COURT OF APPEAL FOR ONTARIO
O’Connor, A.C.J.O. (In Chambers)
BETWEEN
Her Majesty the Queen
Appellant (Responding Party)
and
Matthew Mernagh
Respondent (Responding Party)
and
British Columbia Civil Liberties Association
Proposed Intervener (Moving Party)
and
The Canadian AIDS Society, The Canadian HIV/AIDS Legal Network
and The HIV & AIDS Legal Clinic Ontario
Proposed Interveners (Moving Parties)
and
The Canadian Civil Liberties Association
Proposed Intervener (Moving Party)
Nick Devlin, for the responding party, Her Majesty the Queen
Paul Lewin, for the responding party, Matthew Mernagh
Jessica Orkin, for the proposed intervener, The British Columbia Civil Liberties Association (BCCLA)
Paul Burstein and Ryan Peck, for the proposed interveners, The Canadian AIDS Society (CAS), The Canadian HIV/AIDS Legal Network (Legal Network), and The HIV & AIDS Legal Clinic Ontario (HALCO)
Jean-Marc Leclerc, for the proposed intervener, The Canadian Civil Liberties Association (CCLA)
Heard: March 21, 2012
ENDORSEMENT
1The three applicants, the Canadian Civil Liberties Association (CCLA), the British Columbia Civil Liberties Association (BCCLA) and jointly the Canadian AIDS Society, the HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario (HIV/AIDS Applicants) seek to intervene in this appeal. The appellant/Crown opposes their intervention. The respondent consents to their intervention.
2The respondent was charged with cultivating marihuana, contrary to the Controlled Drug and Substances Act, S.C. 1996, c. 19 (CDSA). At trial, the respondent challenged the Marihuana Medical Access Regulations, S.O.R./ 2001-227 (MMAR) on the basis they are illusory for many Canadians because doctors will not sign the declaration required under the MMAR for reasons unrelated to the therapeutic advantages or disadvantages of medicinal marihuana.
3The trial judge declared the MMAR and the prohibitions against possession and production of cannabis (marihuana) in ss. 4 and 7 of the CDSA constitutionally invalid and of no force and effect. The charge against the respondent was permanently stayed. The trial judge’s decision was based on findings that the evidence had established that it was practically impossible to obtain the requisite support of a medical doctor for the lawful use of medicinal marihuana under the MMAR. He found that the physicians in Canada had massively boycotted the MMAR, and that their overwhelming refusal to participate in the medicinal marihuana program completely undermined the effectiveness of the program.
4The Crown appeals primarily on the basis that the trial judge made three fundamental errors, by:
misunderstanding the effects of the 2005 overhaul of the MMARs and basing his ruling on what was required of doctors by the pre-2005 scheme, not the present system;
making serious mathematical errors leading him to misunderstand and mischaracterize the functioning of the impugned scheme; and
finding or assuming that the exemption-seekers in this case were (a) all entitled to a medical exemption and (b) had taken reasonable steps to complete the presently required application when there was no evidentiary basis for those findings.
5I start with the arguments the applicants will make if granted standing.
6The HIV/AIDS Applicants will argue that the issues raised by this appeal go well beyond this individual case. When viewed in a broad context this case has implications for many Canadians. They argue that they directly represent thousands of people who suffer from conditions for which the medicinal use of marihuana is beneficial, and on that basis alone they qualify as persons affected by the decision under appeal: see Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2.
7In any event, the HIV/AIDS Applicants say that they also have a useful contribution to make to assist in the resolution of the appeal without causing any injustice to the parties. Their argument will be based solely on the record in this case. They will not seek to provide additional factual evidence or introduce fresh evidence. Their position is that doctors’ decisions in this context are subject to the Canadian Charter of Rights and Freedoms and that the evidence in this case, at a minimum, shows a strong reluctance by doctors to participate in the MMAR process. Thus they argue that the MMAR scheme is arbitrary and in violation of s. 7 of the Charter because there is no realistic possibility of legal review of the doctors’ decisions. They argue that there is no alternative for people to legitimately use marihuana for medicinal purposes, other than to go from one doctor to the next until they find one who is willing to participate in the process.
8The HIV/AIDS Applicants also argue that even if the Crown were successful in his arguments with respect to the one respondent in this case, the record, supplemented by their arguments, can sustain a finding of a Charter breach. In this way they differentiate their position from the respondent’s presumed position to simply argue in favour of upholding the trial judge’s findings.
9The BCCLA indicates that it will make submissions on the appropriate remedy in this case for persons in the respondent’s position. Persons who have a legitimate basis for the use of medicinal marihuana, but cannot obtain an exemption. The BCCLA will not seek to add anything to the record. On the record as established at trial, they will submit that a violation of the Charter has been made out in the respondent’s case, as would be the case for many other people in similar circumstances. The BCCLA also wishes to offer a different interpretation of the case law in this area than the appellant has argued, which has broad implications for Canadians. They say they have an interest in offering this alternative interpretation, which is not shared by the appellant or the respondent.
10As is the case with the other two applicants, the CCLA indicates that it will not seek to add to the record in this appeal. If the trial judge’s findings are upheld in this court, the CCLA wishes to suggest alternative legal mechanisms for the medicinal use of marihuana. These alternatives will be based on regimes in other jurisdictions and aim to assist in this court’s consideration of what would be an appropriate regime. On the other hand, the CCLA provides a position, not put forward by the respondent, if this court is persuaded that the trial judge’s findings, particularly about physicians in Canada having massively boycotted the MMAR, are in error. The CCLA’s position is that it would be unreasonable to require an individual to establish a massive boycott of the MMAR scheme in order to establish a Charter violation. The CCLA proposes to offer a test and the relevant factors for courts to consider in this context.
11None of the applicants propose to make any submissions with respect to whether the trial judge made factual errors or not. The HIV/AIDS Applicants will rely on legislative facts, as is often the case in constitutional cases. They rely on these facts primarily to argue that there are inconsistencies between some of the Crown’s positions in this appeal and those legislative facts.
12While the Crown fairly concedes that the applicants all have an interest in the issues raised in this appeal, the Crown contends that this is a focused, fact based appeal applying settled legal principles, and is thus an inapt case for public-interest interventions. The Crown argues that the interveners are in no better position than the respondent to argue the factual issues at the core of this appeal. The Crown also submits that the broader proposed submissions raised by the applicants were not argued at trial, are not supported by the factual record in this case, are duplicative as between them, and in the case of the BCCLA and the HIV/AIDS Applicants, are prejudicial to the Crown and third parties not before the courts.
13The Crown emphasizes that the record in this case does not include any direct evidence from doctors and evidence about what patients were told by their doctors was ruled admissible only for the fact that those statements were made, and not for the truth of their content. The Crown says that the implication that doctors were either refusing to assist their patients for non-medical reasons or because they were wrong about the benefits of marihuana for their patients is highly prejudicial and problematic, and that neither of these positions is established in the evidence and therefore cannot be relied upon by the applicants.
14While there may be some inevitable overlap among the applicants, I am satisfied that each applicant has distinct arguments from the others and I accept counsel’s submissions that they will avoid any unnecessary repetition. Having heard what the applicants propose to argue, I do not accept the Crown’s submission that this is simply a fact-based appeal. The applicants propose to make their arguments on the evidentiary record before the court. They do not propose to address or defend the reasonableness of the factual findings made by the trial judge. They leave that to the respondent. Rather the applicants propose to address broader legal and constitutional issues based on alternative factual findings that could emerge from this factual record. Those types of submissions could be helpful to the court.
15Where the intervention is in the context of a Charter case, whether an intervener has an important perspective distinct from the immediate parties is an important factor to consider on such applications: Ontario (Attorney General) v. Dieleman (1993), 1993 CanLII 5478 (ON SC), 16 O.R. (3d) 32. Whether or not the applicants’ positions ultimately prevail, they will still provide a unique viewpoint that will not otherwise be made and which may be useful to the court.
16As Chief Justice Dubin stated in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164, at p. 167:
Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.
17I also do not accept that allowing the applicants to intervene will unfairly prejudice the medical profession. As I say, the applicants will take the record as it is. If there is prejudice to the medical profession in that record, which is far from obvious to me, it is there now and will not result from permitting these interventions.
18I also do not accept that permitting the interventions will unfairly prejudice the Crown. The issues that the applicants propose to raise are not surprising and emerge quite naturally in a constitutional case such as this.
19Thus I am also of the view that each of the applicants should be able to make a useful contribution to the resolution of the appeal without causing an injustice to the appellant or prejudicing the appeal process.
20On this basis I grant the applications to intervene.
21I am mindful of the Crown’s alternative submission that, if I were inclined to grant the applications, the aggregate of the interventions should not outweigh the central issues raised by the appellant and the respondent. The Crown has filed a factum of just over 50 pages, and was allotted 3 hours to argue this appeal. The respondent has been allotted 2 hours to respond.
22In the result, the HIV Applicants, the BCCLA, and the CCLA will be allowed to intervene, subject to the following conditions for each intervener:
i. they shall take the record as it exists and not seek to augment it;
ii. they may each file a factum not to exceed 20 pages in length;
iii. they may each have up to 20 minutes for oral argument, subject to the discretion of the panel;
iv. the interveners shall not seek costs nor be exposed to costs in the appeal; and
v. the Crown will be allowed to file a factum responding to the interveners not to exceed 25 pages in length; and will have additional time to reply to the interveners, subject to the discretion of the panel.
23This appeal is presently listed to be heard on May 7 and 8, 2012. It was agreed among the parties that: the respondent would file his factum on or before April 20, and would be amenable to sharing drafts with the interveners prior to that date; the interveners would file their factums on or before April 25, and the Crown would file its reply factum on or before May 2.
24It was also agreed among the parties that the sealed part of the record (Volume 8 of the Appeal Book) would be released to counsel for the interveners and those whom counsel consider it necessary to have access to this material for their preparation in this appeal. Counsel agrees this material will in all other respects be kept confidential and not disseminated, I so order.