Her Majesty the Queen v. J.P. (a young person) [Indexed as: R. v. P. (J.)]
64 O.R. (3d) 772
[2003] O.J. No. 2354
Docket Nos. M29960 and M29965 (C40043)
Court of Appeal for Ontario,
Charron J.A. (In Chambers)
June 26, 2003
Criminal law -- Appeals -- Stay pending appeal -- Jurisdiction -- Summary conviction appeal court finding that offence of simple possession of marijuana is unknown to law in Ontario -- Crown appealing and seeking stay of judgment pending appeal -- Application for stay dismissed -- Courts below not granting declaration -- Order appealed from simply dismissing appeal from trial judge's dismissal of charges -- Judge of Court of Appeal not having jurisdiction to grant stay of reasons underlying dismissal of charge.
Criminal law -- Narcotics offences -- Summary conviction appeal court finding that offence of simple possession of marijuana is unknown to law in Ontario -- Crown appealing and seeking stay of judgment pending appeal -- Application for stay dismissed. [page773]
The Crown appealed the judgment of the Summary Conviction Appeal Court* affirming that the offence of simple possession of marijuana is unknown to law in Ontario, and brought an application for a stay of the judgment pending the determination of the appeal. The Crown also sought an order expediting the hearing of the appeal.
Held, the application should be granted in part.
There was no authority, either under the Criminal Code, R.S.C. 1985, c. C-46 or under rule 63.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (made applicable to criminal appeals by rule 2(1) of the Criminal Appeal Rules, SI/ 93-169) or s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to grant the stay sought by the Crown. No declaratory relief was sought or given in this case. The original order appealed to the summary conviction appeal court was simply a dismissal of the two counts in the Information setting out the marijuana-related charges. Similarly, the only order of the summary conviction appeal court was a dismissal of the appeal from the trial judge's dismissal of the charges. There is no authority to grant a stay of the reasons of the court underlying a dismissal of a charge. What the Crown was seeking was, in effect, an order suspending the application of the doctrine of stare decisis pending the hearing of the appeal. Such an order would not only be unprecedented, it would be made without authority.
The Crown's request for an order expediting the appeal was granted.
APPLICATION by the Crown for a stay of a judgment of Rogin J. (2003), 2003 45115 (ON SC), 64 O.R. (3d) 757, 64 O.R. (3d) 764 (Fr.) (S.C.J.) pending an appeal and for an order expediting an appeal.
Cases referred to Horsefield v. Ontario (Registrar of Motor Vehicles) (1997), 1997 2546 (ON CA), 35 O.R. (3d) 304, 118 C.C.C. (3d) 184, 30 M.V.R. (3d) 81 (C.A.); R. v. Parker (2000), 2000 5762 (ON CA), 49 O.R. (3d) 481, 188 D.L.R. (4th) 385, 75 C.R.R. (2d) 233, 146 C.C.C. (3d) 193, 37 C.R. (5th) 97 (C.A.), revg in part (1997), 1997 26234 (ON CJ), 48 C.R.R. (2d) 352, 12 C.R. (5th) 251 (Ont. Prov. Div.) Statutes referred to Controlled Drugs and Substances Act, S.C. 196, c. 19, s. 4(1) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 1, 134(2) Criminal Code, R.S.C. 1985, c. C-46 Rules and regulations referred to Criminal Appeal Rules, SI/93-169, rule 2(1) Marihuana Medical Access Regulations, SOR/2001-227 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 63.02(1)
Peter DeFreitas and Rick Visca, for applicant. Brian McAllister, for respondent.
[1] CHARRON J.A.: -- The applicant Crown seeks a stay pending the outcome of the appeal to this court of the effect of a summary [page774] conviction appeal judgment that interprets the marihuana possession prohibition of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA") to be of no force and effect across Ontario. The relevant facts can be briefly stated as follows.
[2] In R. v. Parker (2000), 2000 5762 (ON CA), 49 O.R. (3d) 481, 146 C.C.C. (3d) 193 (C.A.), this court held that the marihuana prohibition in s. 4(1) of the CDSA was unconstitutional as it failed to permit individuals to possess marihuana for valid medical purposes. It declared the prohibition invalid, but suspended the declaration of invalidity for 12 months so that Parliament could remedy the constitutional deficiency by creating a medical use exemption. Parliament responded within this one-year period by enacting the Marihuana Medical Access Regulations, SOR/2001-227 ("MMAR"). The MMAR define the circumstances and the manner in which access to marihuana for medical purposes is permitted.
[3] At his trial on marihuana related charges, the respondent sought to be acquitted of the offences on the basis that they were offences unknown to law. He argued that there was no enforceable prohibition against marihuana possession because Parliament failed to "re-enact s. 4 of the CDSA" after it was declared to be of no force and effect in Parker, supra.
[4] The trial judge granted the respondent's application and acquitted him on the basis that the charges did not reveal offences known to law. On appeal by the Crown to the summary conviction appeal court, the trial judge's decision was affirmed and the appeal was dismissed. An application for leave to appeal and notice of appeal were filed by the applicant with this court on May 26, 2003. The appeal was perfected on June 3, 2003.
[5] The applicant seeks, amongst other things, an order expediting the hearing of this appeal and an order staying the judgment of the summary conviction appeal court, which concludes that possession of marihuana is not an offence known to law, pending this court's resolution of this appeal.
[6] The applicant concedes that there is no authority under the Criminal Code, R.S.C. 1985, c. C-46 to grant the order as requested. The applicant submits, however, that rule 63.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, made applicable to criminal appeals by rule 2(1) of the Criminal Appeal Rules, SI/93-169, gives a judge of this court the discretionary authority to grant a stay of the order being appealed. The Crown further submits that s. 1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, defines "order" to include a judgment. Section 134(2) of the Courts of Justice Act similarly gives the court jurisdiction to grant such relief. The Crown relies more specifically on the case of Horsefield v. Ontario (Registrar of Motor Vehicles) (1997), 1997 2546 (ON CA), 35 O.R. (3d) 304, 118 C.C.C. (3d) 184 (C.A.) [page775] where this court ordered a stay of a licence suspension under the authority of those provisions.
[7] In my view, the provisions relied upon by the applicant can have no application in this case. It is important to note that no declaratory relief was sought or given in the case under appeal. The original order appealed to the summary conviction appeal court is simply a dismissal of the two counts on the Information setting out the marihuana-related charges. Similarly, the only order of the summary conviction appeal court is a dismissal of the appeal from the trial judge's dismissal of the charges. There is no declaration before the court to the effect that possession of marihuana is not an offence known to law. There is no authority to grant a stay of the reasons of the court underlying a dismissal of a charge. What the Crown, in effect, is seeking is an order suspending the application of the doctrine of stare decisis pending the hearing of this appeal. In my view, such an order would be not only unprecedented, but made without authority.
[8] I am persuaded, however, that this appeal should be expedited. The appeal will therefore be scheduled to be heard on an expedited basis on a date to be set by the registrar of the court. The application is otherwise dismissed.
Application granted in part.