Catricala v. Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, 2022 CanLII 30700

Licence Appeal Tribunal

Date: 2022-04-11

Appeal under the Cannabis Licence Act, 2018 from a Proposal of the Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 to Refuse a Cannabis Retail Manager Licence

Between:

Matthew Thomas Catricala Appellant

-and-

Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, Respondent

Decision on Motion of Constitutional Question

ADJUDICATOR: Katherine Livingstone, Member

APPEARANCES:

For the Appellant: Jack Lloyd, Counsel

For the Respondent: Faye Kidman, Counsel

Heard by Videoconference: December 16, 2021

Overview

1On July 14, 2021, the respondent served the appellant with a Notice of Proposal (NOP) to refuse the appellant a licence as a cannabis retail manager (RML) pursuant to the provisions of section 5(6)(b) of the Cannabis Licence Act, 2018 (the CLA).

2On July 28, 2021, the appellant appealed the NOP.

3The appellant seeks to challenge the constitutional validity of section 5(4)2 of the CLA on the basis that it violates sections 7,11, and 12 of the Canadian Charter of Rights and Freedoms.

4A notice of constitutional question was served on the Attorney General of Canada and on the Attorney General of Ontario (AGO). The AGO responded, advising it would not be making submissions and would stand behind the respondent’s submissions.

Facts

5The facts underpinning the NOP are generally not in dispute.

6On October 17, 2018, the federal government legalized the recreational use of cannabis in Canada through the enactment of the Cannabis Act (Canada). Part of the stated purpose of that legislation is to protect public health and safety and, in particular, to (a) protect the health of young persons by restricting their access to cannabis; and (b) protect young persons and others from inducements to use cannabis.¹ Individual provinces are responsible for regulating the sale of cannabis.

7On the same day, October 17, 2018, the Cannabis Statute Law Amendment Act, 2018 (‘Amendment Act’) came into force in Ontario. Prior to that date, provincial legislation now known as the Cannabis Control Act, 2017 was titled the Cannabis Act, 2017. Although the Amendment Act made some amendments to the legislation (including its title), the prohibition on the unauthorized selling of cannabis remained largely unchanged:

Cannabis Act, 2017

Cannabis Control Act, 2017

6(1) No person shall sell cannabis, other than the Ontario cannabis retailer

6(1) No person shall sell cannabis other than an authorized cannabis retailer

8On October 25, 2018, the appellant was charged with an offence under section 6(1) of the Cannabis Control Act, 2017. At the time he was charged, he was working on a part time basis at an unlicensed cannabis store. He had been working there prior to the legalization of cannabis but stopped immediately after being charged.

9The appellant pled guilty to the charge, paid a fine of $500 and a conviction was registered.

10The appellant does not have a criminal record.

11On March 1, 2021, the appellant applied to the respondent for a RML. As part of the application, he completed a Disclosure Report required by all persons seeking to apply to be licenced as a RML. In the Disclosure Report, the appellant acknowledged his conviction under the “Cannabis Control Act 2017”, arising from the charges on October 25, 2018.

12In the Disclosure Report the appellant detailed how, after he was charged, he got his CannSell and went to work in the legal cannabis industry where he has been successfully employed for more than two years.

13After reviewing the appellant’s application, the respondent refused the application and issued the NOP. Section 5(4) of the CLA sets out the circumstances in which an applicant is not eligible for a cannabis RML. Those circumstances are as follows:

1. There are reasonable grounds to believe that the applicant will not, in acting as a cannabis retail manager, act in accordance with the law, or with integrity, honesty or in the public interest, having regard to the past or present conduct of the applicant

2. The applicant has been convicted of or charged with an offence under this Act, the Cannabis Control Act, 2017, the Cannabis Act (Canada) or the regulations made under any of them that is prescribed for the purposes of the paragraph.

3. There are reasonable grounds to believe that the applicant is carrying on activities that are, or would be if the applicant were the holder of a cannabis retail manager licence, in contravention of or not in compliance with a provision of this Act, the Cannabis Control Act, 2017, the Cannabis Act (Canada) or the regulations made under any of them that is prescribed for the purposes of this paragraph

4. The applicant makes a false statement or provides false information in the application

5. Any other circumstance that may be prescribed

14In its letter to the applicant the respondent relied on paragraphs 1 and 2 as the basis for its refusal.

15As s. 5(4)2 of the CLA leaves no discretion for licensure once it has been determined that the applicant has been convicted under one of the mentioned Acts, the appellant takes the position that s. 5(4)2 is unconstitutional.

16The wording on the offence summons given to the appellant on October 25, 2018, is a matter of contention between the parties. When setting out the offence, the summons read:

“…did commit the offence of: No person shall sell cannabis other than an authorized cannabis retailer, contrary to Ontario Cannabis Act, section 6(1).”

17At the time the ticket was issued the Act in force was the Cannabis Control Act, 2017.

Issues

A. Constitutional Relief

18Should the Tribunal read down s. 5(4)2 such that is does not apply to automatically exclude a person convicted of certain offences on the basis that the provision violates ss 7,1, or 12 of the Charter?

19Should the Tribunal make an order pursuant to s. 24(1) of the Charter dismissing the Notice of Intent to Deny Licence against the appellant?

20Does the Tribunal have the jurisdiction to declare s. 5(4)2 of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982 and if it does have the jurisdiction should such a declaration be made?

B. Facial Error on the Summons Issued to the Appellant

21Should the Tribunal order the Cannabis Retail Licence be granted on the grounds that the appellant’s summons was written improperly and as a consequence he was never charged or convicted under the Cannabis Act or the Cannabis Control Act, 2017 and therefore is not prohibited from licensure by s. 5(4)(2) of the Cannabis Licence Act, 2018?

Result

22I find section 5(4)2 of the CLA does not infringe the appellant’s ss. 7, 11, or 12 Charter rights. As such it is unnecessary for me to address the issue of whether this Tribunal has the jurisdiction to declare s. 5(4)2 is of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982.

23I find the wording on the appellant’s summons does not negate his conviction under s. 6(1) of the Cannabis Control Act, 2017.

Law and Analysis

A. Constitutional Relief

a) Does s. 5(4)2 of the CLA violate the appellant’s section 7 rights under the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

24Section 7 of the Charter states as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

25The appellant framed his argument in terms of how s. 7 has been interpreted in the criminal law context, relying mainly on cases involving persons charged with criminal code or drug offences. His argument focused on the principles of fundamental justice. He submitted that section 5(4)2 “is inconsistent with s. 7 of the Charter as it is arbitrary, overbroad and grossly disproportionate in its effects and “there is no rational connection between the punishment imposed on the appellant pursuant to the Impugned Laws and the legislative purposes of the CLA”.

26However, he did not first address the issue of whether s. 7 is engaged when, as in the present case, one is dealing with the right to work in a chosen profession or occupation.

27It is clear from the jurisprudence that the courts have taken a more restrictive view of the application of s. 7 in relation to an individual’s economic interests.

28In Siemens v. Manitoba (Attorney General)² the appellants appealed provincial legislation that restricted their ability to operate video lottery terminals in specific locales, arguing the law prevented them from pursuing a lawful occupation, thereby breaching their s. 7 rights. After reviewing the law with respect to s. 7 the court found the rights asserted by the appellants did not fall within the meaning of s. 7, stating the “right to life, liberty and security of the person encompasses fundamental life choices, not pure economic interests”.

29The Ontario Court of Appeal addressed the issue of s. 7 as it related to economic rights in Mussani v. College of Physicians and Surgeons of Ontario³. The Court concluded there was no constitutionally protected right to practice a profession. In upholding the revocation of the appellant’s certificate of registration, the Court, while acknowledging that revocation was a “serious – even a draconian - measure”, concluded that there was “no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession”.

30More recently, in Tanase v. College of Dental Hygienists,⁴ a five-member panel of the Ontario Court of Appeal considered the applicability of s.7 of the Charter to the practice of licensed dental hygienists, an occupation governed by the Regulated Health Professions Act, 1991. In considering the s. 7 argument raised in Tanase, the Court cited the “unbroken line of authority from the Supreme Court of Canada confirming that s. 7 of the Charter does not protect the right to practice a profession or occupation, an example of what the court has described as “pure economic interests”.⁵

31The Court continued:

But s. 7 does not apply simply because legislation gives rise to serious consequences. Psychological integrity is a narrow and limited concept, and the right to security of the person is engaged only if there is a serious and profound effect on psychological integrity. The matter is to be judged on an objective basis, having regard to persons of ordinary sensibilities. It is irrelevant whether state action causes upset, stress, or worse. There must be a serious and profound impact on psychological integrity before the protection of s. 7 is engaged.

32I agree with the respondent’s submission that “s. 7 encompasses fundamental life choices and not the choice of an individual to work in a particular occupation, in this case as a licenced cannabis retail manager, which is more aptly the exercise of a pure economic interest”.

33I find the appellant’s claim that s. 5(4)2 violates the Charter must fail.

b) Does s. 5(4)2 of the CLA violate the appellant’s rights under [s.11](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec11_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

34Section 11 (d) of the Charter states that any person charged with an offence has the right:

to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

35While acknowledging the denial of a licence in an administrative context does not generally engage the protections afforded by the Charter, the appellant submitted that “because the purpose and effect of section 5(4)2 is punitive, the mandatory denial imposed thereby is a ‘true penal consequence’ engaging” s. 11. The appellant submits that he faced a penal consequence resulting from paying a fine for the issued summons and he now “faces another penal consequence as his licence is to be denied over that very fine”.

36I find no merit in this position. Rather, I accept the respondent’s position that in this case I am considering the eligibility of the appellant to obtain a licence for an economic purpose. I am not adjudicating an offence.

37The cases have made it clear that a distinction must be drawn between penal and administrative proceedings. It is only penal proceedings that draws the attention of s.11 rights.

38In R. v. Wigglesworth⁶, the Supreme Court, in commenting on the applicability of s. 11 wrote the following:

There is a fundamental distinction between proceedings undertaken to promote public order and welfare within a public sphere of activity and proceedings undertaken to determine fitness or to obtain or maintain a licence. Where disqualifications are imposed as part of a scheme for regulating an activity to protect the public, disqualification proceedings are not the sort of “offence” proceedings to which s. 11 is applicable….

[A] true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.

39This position as been reaffirmed in subsequent decisions by the Supreme Court of Canada.⁷

40In the present case the appellant has been denied a licence under a regulatory scheme that does not attract s. 11 protection. He has not been charged with an offence. His claim must fail.

c) Does s. 5(4)2 of the Cannabis Licence Act violate the appellant’s rights under [s.12](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec12_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

41Section 12 of the Charter states that “everyone has the right not to be subjected to any cruel or unusual treatment or punishment.”

42Similar to his submissions under s. 11 of the Charter, the appellant relied on s.12 Charter cases decided in the criminal context without first addressing whether s.12 applies in this proceeding, specifically in the refusal of a licence.

43While acknowledging that there may be situations where s. 12 rights are engaged in a non-criminal context,⁸ the courts have been clear that s. 12 does not protect purely economic interests or the ability to work in a particular profession.⁹

44Additionally, I agree with the respondent that the refusal of a licence does not constitute “treatment” or “punishment” within the meaning of s.12 of the Charter.

45The appellant’s claim must fail.

B. Facial Error on the Appellant’s Summons

46The appellant was ticketed for an offence contrary to the “Ontario Cannabis Act section 6(1)”. He submits the ticket was improperly written and did not disclose an offence known to law, and therefore I can set aside the NOP and grant the appellant his licence as he does not fall within s. 5(4)2 of the CLA.

47At the time the summons was issued the provincial legislation in force was the Cannabis Control Act, 2017. The ticket that formed part of the appellant’s material was the appellant’s copy.

48While I concede the novelty of the argument, I am precluded from looking behind the conviction and, in effect, re-litigating the matter.¹⁰ The time to object to any deficiencies in the summons was when the matter was in the Provincial Offences Court, prior to the appellant entering a plea. Once that conviction was entered, any further challenge to the summons out to have proceeded by way of appeal.

49It is not open to the appellant in these proceedings, some years later, to launch a collateral attack on the conviction and I am required as a matter of law to give full effect to the conviction.¹¹ As Justice Binnie wrote in Danyluk v. Ainsworth Technologies Inc.:

Another aspect of the judicial policy favouring finality is the rule against collateral attack, i.e., that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it.¹²

50As an aside, I note in the appellant’s Disclosure Report he admitted to a conviction under the “Cannabis Control Act, 2017”.

51Accordingly, I decline to revisit the appellant’s conviction on the basis that it would be an abuse of process as a collateral attack. This ground too must fail.

ORDER

52The parties did not discuss next steps in the event the appellant’s motion was unsuccessful. While it appears to me that, having found no merit to the Charter arguments raised by the appellant and an admission by the appellant of a conviction pursuant to the provisions of s 5(4)2 of the CLA, the appellant would not be entitled to a retail manager’s licence, given that his ineligibility based on the above findings was not conceded by the appellant, I am directing the matter be scheduled for a case conference to discuss next steps.

Footnotes

1. 1Cannabis Act, S.C. 2018, c.16, s. 7(a)-(b).
2. 2Siemens v. Manitoba (Attorney General), 2003 SCC 3, 2003 SCC3, [2003] 1 SCR 6 at para 45
3. 3Mussani v. College of Physicians and Surgeons of Ontario, 2004 CanLII 48653 at para. 40-41.
4. 4Tanase v. College of Dental Hygienists, 2021 ONCA 482, application for leave to appeal to the SCC dismissed February 24, 2022
5. 5Tanase at para. 40
6. 6R v. Wigglesworth, 1987 Can Lll 41 (SCC) at para. 23
7. 7See for example Martineau v. M.N.R., 2004 SCC 81 at paras 22-23; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 at paras 40, 44
8. 8See for example Justice Sopinka’s comments in Rodriquez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519.
9. 9Mussani v. College of Physicians and Surgeons of Ontario, at paras 39-43; Tanase, at para. 54; Cadostin v. Canada (Attorney General), 2020 FC 183.
10. 10Ontario (Motor Vehicles Act, Registrar) v. Jacobs, 2004 CanLII 9450 (ON SCDC), [2004] OJ No 189, at para. 69; Toronto (City) v. Canadian Union of Public Employees (CUPE), Local 79, 2003 SCC 3 at para. 58
11. 11Kamali-Mafroujaki (cob Top Quality Auto Sales) v. Ontario (Register, Motor Vehicles), 2015 ONSC 3989 (Div. Ct.) at para. 30.
12. 12Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para. 20.