CITATION: R. v. Parker, 2011 ONCA 819
DATE: 201111222
DOCKET: C51187
COURT OF APPEAL FOR ONTARIO
Rosenberg, Sharpe and Juriansz JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent (Respondent)
and
Terrance Parker
Applicant (Appellant)
Terrance Parker, in person Jonathan Dawe, amicus curiae James Gorham, for the respondent
Heard: November 7, 2011
On appeal from the judgment of Justice Michael Tulloch of the Superior Court of Justice dated September 30, 2009.
By The Court:
[1] This appeal involves the dismissal of an application for return of seized marihuana pursuant to s. 24 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The appellant’s s. 24 CDSA application was originally dismissed on December 7, 2007 by Clements J. of the Ontario Court of Justice. The appellant appealed Clements J.’s decision to the Superior Court of Justice. Tulloch J. ruled that he had jurisdiction under s. 40 of the Courts of Justice Act to hear the appeal. He subsequently dismissed the appeal on September 30, 2009. The appellant now appeals from the decision of Tulloch J.
[2] The appellant argues that Clements J. erred in law for two reasons:
The offences of production and possession of marihuana set out in ss. 7 and 4 of the CDSA were struck down in R. v. Krieger, 2000 ABQB 1012 and R. v. Parker (2000), 49 O.R. (3d) 481 [Parker (2000)], respectively. Parliament has not re-enacted these prohibitions.
The decisions in Sfetkopoulos v. Canada (A.G.), 2008 FC 33, Sfetkopoulos v. Canada (A.G.), 2008 FCA 328 and R. v. Beren, 2009 BCSC 429, invalidated the marihuana prohibitions retroactive to at least December 3, 2003.
[3] The court also heard submissions as to whether the appellant had a right of appeal from the decision of Clements J. under s. 40 of the Courts of Justice Act, R.S.O. 1990, c. C.43. For the following reasons, we are satisfied that the appellant did have a right of appeal, although not under the Courts of Justice Act. We are also satisfied that Clements J. correctly determined that the appellant was not lawfully entitled to possess marihuana and that Tulloch J. correctly dismissed the appeal.
FACTS
Background
[4] This appeal and the companion appeals that were argued at the same time R. v. McCrady et al. and R. v. Maloney, arise out of the continuing quest by this appellant and others to access marihuana for medicinal purposes. In Parker (2000), at para. 3, the court briefly described this appellant’s plight in 2000:
The respondent Terrance Parker has suffered from a very severe form of epilepsy since he was a young child. For close to 40 years he has experienced frequent serious and potentially life-threatening seizures. He has attempted to control these seizures through surgery and conventional medication. The surgery was a failure and the conventional medication only moderately successful. He has found that by smoking marijuana he can substantially reduce the incidence of seizures. Since he has no legal source of marijuana, he has been growing it himself. On two occasions, the police searched his home and seized the marijuana. He was first charged with cultivating marijuana under the Narcotic Control Act. By the time of the second investigation, that Act had been repealed and he was charged with possession of marijuana under the new Controlled Drugs and Substances Act.
[5] At his trial in 1997, Parker defended the charges brought against him by arguing that the prohibition against marihuana in the former Narcotic Control Act, R.S.C. 1985, c. N-1 and the CDSA, infringed his rights to fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms. Both the trial court in reasons reported at (1997), 12 C.R. (5th) 251, 48 C.R.R. (2d) 352, and this court, concluded that Parker requires marihuana to control his epilepsy and that the prohibition against marihuana infringed his rights under s. 7 of the Charter. At the time, there was no lawful means by which Parker could obtain and possess marihuana except pursuant to a special exemption under s. 56 of the CDSA.
[6] In Parker (2000), the court explained why the availability of such an exemption at the sole discretion of the Minister of Health was not an adequate response to Mr. Parker’s circumstances. Pursuant to s. 52 of the Constitution Act, 1982, this court declared the prohibition against possession of marihuana in s. 4 of the CDSA to be invalid. The court suspended the declaration of invalidity for 12 months to allow time for Parliament to craft a legislative response. The court also granted Mr. Parker a personal remedy under s. 24 of the Charter temporarily exempting him from the possession prohibition for the period of suspended invalidity so that he could legally possess marihuana for his medical needs. For reasons set out in Parker (2000), this court did not deal with the production provision of the CDSA.
[7] In response to Parker (2000), the federal government enacted the Medical Marihuana Access Regulations, S.O.R./2001-227, which came into force on July 30, 2001, one day before the suspension of invalidity expired. The MMAR created a process for gaining authorization to possess marihuana (ATP) for a medical purpose and a process for ATP holders to obtain a license to produce for personal use or to permit a designated person to grow marihuana on their behalf.
[8] At the same time that the Parker (2000) case was working its way through the courts of this province, a similar case was being heard in Alberta. In Krieger, the accused challenged both the production prohibition under the CDSA and the prohibition against possession for the purpose of trafficking. In December 2000, Acton J. struck down the production prohibition in s. 7 of the CDSA as it applied to marihuana. He did not strike down the possession for the purpose prohibition. Acton J. stayed his declaration of invalidity for one year, just as this court had in Parker (2000). In November 2001, the Alberta Court of Appeal extended the stay until further order of that court. In March 2003, the Alberta Court of Appeal dismissed the Crown appeal from the order of Acton J., in reasons reported at 2003 ABCA 85. So far as we are aware, that court has never made a further order respecting the stay originally imposed by Acton J.
[9] To return to Mr. Parker’s interaction with the government and medicinal use of marihuana. The personal exemption granted to Mr. Parker by this court from the possession of marihuana offence expired July 31, 2001. On August 8, 2001, he requested a temporary exemption from Health Canada to allow him time to comply with the MMAR by applying for an ATP. Health Canada initially granted the appellant a six-month temporary exemption on September 14, 2001. When the appellant’s first exemption expired Health Canada granted him a series of subsequent exemptions, the last of which expired May 31, 2004.
[10] On March 12, 2002, Mr. Parker brought an application to the Superior Court of Justice seeking an order granting him an ongoing personal exemption from the prohibition against possession of marihuana. At the core of this new litigation was the allegation that the MMAR fail to provide individuals who have a serious medical need to use marijuana with a legal source and safe supply of their medicine. Lederman J. heard the appellant’s application together with applications in the matter of Hitzig v. Canada. On January 9, 2003, in reasons reported at 171 C.C.C. (3d) 18, Lederman J. declared that the MMAR were constitutionally invalid and of no force and effect. He declined to attempt to fix the constitutional problem by reading in to the MMAR a legal means of accessing marihuana for those who required marihuana for medical purposes. Justice Lederman suspended his declaration of invalidity for 6 months. He did not declare the marihuana prohibition in the CDSA to be unconstitutional.
[11] On appeal, this court determined that the MMAR were constitutionally defective insofar as they did not provide for reasonable access to a legal source of supply of marihuana for medical purposes. This court brought the MMAR into compliance with the Charter by striking down s. 41(b) (which prohibited a licensed producer from growing for more than one authorized-to-possess holder) and s. 54 (which prohibited more than three licensed producers from producing in common). The MMAR were then declared constitutional and s. 4 of the CDSA was declared to be constitutional as well. As this court said in one of the companion cases to Hitzig, R. v. J.P. (2003), 67 O.R. (3d) 321, at para. 33:
There was no need to amend or re-enact s. 4 of the CDSA to address the constitutional problem in Parker. That problem arose from the absence of a constitutionally adequate medical exemption. As our order in Hitzig demonstrates, the prohibition against possession of marihuana in s. 4 is in force when there is a constitutionally acceptable medical exemption in force.
[12] In response to Hitzig, the federal government passed the Regulations Amending the Marihuana Medical Access Regulations, SOR/2003-387. A new provision was added to Part IV of the MMAR which enabled the Government’s supply of dried marihuana to be shipped directly to ATP holders. Sections 41(b) and 54 were re-enacted in their original form as sections 41(b.1) and 54.1. As is apparent, the government believed that the way to remedy the constitutional deficiency identified by this court in Hitzig was not to make it easier for individuals to grow marihuana, but rather to make available a government supply of marihuana to persons found to be eligible under the MMAR programme. Whether or not this was an adequate response has been a source of litigation since 2003.
[13] It is apparent from his submissions in this court, that the appellant views the MMAR programme as inadequate and views medical practitioners with suspicion. Medical practitioners have a crucial role under the MMAR. Following Hitzig, the appellant made minimal efforts to comply with the MMAR. The appellant admitted that he has not been examined by a medical specialist since 1997. The appellant was aware that his exemption from the possession prohibition would expire in May 2004. In February 2004 he called Health Canada and said that he refused to seek a doctor to sign his ATP application. The appellant expressed a fear of medical mistreatment and objected to the MMAR requirement that he provide medical authorization: “Well I am upset...As you see, I’ve been kicked out of school, college, jobs, got these seizures, and now, I’ve got to go back to these – these monsters for doctors and get permission that they won’t provide me. I mean I’m sorry, but this is disgusting.”
The seizure of Marihuana
[14] In April, 2006 the appellant was notified that a package of marihuana addressed to him had been seized by Canada Post and turned over to Peel Regional Police. By notice of application dated June 2, 2006 he applied to the Ontario Court of Justice in Brampton for an order under s. 24 of the CDSA directing the return of this seized marihuana. It appears that the police did not lay any charges against the appellant as a result of the marihuana seizure.
The decision of Clements J. – Ontario Court of Justice
[15] The sole issue before Clements J. was whether the appellant was lawfully entitled to possess the marihuana seized by Canada Post. The appellant argued that he was lawfully entitled to possess because the constitutional exemption granted in Parker (2000) was still valid, thus compliance with the MMAR was not required. In addition, the combined effect of Parker (2000), Hitzig, and Krieger was that the prohibition against possession of marihuana had been repealed.
[16] Clements J. ruled that the appellant was not lawfully entitled to possess marihuana. The MMAR and s. 4 of the CDSA were constitutionally valid. The appellant was not exempt from the application of the MMAR or compliance with the CDSA. Thus, in the absence of an ATP the appellant was not lawfully entitled to possess. Clements J. found the record insufficient to determine whether physician co-operation with the MMAR had dropped to the point that the scheme was ineffective. The s. 24 CDSA application for return of a controlled substance was dismissed.
The decision of Tulloch J. – Superior Court of Justice
[17] The appellant served a notice of application on March 20, 2008, returnable March 28, 2008. The application sought to overturn the order made by Clements J. Tulloch J. ruled that the Superior Court had jurisdiction to hear the matter, pursuant to the summary conviction appeal provisions in the Courts of Justice Act, s. 40. Tulloch J. ruled that Clements J. correctly held that the case law relied on by the appellant did not demonstrate that he was exempt from compliance with the MMAR. It was also not an error to refuse to consider the appellant’s claim of lack of physician co-operation. The appeal was dismissed on September 30, 2009.
THE ISSUES ON APPEAL
[18] There are two questions before the court on this appeal. The first concerns the proper route of appeal from an order made under s. 24 CDSA. In our view, no appeal lies under the Courts of Justice Act. The appellant did, however, have a right to review the decision of Clements J. by way of certiorari. The second question considers whether or not the appellant is legally entitled to possess marihuana. The short answer to the second question is no. Clements J. correctly determined that the appellant was not lawfully entitled to possess marihuana and Tulloch J. correctly dismissed the appeal.
The Right of Appeal/Review of a s. 24 Order
[19] The court received helpful submissions from both Crown counsel and Mr. Dawe who was appointed as amicus counsel to argue the jurisdiction question. Tulloch J. held that the Superior Court had jurisdiction to hear the matter, pursuant to the summary conviction appeal provisions in the Courts of Justice Act, s. 40. Amicus counsel and Crown counsel agree that Tulloch J. erred in reaching this conclusion, but that the error has no effect on this court’s jurisdiction to hear the appeal. We agree with counsel that the Courts of Justice Act had no application. While the interplay between federal and provincial jurisdictions in drug cases can be problematic, we are satisfied that the correct characterization of a s. 24 application is that it flows out of Parliament’s criminal law power. Accordingly, provincial rights of appeal have no application: see R. v. Malmo-Levine (2003), 2003 SCC 74, [2003] 3 S.C.R. 571; Kourtessis v. Minister of National Revenue, [1993] 2 S.C.R. 53, R. v. Meltzer, [1989] 1 S.C.R. 1764 and Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338.
[20] Amicus’ principal position is that an application under s. 24 of the CDSA can be appealed to the Superior Court of Justice under s. 830 of the Criminal Code. Alternatively, he argues that certiorari is available to review the decision. The Crown argues that s. 24 of the CDSA may not be appealed under the summary conviction provisions in Part XXVII of the Criminal Code, and that the proper route of review is through an application for certiorari. If the route of review is under s. 830, a further appeal lies to this court, with leave, under s. 839 of the Criminal Code. If the route of review is through certiorari, the route to this court is by way of appeal as of right under s. 784(1) of the Criminal Code.
[21] In one sense, determination of the appropriate outcome for review has no practical implication for the party seeking to review the s. 24 decision. Section 830 provides for an appeal from, among other things, a conviction, judgment, “or other final order or determination of a summary conviction court” on questions of law or jurisdiction. The same grounds for review would be available on an application for certiorari. On the other hand, we think that the right of review should be clarified so that litigants know how to proceed in the future.
[22] Despite Mr. Dawe’s very persuasive submissions, we are satisfied that the right of review is through certiorari. While s. 830 appears to have a wide reach because of the broad definition of “proceedings” in s. 785, when that section and s. 830 are considered in context of the other provisions of Part XXVII, it is apparent that the s. 830 appeal is directed to orders made by a judge or justice acting as a summary conviction court. A judge or justice acting under s. 24 of the CDSA is not acting as a summary conviction court. There is little, if any, disadvantage to a party seeking to review a s. 24 order having to apply for certiorari rather than proceeding by way of appeal. In this province, the reviewing court is the same, the Superior Court of Justice. The grounds of review are also the same and, one advantage to a party is that an appeal lies to this court as of right. Finally, while hardly conclusive of the jurisdiction issue, we note that similar orders under the former Narcotic Control Act were reviewed by way of certiorari, not by way of appeal: see R. v. Largie (1981), 63 C.C.C. (2d) 508 (Ont. C.A.) and R. v. Gombosh Estate (1982), 1 C.C.C. (3d) 323 (Ont. H.C.J.), [affirmed (1983), 3 C.C.C. (3d) 575, reversed [1986] 1 S.C.R. 415, without reference to the jurisdiction issue].
THE SUBSTANTIVE ARGUMENTS
1. The prohibition against possession of marihuana has not been repealed
[23] The appellant argues that the combined effect of Parker (2000) and Hitzig is that all marihuana offences have been completely repealed. This argument is based on a misreading of the law. The critical passage of this court’s decision in Hitzig v. Canada, 177 C.C.C. (3d) 449 states, at para. 170:
In R. v. Parker, supra, this court declared the prohibition invalid as of July 31, 2001 if by that date the Government had not enacted a constitutionally sound medical exemption. Our decision in this case confirms that it did not do so. Hence the marihuana prohibition in s. 4 has been of no force or effect since July 31, 2001. Since the July 8, 2003 regulation did not address the eligibility deficiency, that alone could not have cured the problem. However, our order has the result of constitutionalizing the medical exemption created by the Government. As a result, the marihuana prohibition in s. 4 is no longer inconsistent with the provisions of the Constitution. Although Parliament may subsequently choose to change it, that prohibition is now no longer invalid, but is of full force and effect. Those who establish medical need are simply exempted from it. This consequence removes the cloud of uncertainty from the marihuana prohibition in s. 4 of the CDSA – a cloud which we were told in argument has created very considerable confusion for courts and law enforcement agencies alike... [Emphasis added.]
[24] In R. v. Turmel (2003), 231 D.L.R. (4th) 190, released concurrently with Hitzig and J.P., this court held that Parker (2000) did not have the effect of deleting marihuana from Schedule II of the CDSA, at para. 6:
The declaration of invalidity made by this court in Parker, supra, does not delete marihuana from Schedule II of the CDSA. It simply declares that the reference to marihuana in Schedule II is of no force or effect for the purposes of the possession charge in s. 4 of the CDSA. The declaration does not extend to any other section of the CDSA. In particular, it does not diminish the effect of the listing of marihuana in Schedule II for the purposes of s. 5(2) of the CDSA.
[25] Following Hitzig and Turmel (2003), this court has repeatedly confirmed that the marihuana offences in the CDSA remain in full force. See for example R. v. Turmel, 2007 ONCA 133, at para. 2; R. v. Real Martin (2010, unreported, Ont. C.A. Docket C50273), at paras. 6-8; and R. v. Ethier, 2011 ONCA 588, at paras. 3-4.
[26] Clements J. properly rejected the appellant’s argument as a reason why he should be considered lawfully entitled to possess marihuana. Tulloch J. was correct to find that Clements J. made no error of law in this respect.
The order of Pitt J. does not assist the appellant
[27] On March 15, 2002, Pitt J. of the Superior Court of Justice ordered that the constitutional exemption granted to the appellant following Parker (2000) be extended “until such time as the government has complied with the Court’s ruling.” The appellant argues that this order entitles him to lawfully possess marihuana. However, Chapnik J. set aside Pitt J.’s order on April 19, 2002(see [2002] O.J. No. 1503). The appellant appealed Chapnik J.’s decision and this court found that she made no error when she set aside the order of Pitt J (see [2003] O.J. No. 3874). Thus, the March 15, 2002 order of Pitt J. is of no assistance to the appellant.
Sfetkopoulos and Beren do not assist the appellant
[28] Sfetkopolous was a civil application for declaratory relief in the Federal Court. Strayer J. found that the MMAR still did not adequately address the issue of lawful supply first canvassed in Hitzig. He declared s. 41(b.1) of the MMAR (which prohibited the holder of a production license from growing for more than one ATP-holder) to be invalid.
[29] R. v. Beren involved a prosecution for production and trafficking in marihuana. Koenigsberg J. of the British Columbia Supreme Court relied on Sfetkopolous and held that ss. 41(b.1) and 54.1 of the MMAR infringed s. 7 of the Charter. However, the defendants were found guilty as the individuals they grew for, and sold to, did not hold ATPs. As she said at para. 136:
In relation to the charges against Mr. Beren, the Crown, having proved beyond a reasonable doubt that Mr. Beren was producing and trafficking in marihuana for the purpose of supplying a compassion club, which in turn was selling the marihuana to most of its members who did not have ATPs, and thus were not licensed to possess, which parts of the MMAR I have found to be valid, is guilty on both counts. [Emphasis added.]
[30] The appellant argues that by analogy to Hitzig and J.P., Sfetkopolous and Beren have the effect of invalidating all marihuana offences retroactively from December 3, 2003, when ss. 41(b.1) and 54.1 of the MMAR were enacted, to March 31, 2010 when section 41(b.1) was amended and s. 54.1 was repealed. This argument fails for two reasons.
[31] First, no provision of the CDSA was found to be invalid in Beren or Sfetkopolous. Without a finding of invalidity the marihuana offences remain in force. It was the combination of the declaration of the invalidity of s. 4 of the CDSA in Parker (2000), and the finding of constitutional invalidity of the MMAR in Hitzig, that resulted in the period of invalidity of the possession offence between July 31, 2001 and October 7, 2003. When the constitutional deficiencies in the MMAR were remedied by this court the declaration of invalidity in Parker (2000) no longer had any effect. The fact that the government re-enacted ss. 41(b) and 54, when it revised the MMAR in response to Hitzig, did not retroactively resurrect the effect of the Parker (2000) decision striking down the prohibition.
[32] The declaration of invalidity in Parker (2000) does not survive indefinitely, waiting to be invoked whenever problems are identified with the constitutional validity of a provision of the MMAR. A finding of invalidity would depend on a fresh finding of invalidity with respect to the marihuana offences in the CDSA. This was not the conclusion in either Beren or Sfetkopolous. Rather, Beren upheld the production and trafficking offences as they relate to persons who do not have ATPs under the MMAR. The appellant is similarly without an ATP. Thus, at the time the appellant brought his application under s. 24, he was not lawfully entitled to possess marihuana. There is also no evidence put before this court that the appellant is entitled, at present, to lawfully possess marihuana.
2. There is no evidence regarding physician participation under the MMAR
[33] The appellant asserts that only one in 60 Ontario doctors participate in the medical marihuana regime, making the possibility of obtaining an exemption under the MMAR illusory. A similar argument challenging the constitutionality of the MMAR based on a lack of physician co-operation was raised in oral submissions before Clements J. Clements J. dismissed the argument on the grounds that there was no evidentiary record before him to support the appellant’s claim.
[34] No court can determine whether or not this argument has merit in the absence of relevant information. Clements J. was correct to refuse to consider the appellant’s constitutional challenge in the absence of a proper evidentiary record. Tulloch J. properly concluded that Clements J. did not err with respect to this issue. We note that this issue was decided by Taliano J. in R. v. Mernagh, 2011 ONSC 2121, on an extensive factual record, but his order has been stayed pending appeal.
DISPOSITION
[35] The appellant has not demonstrated that he was lawfully entitled to possess marihuana. The merit of the physician participation argument cannot be properly assessed on the record. Clements J. did not err in law and Tulloch J. correctly dismissed the appeal.
Signed: “M. Rosenberg J.A.”
“Robert J. Sharpe J.A.”
“R. G. Juriansz J.A.”
RELEASED: “MR” DECEMBER 22, 2011