Her Majesty the Queen v. McCrady

Her Majesty the Queen v. Hearn

Her Majesty the Queen v. McIntyre

Her Majesty the Queen v. Pallister

Her Majesty the Queen v. MacDonald

[Indexed as: R. v. McCrady]

108 O.R. (3d) 550

2011 ONCA 820

Court of Appeal for Ontario,

Rosenberg, Sharpe and Juriansz JJ.A.

December 22, 2011

Criminal law -- Narcotics -- Four accused seeking declaration that offences of marijuana possession or possession for the purpose had been "judicially repealed" invalidating their charges or appealing from convictions on that basis -- Offence of possession of marijuana for the purpose never declared unconstitutional and valid -- Orders striking down offence of possession of marijuana offences in Controlled Drugs and Substances Act time limited, ending in 2003 and legislation in full force and effect -- Applications for declaration and appeals from convictions dismissed -- Controlled Drugs and Substances Act, S.C. 1996, c. 19.

Four of the appellants were either convicted of, or faced outstanding charges of, marijuana offences under the Controlled Drugs and Substances Act. Marijuana charges against the fifth appellant had been stayed. Two of the appellants appealed their conviction, and the others appealed the dismissal of their applications for declarations that the offences with which they were charged were invalid. They argued that marijuana offences have been judicially repealed. [page551]

Held, the appeals and the applications for a declaration should be dismissed.

The offence of possession of marijuana for the purpose of trafficking had never been struck down as unconstitutional and remains in full force and effect. The offence of possession of marijuana in the Controlled Drugs and Substances Act had been declared unconstitutional and subject to a judicial stay but only from July 2001 until October 2003. Thereafter, regulations regarding the possession of marijuana for medicinal purposes were passed and the declarations of invalidity of the provisions of the Controlled Drugs and Substances Act were not extended and the legislation is in full force and effect. Therefore, at the time that the four accused were charged or convicted, the offences were in force. The fact that the accused are dissatisfied with the regulations regarding medical marijuana is not an excuse to disobey the law. The applications for declarations that the legislation is not in force and the appeals from conviction are dismissed.

APPEALS by the accused from convictions or from dismissals of applications for declaratory relief.

Cases referred to

Hitzig v. Canada, 2003 CanLII 30796 (ON CA), [2003] O.J. No. 3873, 231 D.L.R. (4th) 104, 177 C.C.C. (3d) 449, 14 C.R. (6th) 1, 177 O.A.C. 321, 111 C.R.R. (2d) 201, 59 W.C.B. (2d) 542 (C.A.); R. v. Beren, [2009] B.C.J. No. 618, 2009 BCSC 429, 192 C.R.R. (2d) 79; R. v. Krieger, [2002] A.J. No. 1644, 2003 ABCA 85, 225 D.L.R. (4th) 183, 18 Alta. L.R. (4th) 227, 327 A.R. 88, 57 W.C.B. (2d) 16, affg [2000] A.J. No. 1683, 2000 ABQB 1012, 225 D.L.R. (4th) 164, 307 A.R. 349; R. v. P. (J.) (2003), 2003 CanLII 17492 (ON CA), 67 O.R. (3d) 321, [2003] O.J. No. 3876, 231 D.L.R. (4th) 179, 177 C.C.C. (3d) 522, 14 C.R. (6th) 69, 177 O.A.C. 313, 111 C.R.R. (2d) 173, 59 W.C.B. (2d) 543 (C.A.); R. v. Parker (2000), 2000 CanLII 5762 (ON CA), 49 O.R. (3d) 481, [2000] O.J. No. 2787, 188 D.L.R. (4th) 385, 135 O.A.C. 1, 146 C.C.C. (3d) 193, 37 C.R. (5th) 97, 75 C.R.R. (2d) 233, 47 W.C.B. (2d) 116 (C.A.); R. v. Turmel, 2003 CanLII 17130 (ON CA), [2003] O.J. No. 3877, 231 D.L.R. (4th) 190, 177 C.C.C. (3d) 533, 59 W.C.B. (2d) 14 (C.A.); Sfetkopoulos v. Canada (Attorney General), [2008] F.C.J. No. 1472, 2008 FCA 328, 382 N.R. 71, 171 A.C.W.S. (3d) 338, affg [2008] F.C.J. No. 6, 2008 FC 33, 166 C.R.R. (2d) 86, 163 A.C.W.S. (3d) 556, 76 W.C.B. (2d) 747, 323 F.T.R. 146, [2008] 3 F.C.R. 399, 78 Admin. L.R. (4th) 171, 2010EXP-92, consd

Other cases referred to

Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236, [1992] S.C.J. No. 5, 88 D.L.R. (4th) 193, 132 N.R. 241, J.E. 92-198, 2 Admin. L.R. (2d) 229, 5 C.P.C. (3d) 20, 8 C.R.R. (2d) 145, 16 Imm. L.R. (2d) 161, 31 A.C.W.S. (3d) 214; R. v. Ethier, [2011] O.J. No. 4023, 2011 ONCA 588; R. v. Mernagh, [2011] O.J. No. 1669, 2011 ONSC 2121, 269 C.C.C. (3d) 297; R. v. Real Martin (2010), Docket No. C50273 (Ont. C.A.); R. v. Turmel, [2007] O.J. No. 724, 2007 ONCA 133, 72 W.C.B. (2d) 501

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 7 Controlled Drugs and Substances Act, S.C. 1996, c. 19 [as am.], ss. 4, (1), 5, 7, (1), Sch. II [as am.]

Rules and regulations referred to

Marihuana Medical Access Regulations, SOR/2001-227, ss. 41(b) [as am.], (b.1) [rep. SOR/2009-142, s. 1], 54 [rep. SOR/ 2003-387, s. 10], 54.1 [rep. SOR/2010-63, s. 2] Regulations Amending the Marihuana Medical Access Regulations, SOR/2003-387 [page552]

Robert McCrady, in person. Wayne William Hearn, in person. Debra McIntyre, in person. Gary Pallister, in person. Mark MacDonald, in person. Kevin Wilson, for respondent.

BY THE COURT: --

Overview

[1] These appeals involve five appellants who have been charged and, in some cases, convicted of marihuana-related offences contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA"). The appellants have been frustrated by the operation of the Marihuana Medical Access Regulations, SOR/2001-227 (the "MMAR") and argue that the offences with which they have been charged have been judicially repealed. The reasons in this appeal are being released at the same time as the reasons in the companion cases of Parker and Maloney.

[2] The appellants McCrady and Hearn appeal from convictions for marihuana-related offences. The appellant McCrady was convicted of possession of marihuana contrary to s. 4(1) of the CDSA by Lalande J. of the Ontario Court of Justice on July 19, 2010. The appellant Hearn pleaded guilty to production of marihuana contrary to s. 7(1) of the CDSA in the Ontario Court of Justice on July 9, 2010.

[3] The appellants Pallister and McIntyre currently face charges for production and possession for the purpose of trafficking, and production and simple possession, respectively. The appellant MacDonald was charged with possession for the purpose of trafficking in December 2008. Those charges were stayed in December 2010. Pallister, McIntyre and MacDonald each seek orders prohibiting prosecution for marihuana-related offences under the CDSA and staying all marihuana charges as an abuse of process. They also seek to have the Crown cited for contempt for continuing to prosecute marihuana offences. Finally, they seek to expunge the criminal records of all people convicted of marihuana offences.

[4] We recognize the frustration expressed by each of the appellants about the MMAR. However, the marihuana offences set out in the CDSA have not been repealed and were in force [page553] when the appellants McCrady and Hearn were convicted. The remedies sought by the appellants Pallister, McIntyre and MacDonald are not available on this record. Accordingly, all the appeals are dismissed.

Facts

(1) The appellant McCrady

[5] In October 2008, McCrady submitted an application to possess and grow marihuana pursuant to the MMAR. The application was signed by his medical doctor. Health Canada processed the application six months later, in April 2009. On February 20, 2009, before the application was processed, McCrady was charged with possession and possession for the purpose of trafficking contrary to ss. 4 and 5 of the CDSA. The amount was 106 grams, or just under four ounces. On July 19, 2010, he was acquitted of possession for the purpose and convicted of simple possession. McCrady was sentenced to 12 months of probation and a $250 fine.

(2) The appellant Hearn

[6] On July 9, 2010, Hearn pleaded guilty to production of cannabis contrary to s. 7 of the CDSA. The offence occurred on April 22, 2009 and involved 69 plants. On October 25, 2010, Hearn was sentenced to a $500 fine.

(3) The appellant Pallister

[7] It is alleged that on October 2, 2009, police executed a CDSA search warrant at a residence in Thornbury, Ontario and seized approximately 450 cannabis plants, along with a quantity of cannabis. The appellant Pallister was charged with production of cannabis, possession of cannabis and possession for the purpose of trafficking, together with several co-accused. The charges were set to be heard by the Superior Court of Justice on November 29, 2011. While his charges were still before the Ontario Court of Justice, Pallister brought an application before the Superior Court for declaratory relief with respect to the validity of the offences. On March 26, 2010, O'Connor J. dismissed the application. Pallister appeals from O'Connor J.'s decision.

(4) The appellant McIntyre

[8] It is alleged that on January 7, 2010, the police executed a CDSA search warrant at a residence in the Township of Douro-Dummer and seized three pounds of marihuana and 1,383 [page554] cannabis plants. McIntyre was charged with production of cannabis and possession of cannabis. Those charges are still before the courts. McIntyre brought an application before the Superior Court of Justice for declaratory relief with respect to the validity of the offences with which she is charged. Gunsolus J. dismissed the application on December 9, 2010. McIntyre appeals that decision.

(5) The appellant MacDonald

[9] It is alleged that on December 8, 2008, the police executed a CDSA search warrant at a residence in Otonabee-South Monaghan Township and seized a large quantity of cannabis. The appellant MacDonald was charged with possession of cannabis for the purpose of trafficking. MacDonald brought an application before the Superior Court of Justice seeking declaratory relief with respect to the validity of the offence. On October 27, 2010, Gilmore J. dismissed the application. On December 8, 2010, the charge against MacDonald was stayed. MacDonald appeals from Gilmore J.'s decision.

Issues on Appeal

[10] The appellants McCrady and Hearn appeal their convictions. They raise the following issues: (1) Their charges should have been quashed, as marihuana is no longer a controlled substance. (2) Their charges should have been judicially stayed, as marihuana no longer should be a controlled substance.

[11] The appellants Pallister, MacDonald and McIntyre raise the following issues respecting marihuana offences: (1) The combined effect of the decisions of the Ontario Court of Appeal in R. v. Parker (2000), 2000 CanLII 5762 (ON CA), 49 O.R. (3d) 481, [2000] O.J. No. 2787 (C.A.) ("Parker (2000)"); Hitzig v. Canada, 2003 CanLII 30796 (ON CA), [2003] O.J. No. 3873, 177 C.C.C. (3d) 449 (C.A.); and R. v. P. (J.) (2003), 2003 CanLII 17492 (ON CA), 67 O.R. (3d) 321, [2003] O.J. No. 3876 (C.A.) is the repeal of the marihuana prohibitions. This deemed repeal has never been remedied. (2) The decision in R. v. Krieger, [2000] A.J. No. 1683, 2000 ABQB 1012 is deemed to have repealed the marihuana production offence in s. 7 of the CDSA. [page555] (3) The decisions in Sfetkopoulos v. Canada (Attorney General), [2008] F.C.J. No. 6 2008 FC 33, affd [2008] F.C.J. No. 1472, 2008 FCA 328 and R. v. Beren, [2009] B.C.J. No. 618, 2009 BCSC 429 have invalidated the marihuana prohibition retroactive to at least December 3, 2003.

Standing

[12] The Crown challenges the standing of the appellants Pallister, McIntyre and MacDonald to obtain the broad forms of relief they sought in their notices of application. It is open to Pallister and McIntyre to defend the criminal charges brought against them by challenging the constitutional validity of the laws under which their charges are brought. The charges against MacDonald have already been withdrawn, thus he no longer has standing for this type of argument. The standing of Pallister, McIntyre and MacDonald to seek the broader forms of relief such as prohibiting prosecution of marihuana offences would depend upon whether they should be given public interest standing in accordance with the test set out in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236, [1992] S.C.J. No. 5. We have decided not to address the standing issue because we are satisfied that their claims can be disposed of by dealing with the issues raised on the merits. Their claims for relief all hinge on the theory that the marihuana prohibitions in the CDSA have not been in effect since August 1, 2001, what the appellants refer to as Terry Parker Day. For the reasons developed below, that argument has no merit. While the marihuana possession prohibition was not in force from July 31, 2001 to October 7, 2003 as a result of the combined effect of Parker (2000) and Hitzig, that offence as well as the production offence in the CDSA have been in force since October 7, 2003. No court, so far as we are aware, has ever struck down the possession for the purpose offence. That offence has always been in force.

The Substantive Arguments

Background

[13] The history in Ontario of the issues raised by the appellants begins with this court's decision in Parker (2000). That history is more fully set out in our reasons in Mr. Parker's case which are being released at the same time as these reasons. These reasons must be read with the reasons in Mr. Parker's case to fully appreciate the history of the arguments raised by [page556] these appellants. Mr. Parker suffered from a severe form of epilepsy which he found was alleviated better by smoked marihuana than by conventional treatment. At his criminal trial, he challenged the constitutionality of the CDSA criminal prohibition of marihuana possession on the basis that it infringed his s. 7 Canadian Charter of Rights and Freedoms rights to liberty and security of the person. This court agreed, declaring the provision invalid to the extent of the constitutional inconsistency, but suspending its declaration for 12 months to give the government time to craft a legislative response.

[14] In response to Parker (2000), the federal government enacted the MMAR, which came into force on July 30, 2001. In Hitzig, this court determined that the MMAR regime was unconstitutional as it did not adequately provide for a lawful supply of marihuana. Importantly, however, the court in Hitzig did not strike down the MMAR in its entirety or declare s. 4 of the CDSA to be of no force or effect. Rather, 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).

[15] Hitzig created a retrospective period of invalidity of the prohibition of marihuana possession dating back to July 31, 2001 (the date that the suspension of invalidity in Parker (2000) ran out). Going forward, Hitzig made the prohibition of marihuana possession fully constitutional in Ontario as of October 7, 2003 (the date of the Hitzig decision).

[16] Following 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 persons authorized-to-possess. Sections 41(b) and 54 were re-enacted in their original form as ss. 41(b.1) and 54.1. As we explain in Parker, 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.

1. The marihuana offences remain in full force

[17] The appellants argue that, in combination, Parker (2000), Hitzig and P. (J.) have the effect of completely repealing all of the marihuana offences set out in the CDSA. That is incorrect. In R. v. Turmel, 2003 CanLII 17130 (ON CA), [2003] O.J. No. 3877, 231 D.L.R. (4th) 190 (C.A.), [page557] released concurrently with Hitzig and P. (J.), 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.

[18] 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, [2007] O.J. No. 724, ONCA 133, at para. 2; R. v. Real Martin (2010), unreported, Docket C50273 (Ont. C.A.)), at paras. 6-8; and R. v. Ethier, [2011] O.J. No. 4023, 2011 ONCA 588, at paras. 3-4.

Krieger does not assist the appellants

[19] In Krieger, the Alberta Court of Queen's Bench held that because Mr. Krieger used marihuana to alleviate his suffering from multiple sclerosis, the production prohibition in s. 7(1) of the CDSA infringed his s. 7 Charter rights to liberty and security of the person. The court held that s. 7(1) was of no force and effect with respect to marihuana production. The declaration of invalidity was suspended for one year to give the government time to arrange for a legal source of marihuana for therapeutic use. The Alberta Court of Appeal extended the suspension of the declaration "until further order of the Court" [[2002] A.J. No. 1644, 2003 ABCA 85]. That suspension has never been lifted. In the interim, the Hitzig line of cases resulted in the MMAR which allow for lawful access to marihuana for therapeutic use. The constitutional defect identified in Krieger was thereby remedied during the period of suspension and the declaration of invalidity is now moot.

Sfetkopoulos and Beren do not assist the appellants

[20] 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 licence from growing for more than one ATP-holder) invalid. He did not, however, strike down any of the prohibitions in the CDSA.

[21] R. v. Beren involved a prosecution for production and trafficking in marihuana. Koenigsberg J. of the Birtish Columbia [page558] Supreme Court relied on Sfetkopolous and held that ss. 41(b.1) and 54.1 of the MMAR infringed s. 7 of the Charter. No provision of the CDSA was found to be invalid in Beren.

[22] The appellants argue that, by analogy to Hitzig and P. (J.), Sfetkopolous and Beren have the effect of invalidating all marihuana offences retroactively dating back to December 3, 2003. This argument fails for several reasons.

[23] First, Hitzig and P. (J.) only affected the constitutionality of the offence of simple possession of marihuana, not the offences of production or possession for the purpose of trafficking. The foundational declaration of invalidity in Parker (2000) simply declares that the reference to marihuana in Schedule II is of no force and 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 (Turmel (2003), at para. 6). Thus, if the appellant's argument had merit it could only apply to the simple possession charges against the appellants McCrady, Pallister and McIntyre.

[24] Second, the period of retroactive invalidity that the appellants argue for would not apply to any of them: (a) Retroactive invalidity would only work backward from the date of Sfetkopoulos. The offence dates in the cases of MacDonald, McCrady and Hearn (December 8, 2008, February 20, 2009 and April 22, 2009, respectively) are after January 10, 2008, when the Sfetkopoulos declaration remedied the Sfetkopoulos problem. (b) The offence dates in the cases of Pallister and McIntyre (October 2, 2009 and January 7, 2010, respectively) are after para. 41(b.1) of the MMAR was amended in response to Sfetkopoulos on May 14, 2009. No court has found the amended regulation unconstitutional.

[25] Third, the offence dates in the cases of McCrady, Hearn, Pallister and McIntyre (February 20, 2009, April 22, 2009, October 2, 2009 and January 7, 2010, respectively) are during the one-year Beren suspension of invalidity, which began on February 2, 2009. Maloney's offence date (June 6, 2010) is after the MMAR were amended in response to Beren, on March 11, 2010.

[26] Fourth, although the trial judge in Beren declared ss. 41(b.1) and 54.1 of the MMAR invalid, she made findings of guilt under the CDSA (at para. 136). Thus, Beren upheld the production and trafficking offences as they relate to persons who do not have ATPs under the MMAR. [page559]

2. The charges against McCrady and Hearn should not be stayed

[27] The appellants McCrady and Hearn submit that the charges against them should be stayed as marihuana no longer should be a controlled substance. The record does not support this position. The appellants submit a list of 25 complaints related to the MMAR. The complaints are not grounded in evidence in the record placed before the trial courts or this court. Insofar as the complaints reference Sfetkopoulos and Beren, the appellant's argument is addressed above. The appellants also make reference to the trial decision in R. v. Mernagh, [2011] O.J. No. 1669, 2011 ONSC 2121. In that case, Taliano J. declared that the prohibitions against possession and production of marihuana in ss. 4 and 7 of the CDSA are invalid. However, this court has already extended the Mernagh suspension of invalidity pending appeal.

The Beno Argument

[28] These appeals are some of many cases that have recently found their way to this court either as conviction appeals or attempts at prerogative remedies. They all turn on an argument referred to by the appellants as BENO (Bad Exemption = No Offence). By the reasons in this appeal and in the companion appeal in Parker, it should now be apparent that this argument cannot succeed. This court and other courts have dealt with the so-called Bad Exemption by reading in words to fix the constitutional infirmity or by striking down the exemption. It was only in Hitzig that the effect of the Bad Exemption was to retroactively render of no force and effect the s. 4 CDSA possession prohibition as it related to marihuana. That order gave effect to the order of this court in Parker (2000). In Parker (2000), this court gave Parliament a year to fix the problem identified in that case. The effect of Hitzig was to find that Parliament had not succeeded. Hence the order in Parker (2000) declaring s. 4 as related to marihuana of no force and effect, took effect, but only until October 7, 2003. Put another way, the BENO argument only applied to the period from July 31, 2001 to October 7, 2003.

[29] The appellants have continuing concerns about the MMAR regime. In their view, the regime is inadequate and fatally flawed. But their views about the regime cannot change the fact that since October 7, 2003, with the exception of the 2011 decision Mernagh, no court has held that the marihuana prohibitions are invalid. Since Parker (2000) and Krieger, [page560] courts have dealt with defects in the MMAR by striking down the provisions or reading out offending parts of the regulations. The orders made in those cases, including Hitzig, Sfetkopoulos and Beren, have left intact the prohibitions in the CDSA. As we have pointed out, the Parker (2000) state of invalidity, as regards the possession offence, ended on October 7, 2003. The Krieger order of invalidity, as regards the cultivation offence, never took effect because of successive orders of the trial court and the Alberta Court of Appeal. The order made by Taliano J. in Mernagh holding the possession and production marihuana offences of the CDSA and the MMAR to be of no force and effect cannot assist the appellants at this point because that order has been stayed.

[30] Put simply, it is not open to these appellants or others who are dissatisfied with the MMAR regime to simply refuse to obey the law and take the position that the CDSA offences are not in effect. If they wish to now challenge the validity of any part of the CDSA or the MMAR, they can do so as part of the defence to their charges or by an application in the Superior Court of Justice. However, that defence and any application must be based upon proper material that clearly demonstrates the constitutional infirmity of the MMAR and the link between the CDSA offences and the alleged infirmity in the MMAR.

Conclusion

[31] The appellants have expressed a shared sense of frustration with the MMAR and the medical profession. However, the issues raised are based on a fundamental misreading of the state of the law. The marihuana offences set out in the CDSA remain in full force. The appeals are dismissed.

Appeals dismissed.