Reasons on Pre-Trial Motions

COURT FILE NO.: CR-17-90000314 DATE: 20181203

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – SHAWN TEDDER Applicant

COUNSEL: K. Aird and D. Morlog, for the Crown Shawn Tedder, Self-Represented

HEARD: January 29 & 30, April 20, August 28, & September 21, 2018

BEFORE: Garton J.

[1] The applicant, Shawn Tedder, is charged with two counts of trafficking in marihuana, and two counts of possession of marihuana for the purpose of trafficking, contrary to ss. 5(1) and (2), respectively, of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (“CDSA”). He is also charged with three counts of possession of the proceeds of crime, contrary to s. 354(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] The allegations arose during an investigation by the Toronto Police Drug Squad into an illegal marihuana dispensary located at 796 Broadview Avenue. It is alleged that on September 11, 2015, two undercover officers attended at that address and confirmed the ongoing operation of the dispensary, which was owned and operated by Mr. Tedder, and which was selling marihuana, hashish and cannabis extracts to the public. The undercover officers purchased 30.62 grams of marihuana from Mr. Tedder and an unknown female. The officers were not asked for any proof of medicinal need for the marihuana. Mr. Tedder was not arrested at that time.

[3] It is further alleged that on September 12, 2015, two other undercover officers attended at 796 Broadview Ave., where they purchased 2.15 grams of hashish from Mr. Tedder. Again, neither of the officers was required to show proof of a medicinal need for the hashish. Again, Mr. Tedder was not arrested.

[4] On September 13, 2015, the police executed two search warrants: one at the dispensary on Broadview, and the other at Mr. Tedder’s residence on Holborne Avenue in Toronto.

[5] Mr. Tedder was inside the dispensary when the Broadview warrant was executed. The police seized approximately eight kilograms of dried marihuana, 1.7 kilograms of hashish, a variety of marihuana edibles, $5,520 in Canadian currency, drug paraphernalia, and business documents. Mr. Tedder was arrested and taken to 54 Division.

[6] During the execution of the warrant at the Holborne address, the police seized approximately 273 grams of marihuana, which was concealed in the ceiling of Mr. Tedder’s bedroom. A variety of business and banking documents were found on the desk in the same room.

Issues Raised by the Applicant

[7] Mr. Tedder brought the following applications:

1. An application for a stay of the proceedings on the basis that his right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time has been violated;
2. An application under s. 601(1) of the Criminal Code to quash the counts in the indictment charging him with the offences under s. 5 of the CDSA, and for an order for the return of the controlled substances pursuant to s. 24 of the CDSA;
3. Several applications relating to the constitutionality of the criminal and regulatory schemes governing the use, possession, and production of marihuana, including:
   • An application for a declaration that ss. 4, 5, and 6 of the CDSA violate s. 7 of the Charter and are of no force or effect;
   • An application for a declaration that various sections of the marihuana regulatory schemes are unconstitutional;
   • An application to stay the charges against him in light of the invalidity of the legislation;
   • Applications for a number of ancillary orders flowing from the preceding declarations.
4. An application pursuant to ss. 8 and 24(2) of the Charter for an exclusion of the evidence seized during the execution of the search warrant at 796 Broadview Avenue. Mr. Tedder asserts that the warrant was unlawful as that address was the electoral district party office of the Marihuana Party.

[8] On September 21, 2018, I dismissed all of the applications, with reasons to follow. These are those reasons.

1. The Section 11(b) Charter Application

[9] On January 29, 2018, at the commencement of the proceedings, Mr. Tedder asked for a stay of the charges on the basis that his s. 11(b) Charter right to be tried within a reasonable time had been violated.

[10] Mr. Tedder was arrested and charged on September 13, 2015. His trial was scheduled to take place from January 29 to February 9, 2018, and hence would have been completed at the 29-month mark, or below the 30-month presumptive ceiling that was set in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[11] In these circumstances and in accordance with Jordan, the burden was on Mr. Tedder to show that the delay was unreasonable. In order to meet that burden, Mr. Tedder was required to show that i) he took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and ii) the case took markedly longer than it reasonably should have. Absent these two factors, a section 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases: Jordan, at paras. 82-91.

[12] No transcripts of prior court appearances or affidavits were filed by Mr. Tedder, and no evidence was called to outline or explain the history of these proceedings. In the absence of such evidence, there was no basis upon which the court could be satisfied that the 29-month delay violated Mr. Tedder’s s. 11(b) Charter rights. The application was therefore dismissed.

[13] It may be appropriate at this point to indicate why Mr. Tedder’s trial, in the end, did not proceed before me in January 2018 after completion of the pre-trial motions, and how a new trial date of October 1, 2018 came to be set.

[14] During the course of submissions regarding the motion to quash the counts in the indictment, there was some discussion by the parties as to whether they wished to adjourn the proceedings to sometime after March 23, 2018, which was the anticipated date of release of McArthur J.’s decision in R. v. Stupak, 2018 ONSC 1867, 407 C.R.R. (2d) 367. The issues in Stupak were related to the issues in this case: Mr. Stupak, who was charged with offences under s. 5(2) of the CDSA, sought a declaration that this section violated s. 7 the Charter and was of no force or effect.

[15] On January 30, 2018, Crown counsel and Mr. Tedder agreed to adjourn his applications to April 20, 2018 for further submissions to address potential issues arising from Stupak. Also, on January 30, 2018, a new trial date was set for what was anticipated to be an eight to ten-day jury trial.

[16] Although Mr. Tedder represented himself on these applications, it was anticipated that his lawyer, Davin Charney, would be acting for him at trial. A new trial date of October 1, 2018 was ultimately set. Earlier dates were available to Crown counsel and the court – namely, May 7 and June 18, as well as dates during the summer. However, Mr. Charney was not available until October 1, 2018. Mr. Tedder explicitly waived his s. 11(b) rights from January 30 to October 1, 2018, and stated that the new date was “perfectly alright” with him.

[17] On April 20, 2018, Mr. Tedder was unable to attend in court as he was in custody in Barrie, Ontario. The matter was therefore adjourned to August 28, 2018, when I heard final submissions. As stated earlier, on September 21, 2018, I dismissed all of Mr. Tedder’s applications, with reasons to follow.

2. Application under s. 601(1) of the Criminal Code to quash the counts in the indictment charging the accused with offences under s. 5 of the CDSA

[18] In his application under s. 601(1) of the Criminal Code, Mr. Tedder submits that the counts in the indictment charging him with trafficking in marihuana and possession of marihuana for the purpose of trafficking, contrary to ss. 5(1) and (2) of the CDSA, should be quashed as these offences are unconstitutional and of no force or effect. In his material, Mr. Tedder also refers to this motion as “an application for Allard-Smith BENO Quash and Return of Controlled Substance,” with “BENO” being the acronym for the phrase “Bad Exemption = No Offence.”

[19] In support of his position that the offences under s. 5 of the CDSA are unconstitutional, Mr. Tedder relies on constitutional challenges to the regulatory regime in force on September 13, 2015, when he was arrested and charged with these offences. That regime – the Marihuana for Medical Purposes Regulations, SOR/2013-119 (“MMPR”) – was later held to be invalid: See Allard v. Canada, 2016 FC 236, [2016] 3 FCR 303, where Phelan J. found that the MMPR violated s. 7 of the Charter and were of no force or effect.

[20] Mr. Tedder submits that since there was no constitutionally valid regime for exempting medical users of marihuana on the day of his arrest, it follows that the offences under s. 5 of the CDSA are necessarily unconstitutional and of no force or effect. He relies, in this regard, on the reasoning in R. v. Parker (2000), 49 O.R. (3d) 481 (C.A.), as well as the Court of Appeal decisions in R. v. Hitzig (2003), 177 O.A.C. 321 (C.A.), leave to appeal to SCC refused [2004] S.C.C.A. No 5, and R. v. P.(J.) (2003), 67 O.R. (3d) 321 (C.A.). In Parker (2000), the Court ruled that the prohibition against possession of marihuana in s. 4 of the CDSA was unconstitutional and of no force or effect, as there was no constitutionally valid medical exemption to that prohibition.

[21] Crown counsel submits that the decisions in Parker (2000), Hitzig, and P.(J.), which concern s. 4 of the CDSA, cannot be extended to the offences of trafficking and possession of marihuana for the purpose of trafficking under s. 5 of the CDSA. The Crown also relies on Allard, noting that although Phelan J. found that the MMPR violated s. 7 of the Charter and were of no force or effect, he expressly rejected the remedy of striking down the underlying criminal offences set out in the CDSA.

[22] In order to give some context to the constitutional challenges with respect to the MMPR, I have set out a brief history of legal developments in the area of medical marihuana regulations leading up to and including the decision in Allard.

Case law

Parker (2000) and the History of the Medical Marihuana Regulatory Regimes

[23] Parker (2000) was the Court of Appeal’s first decision dealing with the constitutionality of Parliament’s attempts to restrict the use of marihuana for medical purposes. As stated earlier, the court held that a blanket criminal prohibition against possession of marihuana in s. 4 of the CDSA was of no force or effect absent a constitutionally acceptable medical exemption to that prohibition. The court suspended its declaration for a year – or until July 31, 2001 – to allow the Government to address the constitutional deficiency.

[24] The Government responded to Parker (2000) by enacting the Marihuana Medical Access Regulations, SOR/2001-227, as amended (“MMAR”). The MMAR allowed individuals to possess, and in some cases, produce, marihuana for medical purposes if they met certain medical criteria. Applicants for whom conventional medical treatments were ineffective or inappropriate could obtain an exemption to possess marihuana by submitting a supporting declaration from a medical practitioner certifying that the applicant needed marihuana for treatment. This has been referred to as the “doctor-as-gatekeeper” approach.

[25] The MMAR were replaced by the MMPR, which came into force on October 1, 2013. The MMPR maintained the “doctor-as-gatekeeper” approach.

[26] The MMPR were eventually replaced by the Access to Cannabis for Medical Purposes Regulations, SOR/2016-230 (“ACMPR”), which came into force on August 24, 2016. Again, the ACMPR kept in place the “doctor-as-gatekeeper” approach.

Constitutional Challenge to the MMAR: R. v. Hitzig and R. v. P.(J.)

[27] The MMAR were challenged in court on several occasions. In Hitzig, the Court found that the MMAR regime was unconstitutional as it did not adequately provide for a lawful supply of marihuana. However, the court did not strike down the regime in its entirety or declare s. 4 of the CDSA to be of no force or effect. Rather, it brought the MMAR into compliance with the Charter by declaring five sections of the MMAR to be invalid.

[28] Hitzig created a retrospective period of invalidity of the prohibition on possession of marihuana in s. 4 of the CDSA dating back to July 31, 2001, which was the date that the suspension of invalidity in Parker (2000) expired. However, since the constitutional flaws in the MMAR were addressed in Hitzig, the prohibition against marihuana became constitutionally compliant as of October 7, 2003, when Hitzig was released.

[29] The decisions in Hitzig and P.(J.) were released by the Ontario Court of Appeal on the same day. The respondent in P.(J.) was charged with possession of marihuana on April 12, 2002 – that is, during the period between July 31, 2001 and October 7, 2003, when, according to Hitzig, there was no constitutionally acceptable medical exemption. The court upheld the trial judge’s finding that s. 4 of the CDSA was of no force or effect during that period and that the respondent could therefore not be prosecuted. However, the court also found that the trial judge erred in holding that the defect identified in Parker (2000) could not be remedied by regulation. At para. 19, the Court stated:

Section 4 of the CDSA prohibits possession of marihuana “[e]xcept as authorized under the regulations...” These words clearly indicated Parliament’s intention that the scope of the possession prohibition should be subject to change by regulation.

[30] At para. 33, the Court concluded:

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.

[31] An exemption under the MMAR granted patients an authorization-to-possess licence (“ATP” licence). ATP licence holders could access marihuana in one of three ways:

• by growing their own marihuana under a personal-use production licence (“PPL”)
• by obtaining it from a designated licensed producer (“DPL”), or
• by purchasing dried marihuana from Health Canada, which had, at that time, contracted with a private company to produce and distribute medical marihuana

[32] The costs associated with operating the MMAR program, as well as other concerns, led the Government to enact the MMPR, most of which came into effect on October 1, 2013: see s. 268 of the MMPR. Under this new regime, Health Canada’s regulatory role was restored and its previous obligation to supply and distribute marihuana was eliminated. The MMPR was the regulatory scheme in place when Mr. Tedder was charged with the current offences.

[33] Pursuant to the MMPR, PPLs and DPLs were no longer allowed; instead, patients had to purchase marihuana from government-licenced producers (“LPs”). Under the MMPR, individuals who had been authorized to produce marihuana under the MMAR would only be able to continue to do so until March 31, 2014, when the MMAR were repealed.

[34] As was the case under the MMAR, the MMPR required patients to obtain medical documentation from a healthcare practitioner. They were then required to register the document with the LP of their choice, rather than with Health Canada. The LP could then send dried marihuana in the mail directly to the patients. These regulations did not authorize producers to provide medical marihuana via a storefront operation.

Constitutional Challenge to the MMPR: Allard Injunction Granted on March 21, 2014

[35] In Allard v. Canada, 2014 FC 280, 451 F.T.R. 45, Manson J. granted an interlocutory injunction, exempting the applicants from the repeal of the MMAR, pending resolution of the constitutional challenge to the MMPR. Health Canada extended the injunction to all individuals who had an authorization to possess as of the date of the injunction. As a result, many individuals who had authorization under the MMAR were permitted to continue to lawfully possess or grow their own marihuana or designate someone to produce marihuana on their behalf, despite the repeal of the MMAR.

June 11, 2015: The Decision in R. v. Smith

[36] The exemptions under both the MMAR and MMPR were restricted to dried marihuana. Those who were legally authorized to possess marihuana for medical purposes were prohibited from possessing cannabis products extracted from the active medicinal compounds in the cannabis plant.

[37] The respondent in R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602, produced and sold edible and topical marihuana derivatives from the cannabis plant. Smith did not himself use marihuana for medical purposes. In December 2009, when the MMAR regime was still in effect, Smith was charged with simple possession and possession for the purpose of trafficking in cannabis contrary to ss. 4(1) and 5(2) of the CDSA.

[38] The Supreme Court of Canada upheld the finding of the trial judge and the majority of the British Columbia Court of Appeal that the prohibition of non-dried forms of medical marihuana limited the liberty and security of the person in a manner that was arbitrary and hence not in accord with the principles of fundamental justice. The Court found that this infringement of s. 7 was not justified under s. 1 of the Charter.

[39] In considering to what extent the law was inconsistent with the guarantees in the Charter, the Court, at paras. 30 and 31, stated:

A law is “of no force or effect” to the extent it is inconsistent with the guarantees in the Charter: s. 52 of the Constitution Act, 1982. We have concluded that restricting medical access to marihuana to its dried form is inconsistent with the Charter. It follows that to this extent the restriction is null and void.

The precise form the order should take is complicated by the fact that it is the combination of the offence provisions and the exemption that creates the unconstitutionality. The offence provisions in the CDSA should not be struck down in their entirety. Nor is the exemption, insofar as it goes, problematic – the problem is that it is too narrow, or under-inclusive. We conclude that the appropriate remedy is a declaration that ss. 4 and 5 of the CDSA are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes. [Emphasis added].

[40] At para. 34, the Supreme Court observed that at no point in the course of the proceedings did it or the Court of Appeal issue a declaration rendering the charges against Mr. Smith unconstitutional. In fact, following the voir dire, the trial judge refused to grant a judicial stay of proceedings. Although the Crown could have proceeded with the prosecution against Smith with respect to the charges under ss. 4 and 5(2) of the CDSA, it chose not to do so and did not adduce any evidence. Thus, Mr. Smith was acquitted.

[41] Earlier in its judgment, at para. 11, the Supreme Court dealt with the issue of whether Mr. Smith had standing to challenge the constitutionality of the prohibition of possession of products derived from the cannabis plant given the fact that he was not a medical marihuana user and therefore, as the Crown argued, the restriction to dried marihuana had “nothing to do with him.” Rejecting this argument, the Court held that Smith had standing to challenge the constitutionality of the law under which he was charged, even if the alleged unconstitutional effects were not directed at him, and even if no possible remedy for the constitutional deficiency would end the charges against him. At para. 12, the Court stated:

Accused persons have standing to challenge the constitutionality of the law they are charged under, even if the alleged unconstitutional effects are not directed at them: see R. v. Morgentaler, [1988] 1 S.C.R. 30 (S.C.C.); Big M Drug Mart. Nor need accused persons show that all possible remedies for the constitutional deficiency will as a matter of course end the charges against them. In cases where a claimant challenges a law by arguing that the law’s impact on other persons is inconsistent with the Charter, it is always possible that a remedy issued under s. 52 of the Constitution Act, 1982 will not touch on the claimant’s own situation.

[42] This situation referred to by the Court applied to Mr. Smith: although he successfully challenged the constitutionality of the MMAR regime, the trial judge refused to stay the proceedings against him under ss. 4 and 5(2) of the CDSA. As a result, the Crown, had it wished, could have proceeded to prosecute the case.

September 13, 2015: Mr. Tedder is charged with the offences before the court

[43] On September 13, 2015, Mr. Tedder was charged with the offences of trafficking and possession for the purpose of trafficking in marihuana under ss. 5(1) and (2) of the CDSA. The MMPR were in force at that time.

February 24, 2016: The MMPR regime is struck down as unconstitutional - Allard v. Canada

[44] In Allard v. Canada, 2016 FC 236, [2016] 3 FCR 303, which was released on February 24, 2016, Phelan J. held that the MMPR violated s. 7 of the Charter by prohibiting a person with a valid medical need for marihuana from growing their own cannabis, and that such infringement was not justified under s. 1 of the Charter.

[45] The attack in Allard targeted the structure of the MMPR. Phelan J., at paras. 290-292, found that in these circumstances, it would not be feasible to strike certain words or provisions, as such an exercise would eviscerate the regulation and leave nothing practical in place. He concluded, at paras. 296-297, that the appropriate remedy was to declare the entire MMPR regime invalid, but to suspend the operation of the declaration of invalidity for six months to allow the Government to address the constitutional deficiency.

[46] In considering the appropriate remedy, Phelan J. also made it clear that striking down the CDSA provisions that make it an offence to possess, grow or distribute marihuana would be too drastic a remedy. Those sections of the CDSA were therefore left intact. At paras. 294-297, he stated:

The remedy considerations are further complicated by the fact that there is no attack on the underlying legislation. Striking down the MMPR merely leaves a legislative gap where possession of marihuana continues as a criminal offence. Absent a replacement regulation or exemption, those in need of medical marihuana – and access to a Charter compliant medical marihuana regime is legally required – face potential criminal charges.

It would be possible for the Court to suspend the operation of the provisions which make it an offence to possess, use, grow, and/or distribute marijuana for those persons holding a medical prescription or medical authorization. However, this is a blunt instrument which may not be necessary if a Charter compliant regime were put in place or different legislation were passed.

The appropriate resolution, following the declaration of invalidity of the MMPR, is to suspend the operation of the declaration of invalidity to permit Canada to enact a new or parallel medical marihuana regime. As this regime was created by regulation, the legislative process is simpler than the requirement for Parliament to pass a new law.

The declaration will be suspended for six (6) months to allow the government to respond to the declaration of invalidity.

[Emphasis added.]

August 24, 2016: The Allard Suspension period ends and the ACMPR is enacted

[47] On August 24, 2016, the ACMPR replaced the MMPR in order to address the constitutional issues identified in Allard.

[48] The ACMPR allowed for personal production licences and authorizations to possess, as well as a more expansive licence-producer system. Thus far, the ACMPR have not been constitutionally abrogated in any way. It would seem, therefore, that the indictments made of the MMAR and MMPR regimes have been rectified by the enactment of the ACMPR, although this has not been tested in court.

[49] As stated earlier, the doctor-as-gatekeeper approach remained intact under the ACMPR. In order to be supplied with medical cannabis, the patient was required to provide to a licenced producer a certificate from a medical practitioner. Mr. Tedder is currently in possession of such a certificate. However, that document would not authorize him to dispense marihuana to users or non-medical users. The ACMPR do not include a retail distribution system for medical marihuana, and storefront dispensaries remain illegal.

Analysis re: Section 601 (1) Application to Quash the Counts in the Indictment

[50] Having outlined the history of Canada’s medical marihuana regulatory schemes, I will now turn now to consider Mr. Tedder’s submissions on his motion to quash.

[51] A motion to quash under s. 601 of the Criminal Code may be brought where a count in an indictment fails to disclose an offence known to law as required under s. 581(1) of the Code. Mr. Tedder submits that the counts in the indictment charging him with offences under s. 5 of the CDSA should be quashed on the basis that, at the time of Mr. Tedder’s arrest, s. 5 of the CDSA was unconstitutional.

[52] In support of his argument, Mr. Tedder relies on Allard, which struck down the MMPR. He submits that since there was no constitutionally valid regime in place for exempting medical users of marihuana at the time of his arrest, the reasoning in Parker (2000) with respect to s. 4 of the CDSA applies. According to Mr. Tedder, the reasoning in Parker (2000) can be extended to the offences under s. 5 of the CDSA, thus rendering those sections unconstitutional and of no force or effect.

[53] This argument must be rejected in light of binding authority from the Court of Appeal in the case of R. v. McCrady, 2011 ONCA 820, 108 O.R. (3d) 550, which held that Parker (2000) does not extend to offences under s. 5 of the CDSA. At paras. 12, 17-18, and 23, the Court stated as follows:

. . . While the marijuana 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 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] O.J. No. 3877, 231 D.L.R. (4th) 190 (C.A.), 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.

Following Hitzig and Turmel this court has repeatedly confirmed that the marihuana offences in the CDSA remain in full force.

… 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 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 (Turmel (2003), at para. 6). Thus, if the appellant’s argument had any merit it could only apply to the simple possession charges against the appellants McCrady, Pallister and McIntyre.

[54] The materials filed by Mr. Tedder on this application refer to Sfetkopoulos v. Canada (Attorney General), 2008 FCA 328. 382 N.R. 71, aff’g 2008 FC 33, 323 F.T.R. 146 (Eng.), leave to appeal to SCC refused [2008] S.C.C.A. No. 531. They also refer to R. v. Beren and Swallow, 2009 BCSC 429, 192 C.R.R. (2d) 79. The Court in McCrady, at paras. 20-26, outlined why these two cases were of no assistance to the appellants. For similar reasons, they are also of no assistance to Mr. Tedder.

[55] Sfetkopoulos 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. 4 (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: McCrady, at para. 20.

[56] Beren involved a prosecution for production and trafficking in marihuana. Koenigsberg J. of the British Columbia Supreme Court relied on Sfetkopoulos and held that ss. 41(b.1) and 54.1 of the MMAR infringed s. 7 of the Charter. However, no provision of the CDSA was found to be invalid. In particular, the offences of production and trafficking in marihuana, as they relate to persons who did not have ATPs under the MMAR were upheld. Thus, Koenigsberg J. convicted the accused. At para. 136, she stated:

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.

[57] Like Mr. Beren, Mr. Tedder is charged with offences under s. 5 of the CDSA relating to a commercial enterprise that operated outside the medical marihuana landscape and for profit-making purposes.

[58] In R. v. Parker, 2011 ONCA 819, 283 C.C.C. (3d) 43 (“Parker (2011)”), the Court dismissed the appellant’s appeal from the dismissal of his application for the return of seized marihuana pursuant to s. 24 of the CDSA. The appellant argued that by analogy to Hitzig and P. (J.), Sfetkopoulos and Beren had 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. In rejecting this argument, the Court, at paras. 31-2, stated:

First, no provision of the CDSA was found to be invalid in Beren or Sfetkopoulos. 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.

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 Sfetkopoulos. 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. [Emphasis added.]

[59] Although McCrady, Sfetkopoulos, Beren and Parker (2011) were decided in the context of the MMAR, the same reasoning logically applies to the equivalent situation under the MMPR. In Allard, Phelan J. found that the MMPR violated s. 7 of the Charter by prohibiting medical marihuana patients from growing their own cannabis. Although he struck down the entirety of the MMPR, he specifically refrained from striking down any of the sections of the CDSA relating to marihuana, holding that such a measure would be too blunt an instrument. In my view, it logically follows that, absent any “fresh finding of invalidity,” the offences under s. 5 remain in force. Thus, an application to quash those counts in the indictment must fail.

[60] This reasoning was applied by the British Columbia Provincial Court in R. v. Woolsey, 2018 BCPC 4, 405 C.R.R. (2d) 292. The trial judge in that case, Skilnick J., dismissed the accused’s s. 601(1) application to quash an information charging him with offences under s. 5(1) of the CDSA. Mr. Woolsey, like Mr. Tedder, was arrested and charged with the offences in the fall of 2015, or during the period between October 1, 2013, when the MMPR regime was enacted, and February 24, 2016, when it was declared unconstitutional in Allard. Like Mr. Tedder, Mr. Woolsey argued that the charges should be quashed on the basis that there was no constitutionally valid regime for exempting medical users of marihuana at the time of his arrest, and that the reasoning in Parker (2000) applied to offences under s. 5 of the CDSA. In rejecting this argument, Skilnick J. observed that in Allard, Phelan J. did not strike down any sections of the CDSA. At para. 40, Skilnick J. concluded that the “failure of regulations to meet the needs of those who validly require a controlled substance should not result in excusing possession or trafficking by those who don’t.” Accordingly, he dismissed the application.

[61] In Stupak, the accused was charged under s. 5(2) of the CDSA with possession of marihuana for the purpose of trafficking. The charges were laid following Allard, which struck down the MMPR. Like Mr. Tedder, Mr. Stupak submitted that the reasoning in Parker means that the prohibition in s. 5(2) against possession of marihuana for the purpose of trafficking was necessarily unconstitutional and of no force or effect. McArthur J., relying on McCrady and Turmel, rejected this argument and dismissed his application for an order that s. 5(2) of the CDSA violated s. 7 of the Charter.

[62] In conclusion, the Court of Appeal has made it abundantly clear that the reasoning in Parker (2000) does not extend to the offences of trafficking in marihuana and possession of marihuana for the purpose of trafficking, contrary to ss. 5(1) and (2) of the CDSA. In the absence of a fresh finding of invalidity, both of these offences were, at all material times, offences known to law. There is therefore no basis for Mr. Tedder’s application under s. 601(1) to quash the counts in the indictment charging him with those offences. The application is therefore dismissed.

3. Mr. Tedder’s Constitutional Challenges

[63] Mr. Tedder raised a number of constitutional challenges in his materials. My ability to distill some of those issues is limited by the form and content of the materials themselves. Mr. Tedder's materials, which span several hundred pages, include a number of facta that he appears to have taken from the internet. Some of the arguments contained within these facta were not raised during Mr. Tedder’s oral submissions.

[64] Mr. Tedder’s submissions can be distilled as follows:

1. an application for a declaration that ss. 4, 5, and 6 of the CDSA are unconstitutional;
2. an application for a stay of the s. 5 CDSA charges in the indictment in light of the invalidity of the legislation;
3. an application for a declaration that several rules under the MMAR, MMPR, and ACMPR regimes are unconstitutional because they unreasonably restrict access to and/or production of marihuana; and
4. applications for a number of ancillary orders that flow from the two preceding declarations, including an application for the return of a controlled substance pursuant to s. 24 of the CDSA.

[65] As I understand it, the constitutional challenges raised in Mr. Tedder’s materials all attempt to achieve the same end: namely, to attack the constitutionality of s. 5 of the CDSA. In support of this aim, Mr. Tedder has launched extensive challenges to various aspects of all three medical marihuana regulatory schemes. Examples of impugned regulations include:

• The requirement for individuals seeking a medical exemption to obtain documentation from “recalcitrant or not-available family doctors” under the MMAR, MMPR and ACMPR;
• The expiry period for an authorization to possess marihuana under the MMAR, MMPR, and ACMPR;
• The long processing times for Production Registrations and Renewals under the ACMPR;
• The failure to exempt individuals who possess marihuana for their own medical purposes from the CDSA s. 5(1) prohibition on trafficking marihuana under the MMAR, MMPR, and ACMPR;
• The restriction against authorizing a person to produce marihuana plants under more than two registrations under the MMAR and ACMPR; and
• The possession restrictions for marihuana (namely, 150 grams and/or 30 daily doses) under the MMPR and ACMPR.

[66] While this list is not exhaustive, it captures the extensive range of Mr. Tedder’s submissions that challenge aspects of the MMAR, MMPR, and ACMPR – and by extension, s. 5 of the CDSA, as unconstitutional. Mr. Tedder’s position, as I understand it, is that patients suffering from established, significant health issues that entitle them to medical marihuana are unable to obtain or have great difficulty in obtaining marihuana under the regimes established by the Government. Traffickers such as himself fill that “medical marihuana gap,” thereby relieving the suffering of these individuals. Thus, the threat to the liberty of Mr. Tedder or other traffickers as a result of the blanket prohibition against trafficking or possession of marihuana for the purpose of trafficking under s. 5 of the CDSA impacts the s. 7 rights of medical marihuana users and should be declared of no force or effect.

[67] The outcome of each of Mr. Tedder’s challenges to the CDSA, as well as the regulatory regimes, turns on the sufficiency of the record. At its core, the problem with each of Mr. Tedder’s submissions is that they are not supported by proper material. Mr. Tedder did not file any affidavits or call any evidence in support of his submissions. Instead, he filed hundreds of pages that are labelled as “supporting documents.” These documents largely consist of online news articles, blog posts, lists, unauthored case comments, book chapters, pamphlets, and emails, some of which were not explicitly or logically tied to any particular submission. Mr. Tedder also made anecdotal references to other prosecutions against other dispensaries in other jurisdictions. Prosecutorial discretion in other jurisdictions to stay or withdraw charges is, of course, of no moment in terms of determining whether there is a constitutional infirmity with respect to the CDSA provisions relating to this case. In addition, Mr. Tedder referred to civil proceedings relating to interim injunctions in other jurisdictions. Again, such decisions are not relevant to the determination of the constitutionality of s. 5 of the CDSA.

[68] Ultimately, the evidentiary record provided by Mr. Tedder is wholly unable to support the conclusion that s. 5 violates s. 7 of the Charter.

[69] In McCrady, the Ontario Court of Appeal made it clear that any constitutional challenge to the CDSA offences or regulatory provisions must be based on proper material. After stating that the BENO argument only applied to the period from July 31, 2001 to October 7, 2003, and that the orders in Hitzig, Sfetkopoulos, and Beren left intact the prohibitions in the CDSA, the court, at para. 30, continued:

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.

[70] Similarly, at para. 32 of Parker (2011), the Ontario Court of Appeal held that a “fresh finding of invalidity” would depend on a properly constituted evidentiary record.

[71] What constitutes a proper evidentiary record was considered by the Court in R v. Mernagh, 2013 ONCA 67, 301 O.A.C. 333. At trial, the respondent, who was charged with producing marihuana under s. 7(2)(b) of the CDSA, applied for a declaration that the combined effect of ss. 4 and 7 of the CDSA and the MMAR violated his rights under s.7 of the Charter. He argued that the MMAR are unconstitutional as implemented because physicians have decided en masse not to participate in the scheme, thereby making medicinal marihuana practically unattainable to those who would qualify for it. This is similar to the position taken by Mr. Tedder, who argued that the schemes created by the MMAR, MMPR, and ACMPR are unconstitutional as a result of “recalcitrant or not-available family doctors,” thereby leaving persons who are entitled to use medical marihuana unable to obtain the necessary exemption.

[72] The trial judge in Mernagh allowed the respondent’s application, declared ss. 4 and 7 of the CDSA to be of no force and effect, and struck down the MMAR regime in its entirety. In allowing the appeal by the Crown, the court found that the trial judge erred by: (1) wrongly interpreting Parker and Hitzig to recognize a constitutional “right” to use medical marihuana; (2) relying on anecdotal evidence and making findings not supported by the record to conclude that Mr. Mernagh and the patient witnesses qualified for exemptions under the MMAR; and (3) finding that the MMAR operated in such a way as to make medical exemptions practically unavailable, rendering the defence provided by the MMAR illusory (see para. 13).

[73] In Mernagh, reliance on anecdotal evidence and findings not supported by the record were fatal to the respondent’s application. Similarly, in the present case, the evidentiary record is wholly inadequate to support Mr. Tedder’s constitutional challenges to the CDSA provisions and the medical marihuana regulatory schemes. Despite this court having advised Mr. Tedder of the evidentiary requirements with respect to his application, and having provided him an opportunity to create a proper record, Mr. Tedder chose not to file any affidavits or call any evidence. Thus, his submissions were largely based on conjecture, anecdotes, or reading from news articles, pamphlets and other such material contained in the “supporting documents” that he filed with the court. Several times during his submissions, Mr. Tedder suggested that the court visit various websites to obtain additional information.

[74] These evidentiary deficiencies become particularly problematic when considered in light of specific submissions made by Mr. Tedder. For instance, Mr. Tedder’s materials make extensive reference to criticism levelled at the “doctor-as-gatekeeper” approach. That approach, which was maintained throughout the medical marihuana exemption schemes, has repeatedly been endorsed by the Court of Appeal as legitimate. In Hitzig, at paras. 138-139, the Court underscored the fact that the issue of whether marihuana will mitigate the particular symptoms of an individual with a particular serious medical condition is fundamentally a medical question. Thus, “just as physicians are relied on to determine the need for prescription drugs, it is reasonable for the state to require the medical opinion of physicians here, particularly given that this drug is untested.”

[75] Similarly, Doherty J.A., in his concurring reasons in Mernagh, at para. 147, stated:

Much of the evidence relied on by Mr. Mernagh to support his claim that the defence in the MMAR is illusory does not link physician non-participation in the MMAR or individual refusals by physicians to provide the necessary declaration with any kind of governmental action. A doctor who refuses to provide the necessary declaration because he or she is not satisfied that the criteria in the regulations are met, does not feel sufficiently knowledgeable about the effects of marihuana, is unfamiliar with the patient, or views the use of marihuana as medically contraindicated, is certainly limiting the availability of the medical exemption contemplated in the MMAR. However, that decision is not attributable to the government or any form of governmental action. Nor, in my view, can the physician, by exercising the gatekeeping role demanded of the physician by the legislation, be said to make the defence created by the legislation illusory. Refusals based on the doctor’s exercise of his or her judgment are inherent in the defence created by the MMAR.

[76] In this case, Mr. Tedder has failed to adduce proper evidence of physician non-participation, let alone adduce evidence to link such non-participation to any kind of government action. This evidentiary deficiency is critical in light of the continued operation of s. 5 of the CDSA. As stated earlier, McCrady, Sfetkopoulos, Beren and Parker (2011), as well as R. v. Turmel, 2007 ONCA 133, make it clear that the reasoning in Parker (2000) does not extend to s. 5 of CDSA. Similarly, by analogy, there is nothing in the Allard ruling that nullified the s. 5 offences with which Mr. Tedder is charged or rendered them unconstitutional. To the contrary, Phelan J. specifically refrained from striking down any of the sections of the CDSA relating to marihuana. Mr. Tedder has not adduced or filed any material on which this court could base a “fresh finding of invalidity” with respect to ss. 5(1) and (2) of the CDSA.

[77] Aside from the lack of a proper evidentiary record, there is the question of what relief Mr. Tedder would have hypothetically been entitled to had he succeeded in showing that the MMPR in some way vitiated the trafficking provisions of s. 5 of the CDSA. As Crown counsel observed, Mr. Tedder has grounded his constitutional attack on s. 5 in the medical marihuana scheme, even though there is no evidence before the court that his storefront operation on Broadview Avenue was a medical marihuana dispensary or compassion club, where Mr. Tedder sold only to those who had an authorization to possess marihuana. To the contrary, none of the undercover officers who purchased marihuana or hashish from him was asked to show any proof of a medicinal need for the drugs. There is no evidence to suggest that Mr. Tedder was engaged in anything other than a purely commercial operation, serving clients who were not seeking marihuana for medicinal purposes. Bearing in mind the decision in Smith, even if Mr. Tedder succeeded in obtaining a declaration of unconstitutionality of s. 5, such a declaration would not likely result in a personal remedy for Mr. Tedder in these circumstances.

[78] As outlined earlier in these reasons, the accused in Smith produced and sold products derived from the cannabis plant, but did not use marihuana himself. He was charged with offences contrary to ss. 4(1) and 5(2) of the CDSA. The Supreme Court upheld the trial judge’s finding that the MMAR provisions that restricted medical access to marihuana in its dried form violated s. 7 of the Charter and could not be justified under s. 1. The Court declared that ss. 4 and 5 of the CDSA were of no force or effect, but only to the extent that they prohibited a person with a medical authorization from possessing cannabis derivatives for medical purposes. The Court did not issue a declaration rendering the charges against Mr. Smith unconstitutional. Consequently, the Crown, had it so chosen, could have proceeded with the prosecution against him.

[79] The courts have recognized that there is a distinction to be made analytically between those who use marihuana for medical purposes, and those who wish to sell marihuana. Those claimants, in the constitutional context, are not similarly situated, and cannot be treated in the same way, as the following passages from the decision in R. v. Krieger, 2008 ABCA 394, 1 Alta. L.R. (5th) 70, at paras. 8-9, make clear:

There is a second difficulty with the Appellant’s argument. Subsection 24(1) of the Charter does not authorize a court to grant an applicant a personal remedy for alleged violations of the personal Charter rights of other persons. Yet that is precisely what is engaged on the facts of this case. The status of suppliers of marijuana to individuals requiring medical marijuana is very different from those in the latter category. A statutorily mandated exemption for users of marijuana for medical purposes, if practically unavailable, violates the fundamental principle of justice that a statutory defence must not be illusory. Indeed, in broader terms, the Supreme Court of Canada has made clear that if the Government introduces a scheme it must be reasonably adequate and effective. If it is not, those adversely affected who might otherwise enjoy, as in the case of users of marijuana for medicinal purposes, the benefit of such use and the ancillary statutory exemption from criminal sanction, might well invoke their s. 7 remedies. The desire of the Appellant to supply others with marijuana is not on the same footing.

The complaint here is that the Appellant, an identifiable supplier, upon whom the Government has not conferred a supplier’s licence, alleges that those he supplies are disadvantaged and that, accordingly, he, the supplier, is entitled to that which may be described as “adjunct constitutional protection.” That argument must be rejected. We see no basis on this record upon which to impose a constitutional obligation upon Parliament to make accommodations for the Appellant to achieve that purpose.

[80] In conclusion, Mr. Tedder’s various constitutional challenges to s. 5 of the CDSA and the regulatory schemes fail on the basis that he has not advanced or filed any proper material on which to base those challenges. As I have noted, this evidentiary deficiency is illustrated by Mr. Tedder’s challenge to the “doctor-as-gatekeeper” regulatory approach. Although Mr. Tedder made many assertions about the alleged difficulties that patients face when seeking access to medical marihuana, he did not adduce any proper materials in support of his assertions. Moreover, even if Mr. Tedder succeeded in obtaining a declaration of unconstitutionality of s. 5 of the CDSA, such a declaration would be unlikely to result in a personal remedy for Mr. Tedder in the circumstances of this case.

[81] For the foregoing reasons, Mr. Tedder’s applications relating to the constitutionality of the regulatory schemes and CDSA provisions, as well as his applications for ancillary orders flowing therefrom, are dismissed.

4. Section 8 Charter Application

[82] Mr. Tedder asserted that the authorization to search 796 Broadview Avenue was unlawful as that location was the “electoral district office of the Marihuana Party.”

[83] There was no evidence before the court suggesting that Mr. Tedder’s dispensary at 796 Broadview Avenue was a registered electoral district office. However, assuming that this was, in fact, the case, there is no authority to support the proposition that an electoral district office is immune from the execution of a lawfully obtained search warrant for the purpose of locating drugs or other evidence in support of the offences before the court.

[84] The s. 8 Charter application was accordingly dismissed.

Garton J. Released: December 3, 2018

COURT FILE NO.: CR-17-90000314 DATE: 20181203 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SHAWN TEDDER Applicant REASONS on pre-trial motions Garton J. Released: December 3, 2018