about the Mason study where peak plasma concentrations of THC were a little over 2 nanograms per ml with the IV infusion of 192 micrograms, and almost 4 nanograms per ml with passive inhalation. He testified that when blood concentrations are greater than 1 nanogram per ml, effects can occur, depending on the person, and he and others have had contact highs from concentrations comparable to the data in the Mason study. He testified that it could lead to impairment, depending on the individual and the situation.
202While Dr. Ferslew disagreed with most of the calculations in the applicant’s document entitled “Estimating Passive Inhalation of THC in Open Space”, he testified that the calculation of 87.6 micrograms in the applicant’s document, representing, based on the Cone study, the amount of THC inhaled by a passive smoker in an open door environment is just slightly less than the 192 micrograms that the Mason study proved produces blood levels that are significant. He testified that 87.6 micrograms is enough, based on the data of Mason alone, to produce “a level”.
203With respect to Dr. Ware’s opinion that, in an outdoor space, under a reasonable social situation, the risk of an adverse effect to a passive inhaler would be “minuscule”, Dr. Ferlew testified that if a passive inhaler exposed to marijuana smoke can smell it, then it can be absorbed. The degree and duration of an individual’s response from passive inhalation would be proportional to the dose that they are exposed to, absorb and distribute. If they absorb THC comparable to the work of Mason, they are going to get a level in their blood that could produce a pharmacological and potentially toxicological response. That response then puts them at risk because they are having a response to a passive inhalation of a compound and they may not know what it does to them. They may or may not perceive it, but they have a drug in their blood that is going to have a potential to produce a response and that response can be detrimental to their performance. Dr. Ferslew testified that an exposure in an open air patio to what are considered casual uses of THC could produce a reasonable exposure where someone would inhale it and absorb it. He testified that the risk would be such that they could have a concentration that would produce a pharmacological or toxicological effect. Dr. Ferslew testified that he does not think that is miniscule.
204Dr. Ferslew also testified that the effects of marijuana and alcohol combined are additive, and potentially synergistic, and that the potential for synergism depends on the dose. However, any additive or synergistic effects of alcohol and THC, in the context of passive inhalers of sidestream marijuana smoke on a licenced open-air patio, are by no means clear, based on the evidence, and were not addressed by the respondents in their final submissions.
205While I find the evidence of both expert witnesses credible, to the extent that there are differences in their evidence concerning the level of risk posed by sidestream marijuana smoke to passive inhalers in an open-air environment, I prefer the evidence of Dr. Ferlsew. Dr. Ferslew has conducted primary experimental research on the pharmacology and toxicology of the passive inhalation of sidestream marijuana smoke. He has taught in the field and published research on the effects of passive marijuana inhalation. His work as a forensic toxicologist involves the interpretations of drug screening tests to determine whether the results are the product of active or passive inhalation of marijuana smoke. In my view, Dr. Ferslew is particularly well-qualified in the area of the pharmacology and toxicology of passive cannabinoid inhalation.
206I find, based on the expert evidence, that sidestream marijuana smoke poses a risk to passive inhalers in open-air environments such as uncovered patios of restaurants and bars. There is a risk of a pharmacological and/or toxicological effect. Some level of “impairment” is also possible.
207Both experts acknowledged that there are no published studies on the effects of sidestream marijuana smoke on passive inhalers in an open-air environment such as an uncovered restaurant or bar patio. In giving their opinions, the expert witnesses extrapolated to varying degrees from existing studies of passive inhalation in other environments. As such, based on the evidence, including existing research, the likelihood of sidestream marijuana smoke producing effects in passive inhalers is somewhat unclear. What is clear from the evidence of both experts is that the likelihood of effects being produced in passive inhalers is dependent on a multitude of factors, including the concentration of THC in the inhaled air and the duration of inhalation. I also have no doubt that, if effects were to occur in passive inhalers on restaurant or bar patios, those effects and their consequences could be quite serious.
208In particular, with respect to positive test results, Dr. Ferslew testified that, based on the Cone study, one could get “a positive urine” from passive inhalation, and he has no doubt in his mind that he is risking somebody’s career, livelihood, or legal consequences, when he says they have cannabinoid in their urine, and that is a big risk. While the likelihood of a positive THC test result, following passive inhalation on an open-air restaurant bar or patio, is not clear based on the evidence, and may even be quite unlikely, the consequences could be quite severe. I agree with the respondents’ submission that passive inhalers may be exposed to significant legal and employment consequences if they are found to have absorbed THC.
209I also agree with the respondents’ submission that there does not appear to be any reasonable alternative involving an individualized assessment of risk. Based on the expert evidence, the risk to passive inhalers posed by sidestream THC depends on a multitude of factors, including: the number of marijuana cigarettes being smoked on a patio, the THC content of the marijuana, the size of the cigarettes, the duration of exposure, the proximity of passive inhalers to the source or sources of the marijuana smoke, the weather conditions, and the biological variation among passive inhalers. These are all factors that affect the dose and potential effects of passive inhalation.
210The respondents submit, and I agree, that the above factors are all beyond the control of the respondents and liquor licensees, and that these factors can change over time on any given patio. The respondents submit that an individualized risk assessment would require assessment of each patio on a moment-to-moment basis, which is clearly impossible as a practical matter. In my view, such an individualized assessment would rest with liquor licensees and their staff. Given the risks that I have found exist to passive inhalers from sidestream marijuana smoke, and the obvious challenges to assessing those risks on any given patio at any given time, in my view, individualized assessment is neither reasonable nor practical.
211Having carefully reviewed and considered the expert evidence, I find that the respondents have established, on a balance of probabilities, that there is a serious risk to passive inhalers from sidestream marijuana smoke, giving rise to undue hardship. I find, therefore, that, insofar as the challenged provision prohibits the smoking of medical marijuana on licences premises, the respondents have established that it is reasonably necessary to accomplish a legitimate legislative purpose. Accordingly, with respect to the challenged provision not permitting the smoking of marijuana on licensed premises, the respondents have established a defence under s. 11 of the Code.
Ability to hold medical marijuana
212The focus of the applicant’s allegations has been on the challenged provision not permitting him to smoke medical marijuana on licensed premises, where tobacco smoking is permitted. However, he also alleges that the challenged provision prohibits him from possessing medical marijuana on licensed premises and thereby discriminates against him as a person with an ATP. I have found, above, that the applicant has established that the challenged provision is also prima facie discriminatory in that the applicant, who has a disability-related need to consume marijuana, may not “hold” medical marijuana on licensed premises. The respondents have not presented any evidence to establish that this aspect of the challenged provision is reasonably necessary. Accordingly, insofar as the challenged provision prohibits the possession of medical marijuana on licensed premises by persons with valid ATPs pursuant to the MMARs, I find that the respondents have not established a defence under the Code. I find, therefore, that insofar as the challenged provision does not permit the applicant, who has a valid ATP, to possess medical marijuana on licensed premises in accordance with his ATP, it is contrary to the Code.
213Finally, as the focus of the applicant’s case was on the smoking of marijuana, this decision does not address consuming marijuana through other means, such as orally ingesting marijuana contained in food items.
REMEDY
214The Tribunal’s remedial powers are set out in s. 45.2(1) of the Code:
45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
Public interest
215The applicant seeks a “public interest” remedy pursuant to s. 45.2(1)(3) of the Code. In particular, the applicant submits that the appropriate public interest order is one that prevents the respondents from enforcing the discriminatory law. The applicant submits, based on Malkowski, supra, at para. 31, and Tranchemontagne, supra, at para. 72, that the Tribunal does not have authority to formulate or require the adoption of a new regulation, but it can declare that the current regulation is discriminatory, and order that the respondents refrain from enforcing it.
216The applicant also submits that the respondents did not attempt to justify the law as it relates to drugs other than marijuana, and the remedy should, therefore, prohibit the enforcement of the regulation in relation to any CDSA substance that is being used legally as a prescribed medicine. The applicant submits further that the remedy should recognize the implications of the finding in this case for other legislation and regulations, specifically those that also impact the ability of people with disabilities to use their medically-prescribed marijuana in regulated environments such as hospitals, nursing homes, universities and colleges.
217I have found that s. 45(2) of R.R.O. 1990, Regulation 719, Licenses to Sell Liquor, is contrary to the Code in that it does not permit the applicant, who has a valid ATP under the MMARs, to “hold” medical marijuana while attending liquor licensed establishments in Ontario. To the extent that I have found s. 45(2) of Regulation 719 is contrary to the Code, it should not be applied, as the Code has primacy over other legislation and the legislature has not exempted s. 45(2) of Regulation 719 from the application of the Code. See Tranchemontagne, supra, at para. 35. I have also included an order below to ensure future compliance with the Code.
218As there was no evidence before me concerning drugs other than marijuana, or public facilities subject to other regulations, I decline to order any of the requested remedies related to drugs other than marijuana and the regulation of public facilities.
Monetary compensation
219The applicant also seeks monetary compensation. Pursuant to s. 45.2(1) of the Code, the Tribunal may award monetary compensation for injury to dignity, feelings, and self-respect.
220The Supreme Court of Canada held in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, that when a law is struck down as unconstitutional, damages will only be awarded if there is conduct that is “clearly wrong, in bad faith, or an abuse of power” (para. 79). The judgment also refers to “negligence” and “wilful blindness” (paras. 82-83). Mackin requires an evaluation of whether, in light of the jurisprudence as it stood at the time, the government’s conduct was clearly wrong. Unless, at the time the legislation or regulations were implemented, it was or ought to have been evident that the steps taken were unconstitutional, damages should not be awarded. The Court stated, at para. 79:
Thus, the government and its representatives are required to exercise their powers in good faith and to respect the “established and indisputable” laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be excessively constrained.
221In Quebec (Commission des droits de la personne et droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789, at paras. 19-22, the Court confirmed the application of these principles to the Quebec Charter, which, like the Code, is quasi-constitutional human rights legislation. In Braithwaite, supra, at para. 88, the Divisional Court held that Mackin also applies to the Code, stating as follows:
Moreover, the Supreme Court of Canada has held that absent conduct that is clearly wrong, in bad faith or an abuse of power, it is inappropriate to award damages when legislation is subsequently found to be unconstitutional or contrary to provincial human rights legislation (Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405 at paras. 78-79; Québec (Commission des droits de la personne et droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789 at para. 23.
222In my view, having regard to the above principles, there is no basis to find that the respondents acted in bad faith, were negligent, clearly wrong, or abused their power under prevailing human rights law. On the contrary, I have found that the challenged provision was adopted in good faith. Also, I have found only that the applicant has made out his case with respect to that aspect of the challenged provision which does not permit the possession of medical marijuana by persons with valid ATPs in licensed establishments, which was not the main focus of his allegations. In the circumstances, I do not find it appropriate to award monetary compensation for injury to dignity, feelings and self-respect, and decline to do so.
ORDER
223To the extent that s. 45(2) of Regulation 719, Licenses to Sell Liquor, R.R.O. 1990, under the LLA, does not permit persons with valid ATPs under the MMARs to “hold” medical marijuana while attending liquor licensed establishments, it should not be enforced.
Dated at Toronto, this 19th day of September, 2011.
“Signed by”
Brian Eyolfson
Vice-chair