R.v.Smith Supreme Court of Canada Transcripts

613.521.0703 StenoTran www.stenotran.com

36059

SUPREME COURT OF CANADA

BETWEEN:

Her Majesty the Queen

v.

Owen Edward Smith

(B.C.) (Criminal) (As of Right)

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TRANSCRIPTION OF COMPACT DISC

Friday, March 20, 2015

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- ii -

APPEARANCES Party: Her Majesty the Queen Counsel W. Paul Riley Kevin Wilson Public Prosecution Service of Canada 900 - 840 Howe Street Vancouver, B.C. V6Z 2S9 t: 604-666-0704 f: 604-666-1599

Agent François Lacasse Director of Public Prosecutions of Canada 160 Elgin Street 12th Floor Ottawa, OntarioK1A 0H8 t: 613-957-4770 f: 613-941-7865

Party: Smith, Owen Edward Counsel Kirk I. Tousaw John W. Conroy, Q.C. Matthew J. Jackson Bibhas D. Vaze 4768 Fairbridge Drive Duncan, B.C. V9L 6N8 t: 604-836-1420 f: 866-310-3342

Agent Jeffrey W. Beedell Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, Ontario K1P 1C3 t: 613-786-0171 f: 613-788-3587

Party: Santé Cannabis Counsel Julius H. Grey Geneviève Grey Grey, Casgrain 1155 René-Lévesque Ouest Suite 1715 Montréal, Quebec H3B 2K8 t: 514-288-6180 Ext: 229 f: 514-288-8908

Agent Guy Régimbald Gowling Lafleur Henderson LLP 160 Elgin Street 26th Floor Ottawa, Ontario K1P 1C3 t: 613-786-0197 f: 613-563-9869

Party: Criminal Lawyers' Association (Ontario) Counsel Nader R. Hasan Gerald Chan Ruby Shiller Chan Hasan 11 Prince Arthur Ave. Toronto, Ontario M5R 1B2 t: 416-964-9664 f: 416-964-8305

Agent Guy Régimbald Gowling Lafleur Henderson LLP 160 Elgin Street 26th Floor Ottawa, Ontario K1P 1C3 t: 613-786-0197 f: 613-563-9869


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APPEARANCES Party: Canadian Civil Liberties Association Counsel Andrew K. Lokan Debra McKenna Paliare, Roland, Rosenberg, Rothstein, LLP 155 Wellington Street West 35th Floor Toronto, Ontario M5V 3H1 t: 416-646-4300 f: 416-646-4301

Agent D. Lynne Watt Gowling Lafleur Henderson LLP 160 Elgin Street Suite 2600 Ottawa, Ontario K1P 1C3 t: 613-786-8695 f: 613-788-3509

Party: British Columbia Civil Liberties Association Counsel Jason B. Gratl Gratl & company 601-510 West Hastings Street Vancouver, B.C. V6B 1L8 t: 604-694-1919 f: 604-608-1919

Agent D. Lynne Watt Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, Ontario K1P 1C3 t: 613-786-8695 f: 613-788-3509

Party: Canadian AIDS Society, Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario Counsel Paul K. Burstein Ryan Peck Richard Elliott Burstein, Bryant, Barristers 6 Adelaide Street East, 5th Flr Toronto, Ontario M5C 1H6 t: 416-927-7441 f: 416-488-9802

Agent Marie-France Major Supreme Advocacy LLP 100- 340 Gilmour Street Ottawa, Ontario K2P 0R3 t: 613-695-8855 Ext: 102 f: 613-695-8580

Party: Medicinal Cannabis Patients' Alliance of Canada Inc. Counsel Marie L. Cassis 5 Viewpointe Private Ottawa, Ontario K1V 1M5 t: 613-698-9523 f: 613-733-1319 Party: Marc Boyer for Vancouver Quadra Electoral District Association for the Marijuana Party This party is not represented by counsel.


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TABLE OF CONTENTS PAGE

Argument for the Appellant, Her Majesty the Queen by Mr. Riley, Q.C. 1 Argument for the Respondent, Owen Edward Smith by Mr. Tousaw 52 Argument for the Intervener, Criminal Lawyers’ Association (Ontario) by Mr. Chan 94 Argument for the Intervener, Canadian Civil Liberties Association by Mr. Lokan 98 Argument for the Intervener, British Columbia Civil Liberties Association by Mr. Gratl 102 Written submissions only for the Intervener, Santé Cannabis by Mr. Grey n/a Written submissions only for the Interveners, Canadian AIDS Society, et al No one appearing n/a Reply Argument for the Appellant, Her Majesty the Queen by Mr. Riley, Q.C. 105

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1

Ottawa, Ontario 1

--- Upon commencing on Friday, March 20, 2015 2

at 9:00 a.m. 3

(0900) MADAM CHIEF JUSTICE: Thank you. You may be 4

seated. 5

Her Majesty the Queen versus Owen Edward Smith, 6

W. Paul Riley, Q.C. and Kevin Wilson for the Appellant; 7

Kirk I. Tousaw and John Conroy, Q.C., Matthew 8

J. Jackson and Bibhas D. Vaze for the Respondent; 9

Gerald Chan and Nader R. Hasan for the 10

Intervener, Criminal Lawyers’ Association; 11

Andrew K. Lokan and Debra McKenna for the 12

Intervener, Canadian Civil Liberties Association; 13

Jason B. Gratl for the Intervener, British 14

Columbia Civil Liberties Association; 15

Julius H. Grey and Genevieve Grey for the 16

Intervener, Santé Cannabis, written submissions only; 17

And no one appearing for the Interveners, 18

Canadian AIDS Society, et al. 19

Ms. Riley...? 20

ARGUMENT FOR THE APPELLANT, HER MAJESTY THE QUEEN 21

(0901) MR. RILEY, Q.C.: Chief Justice, Justices, the 22

Charter of Rights does not include a freestanding 23

Constitutional right to medical marihuana, much less a 24

freestanding right to produce and distributive marihuana 25


2

products. 1

The question in this case was whether a 2

particular legislative scheme that provided for medical 3

access to marihuana but did not allow for access to 4

derivative marihuana products was shown to infringe the 5

rights of life, liberty and security of the person in 6

section 7 of the Charter. The specific question for this 7

Court is whether the courts below applied the correct legal 8

or constitutional standards when trying to resolve that 9

issue. 10

So in bringing this appeal, the Crown is not 11

asking this Court to reweigh the evidence. We are not 12

inviting the Court to pronounce on any evidentiary issues 13

with respect to botany. So, for example, the Crown is not 14

asking the Court to interpret the evidence concerning the 15

significance of glandular trichomes on a marihuana plant. 16

The Crown is asking the Court to apply and, if 17

necessary, clarify the legal standards or thresholds under 18

section 7 of the Charter. And the Crown argument will 19

address legal standards or thresholds under both phases of 20

the section 7 Charter analysis. 21

And to be clear, this is just an overview of 22

the arguments the Crown will present and I will obviously 23

get into them in more detail. 24

At the first stage, the Crown is asking the 25


3

Court to pronounce on the legal threshold that an applicant 1

must meet to establish that liberty and security of the 2

person’s interests are engaged. In the context of access to 3

controlled substances, is it enough for an applicant to 4

merely assert or believe that he or she is making a medical 5

decision? Or must a claim meet some objective standard or 6

threshold? That’s at the first stage. 7

At the second stage if it is reached the Crown 8

is asking the Court to address and apply the burden of proof 9

required for an applicant to demonstrate that a deprivation 10

of liberty or security of the person is inconsistent with 11

the principles of fundamental justice. And we say that 12

burden is on the applicant. 13

The Crown will also address -- 14

MADAM CHIEF JUSTICE: I just want to be clear 15

just that this Court has come out with a very thorough 16

examination of those legal principles in Carter. Are you 17

asking us to refine, explain; change Carter in some way? 18

MR. RILEY, Q.C., Q.C.: On the first stage I 19

would say this: That with regard to the threshold that has 20

to be met I say fair enough. Apply the principles in Carter 21

but it’s a particular context here and the context is access 22

to controlled substances for a medical purpose. It may 23

require some refinement of how that threshold works in that 24

particular context. We say that if the courts below had in 25


4

effect applied the threshold that has been applied in a 1

leading case in this area, Parker, then there is no basis on 2

which the claims could have succeeded at the first stage of 3

the analysis. 4

At the second stage of the analysis there was a 5

clear error on the part of the courts below. In effect -- 6

and effectively reversing the burden under the principles of 7

fundamental justice to show not that the applicant had to 8

show that the deprivation of liberty was inconsistent with 9

the principles of fundamental justice but actually requiring 10

the Crown to prove the opposite. The Crown had to prove 11

that the law was not arbitrary. That’s a key point 12

especially in the context of a regulatory scheme that 13

operates on the basis of the reverse proposition. And I 14

will explain what I mean by that as we go. 15

I should say also by way of introduction the 16

Crown will also address as a preliminary point the question 17

of who should have standing to advance a section 7 Charter 18

claim and here the question is: Is there a point at which 19

someone who operates entirely outside of a particular scheme 20

has the ability to allege -- raise alleged deficiencies in 21

that scheme as a defence to a criminal charge under a 22

related act. That’s the question. 23

So it’s not asking the Court to overturn or 24

revisit the leading cases of Big M, Morgentaler but, rather, 25


5

ask is there a refinement or a point at which that reasoning 1

falls down or doesn’t apply. 2

So I will say this as well, that this case is 3

not about dried marihuana versus other forms of marihuana. 4

It’s about whether a scheme that allows for access to 5

marihuana for medical purposes must as a matter of 6

constitutional law be extended to all other substances 7

listed in Schedule 2 of the CDSA. So we’re talking about 8

marihuana derivatives. These are separate substances that 9

are derived from the marihuana plant, so THC, cannabis resin 10

and other derivatives that are called cabinoids. 11

The CDSA regulates these derivatives in much 12

the same way that it regulates opium, heroin and other 13

opiates that are all derived from opium poppies but they are 14

all discrete substances and they have different potencies, 15

different concentrations; different risk profiles. 16

And so the question is not, well, dried 17

marihuana versus some other kind of marihuana. These are 18

discrete substances that are scheduled in the CDSA. The 19

trial judge’s ruling said, “Well, you must apply the medical 20

access regime to all of them”. And that’s what the case is 21

about. 22

Now, with regard to the facts every 23

constitutional issue arises in a particular set of facts and 24

context is obviously very important. But the facts in this 25


6

case are fully set out in the Crown’s factum and I’m just 1

going to say enough to set the table for the arguments. So 2

I will say this: 3

Firstly, with regard to respondent -- this is 4

Owen Edward Smith -- he was charged with the offence of 5

possession of THC for the purpose of trafficking. He was 6

found in possession of a large quantity of -- he was engaged 7

in producing derivative marihuana products, cookies, oil, et 8

cetera, all containing THC. 9

The evidence at the Charter application was 10

that his intent was to provide these substances to an 11

unincorporated enterprise, the Cannabis Buyers Club of 12

Canada “CBCC”, engaged in the distribution of marihuana and 13

derivative marihuana products to people who were believed by 14

the principal of that enterprise, the principal of the CBCC 15

to require marihuana for medical purposes. 16

Now, that brings me then to the CBCC witnesses. 17

There were four witnesses who were customers or members of 18

the CBCC who testified. All four used both. They used both 19

dried marihuana and derivative cannabis products and they 20

believe that the derivative products were either beneficial 21

to their health or helped them to treat some of their health 22

problems. However, based on their testimony, it would be 23

impossible to discern, one, what is the actual basis for 24

that belief or, two, whether marihuana alone or any other 25


7

legally available product could have been used to reasonably 1

treat each of the conditions that they suffered from. 2

So there was no real link between the 3

conditions that they were suffering from and the use of 4

derivative marihuana products as the only realistic way to 5

treat those conditions. There was no evidence about that. 6

To summarize the evidence of the CBCC 7

witnesses, I say this. The witnesses each expressed a 8

subjective preference to use derivative marihuana products 9

to treat some of their ailments some of the time. 10

MADAM JUSTICE ABELLA: The expert witnesses? 11

MR. RILEY, Q.C., Q.C.: Yes. And that brings 12

me to the expert evidence. 13

The expert evidence -- this much we can say is 14

clear. Marihuana has -- marihuana has some medicinal 15

properties but the precise basis for its efficacy is not 16

clearly established through a body of scientific research. 17

And what I mean by that is there haven’t been a great number 18

of double-blind studies the way other drugs have been 19

studied and regulated. 20

By contrast, the evidence was clear. There are 21

three pharmaceutical drugs containing cannabis or one of its 22

extracts. Its active ingredients which have gone through 23

the regulatory process, have been tested and approved for 24

sale in Canada. 25


8

Moving on, if we look at cannabis, marihuana, 1

the evidence was that there were five ways of adjusting it, 2

and I’ll explain why this is relevant in a minute: Smoking, 3

vaporization, oral ingestion, trans-mucosal spray and 4

topical administration. 5

Now, if we look at the cannabis products that 6

are actually available, legally available for use in Canada; 7

dried marihuana, Marinol®, Cesamet® and Sativex®. These 8

legally available products provide for every form of 9

ingestion except topical use. And on topical administration 10

the trial judge reached no conclusion. He said that method 11

of administration was controversial and he reached no 12

conclusion. So there are legally available products that 13

allow for every method of ingestion that, on the evidence, 14

was accepted to be in some way effective. 15

MADAM JUSTICE ABELLA: I thought the evidence 16

was that the least safe method was smoking. 17

MR. RILEY, Q.C., Q.C.: The least safe? 18

MADAM JUSTICE ABELLA: Method of ingesting 19

marihuana was the one that is legally available under the 20

scheme. 21

MR. RILEY, Q.C., Q.C.: Right. I think when 22

you talk about safety I mean you really are involved in a 23

guessing game because there is not a lot of scientific 24

research in terms of double-blind studies of the substances. 25


9

But I will say this -- 1

MADAM JUSTICE ABELLA: About smoking? 2

MR. RILEY, Q.C., Q.C.: Well, no question that 3

smoking. But in every case when someone engages in using 4

marihuana it’s sort of a cost-benefit analysis between the 5

detriments of smoking versus the medical -- the medicinal 6

properties that one gets from marihuana use. So it 7

alleviates certain conditions or symptoms but it has 8

detriments. 9

But I’ll just say this as well, that even dried 10

marihuana you don’t have to smoke it. You can use a 11

vaporizer if you choose to do so and that doesn’t involve 12

the same kind of inhalation issues as smoking does and, 13

indeed, the CBCC, the entity that was in issue in this case 14

provided to the members of its club -- it had available 15

vaporizers. 16

I will say this, though, that if someone says, 17

“I need marihuana but I don’t want to smoke it” they have a 18

host of legally available options. They can obtain an 19

authorization to possess marihuana and they can use a 20

vaporizer. They can obtain a prescription for Marinol® 21

which is a pill, for Cesamet® which is a capsule or for 22

Sativex® which is a whole plant extract administered by a 23

trans-mucosal spray. They can do any one of those things 24

legally. 25


10

MR. JUSTICE CROMWELL: Can you just refresh my 1

memory as to what conditions the three products you just 2

mentioned are suitable for? 3

MR. RILEY, Q.C., Q.C.: I think that they are 4

in effect -- they are replicates of -- Sativex® is a whole 5

plant extract. So anything that marihuana would be in a 6

position to address, Sativex® would be in a position to 7

address as well but I don’t have -- I’m sorry, Justice 8

Cromwell -- at the tip of my mind each of the conditions 9

that each of those substances would treat. The notices of 10

compliance in the record would show that. 11

I could say this that the expert evidence 12

didn’t identify any particular condition, any specific 13

condition that could not reasonably be treated by either 14

dried marihuana or some other legally available means. The 15

expert evidence didn’t do that. The expert evidence was 16

theoretical and it was in effect, well, you know, in theory 17

derivative marihuana products could offer these benefits. 18

There had been no study of those things and there were no 19

specific conditions that were identified that were said you 20

can’t treat these conditions with either dried marihuana or 21

with these legally available derivative marihuana products. 22

MR. JUSTICE CROMWELL: Just while I have you 23

stopped there, Justice Chiasson in dissent seemed to be of 24

the view that a person could legally obtain the dried 25


11

marihuana and then change its form legally. I was 1

struggling with how one could do that and not be in 2

possession of the other substances. 3

MR. RILEY, Q.C., Q.C.: Yes. I will say that 4

question is raised squarely, I think. 5

And I will say this, that as from the 6

government’s perspective the CDSA and the Medical Marihuana 7

Access Regulations, the MMARs, regulate possession and 8

access to marihuana, not use or ingestion. So neither the 9

CDSA nor the MMARs purport to regulate use or ingestion. 10

The CDSA makes it an offence to possess, to 11

produce or to traffic in these drugs. It does not say 12

anything about use and the Regulations authorize access in 13

the form of authorized possession or authorized production. 14

Neither of those schemes say anything about use or 15

administration. 16

And if you actually look at the Medical 17

Marihuana Access Regulations and the Regulatory Impact 18

Statements to some of them they make this point that the 19

Regulations don’t purport to regulate that component. So if 20

we look at Tab -- 21

MR. JUSTICE CROMWELL: I understand that they 22

don’t purport to regulate that -- 23

MR. RILEY, Q.C., Q.C.: Right. 24

MR. JUSTICE CROMWELL: -- what I was struggling 25


12

with is how one could change the form from dried to some 1

other prohibited form and not be in possession of the 2

latter. 3

MR. RILEY, Q.C., Q.C.: Right. I think it’s 4

because at a certain point when you possess dried marihuana 5

and you are in the process of using it. You have to use 6

some common sense. 7

If you apply the strictest definition of the 8

offence of production which means to alter the physical or 9

chemical properties of a substance, if you take dried 10

marihuana and you smoke it then on the broadest, most absurd 11

definition someone would say, “Well, you’re producing THC” 12

because you’re changing dried marihuana into THC. But we 13

don’t approach it that way. We use some common sense and we 14

must use common sense. 15

And so for example we used -- we must use 16

common sense here the same way we would in distinguishing 17

between trafficking and someone who purchases drugs. On the 18

broadest definition of being a party to trafficking a 19

purchaser could be said to be aiding and abetting the 20

trafficking by participating in the transaction. 21

MADAM CHIEF JUSTICE: Well, those are a lot of 22

lawyer words but is Justice Chiasson right or wrong? 23

MR. RILEY, Q.C., Q.C.: He’s right that the 24

Regulations do not purport to proscribe the manner in which 25


13

people use or ingest the substance that they are authorized 1

to possess. And so at the end of the day you can acquire 2

dried marihuana and if you choose to ingest it orally or mix 3

it into tea and use it that’s not proscribed by the 4

Regulations. They don’t say anything about that. 5

And so it becomes a question of drawing lines. 6

In every case -- in many, many fields it’s necessary for 7

courts to draw lines. But one thing is clear. You can draw 8

a distinction between, on the one hand, mass production of 9

derivative marihuana products in a sort of an assembly line 10

situation like we saw in Mr. Smith’s case, producing large 11

quantities of dried marihuana -- I’m sorry -- of derivative 12

marihuana products for distribution to others. That’s one 13

side. 14

And the other side -- on the other side of the 15

equation clearly very different, choosing to smoke marihuana 16

and thereby transforming its qualities or its chemical 17

makeup by smoking it or mixing it into tea and ingesting it. 18

And so our point is Justice Chiasson is right. 19

The Regulations don’t regulate or proscribe that. All they 20

do is authorize -- they authorize possession and they 21

authorize possession of what is in effect the known 22

substance that has been identified in some of the literature 23

that leads to some medical properties that’s dried marihuana 24

and allow people to access it and then use it as they 25


14

determine necessary. 1

MR. JUSTICE CROMWELL: I’m sorry to delay you 2

but I just want to be very clear. 3

Justice Chiasson says, paragraph 153: 4

“This contention which I want to get back 5

to is based on the proposition that it 6

would be illegal for a person who is 7

authorized to possess marihuana to 8

transform the dried product into another 9

form.” (As read) 10

Now, do you say that’s correct? 11

MR. RILEY, Q.C., Q.C.: Yes, not all -- if you 12

are engaged in use and you technically transform the dried 13

marihuana into another form even, for example, smoking it, 14

that’s common sense. That happens. No one is suggesting 15

that that is production of a separate substance. That’s 16

using the substance you are authorized to possess and we 17

really have to use common sense when we apply that. 18

Perhaps I can just take you to -- if you look 19

at the condensed book and this is Tab 7 of the condensed 20

book -- and to be clear, this is the Marihuana for Medical 21

Purposes Regulations which are the most recent regulations. 22

The old regime that was in place in this instance has now 23

been replaced by a new regime, the MMPR, but to be clear the 24

new regime maintains this restriction. It only authorizes 25


15

access to marihuana and not derivative marihuana products. 1

And if we go to the last page in Tab 7, if you 2

go to the second-last page the issue at the bottom is -- 3

this is in the Regulatory Impact Analysis Statement, the 4

RIAS statement that accompanies the Regulations, the RIAS 5

statement is not evidence and it’s not part of the 6

Regulations but it shows the regulators approach to 7

particular issues -- so in the RIAS statement at the bottom 8

of page 1756 they are dealing with a question of marihuana 9

infused products should be allowed under the MMPR. So they 10

are considering that. 11

And if you go over to the next page the health 12

response is listed. Then the reasons for that are given and 13

I am going to come back to this. But if we just go to the 14

last two sentences in that paragraph it says this: 15

“There are no restrictions on how dried 16

marihuana is to be ingested or inhaled and 17

patients may choose to use it, for example, 18

in foods or by vaporizing. H.C. does not 19

limit or recommend a particular method of 20

administration.” (As read) 21

And that’s entirely consistent with the 22

regulatory model which just says you are authorized to 23

possess it. This is what you are authorized to possess it. 24

You use it how you see fit. 25


16

MADAM CHIEF JUSTICE: But there is a little 1

difference if you are actually changing it into another oral 2

product and keeping that around so that you can put it in 3

your brownies or whatever next week. What would you say 4

about that situation? Would that not be offside? 5

MR. RILEY, Q.C., Q.C.: I’m going to say that -6

- as I alluded to a few minutes ago, there is a necessary 7

exercise in line drawing in many, many areas of the law and 8

this may be one of them where something goes from use or 9

ingestion to actual production of a derivative substance and 10

where that line is drawn is going to depend on the facts. 11

Now, if you have a particular quantity of dried 12

marihuana that you are authorized to possess and you produce 13

or you are using that and you mix it into something to 14

ingest that’s one thing. But if you produce batches and you 15

are carrying those around with you outside of your house you 16

are entering an area of risk. You are entering an area of 17

risk where you are authorized to possess dried marihuana and 18

then you are allowed to use it or the law doesn’t regulate 19

how you use it. 20

But you are not authorized to produce batches 21

of separate substances. So at a certain point in that 22

continuum, and it’s going to involve line drawing and we 23

know -- as we know in the abstract it’s often very difficult 24

to do but when you have actual facts it’s not so difficult. 25


17

This case is not a difficult one because it’s mass 1

production of large quantities of a derivative substance. 2

MADAM CHIEF JUSTICE: You have a criminal 3

prohibition and you are telling us that the line drawing is 4

very difficult. That seems constitutionally problematic. 5

MR. RILEY, Q.C., Q.C.: I don’t agree with that 6

assertion in the sense that I am saying there may be some 7

cases where the line drawing is very difficult. 8

But what I am saying is if you have -- if you 9

are authorized to possess a certain quantity of dried 10

marihuana and you are engaged in using that and you, in the 11

process of using it put it into forms to allow you to ingest 12

it, that’s not the same thing as producing. And we know 13

from common sense it wouldn’t be producing to smoke it. It 14

wouldn’t be producing to mix it into something and eat it. 15

MADAM JUSTICE ABELLA: Can I keep you then on 16

the line drawing common sense framework that you are urging 17

on us? This is a case about line drawing and whether the 18

line at dried marihuana is legal, constitutional. Just on 19

the level of common sense looking at the evidence that was 20

before the court can you explain in ordinary language why 21

since the scheme permits medical use of marihuana with the 22

doctor’s permission the line was drawn at dried marihuana? 23

MR. RILEY, Q.C., Q.C.: Yes, I can. I think 24

the best way to do this is to actually go back to the very 25


18

document that I just referred you to. I want to make the 1

point that this is a Regulatory Impact Analysis Statement. 2

It’s not part of the law but in answer to your question, 3

Justice Abella, this expresses the point in a way that I -- 4

in a better way than I actually could. 5

So if you look at page -- it’s Tab 7, page 6

1757. The Department of Health responds: 7

“The new Regulations will limit producers 8

to the production and distribution of dried 9

marihuana only. The MMPR will no authorize 10

extractions of active ingredients, i.e. 11

resin, to be sold for therapeutic purposes. 12

The only clinical studies on therapeutic 13

use to date have been carried out, used 14

dried marihuana that was either smoked or 15

vaporized. There are no clinical studies 16

on the use of cannabis edibles, e.g. 17

cookies, baked goods or topical products 18

for therapeutic use. As with other drugs, 19

all products that claim to have health 20

benefits must go through a drug approval 21

process outlined in the Food and Drugs 22

Regulations.” (As read) 23

And so that’s really it. So this is the way I 24

would summarize that. I would say that if the government is 25


19

forced to carve out a judicially-mandated exception to the 1

general principle under which the regulatory scheme 2

operates. It’s not irrational for the government to frame 3

and limit that exception based on what scientific evidence 4

is available. 5

So to be clear, the principle under which the 6

FDRs and the FDA operates is that drugs should not be 7

authorized for therapeutic use unless they are shown by 8

scientific data to be safe and effective. 9

Now, there has been, in effect, a judicially-10

mandated exception to that for marihuana based on the Parker 11

decision and the government’s response to it. But my point 12

is this: If the government is forced to create an exception 13

to that general principle, it’s not arbitrary for the 14

government to frame that exception on the basis of what 15

information there is out there and that does exist. And so 16

what Health Canada is saying is leave aside anecdotal 17

opinions of individual witnesses. 18

The science -- what science there is on 19

marihuana has been done with respect to dried marihuana. 20

That’s the known quantity. We don’t know the implications 21

and effects and utility of derivative products which are in 22

effect -- many of them much more concentrated like THC and 23

Canada’s resin. We don’t know those things so we are not 24

going to regulate them because to do that would be to go 25


20

against the general principle of the Regulations. 1

So let me explain it this way; the regulatory 2

approval process for drugs in Canada. Access to drugs in 3

Canada is strictly controlled. There are two statutory 4

pillars for Canada’s drug regime, the CDSA and the FDA. 5

These statutes operate together to prohibit access to drugs 6

with a history of abuse. That’s the CDSA and to regulate 7

access to all drugs for therapeutic purposes. That’s the 8

FDA. So it’s prohibiting drugs that are liable to abuse, 9

CDSA, regulating access to drugs for therapeutic purposes, 10

the FDA. 11

Now, under the legislative scheme there are 12

three means of obtaining access to a new drug for 13

therapeutic purposes: 14

One, the new drug approval process. And as I 15

already pointed out, there are three cannabis-based 16

pharmaceuticals that have actually gone through that 17

process. So it’s not as though it’s impossible. 18

Two, clinical trials. So in the course of 19

seeking a new drug approval you can seek approval to conduct 20

a clinical trial on a substance that’s not yet been approved 21

for use. 22

Third, the special access program. And this is 23

a case-by-case authorization to use a presently unapproved 24

drug based on demonstrated need by a physician in a 25


21

particular case. So a very, very flexible -- okay, this 1

drug is cutting edge and controversial, not yet approved, 2

but here I have a patient who can’t be treated by other 3

means. I want special access. That’s a very nimble element 4

of the scheme. 5

Now, I’ll say this that on the approach the 6

courts have taken there appears to be a fourth means of 7

obtaining access to a new drug in Canada. The fourth means 8

is what I would call an extra regulatory means. You produce 9

the drug. You distribute it and if you are prosecuted you 10

call evidence in court to prove on an anecdotal basis that 11

someone believes they need the drug and that it helps them. 12

That’s the fourth extra regulatory model. 13

Now, there are court cases where this has 14

happened, most notably Parker. But the concern that I’ve 15

identified highlights the need for deference when courts are 16

being asked to pronounce on the manner in which Health 17

Canada classifies, regulates and approves drugs for 18

therapeutic purposes. 19

If it’s not carefully circumscribed this fourth 20

route has the potential to overwhelm or overtake the entire 21

premise of the regulatory model which is that drugs should 22

not be made available for therapeutic purposes unless shown 23

by scientific study to be safe and effective. 24

Now, this point that I have just made goes 25


22

directly to the burden of proof at the second stage of the 1

section 7 analysis. How so? Because as I said earlier, in 2

effect the courts below said, well, arbitrariness -- the 3

government hasn’t shown why there are specific health risks 4

associated with derivative marihuana products that are not 5

present with regard to dries marihuana. 6

And the problem with that approach is that it 7

flips the burden under the section stage of the section 7 8

analysis on its head by saying the government has to prove 9

that the law is not arbitrary when the rule is that the onus 10

is on the applicant, the proponent, to show that the law is 11

inconsistent with the principle of fundamental justice, that 12

it is arbitrary. 13

And I’ll go one step further. The court below, 14

the trial judge accepted that it might be rational or it 15

might be reasonable or logical. I think the word was 16

logical. It might be logical to assume that certain 17

concerns were present but “I would have expected to see 18

better evidence of that”. 19

And that is -- that’s the point is that here 20

the courts are applying expectations that certain risks be 21

proven by evidence in court when the entire basis for the 22

regulatory model is unless things are shown by scientific 23

evidence to be safe and effective we are not going to allow 24

them to be approved. 25


23

MADAM CHIEF JUSTICE: The difficulty that I am 1

having with this is that it’s a criminal model. And you 2

keep talking about it being a regulatory model and 3

everything you say may apply to that. But we are talking 4

about criminal law here and exceptions to criminal law. 5

Certainly it is a way of regulating but it’s 6

regulating with the heaviest instrument the law can apply. 7

And when you do that you come into section 7 territory. 8

That is a concern I have. 9

MR. RILEY, Q.C., Q.C.: Right. 10

MADAM CHIEF JUSTICE: Perhaps you can allay it. 11

MR. RILEY, Q.C., Q.C.: Yes. 12

I’ll say this that the kind of concern that 13

Chief Justice you just articulated is not one of 14

irrationality or arbitrariness. So you are not saying, 15

well, that’s not a rational way of doing it. You are saying 16

it’s the heaviest hand. 17

That’s a question of is it grossly 18

disproportionate or overbroad. That becomes the question. 19

MADAM CHIEF JUSTICE: Well, what becomes the 20

question is that you are putting people in risk of 21

imprisonment as opposed to the usual regulatory scheme where 22

they are -- 23

MR. RILEY, Q.C., Q.C.: M’hmm, right. Well, 24

I’ll just say this that consider the conduct of the person 25


24

who is charged in this case, okay. 1

Mass producing large quantities of derivative 2

products for distribution by a dispensary that was operating 3

completely outside the regulatory scheme, okay, even under 4

the Regulations as they exist, Medical Marihuana Access 5

Regulations, you are not authorized to run a dispensary. 6

The Regulations authorize possession and production for 7

medical purposes. They don’t authorize dispensation by 8

third parties. 9

Take it beyond that. This organization had 10

some four -- 3,700 to 4,000 members, only 5 to 10 percent of 11

whom had medical marihuana authorizations to begin with. 12

And the same organization, the evidence from -- the 13

principal of this organization I think is Leon Smith. He 14

testified that of those members he had to take away 500 to 15

600 memberships from people that he suspected were reselling 16

marihuana. All of that to show that it’s necessary to 17

maintain strict controls over marihuana and access to 18

marihuana because it’s a drug of abuse. 19

And that question, Chief Justice, that was 20

resolved in Malmo-Levine. We don’t need to have that debate 21

again. We don’t need to say is it appropriate to have 22

marihuana as a controlled substance. That was resolved in 23

Malmo-Levine. It’s not even an issue here. Indeed, Canada 24

has international commitments to regulate that. 25


25

MADAM CHIEF JUSTICE: My point was a very 1

narrow one. It may be slightly different than an ordinary 2

regulatory scheme because -- 3

MR. RILEY, Q.C., Q.C.: Yes. Well, it -- 4

MADAM CHIEF JUSTICE: -- because of, as you 5

say, the legitimate to some extent potential for 6

imprisonment. But it is a different sort of situation. 7

MR. RILEY, Q.C., Q.C.: It -- 8

MADAM CHIEF JUSTICE: And so when you are 9

bringing in all these regulatory principles and saying well, 10

you know, you have got to give a lot of leeway to the 11

government, et cetera, et cetera, it may take on a different 12

complexion when the result of not -- of running afoul of one 13

of those Regulations is a criminal record, incarceration and 14

so on. 15

MR. RILEY, Q.C., Q.C.: Really, Chief Justice, 16

in my respectful submission what you are alluding to there 17

are questions of gross disproportionality and overbreadth. 18

Is this the right tool? 19

And even those are highly circumscribed. I 20

think in Carter the court appeared to allow for a 21

considerable degree of deference in respect of complex 22

regulatory responses. I’m going to suggest no one would say 23

that the regulation of drugs from the -- along the spectrum 24

from preventing abuse of drugs that are liable to abuse, 25


26

psycho-active drugs, et cetera, all the way to allowing 1

access to drugs for therapeutic purposes. No one would 2

suggest that’s not a complex field that requires many 3

different parts. 4

And so what the Court said in Carter was in 5

contra-distinction to the scheme. They are saying the 6

scheme in issue there which had to do with prohibitions 7

against assisted suicide, it was not a complex regulatory 8

field and so less deference was owed. Here it is a complex 9

regulatory field. The deference is owed. 10

Now, I need to move on then to address the 11

specific issues. 12

The question of standing. This Court has 13

consistently held that no one can be convicted under a law 14

that’s unconstitutional. Now, I say it’s questionable 15

whether this point applies to the respondent in this case 16

and let me explain why. 17

He was charged with possession of THC for the 18

purpose of trafficking under the CDSA. In response to that 19

charge he argued that the Medical Marihuana Access 20

Regulations were unconstitutional. Now the underlying 21

conduct, he chose to supply marihuana products to an 22

organization that was operating completely outside the MMAR 23

scheme. And let me explain what I mean by that. 24

The MMAR scheme authorizes possession and 25


27

production of marihuana for medicinal purposes. It never 1

has authorized distribution. It doesn’t do that. 2

And so this was an organization that was 3

operating completely outside that model. So the scheme does 4

not allow for and has never allowed for the operation of 5

marihuana dispensaries. So it’s hard to see how the 6

constitutionality of a scheme that authorizes the possession 7

and production of marihuana for medical purposes could be 8

relevant to someone charged with possession of THC for the 9

purpose of trafficking and in response to the charge he 10

alleges a deficiency in a regulatory scheme that could never 11

authorize his conduct. That’s the point. 12

Is there a point at which someone who operates 13

entirely outside a particular regulatory scheme has the 14

ability to raise alleged deficiencies in that scheme as a 15

defence to a criminal charge even though that scheme could 16

never apply to them. It’s not the same thing as Morgentaler 17

where the person is charged under a criminal section and the 18

defence is in that section. It’s being charged with an 19

offence under this provision under a statute and pointing to 20

a regulatory scheme that operating in a different context 21

could in theory authorize some conduct by other people but 22

not even in respect of the very offence that you have been 23

charged with trafficking. And I also -- 24

MR. JUSTICE CROMWELL: Is this really a 25


28

question of standing or is it more related to remedy because 1

another way of putting what you are saying is that if the 2

Court cures the unconstitutionality by reading something 3

into the statute or reading something out of it and that has 4

no impact on the particular accused, then the law remains in 5

force. 6

MR. RILEY, Q.C., Q.C.: No, because what 7

happens in the situation you have just described, Justice 8

Cromwell, is someone who could never have benefitted from 9

the alleged constitutional infirmity in law, not to say, 10

well, the offence is unlawful, invalid. The offence was 11

still -- it’s still present -- is somehow bringing an 12

application, getting relief and that relief can never apply 13

to them and it leaves in the air this finding of 14

unconstitutionality that doesn’t in effect change anything 15

in that case. 16

And so the bottom line is that, sure, no one 17

can be convicted under a law that’s unconstitutional but 18

here it’s a regulatory scheme that might provide an escape 19

to a conviction but that regulatory scheme couldn’t have 20

applied to this applicant in these circumstances and that’s 21

the refinement that we are saying should be considered. 22

Now, I should also address some of the 23

interveners have referred to “public interest standing” and 24

on that question, public interest standing, I would say 25


29

this. 1

If the person is not -- is caught in a criminal 2

case and doesn’t have standing as a result of the Big M Drug 3

Mart principle, is it appropriate to allow them to say, 4

well, even though I don’t really have standing in response 5

to the charge I’m facing I should be allowed to raise this 6

matter as a question of public interest when we know from 7

cases like Downtown Eastside Sex Workers, Carter, Bedford. 8

We know from those cases there are situations where if 9

someone feels that a law is unconstitutional and wants to 10

raise it in a forum that does involve breaking the law they 11

can do it. 12

So if it’s not appropriate for a person to -- 13

they don’t have standing in respect of a criminal charge, 14

they should in the same case have access to the pubic 15

interest standing principles. 16

That brings me then to the Charter analysis and 17

the two stages of the Charter analysis. The first one is 18

the life, liberty or security of the person analysis. 19

At the outset I’ll acknowledge that because Mr. 20

Smith was charged with a criminal offence his liberty 21

interests were engaged. However, the key question for the 22

courts below is what is the scope of the liberty and 23

security of the person’s interests at stake? Because the 24

jurisprudence makes it clear that the scope of the liberty 25


30

and security of the person’s interests that are at stake 1

will involve or will dictate the nature of the principles of 2

fundamental justice analysis, the second stage. 3

So if it’s just a liberty interest that’s 4

engaged by the fact of a criminal charge then the general 5

answer would be, okay, well, if you’re at risk of going to 6

jail then the principles of fundamental justice demand that 7

you have a fair criminal trial based on proof beyond a 8

reasonable doubt and all the principles of fairness that are 9

entailed in that. 10

The question here is are there additional 11

liberty and security of the person interests beyond near 12

imprisonment that require a fuller consideration of, well, 13

is this law arbitrary, disproportionate? Is it in some way 14

failing in one of those principles? 15

And so that’s the same kind of analysis that 16

you will see in Malmo-Levine where the Court looked at the 17

question of imprisonment and then went beyond that and said, 18

“Are there broader interests at stake that require 19

consideration?” The answer in that case was, no, there 20

weren’t because lifestyle choices didn’t get caught by 21

section 7 of the Charter. 22

The same analysis took place in Parker. The 23

Court accepted that liberties engage because of the 24

potential for imprisonment but went on to say, “But are 25


31

there medical issues at stake here?” And that’s the 1

question here. 2

Our position is this; that when you look at 3

liberty and security of the person’s interests and whether 4

those are engaged in the context of claims to access to a 5

substance that’s otherwise illegal. It has to be an 6

objective standard or threshold and it has to be one that 7

involves a consideration of, well, are there other 8

reasonable legal alternatives available other than the one 9

that you are seeking? 10

So if you are claiming access to a medical 11

treatment and there are other available treatments that are 12

actually lawful, it’s not a breach of the principles of 13

fundamental justice to say, well, you might prefer this 14

illegal treatment over the legal one but that doesn’t 15

intrude upon your liberty. There are ways for you to treat 16

the condition that you are suffering from. 17

MR. JUSTICE CROMWELL: You accept, I think, 18

that the liberty interests of the users is implicated 19

because what they are doing would be criminal? 20

MR. RILEY, Q.C., Q.C.: On the same basis, 21

Justice Cromwell, yes, that they could be prosecuted, yes. 22

MR. JUSTICE CROMWELL: And if that’s the only 23

section 7 interests implicated is your case better or worse? 24

MR. RILEY, Q.C., Q.C.: It’s much clearer 25


32

because you say, well, someone is facing prosecution and 1

could go to jail for committing an offence, the offence 2

being unauthorized possession or production of a controlled 3

substance. 4

And the question is if there are no medical 5

issues associated with that, no additional liberty or 6

security of the person concerns, the question is, is it 7

consistent with the principles of fundamental justice to 8

allow that person to be convicted of that offence? 9

The answer would be if the Crown proves the 10

offence beyond a reasonable doubt and the accused has a fair 11

trial then the principles of fundamental justice are 12

addressed. It’s only -- 13

MR. JUSTICE CROMWELL: But I thought that 14

what’s being challenged is the criminalization of the 15

possession of the particular substance and the legal issue 16

is whether that’s arbitrary. I’m having difficulty seeing 17

what difference it makes what other section 7 interests are 18

implicated. 19

MR. RILEY, Q.C., Q.C.: It’s not a challenge to 20

the criminal offence of possession of those substances. 21

It’s a challenge to the under-inclusiveness of a regulatory 22

scheme that allows for medical access. 23

MR. JUSTICE CROMWELL: The result of which is 24

to make the offence unconstitutional. 25


33

MR. RILEY, Q.C., Q.C.: Right. But the claim 1

is “I need a substance to treat a medical condition that I 2

can’t otherwise treat” or that should be the scope of what 3

is protected by section 7. It shouldn’t be, “I prefer this 4

illegal treatment over that one. If that’s all it is then 5

what you have is based on health concerns. 6

So there is a recent case about access to raw 7

milk. You know, I believe that pasteurized milk is not -- 8

it’s not healthy and it causes health problems so I want to 9

have access to a raw milk collective. And the law that 10

prohibits me from doing that, I think, is just my section 7 11

rights. 12

And the Ontario Court of Appeal said, “Well, 13

no. Just because you personally believe that pasteurized 14

milk has health concerns doesn’t -- there’s no objective 15

basis to your claim that infringes upon your liberty because 16

there is no objective support for that”. 17

MR. JUSTICE CROMWELL: And I don’t want to 18

delay because you have a lot of ground to cover in a short 19

amount of time. I just want to signal to you that I’m not 20

following this line of reasoning at all. 21

MR. RILEY, Q.C., Q.C.: Right. Well, I guess I 22

would say this. 23

If we look at the condensed book and, in 24

particular, the Malmo-Levine decision which is at Tab 8, 25


34

paragraph 84, we say at once: 1

“The availability of imprisonment for the 2

offence of simple possession is sufficient 3

to trigger section 7 scrutiny. However, 4

Malmo-Levine’s position requires us to 5

address whether broader considerations of 6

personal autonomy short of imprisonment 7

are also sufficient to invoke section 7 8

protection.” 9

So it is, are there are a broad range of 10

interests that have to be considered at the section stage of 11

the analysis? Are there -- and so in this -- in Malmo it 12

was lifestyle choice. 13

In the case at bar it is health concerns. That 14

more specific issues was dealt with in the Parker case. 15

That’s at Tab 10 and if you look at Parker at paragraph 81 16

in one sense -- this is paragraph 81, second sentence: 17

“In one sense it would have been sufficient 18

to identify the clearest of those 19

infringements, the possibility of 20

imprisonment ... his interference with 21

Parker's liberty interest would conceivably 22

be sufficient to require a determination of 23

whether the deprivation was in accordance 24

with the principles of fundamental justice. 25


35

However, in my view, this would not 1

adequately capture the defects in the 2

legislation and would fail to come to grips 3

with the context in which the issue 4

arises.” 5

And then there is a reference to another case 6

where it says: 7

“’The contextual approach attempts to bring 8

into sharp relief the aspect of the right 9

or freedom which is truly at stake in the 10

case as well as the relevant aspects of any 11

values...’ Thus, the importance of the 12

right or freedom must be assessed in 13

context rather than in the abstract and its 14

purpose must be ascertained in context.” 15

And so the Court then goes on in paragraphs 82 16

and following to say -- sorry, in 83 and following to say 17

the question is are there liberty and security of the person 18

interests associated with health that are above and beyond 19

imprisonment that are in issue here. 20

And it would only be if those health concerns 21

are ones that are caught by liberty or security of the 22

person that you would say, “Well, you need to scrutinize the 23

law and the principles of fundamental justice against those 24

deprivations”. 25


36

MADAM CHIEF JUSTICE: Just glancing, I didn’t 1

think it was only. I thought the contextual argument was 2

that you amplify it. 3

MR. RILEY, Q.C., Q.C.: That’s right. 4

MADAM CHIEF JUSTICE: But it’s -- the way your 5

argument was sounding to me was we forget about the 6

imprisonment part of it all. 7

MR. RILEY, Q.C., Q.C.: No. No. 8

MADAM CHIEF JUSTICE: We have just focused on 9

whether standing alone this would be a deprivation of 10

liberty and, therefore, alternatives are an answer. But the 11

problem some of us may be having is that it’s not just a 12

simple question of whether that’s the deprivation of 13

liberty. That’s part of it but there is a fundamental 14

deprivation of liberty which resides in this right of 15

imprisonment. You can’t wash that out -- 16

MR. RILEY, Q.C., Q.C.: You can’t. You can’t. 17

MADAM CHIEF JUSTICE: -- these other aspects. 18

MR. RILEY, Q.C., Q.C.: But my point is this. 19

If there is no health component or infringement upon 20

autonomy to obtain treatment for a medical condition that’s 21

part of the liberty interests that are engaged in a 22

particular context then you don’t consider those things when 23

you are saying is the deprivation consistent with the 24

principles of fundamental justice. 25


37

You don’t ask yourself, well, does this law 1

deprive people of of access to healthcare in a way that’s 2

arbitrary? Because there is no healthcare concern. It’s 3

only the potential for imprisonment. 4

So it affects the subsequent analysis and the 5

arbitrariness test would be completely different. It’s a 6

question of does a law that prohibits access to a substance 7

-- 8

MADAM CHIEF JUSTICE: But it seems to me -- I 9

think you have to look at them both. Don’t you? 10

I mean it’s a healthcare issue. You have one 11

side of that. The other people have the other. But 12

healthcare is part of the picture and deprivation and mixed 13

in is the fact that it’s a criminal regime used to enforce 14

this and you are facing imprisonment as a result of how this 15

healthcare scheme is being -- has been set up. 16

That’s what I thought they were saying in 17

Parker. You have to look at the whole ball of wax and how 18

it interacts. And you seem to be saying you look at one or 19

you look at the other. 20

MR. RILEY, Q.C.: Well -- 21

MADAM CHIEF JUSTICE: Perhaps I’m 22

misunderstanding. I’m sorry. 23

MR. RILEY, Q.C.: Yes. Well, Chief Justice, 24

you’re saying, well, there is no question it’s a healthcare 25


38

issue. My point is that it’s only a healthcare issue that 1

engages liberty or security of the person if you show at the 2

first stage of the analysis that what you’re talking about 3

are limits on healthcare that actually engage liberty or 4

security of the person. 5

So it’s not enough to say, well, it’s 6

healthcare. We claim healthcare. Let’s then ask you, “Does 7

the deprivation of my access to healthcare intrude upon the 8

principles of fundamental justice? It’s only if the 9

healthcare limitations rise to the level of restrictions on 10

liberty. 11

And so in Parker the Court made a thorough 12

analysis of the infringement on Mr. Parker’s access to 13

healthcare and said, “Well, in that case it actually is met 14

because the law prohibits him from treating a very serious 15

and life-threatening medical condition with the only 16

substance that he has shown is effective in treating that 17

condition, marihuana”. And all the other alternatives had 18

been considered and ruled out. So synthetic drugs had been 19

ruled out, other treatments. 20

The Court considered and carefully scrutinized 21

that. I say if you apply that template to these facts you 22

don’t get any further than saying these applicants expressed 23

a subjective preference for derivative marihuana products 24

for some of their conditions some of the time. And they 25


39

didn’t -- 1

MADAM CHIEF JUSTICE: What do you say about the 2

evidence that the trial -- the findings of fact of the trial 3

judge on that? 4

MR. RILEY, Q.C.: Right. I say two things. 5

One, if you take the evidence at his highest the question 6

becomes: Does it meet the legal threshold? 7

And without debating the evidence I say if you 8

actually look at the evidence, not debating or weighing it, 9

looking at it. 10

MADAM CHIEF JUSTICE: Can we just at this level 11

focus on the findings of fact, because we don’t really get 12

into the evidence the findings of fact of the trial judge? 13

Could you address those? 14

MR. RILEY, Q.C.: Right. Well, I think the 15

judge -- the judge held -- the problem here, the judge held 16

this is access to medically necessary treatment. But the 17

only substance that he has shown is effective in treating 18

that condition, marihuana. And all the other alternatives 19

had been considered and ruled out. So synthetic drugs had 20

been ruled out, other treatments. 21

The court considered and carefully scrutinized 22

that. I say if you apply that template to these facts you 23

don’t get any further than saying these applicants expressed 24

a subjective preference for derivative marihuana products 25


40

for some of their conditions some of the time and they 1

didn’t -- 2

MADAM CHIEF JUSTICE: What do you say about the 3

evidence at the trial -- the findings of fact of the trial 4

judge on that? 5

MR. RILEY, Q.C.: Right. I say two things. 6

One, if you take the evidence at its highest the question 7

becomes does it meet the legal threshold? And without 8

debating evidence I say if you actually look at the 9

evidence, not debating or weighing it -- looking at it -- 10

MADAM CHIEF JUSTICE: Can we just at this level 11

focus on the findings of fact because we don’t really get 12

into the evidence? The findings of fact of the trial judge, 13

could you address those? 14

MR. RILEY, Q.C.: Right. Well, I think the 15

judge -- the judge held -- the problem here is the judge 16

held this is access to medically necessary treatment but the 17

question becomes what evidence -- what were the findings 18

that supported that question? 19

And at the end of the day what it was, three 20

things: One, the subjective views of the witnesses that 21

said, “Well, we use derivative marihuana products some of 22

the time for some of our conditions” and then expert 23

evidence that was not -- it was not medical evidence saying 24

this person can’t treat their condition, this specific 25


41

condition with nay other means”. 1

MADAM CHIEF JUSTICE: Well, we have rules for 2

when we can override a finding of fact or fact in law -- 3

MR. RILEY, Q.C.: Right, and -- 4

MADAM CHIEF JUSTICE: -- and they are in a case 5

called Howson and there is lots of other cases. 6

MR. RILEY, Q.C.: Yes. 7

MADAM CHIEF JUSTICE: And we just can’t go 8

beyond as you are invited us to do. It’s not permissible. 9

So you have got to tell us that the finding of fact -- show 10

us why the finding of fact was totally unfounded on the 11

evidence. 12

MR. RILEY, Q.C.: Right. 13

MADAM CHIEF JUSTICE: Not that you disagree 14

with it. We know you disagree with it. 15

MR. RILEY, Q.C.: Right. The best I can do at 16

this point, given my limited time, is I can say I have 17

addressed that question of factum by saying that the legal 18

effect of an undisputed set of facts is a question of law. 19

There is lots of support for that. J.M.H is one case where 20

the courts said that, the legal effect of undisputed facts. 21

Taken at its highest the evidence in this case 22

was not legally possible, legally capable of meeting the 23

threshold that’s articulated in Parker. 24

The second point, and I have made it in the 25


42

factum. I won’t be able to go through it in detail, is that 1

there were extricable errors on the part of the court of 2

appeal in its assessment of whether the evidence supported 3

the conclusion. And those extricable errors had to do with 4

relying on subjective expressions of preference by lay 5

witnesses suggesting, well, that that may be enough in some 6

circumstances. 7

In effect, Justice Garson said that relying 8

upon expert evidence that did not go to the specific 9

question. It was general. The expert evidence as in 10

theory, because I haven’t done any studies, but in theory 11

these forms of -- these derivative marihuana products could 12

in theory be better treatments for certain things. 13

MADAM JUSTICE ABELLA: That included your own 14

witness. Dr. Abramovici from the Department of Health 15

confirmed everything that Dr. Pate said. 16

MR. RILEY, Q.C.: I think what he said was in 17

theory some of these things are true but sometimes when we 18

apply them in practice we don’t know until we actually do 19

the studies. 20

MADAM JUSTICE ABELLA: But he had never applied 21

them in practice because his role was simply collating all 22

the research? 23

MR. RILEY, Q.C.: Right. Our point is -- 24

MADAM JUSTICE ABELLA: There was no dispute in 25


43

the evidence, was there? 1

MR. RILEY, Q.C.: Our point is no one has 2

applied them in practice because they haven’t been studied. 3

And the third aspect that the trial judge 4

relied upon was the fact that some of the witnesses after 5

the events in question on this case, after the charges 6

against Smith were laid, obtained medical marihuana 7

authorizations under the scheme. That’s legally irrelevant 8

for two reasons. 9

One, it doesn’t relate to the timeframe in 10

which the substances were being produced and; 11

Two, those are for -- those are for access to 12

dried marihuana. They authorize those individuals to have 13

access to dried marihuana and they don’t say you are 14

authorized to have derivative marihuana products. 15

And then the court of appeal referenced, well, 16

some of those forms reference routes of administration. 17

Justice Chiasson’s point about that: The Regulations don’t 18

restrict the manner in which you choose to use the 19

substance. 20

So I have very limited time and I have to move 21

on to the question of the principles of fundamental justice 22

if the second stage of the -- I say this to summarize. If 23

you apply Parker and what an Ontario court of appeal 24

subsequently said about Parker in a case called Mernagh --if 25


44

you apply those thresholds to this evidence because in 1

Mernagh the Court said, “Look, you need to have more than 2

just a subjective preference for marihuana in order to 3

establish that your rights have been infringed, that your 4

right to liberty and security of the person has been 5

infringed. You need to present evidence to show that that 6

is a reasonably necessary means for you to treat a condition 7

that you can’t otherwise treat. 8

That’s what the Court said in Mernagh. If you 9

apply that threshold to this evidence it can’t meet that 10

threshold. The evidence never addressed those questions. 11

And so if you go to the second stage of the 12

analysis our argument is that -- fundamentally this, that 13

the court of appeal and the trial court when we look at the 14

principles of fundamental justice they reverse the burden by 15

saying -- and I won’t have time to take you through the 16

passages. 17

But the Court said at a number of stages, 18

“Well, this may be logical but we didn’t see any proof. The 19

Crown didn’t prove that regulating these substances is more 20

difficult than regulating dried marihuana. The Crown didn’t 21

prove that there are additional risks, health and safety 22

risks associated with these derivatives that aren’t present 23

with respect to marihuana. 24

And my point about that is that the Crown 25


45

doesn’t have to prove it. Under the arbitrariness analysis 1

the burden is on the proponent to show that the deprivation 2

of interests is inconsistent with the principles of 3

fundamental justice. 4

Here the court seemed to accept that there was 5

some logic to the government’s regulatory model but said we 6

didn’t prove it. And the problem with that where the rubber 7

hits the road is that the very nature of the model is it 8

operates on the premise that unless you can show that 9

something is safe and therapeutically effective it shouldn’t 10

be authorized under this scheme because we are not going to 11

be in a business of authorizing therapeutic uses of 12

substance that haven’t been properly studied for reasons 13

that relate to cases like thalidomide and other drugs that 14

people assumed were okay but they ended up not being. 15

Without the science they don’t know. So that’s the 16

fundamental point with respect to the principles of 17

fundamental justice. 18

There is another area in which the court erred. 19

The court said there might be other ways other than 20

criminalization that would address some of these concerns 21

about misusing drugs. And my point on that is the same as 22

the one I made at the outset in response to a question from 23

the Chief Justice. That’s not a question of arbitrariness. 24

That’s gross disproportionality or overbreadth. The court 25


46

said this law fails on arbitrariness and there the question 1

is only the rationality of the means, not whether there are 2

other approaches that might be more effective. 3

When we look at gross disproportionality and 4

overbreadth you’ll see that this scheme is actually very 5

flexible. It’s not, as it was in Parker, a blanket 6

prohibition. 7

It allows for medical access to the one 8

substance that’s been -- which is a known quantity, at least 9

to some extent, which is dried marihuana or marihuana. It 10

doesn’t allow access to substances that are -- as yet there 11

is no medical study to show that they have any medicinal 12

benefit that can’t be obtained by the one that’s available. 13

So it’s flexible in that respect. It also has, as I 14

mentioned before, other means to obtain approval for drugs 15

that are not presently authorized including a special access 16

program. 17

And a special access program allows an 18

individual who can’t get access to a drug through legal 19

means to apply with the support of a physician to say, “I 20

need to get access to this drug. There is no other way to 21

treat my condition that’s legally viable so I need access to 22

this experimental drug to do so”. 23

That provides flexibility that shows that this 24

scheme which, as a general rule, has built-in flexibility 25


47

and it’s much different than a simple blanket prohibition. 1

It’s a more flexible scheme. 2

Now, I need to address in the last three 3

minutes that I have the question of remedy. And I will say 4

this that the Crown says we should succeed on the merits for 5

the reasons I have given and the reasons mentioned in the 6

factum. But if the Crown doesn’t succeed on the merits and 7

there is an adverse ruling the Crown will need time to 8

respond. 9

This is the first time that this Court has -- 10

will have pronounced on the validity of the medical 11

marihuana access regime. It’s the first time that there 12

will be a ruling of national application on this question in 13

an appellate court. It’s a complex area, a complex 14

regulatory environment. There are many stakeholders to be 15

consulted. A suspension is justified on both public safety 16

grounds and on the basis of the rule of law. 17

With respect to public safety there is 18

significant public safety interests in the continued 19

enforceability of the CDSA prohibition against possession, 20

production, trafficking. A finding on -- if a finding of 21

unconstitutional is up -- unconstitutionality is upheld, it 22

could be construed as leaving a gap in the legislative 23

stream -- scheme. This could jeopardize the ability to 24

prosecute offences under the CDSA including trafficking and 25


48

production. 1

With regard to the risk of diversion I don’t 2

need to go any further than this case in which one of the 3

witnesses, Leon Smith, testified that his club had revoked 4

500 to 600 so-called memberships that it offered to 5

individuals who were suspected of reselling drugs. So in 6

terms of the risk of diversion it’s present on the ground 7

here and that’s just one piece of evidence. 8

With regard to the rule of law, if a ruling 9

that the MMARs are invalid is upheld this could be perceived 10

as leaving a gap or lacuna in the law that would cause 11

considerable confusion. It’s a complex regulatory 12

environment, evidenced by the host of interrelated statutes 13

and regulations that are listed in the Crown’s factum. 14

Addressing the rule of law, the Court May consider whether -15

- or the extent to which there has been what is referred to 16

as a dialogue between the courts and the legislative 17

branches of government. 18

If we look at the history of the MMARs you will 19

see that the government has responded to various court 20

rulings robustly, with substantive changes and refinements 21

each time the scheme has been challenged. The government 22

has to balance its concerns over the control of substances 23

identified nationally7 and internationally as substances of 24

abuse with the obligation to comply with court rulings. 25


49

The government would need time to develop an 1

appropriate regulatory response and take steps to implement 2

it. If you look at the RIAS statements, the impact 3

statements for each of the iterations of the Regulations, 4

and there have been many, there is common ground with my 5

friends that this is an area that has been exceptionally 6

litigious. 7

If you look at the RIAS statements you will see 8

each time the government has made a regulatory response it 9

has to consult with stakeholders, many of them, consider the 10

implications of its programs and address refinements to the 11

scheme trying to balance all the interests that it has to 12

deal with. 13

If you look at the magnitude or the complexity 14

of the problem, how many people it affects, it’s not 15

insignificant. So the RIAS statement for the MMPR, the new 16

regulatory model which carries on with this restriction to 17

dried marihuana and doesn’t allow for derivatives, it says 18

this. In 2002 there were 477 individuals with 19

authorizations to possess marihuana under the scheme. In 20

2013 there were 29,000 individuals with authorizations and 21

it was estimated that by 2014 there would be 50,000. 22

It’s already a massive and complex program and 23

expanding it to include all substances listed in Schedule 2 24

of the CDSA which is what the judge did, didn’t just say 25


50

delete dried marihuana. He said in a subsequent oral ruling 1

the way to fix this is to read into the MMARs the reference 2

to all -- marihuana means every substance listed in Schedule 3

2. Expanding that would be a very, very significant change 4

and it would require time to consider it. 5

MR. JUSTICE CROMWELL: Just ask you one narrow 6

question. 7

You are not seeking an order for a retrial? 8

MR. RILEY, Q.C.: To be clear, if the Crown’s 9

appeal is allowed we are seeking an order for a retrial, and 10

let me explain why that is. 11

The judge in a pre-trial ruling held that the 12

MMARs were constitutionally deficient. We say the judge 13

shouldn’t have done that for the reasons -- didn’t have 14

standing and on its merits it was wrong. But at the end of 15

the day, because of that ruling the Crown was not in a 16

position to prosecute its case. And let me explain why that 17

is. 18

The defence had indicated at the outset of this 19

case “We are going before a jury and we are going to argue 20

the common law defence of necessity.” Now, if that had been 21

presented to the jury as a defence the Crown would have 22

said, “Well, that defence fails because there is a 23

reasonable legal alternative to the conduct that you were 24

involved in, namely the Medical Marihuana Access Regulations 25


51

provide a means for medical access. 1

And in response to that argument I think it 2

would be absolutely certain that Mr. Smith would say, yes, 3

but the judge has already struck down that provision -- 4

already found that that provision or that scheme is 5

constitutionally deficient. So could we have been expected 6

to comply with that? Was there really a reasonable legal 7

alternative and faced with that in trying to instruct a jury 8

on that question on the basis of a law that had been in 9

effect ruled unconstitutional by the law, it was completely 10

unworkable. 11

And so the Crown made a decision, “Look, this 12

ruling has significantly impacted on our ability to 13

prosecute this case. We can’t prosecute the case in light 14

of this ruling. If the ruling is overturned the Crown wants 15

to prosecute the case”. 16

MADAM CHIEF JUSTICE: Well, you don’t say that. 17

You just ask that the appeal be allowed. 18

MR. RILEY, Q.C.: Right. Well, I mean, it’s an 19

appeal from an acquittal. I mean I -- 20

MADAM CHIEF JUSTICE: Okay. Anyway, I think 21

we’ve taken enough time on this. 22


MADAM CHIEF JUSTICE: Thank you. 24

(1003) (Off microphone) 25


52

ARGUMENT FOR THE RESPONDENT, OWEN EDWARD SMITH 1

(1004) MR. TOUSAW: Madam Chief Justice, Justices, I 2

will take you to the index of the condensed book of 3

Mr. Smith and after the table of contents on the third page 4

begins the outline of argument that I have prepared for 5

today’s purposes. 6

My intention is to take you first to the facts 7

of the case. In Mr. Smith’s respectful submission the 8

Crown’s position largely imports the factual findings made 9

by the trial judge below and of necessity must ignore those 10

factual findings in order to prevail. 11

I will then discuss the standing issue and then 12

move on to section 7 and section 1 and the issue of remedy. 13

With respect to the facts, and they are 14

unchallenged in this Court, the trial judge found certain 15

key things. The first is that the medicinal compounds in 16

cannabis are contained in resin glands that are grown on the 17

plant. The plant material itself is inert. 18

The government’s position would have you 19

conflate dried marihuana as a compound, as a substance with 20

a derivative compounds and say that they are somehow 21

different substances, that dried marihuana is different from 22

edible products, it’s different from topical products, it’s 23

different even from Sativex® which is a conventional 24

derivative product of cannabis. 25


53

The difficulty of course is that the findings 1

of fact run contrary to that position. The medicinal 2

compounds are contained in the resin glands. They are not 3

contained in the plant. And it is those compounds that 4

provide a therapeutic effect whether those compounds are 5

smoked, whether those compounds are orally ingested, whether 6

those compounds are sprayed under the tongue by a trans-7

mucosal mechanism such as it’s the Sativex® compounds that 8

provide the therapeutic benefit. It is not the dried plant 9

material. And that fact is unchallenged. 10

The trial judge also found that the compounds 11

can be ingested in a variety of ways. They can be smoked or 12

inhaled using a vaporizer if one can avail themselves of 13

that particular product. 14

Smoking increases risk. Smoking is indeed the 15

key risk associated with consumption of cannabis as 16

identified both by the Crown, by Health Canada, by the 17

Crown’s witness, by the trial judge and by judicial 18

decisions in this area, as pointed out by one of the 19

interveners. Smoking has repeatedly been described as the 20

risk. 21

And I can even take you to the Crown’s 22

condensed book of authorities at Tab 8 -- sorry, not 8. 23

--- Pause 24

MR. TOUSAW: At Tabs 4 and 5 -- oh, the very 25


54

last page of each tab sets out the issue of smoking and it’s 1

very clear under Issue 14 at Tab 4 of concerns in response: 2

“Smoking marihuana for medical purposes in 3

a public setting thereby potentially 4

exposing others to the drug’s effects is 5

unacceptable. Patients are therefore 6

expected to use common sense.” (As read) 7

At Tab 5, the very last page again there is a 8

description of physician’s opinions with respect to the use 9

of cannabis for medical purposes: 10

“Physicians generally express concerns that 11

marihuana is most often ingested by smoking 12

and encourage development of alternative 13

forms and routes of administration.” (As 14

read) 15

So smoking, as Dr. Pate described, and as the 16

trial judge accepted, inhalation, is a method of ingesting 17

the medicinal compounds that has utility. It produces 18

therapeutic benefit quickly. That therapeutic benefit 19

happens fast, tapers off very quickly. It’s good for acute 20

conditions. It’s good for breakthrough pain, for example. 21

He described it as good for using -- if you feel a migraine 22

coming on you would smoke. You would get the medicinal 23

effects quickly. They would taper off quickly. 24

Oral ingestion does not provide or produce the 25


55

same potential harms as smoking. It is good, as Dr. Pate 1

testified, and as the trial judge accepted, for things like 2

chronic conditions; glaucoma, chronic pain, conditions where 3

you need to have a systemic load of the medicinal compounds 4

at all times in order to deal with your medical conditions. 5

And so you eat it. It takes a little bit longer to take 6

effect but the effects last for hours. 7

And so you’re not forced into a situation where 8

you are repeatedly consuming the medicine by way of smoking 9

all day long or, as Ms Herman testified, waking up in the 10

middle of the night in pain after two hours and then having 11

to smoke, fall back to sleep for another couple of hours, 12

wake up again in pain, smoke again and you go through this 13

cycle of constantly ingesting the medicine by way of smoking 14

when you can orally ingest it and achieve the benefits over 15

a longer term. Those are unchallenged facts. 16

There is a difference in effectiveness. That 17

is a factual issue that was found that the Crown can avoid 18

and, therefore, retreats very quickly from the findings of 19

fact to dwell in the area of subjective preference. And 20

I’ll have more to say about that later. 21

MADAM JUSTICE ABELLA: What do you say about 22

his argument that it hasn’t been clinically tested the way 23

dried marihuana has and so even if there are dangers to 24

smoking we don’t know what the dangers are in not having -- 25


56

in having other forms of marihuana available? 1

MR. TOUSAW: Three things. Firstly, one of the 2

declarations that is required by the Marihuana Medical 3

Access Regulations before a patient is granted an 4

authorization to possess dried marihuana is that the 5

physician and the patient understand that there has been no 6

regulatory approval given and that there hasn’t been a great 7

deal of scientific study about dried marihuana generally. 8

So I think that detracts from the point of the Crown that, 9

“Well, we know -- dried marihuana is a known quantity. We 10

know a bit more about it”. 11

Secondly, the Information for Health Care 12

Practitioners book, assembled by Dr. Abramovici and put into 13

evidence before the trial judge from which he made findings 14

of fact, details the other methods of ingesting cannabis and 15

is heavily referenced with citations of scientific 16

authority. Let’s remember what’s providing the therapeutic 17

benefit are the compounds. The mode of ingestion changes 18

the effectiveness and the risk profile of how you take those 19

compounds but the compounds aren’t different. The compounds 20

are the same. 21

And thirdly, I would say this. With respect to 22

Sativex® which is a conventional treatment made, as the 23

government pointed out just moments ago, from a whole plant 24

extract, there have been clinical studies done. That’s how 25


57

it obtained regulatory approval. It’s not as if cannabis is 1

not a known quantity. We know a tremendous amount about it. 2

The trial judge made findings of fact that these methods of 3

ingesting the medicine were as safe, or safer, than smoking 4

it. 5

The witnesses testified to no harms arising as 6

a result of using these particular modes of ingestion. And 7

all of this was confirmed by and conceded to by the Crown’s 8

witness at trial and was further confirmed by the 9

information that Health Canada assembled for provision to 10

doctors before they sign off on someone’s access to dried 11

marihuana. 12

And so I say the suggestion that somehow there 13

are greater dangers associated with oral ingestion or 14

topical application of cannabinoids is belied by the facts 15

that were found below. Those are the facts that are before 16

you. 17

The facts are that these products are safe, as 18

safe, or safer, than conventional over-the-counter -- some 19

conventional over-the-counter and prescription medicines. 20

We know they are safe. There aren’t any risks and none were 21

shown before the trial judge and his findings of facts amply 22

support that. 23

There is a further benefit from either oral 24

ingestion or topical applications found and that’s the 25


58

delivery of the medicine directly to the site or 1

pathogenecity. This is a principle that Dr. Pate testified 2

was not unique to cannabis. This is for all medicines. 3

It’s the reason why when you have a rash you put a cream on 4

the rash instead of taking a pill to deal with the rash. 5

You certainly can do both but wouldn’t you rather use less 6

on the site that needs the medicine as opposed to taking 7

more and developing a systemic low. 8

The patient witnesses themselves all benefitted 9

from the use of these medicinal cannabis products. And they 10

did so in forms other than smoking or vaporizing the dried 11

plant matter, including the particular products which Mr. 12

Smith stood charged at trial below. 13

The trial judge found and the court of appeal 14

agreed that while patients can possess dried marihuana 15

lawfully pursuant to the MMARs, and I believe that this 16

addresses the question that you asked the government, 17

Justice Cromwell, about Mr. Justice Chiasson’s dissent, they 18

commit crimes punishable by severe deprivations of liberty 19

when they extract the medicinal compounds from the dried 20

plant matter and discard the dried plant matter. That is, 21

in my respectful submission, clear from the language of the 22

Controlled Drugs and Substances Act. 23

And my friend says and urges this Court to 24

apply common sense in its line drawing exercise. Mr. 25


59

Smith’s position is that the Court should apply the Charter 1

and not common sense to this exercise and should look at 2

what the Controlled Drugs and Substances Act prohibits. 3

MR. JUSTICE CROMWELL: We don’t have to choose. 4

--- Laughter 5

MR. TOUSAW: Fortunately in this case they line 6

up. 7

The Controlled Drugs and Substances Act 8

prevents production which includes a broad definition of 9

manufacturing, deriving products. It’s illegal to produce 10

THC oil. Mr. Smith was charged with possessing THC for the 11

purpose of trafficking because he was making oil, an 12

extracted product. That’s not lawful. It’s not lawful for 13

Mr. Smith to do it. It’s not lawful for a patient to do it 14

either. They can be criminally charged. It’s not lawful 15

for them to possess those products either. They are granted 16

an authorization to possess dried marihuana and dried 17

marihuana alone. 18

I should also -- am constrained to point out 19

that my friend, I think, was in error when he suggested that 20

the MMARs have nothing to do with distribution of marihuana. 21

A designated producer is perfectly entitled to produce 22

marihuana plants and to distribute dried marihuana to up to 23

two patients that have designated that producer to produce 24

marihuana for them. That’s trafficking. That’s 25


60

distribution of marihuana. You’re even entitled as a result 1

of the changes the government made in 2005 to the regulatory 2

scheme, to receive compensation from your patients for 3

engaging in that activity. That is selling marihuana, dried 4

marihuana to patients. 5

So the MMARs do authorize distribution. What 6

they don’t authorize is the production and distribution of 7

anything other than dried marihuana. And that’s why we are 8

before you today. It’s that restriction of the dried 9

marihuana alone that gives rise to the constitutional 10

problems identified. 11

And that really brings me to the standing 12

issue. It is difficult to get around the Big M problem. My 13

friend says, well, Mr. Smith didn’t available himself in any 14

way of the regulatory scheme. He was operating completely 15

outside that scheme. 16

Anyone charged with a criminal offence is 17

operating outside the regulatory scheme. That’s a basic 18

principle. What you are doing is unlawful and you are 19

charged with a criminal offence. 20

Now, Mr. Smith didn’t challenge the MMARs. He 21

challenged the Controlled Drugs and Substances Act under 22

which he was charged. The focus of the argument was on the 23

exemption scheme because it was the exemption scheme that 24

dealt with access to dried marihuana for medical purposes. 25


61

But he wasn’t charged with an offence under the MMARs. 1

There is no offence provision under the MMARs. 2

He was charged with a criminal offence and he 3

raised the Charter as a defence to those charges, in much 4

the same way that Big M Drug Mart charged with an offence 5

was able to raise the unconstitutionality pursuant to 6

section 2 of the Charter as to other people. Corporations 7

don’t hold religious beliefs. But, yet, Big M was able to 8

say this is an unconstitutional law for which this 9

corporation stands charged with violating and it’s 10

unconstitutional not as to Big M. Big M doesn’t hold a 11

religious belief. It’s a company. It’s unconstitutional as 12

to others that do hold religious beliefs or atheists who 13

hold no religious beliefs. Therefore -- 14

MR. JUSTICE CROMWELL: Does it matter that the 15

constitutional fix, if I can use that word, the judge gave 16

as a remedy, leaves the scheme intact as regards Mr. Smith? 17

MR. TOUSAW: It matters not on the issue of 18

standing. It does matter, I think, when considering what 19

the Crown has said about seeking a new trial. 20

Because what the Crown has said is, well, after 21

the judge made his ruling we felt that he was -- we were 22

unable to convict Mr. Smith. And yet, in this Court, I 23

think what he said was, well, how do you instruct a jury? 24

How do you make those arguments? 25


62

Well, in this Court he has made the arguments. 1

He said he is operating entirely out of the side of the 2

regulatory scheme. And presumably that would have been the 3

argument at trial. Well, yes, the law has been stricken 4

down as a result of its unconstitutional effects on 5

patients. Mr. Smith isn’t that patient. Mr. Smith is a 6

producer operating completely outside the regulatory scheme 7

and therefore he should be convicted for the offence. 8

That’s the argument. 9

The Crown’s decision was to call no evidence 10

and to have Mr. Smith acquitted. And so I was going to say 11

this at the end of my submissions but I’ll say it now. 12

Under no circumstances, in my respectful 13

submission, should this Court send Mr. Smith back down to be 14

retried on these charges even if he doesn’t prevail on the 15

Charter arguments. It was the Crown’s decision not to try 16

him. They could have. They chose not to. 17

MR. JUSTICE CROMWELL: So I guess just for the 18

purposes of this standing argument, we are getting into a 19

pretty narrow distinction here in the sense that it boils 20

down to saying that he had the right to make the arguments 21

that he made and have them ruled on, but having got the 22

remedy he had didn’t affect his liability under the section. 23

MR. TOUSAW: It didn’t in the sense that he was 24

operating outside the regulatory scheme as it stood. Now, 25


63

had the regulatory scheme been constitutional -- in other 1

words, had it -- 2

MR. JUSTICE CROMWELL: I’m assuming that you 3

get the remedy you got. Then there was nothing to stand in 4

the way of being tried on the indictment? 5

MR. TOUSAW: The trial was scheduled and seven 6

months or so after the Charter voir dire the Crown elected 7

to call no evidence at the trial. 8

MR. JUSTICE CROMWELL: And that’s the 9

difference between this case and Big M that after the 10

constitutional ruling there was no offence to try? 11

MR. TOUSAW: And I want to make this point very 12

clearly. Had Mr. Smith -- had the unconstitutional impugn 13

restriction not been in place, and Mr. Smith been or others 14

been permitted to have access to non-dried forms of medical 15

cannabis, Mr. Smith could have been designated by, for 16

example, the two patients, Ms Quin and Ms Herman, who 17

received authorizations to possess dried marihuana and he 18

could have been designated to produce the products that he 19

was producing for the club for that. 20

Would that -- if he had operated outside of 21

that and produced for other people it could have given rise 22

to a further challenge based on the principles in 23

Sfetkopolous and Hitzig, having to do with the ratio between 24

patients and producers. That’s a different case. We would 25


64

be arguing a different case. 1

But had the impugn restriction not been in 2

place there would have been a way to operate within the 3

regulatory scheme to produce these products for the patients 4

that required them for their health. The reason that he had 5

to operate outside the regulatory scheme is because of the 6

impugn restriction. And I think that that fully undermines 7

my friend’s position on standing. 8

I would certainly also urge this Court not to 9

narrow the principle in Big M. I think that the interveners 10

had quite a bit to say about the issue of standing and the 11

importance of being able to raise Charter defences. They 12

are being charged with criminal offences and the narrowing 13

of that would really take away from the fact that the 14

Charter is the supreme law of the land. 15

It would, in effect, allow prosecutorial 16

discretion to be a substitute for the supremacy of the 17

Charter. The Crown could keep in place unconstitutional 18

laws, laws that violate the Charter and take away autonomy, 19

in arbitrary overbroad and grossly disproportionate ways 20

simply by not prosecuting the wrong people or by realizing 21

when someone brings a constitutional challenge perhaps now 22

is the time to stay the charges to avoid a decision on the 23

Charter merits of the issue. The arbiters of what the 24

Charter protects are courts, not the discretion of Crown 25


65

prosecutors. 1

If, however, the Court is inclined to accept my 2

friend’s position on standing in terms of direct standing, 3

Mr. Smith certainly urges that this case be considered a 4

public interest case. This is a serious judiciable issue, 5

as the government just pointed out. These regulations 6

affect many, many people across the country. 7

It is a case of nationwide importance. It is a 8

case that has been thoroughly litigated both at trial and 9

briefed at trial and in the courts of appeal and in this 10

Court. They meet the test for public interest standing. He 11

is engaged with the issues and the case has been brought 12

before you in a reasonable and efficient manner. 13

It would be unreasonable and inefficient to 14

deny standing at this point simply to have a patient come 15

forward and then challenge these Regulations and return here 16

some years hence. 17

Now, in terms of the section 7 threshold, my 18

friend’s argument is twofold. He says first that despite 19

the clear liberty violation arising from the spectre of 20

imprisonment for persons that possess forms of marihuana 21

other than dried marihuana, this case should not be 22

considered on section 7 grounds because there is no 23

objective evidence in the record suggesting that these 24

patients have anything other than a subjective preference 25


66

for an illegal form of treatment over a lawful one. 1

In order to make this argument my friend has to 2

essentially ignore the findings of fact of the trial judge 3

because those findings of fact run completely contrary to 4

that position. The trial judge found as fact that there are 5

differential effectiveness to different modes of ingestion, 6

that there are risks attendant with smoking that are not 7

present in the other forms of ingestion and that the 8

patients benefited medically from these other modes of 9

ingestion. 10

In addition, in the record are documentary 11

evidence from, in some cases, the physicians of the patients 12

and, in particular, I would say, with respect to Ms Quin, 13

and I won’t take you to the record but it is in the 14

appellant’s record, Part 4, Volume 1 at page 159. 15

There is a letter from her physician describing 16

how Ms Quin is using a topical application of cannabinoids 17

on her incision that she had a post-mastectomy incision to 18

help reduce swelling and allow the healing of that incision. 19

He says it works remarkably well and also describes how she 20

is ingesting orally cannabis products and how those products 21

are assisting her. This is from her physician. He wasn’t 22

called to the stand but the exhibit went in to evidence 23

below. It’s part of the basis upon which the trial judge 24

makes his findings of fact. 25


67

In addition to that, as the court of appeal 1

recognized and as the trial judge recognized, it’s a bit of 2

a red herring to say that there is no medical evidence or 3

objective medical evidence. The Government of Canada issued 4

two of the witnesses’ authorizations to possess dried 5

marihuana on the basis of their physicians’ declarations 6

required in the regulatory scheme that conventional 7

treatments have been tried or considered and were found to 8

be medically inappropriate or ineffective. 9

The physician’s declaration that the patient 10

should have access to dried marihuana and, in the case of Ms 11

Herman, the physician’s checking off a box on the 12

application form that says the mode of ingestion ought to be 13

oral ingestion; these are objective facts that are in the 14

record that support the trial judge’s findings of fact on 15

these particular points. 16

Further to that, as was pointed out during my 17

friend’s submissions, Dr. Abramovici, the Crown’s expert, 18

conceded essentially that Dr. Pate was right. For acute 19

conditions inhalation will deliver the benefits quickly. 20

For chronic conditions oral ingestion will deliver the 21

benefits over an extended period of time. That completely 22

supports exactly what the patients describe as their own 23

individual experience with their own medical conditions and 24

was accepted again by the trial judge on facts that are not 25


68

directly challenged in this Court. Because I think my 1

friend, in order to prevail, needs to have this Court 2

overlook some of those findings of fact or at least minimize 3

their relevance to the particular issues that are joined. 4

Liberty and security of the person rights are 5

concerned with individual autonomy and dignity, as was 6

pointed out in the beginning of my friend’s submissions by 7

Justice Abella, I think. This Court recently had the 8

opportunity in Carter to discuss autonomy in the context of 9

making medical decisions. 10

I’ll take the Court to the condensed book that 11

I have provided at Tab -- I think it’s Tab K. Sorry, it’s 12

Tab M. This will be the back side of the second page 13

commencing at paragraph 64 where this Court said directly 14

that: 15

“Underlying both of these rights ... [that 16

is, the right to liberty and security of 17

the person] is a concern for the protection 18

of individual autonomy and dignity. 19

Liberty protects ‘the right to make 20

fundamental personal choices free from 21

state interference’. [Free from state 22

interference.] Security of the person 23

encompasses ‘a notion of personal autonomy 24

involving ... control over one’s bodily 25


69

integrity free from state interference’ and 1

it is engaged by state interference with an 2

individual’s physical or psychological 3

integrity, including any state action that 4

causes physical or serious psychological 5

suffering. While liberty and security of 6

the person are distinct interests, for the 7

purpose of this appeal they may be 8

considered together.” 9

These are issues that are directly impugned 10

restriction. One needs to go no further than the testimony 11

of Ms Herman who describes the impact on her quality of life 12

resulting from the use of pharmaceutical substances and the 13

fact that, as the trial judge said, she got her life back. 14

She repaired her relationship with her husband. 15

She repaired her relationship with her children. She 16

experienced a cessation of the kind of pain she was 17

experiencing, the waking up in the middle of the night in 18

pain and the inability to sleep, the acting like a zombie 19

and being unable to participate in a social event as a 20

result of the use of the products that the MMARs make 21

unlawful for her to possess or produce as a result of using 22

those products. Her psychological state of mind improved. 23

Her physical health improved. 24

And the state here wants to interpose the 25


70

criminal law, the criminal law between her and access to 1

those medicines in a manner that is completely unrelated to 2

her individual needs, her wants, her desires and her 3

dignity. Mr. Smith says that’s absolutely inappropriate. 4

That’s a severe violation of both liberty and security of 5

the person. 6

This Court went on to say in Carter at 7

paragraph 65: 8

“The trial judge concluded that the 9

prohibition on assisted dying limited Ms. 10

Taylor’s s. 7 right to liberty and security 11

of the person, by interfering with 12

‘fundamentally important and personal 13

medical decision-making” (para. 1302), 14

imposing pain and psychological stress and 15

depriving her of control over her bodily 16

integrity (paras. 1293-94).” 17

I’ll pause to say that’s precisely what the 18

effect of the MMARs restriction is on persons like Ms Quin 19

and Ms Herman. They are suffering from serious medical 20

conditions. They are finding relief from the medicinal 21

compounds contained in cannabis. They have been granted by 22

permission by the Government of Canada to access those 23

compounds. 24

And what the MMAR say is you can only access 25


71

those compounds in the form of dried marihuana. You can’t 1

use the products that are actually working for you. We want 2

you essentially to smoke cannabis all day long or all night 3

long. This despite the fact, as I referenced earlier my 4

friend’s condensed book in the Tab 4 of the last page -- 5

this despite the fact that in the RIAS accompanying the MMAR 6

the Government of Canada says that smoking marihuana for 7

medical purposes in a public setting thereby exposing others 8

to the drug’s effects is unacceptable. It’s unacceptable 9

according to the Government of Canada. 10

So Ms Herman who wants to perhaps go watch her 11

son play soccer isn’t supposed to smoke her medicine in a 12

public setting. As a soccer coach I can tell you that 13

probably wouldn’t go over very well. 14

But the government is telling you it’s 15

unacceptable to use her medicine in public in the manner 16

that it only allows you to use the medicine because if you 17

turn the medicine into a capsule that you can then take 18

before you go out into public that’s unlawful. You have 19

produced an unlawful substance. You are in possession of an 20

unlawful substance. You could be arrested, charged, 21

convicted and imprisoned for doing so. 22

Now, my friend says use common sense. Again, I 23

would expect the Crown to use common sense in determining 24

whether or not to prosecute an individual in those 25


72

circumstances. I would expect them to apply the test of 1

whether or not it’s in the public interest to prosecute a 2

patient in those circumstances. 3

It does not change the fact that that conduct 4

is criminal conduct and that imposes a severe psychological 5

burden on people. People don’t want to break the law. Sick 6

people should not be told, “Well, we’re going to use common 7

sense in whether or not to prosecute you for breaking the 8

law if we catch you in possession of these medicines”. 9

That’s not an answer to the Charter. 10

The Charter says an infringement of the liberty 11

and security of the person that deprives one of the 12

fundamental choices that one is entitled to make about 13

personal medical decisions violates section 7 unless it’s in 14

accordance with the principles of fundamental justice. And 15

on the findings of fact that were made below, applying the 16

proper analysis, perhaps using it not in exact language but 17

applying the proper analysis at the end of the day, the 18

trial judge and the court of appeal agreed that these -- 19

that this restriction was arbitrary. And it was arbitrary 20

because it produces effects that are inconsistent with the 21

law’s objectives. 22

And I should move now -- 23

MR. JUSTICE CROMWELL: Can I just stop you 24

there for one moment? Mr. Riley also mentioned the, I 25


73

think, three products that are legally available and the 1

vaporization -- 2

MR. TOUSAW: Yes. 3

MR. JUSTICE CROMWELL: -- alternatives to 4

smoking. Was there evidence about that in relation to any 5

of the patients? 6

MR. TOUSAW: There was. Some of the patients 7

did vaporize from time to time. Vaporization, of course, 8

still produces an exhalation, an odour. The use in public 9

would presumably be unacceptable according to the Government 10

of Canada. The patients had not experienced the use of 11

Sativex® 12

The two that qualified for authorizations to 13

possess, their positions had indicated and were required to 14

declare that conventional treatments were medically 15

inappropriate or ineffective. Sativex® is a conventional 16

treatment. It’s gone through the Food and Drug approval 17

process. It’s a fair inference from that to say that the 18

physicians didn’t agree it was useful. 19

And you did ask, Justice Cromwell, about what 20

conditions Sativex® was approved for. It’s been issued a 21

Notice of Compliance with conditions and it’s been approved 22

for neuropathic pain associated with multiple sclerosis and 23

subsequent, I believe, to the decision at trial was also 24

approved for neuropathic pain associated with cancer. 25


74

The difficulty of course is -- think about Ms 1

Quin. What is she doing? She at one point describes, and I 2

have this in my condensed book at Tab D, the second full 3

page, top of the page 93. 4

Ms Quin says firstly that she didn’t want to 5

smoke because had a bad reaction to pesticide-laden product 6

that she had taken and got a lung infection. But then she 7

says after her mastectomy she didn’t want to smoke because 8

it made her cough and she was worried about ripping her 9

incisions open as a result of that coughing. So what she 10

did is she mostly rubbed the cannabis oil on the incisions 11

to reduce swelling. THC is an anti-inflammatory. CBDD is 12

an anti-inflammatory. She would rub that on the incision to 13

reduce the swelling. This is halfway down the page 93 of 14

Tab D in the condensed book. 15

You don’t spray Sativex on incisions. It’s not 16

what you do. It’s a sub-mucosal spray. You spray it on to 17

your tongue. It has the same rapid absorption that 18

inhalation does. That’s one of the benefits of that mode of 19

delivery. It gives you the effects very quickly but it also 20

tapers off quickly just like -- just like smoking. 21

So it doesn’t provide the same types of 22

benefits and certainly one -- it’s an alcohol extract. I 23

think one can infer that you are not spraying alcohol 24

extracts on sutures and incisions on your chest. That’s 25


75

just not the way the medicine is intended to be used in 1

addition to the fact that it’s a Notice of Compliance with 2

conditions that only relates to two particular and discrete 3

areas of medical practice. 4

MADAM JUSTICE ABELLA: I want to bring you to 5

remedy but are you finished with the section 7 argument? 6

MR. TOUSAW: I was going to move -- I’m happy 7

to discuss remedy now, Justice Abella, but I was going to 8

make just a few more points about -- 9

MADAM JUSTICE ABELLA: All right. Sure. 10

MR. TOUSAW: -- section 7 because I think I 11

have only gotten to the threshold of our liberty and 12

security of the person implicated on the facts of the case. 13

And I do want to say -- I have said a bit about 14

subjective versus objective evidence. I think that fails on 15

the record. But I do want to talk a bit about 16

arbitrariness, overbreadth and gross disproportionality. 17

And arbitrariness in Mr. Smith’s, in Mr. 18

Smith’s submission, is made out here in much the same way it 19

was made out in Carter, in Morgentaler, in Chaoulli and in 20

PHS. We need to think about what the objective of the 21

legislation is. And my friend urges this Court to consider 22

the objective as state control over drugs by means of a 23

comprehensive legislative scheme. 24

As I said in my factum, that’s a conflation of 25


76

the objective with the means that the state goes about in 1

achieving that objective. The means are the comprehensive 2

regulatory scheme. Those considerations are best left for 3

section 1, not for section 7. What’s the objective? 4

Mr. Smith’s submission is that the objective is 5

the protection of health and safety of people that have been 6

granted permission by the Government of Canada and have 7

access to these medicinal compounds, not some sort of 8

general protection of health sand safety. 9

You have to draw the objective, as this Court 10

said in Bedford, narrowly to avoid essentially swallowing up 11

the analysis. But even if the objective is the protection 12

of health and safety, when you have a restriction that 13

actually creates a set of conditions in which patient health 14

is harmed and they are denied access to more effective ways 15

of taking medicinal compounds also harming their health and 16

causing risk to health, causing physical pain and physical 17

suffering that is arbitrariness. 18

I think the example of Ms Herman is a good one. 19

Ms Herman testified that she would take her dried marihuana 20

that she is lawfully entitled to possess and she would make 21

a tea solution with it in the morning. So she would crush 22

up the dried marihuana. That’s lawful. She would put it 23

into a tea strainer. That’s lawful. She would put the tea 24

strainer into the tea with a little bit of milk because the 25


77

fat and milk will then solubilize with the resin glands and 1

you will have an extraction process. Not legal. She has 2

now produced THC in a weak oral solution and then she would 3

take the tea strainer out and set it off to the side because 4

that’s what you do. 5

What she is holding in her hand now is a weak 6

oral solution of THC and CBDD and other cannabinoids. She 7

has produced that. She made it. She manufactured it. She 8

derived it. Those are the words of the Controlled Drugs and 9

Substances Act. She is possessing it. 10

My friend says, well, there is no -- there is 11

no rules in the MMAR about how you use your cannabis 12

substances. See, we say here in the RIAS statements to the 13

MMPR, “Well, there is no rules about how you use your 14

cannabis”. No, there is no rules in the MMAR about how you 15

use your cannabis. 16

There is a rule in the Controlled Drugs and 17

Substances Act that says it’s unlawful to do what I have 18

just described Ms Herman as doing. So she is perfectly fine 19

holding that dried cannabis. She is not fine holding her 20

medicinal tea out of it. And that is arbitrary. That, in 21

my respectful submission, highlights the arbitrariness of 22

these restrictions and it does so in a way that is difficult 23

to reconcile with the factual record. 24

The compounds -- you know, my friend says, 25


78

“Well, these things, these derivative products, they are 1

untested. There is no clinical studies. They are untried. 2

Their safety profile is not known” on the one hand. But on 3

the other hand he is saying the Government of Canada doesn’t 4

have any restrictions on patients making these substances 5

and they can consume them any way you want. 6

There is a contradiction there. I mean, it’s 7

either an untested, untried substance that should be kept 8

out of the hands of people to protect their safety or it 9

isn’t. And if it isn’t doesn’t that undo my friend’s point 10

entirely if patients are really able to do whatever they 11

want with their dried cannabis and adjust the compounds in 12

any way they want? 13

It completely undermines my friend’s point 14

about the line being drawn at dried marihuana because we are 15

worried about patient health if they consume these other 16

products. Apparently they are able to consume these other 17

products any way they want to. That’s a fundamental 18

contradiction in my friend’s position that there is no way 19

to reconcile on the argument. 20

I say, further, this in terms of overbreadth. 21

Even if, as respect to some persons, the restriction does 22

have some minimal rational connection to the objective of 23

protecting health and safety, to the patients that testified 24

at the trial there is no rational connection. It captures 25


79

their conduct even though their conduct doesn’t implicate 1

the objectives. And that’s what overbreadth is. That’s 2

what this Court described overbreadth as in Carter, Bedford 3

and the other cases. 4

And then I say gross disproportionality. The 5

regulation is grossly disproportionate to those objectives 6

because the effects on patients as described by the 7

witnesses and supported by the objective evidence of the 8

experts is to harm them and to criminalize their conduct, to 9

criminalize their choices of how to best treat their 10

individual medical conditions. And it does so in a manner 11

that does not further the goals of the legislative scheme. 12

And I think this is where the comments of the 13

trial judge about evidence related to a diversion or harms 14

of the products comes into play. We know that the law says 15

you look at the objective but when the burden has been met, 16

when the rights claimant has met the burden of showing the 17

infringement of liberty and of showing an infringement of 18

security of the person and of showing that those 19

infringements are not in accordance of principles of 20

fundamental justice it’s fair to say where is -- where is 21

the evidence that there is any benefit being derived? 22

And I think it’s more appropriately considered 23

in section 1 but that evidence didn’t exist on the record. 24

It wasn’t there and it undermines -- I think I’ll conclude 25


80

what what I have to say about section 7 there -- and it 1

undermines any position on section 1 as well. 2

And the evidence is firstly, as the case has 3

made clear, it’s very difficult to, on section 1 grounds, 4

justify the overriding of section 7 rights generally, 5

particularly where the restrictions have been shown to 6

intrude on liberty and security of the person in a way 7

that’s arbitrary or overbroad. There is a failure of 8

connection there. 9

There is a failure of rational connection there 10

that is stark in the section 7 analysis that really undoes 11

the ability to justify it, at least in the facts of this 12

case on section 1 because there were no facts provided by 13

the government in terms of the section 1 analysis that would 14

support that these products are dangerous, that patient 15

health is harmed, that public safety is implicated, that 16

diversion is occurring by patients in particular. Those 17

facts were just simply absent. And so there is no -- there 18

is no rational connection. 19

In addition, the existence of other legislative 20

schemes that would be applicable to the commercial 21

production and sale of these products but for their 22

inclusion in the Controlled Drugs and Substances Act 23

demonstrates that the restriction is not minimally 24

intrusive. And my friend talks a bit about a legislative 25


81

lacuna and a threat to the rule of law in his discussions on 1

remedy and says, “Well, if the MMARs are stricken down or if 2

this restriction is stricken down there is going to be this 3

vacuum”. 4

The remedy that -- I’m coming to remedy, 5

Justice Abella -- the remedy that Mr. Smith seeks is a 6

reading in of an exemption from the Controlled Drugs and 7

Substances Act. 8

The end of the day, the problem is that the 9

government is treating medical cannabis in the same way that 10

it treats recreational cannabis, what it calls a drug of 11

abuse. People that use cannabis for medical purposes are 12

not abusing it. They are using it on the recommendation of 13

their physician. That is not abuse. That is legitimate 14

use. It is a very distinct situation, as this Court 15

recognized in Malmo-Levine. 16

There is a very stark difference between 17

recreational and medical. And, yet, the medical production 18

of these substances, the medical distribution of these 19

substances; the medical consumption and possession of these 20

substances is prohibited, generally speaking, by the 21

criminal law with a narrow exemption drawn by the MMARs. 22

That’s the difference. 23

MR. JUSTICE CROMWELL: I’m sorry. How is your 24

remedy different than the trial judge going through and 25


82

taking out “dried” from the Regulation? 1

MR. TOUSAW: And it was a thorny issue before 2

the trial judge because the trial judge was attempting to 3

provide an effective remedy to patients principally in the 4

first instance. That’s why the trial judge did not suspend 5

the declaration of invalidity that he made as it related to 6

patients but did suspend it as it related to produce it to 7

allow the government to step in and regulate. 8

And what came about as we are working through 9

the regulatory scheme is that striking the word dried out of 10

the MMAR left in place the definition of marihuana. 11

Marihuana in the MMARs is specific to cannabis marihuana as 12

defined in Schedule 2(1)(2). It means the plant. It 13

doesn’t mean resin. It doesn’t mean THC. It doesn’t mean 14

the cannabinoids. It just means the plant. 15

And so really the remedy without turning it 16

into meaning all the Schedule 2 substances would have been 17

an ineffective remedy because it would have just left 18

patients in the same position. They could produce the 19

plant. 20

They could possess the plant but the minute 21

they turned it into resin, even if they just tapped the 22

flowers into their hands and were left with a small bed of 23

the medicinal compounds in their hands, would have still 24

been unlawful extracting it into oil and then having a 25


83

solution of THC and the other cannabinoids would have 1

remained unlawful. That’s why the trial judge redefined it 2

to read Section 2. 3

The difficulty with that remedy sitting here 4

today is that the MMARs don’t exist anymore. The MMARs were 5

repealed by operation of the MMPR. 6

As referenced in one of the intervener’s 7

factums, there is ongoing litigation. There has been an 8

injunction granted preserving for some people aspects of the 9

MMAR regime. So in a limited sense the MMARs live on by way 10

of constitutional exemption but as a regulatory scheme it 11

doesn’t exist anymore. 12

And so the difficulty in the trial judge’s 13

remedy and the difficulty in the court of appeal’s remedy is 14

that it doesn’t provide an effective and responsive to the 15

patients who require access to these other forms of the 16

medicine, because redefining a definition or striking down a 17

restriction in a regulatory scheme that doesn’t exist any 18

more leaves them still captured by the regulatory scheme 19

that does exist which has the exact same restriction. 20

Notwithstanding what my friend said from the 21

Regulatory Impact Analysis Statement accompanying the MMPRs, 22

and he took you to it where he said, well -- and it’s at the 23

last page of Tab 7 of my friend’s book where he says, “Well, 24

there is no restrictions on how dried marihuana is to be 25


84

ingested or inhaled”. 1

The problem of course is that it’s not the 2

restriction in, as I said, the MMPRs that’s the problem. 3

It’s the restriction in the Controlled Drugs and Substances 4

Act that is the problem. And that is why Mr. Smith comes 5

before this Court and says what is really required to follow 6

the principle elucidated in Doucet-Boudreau, the Charter 7

remedies must be effective and responsive to the problems 8

identified as a read-in of an exemption to the Controlled 9

Drugs and Substances Act. And that -- 10

MADAM JUSTICE ABELLA: Sorry. That brings me 11

to the questions that I had. 12

MR. TOUSAW: Yes. 13

MADAM JUSTICE ABELLA: Was that put before the 14

court of appeal, the argument about -- it just strikes me 15

that we are dealing now with a very different set of 16

constitutional remedies. 17

MR. TOUSAW: It was not. 18

MADAM JUSTICE ABELLA: It was not put -- 19

MR. TOUSAW: It was not put before the court of 20

appeal. 21

MADAM JUSTICE ABELLA: So it’s being put before 22

us for the first time? 23

MR. TOUSAW: It is being put before you for the 24

first time. 25


85

MADAM JUSTICE ABELLA: And the argument against 1

just saying to the government if we accept your argument 2

that it’s unconstitutional, find a way to make it 3

constitutionally compliant within a period of time is...? 4

MR. TOUSAW: I would say here is the problem. 5

And there are two problems. 6

The first is that there has been no evidence 7

put before this Court or any court on why the Schacter 8

criteria for suspending declarations of invalidity ought to 9

apply in this case. There is no threat to the public 10

safety. There is no threat to the rule of law. This is not 11

a case of where you strike down a statue and all of a sudden 12

no one will have the benefit of that statue. 13

In fact, exempting medical cannabis from the 14

Controlled Drugs and Substances Act will automatically by 15

operation of law put medical cannabis into the Natural 16

Health Product Regulation. The Natural Health Product 17

Regulation governs the commercial production, marketing and 18

sale of medicinal plant and plant-based products. 19

MADAM CHIEF JUSTICE: How do you define medical 20

exemption? You simply say at paragraph 195 you want us to 21

read in a medical exemption. One person’s medicine is 22

another person’s poison. 23

Is there not going to be problems just saying 24

anything that you think is medical is going to be okay? One 25


86

would think there would have to be more, more detail 1

provided unless we want simply everybody to self-medicate. 2

MR. TOUSAW: Mr. Smith at trial took no issue 3

with a requirement that a physician be a gatekeeper in the 4

MMAR regime. 5

It is reasonable for this Court if it reads a 6

medical exemption into the Controlled Drugs and Substances 7

Act to say that that has to truly be medical. And medical 8

could be defined by reference to the approval of a 9

physician. And physicians of course are able to prescribe 10

all manner of substances potentially including cannabis 11

under section 53 of the Narcotic Control Regulation. 12

MADAM JUSTICE ABELLA: Isn’t this very 13

conversation a reason for us not to wade in -- reading in is 14

usually something we do when the circumstances are so clear 15

about what the effect would be of reading in and the 16

government really doesn’t have any range of options to think 17

about. 18

Here it’s a new remedy that is being proposed 19

for the first time before this Court without any argument or 20

discussion about the utility, the precision. I see your 21

point about the fact that they have had three years 22

effectively since the decision was made. But doesn’t that 23

argue for less time than the year given by the court of 24

appeal rather than for reading in? 25


87

MR. TOUSAW: I’ll say two things in response, 1

Justice Abella. 2

First, I would say the government has had more 3

than three years to come up with a constitutional scheme. 4

On this particular point they have had three years. 5

On the issue of the constitutionality of the 6

medical exemption scheme generally this issue has been 7

litigated for the last 15 years. It’s resulted in no less 8

than three court of appeal decisions finding the regulatory 9

scheme to be unduly restrictive, one decision in the B.C. 10

Supreme Court which proceeded by way of direct leave 11

application to this Court that was denied, finding the 12

regulatory scheme to be insufficient on Charter grounds. 13

My friend has described the government’s 14

responses to those declarations of invalidity as robust. 15

With the greatest of respect to my friend’s position I think 16

that the history that I have provided in my remedy section 17

tells a different story. The response has been anything but 18

robust. And I will give you one stark example. 19

In the case called Sfetkopolous which was 20

ultimately decided in the Federal court of appeal , a court 21

of national impact which I think runs contrary to my 22

friend’s point that this Court is the first to deal with 23

this case and have a national impact. The Federal court of 24

appeal did have national impact. 25


88

But in the case called Sfetkopolous one 1

producer and about 15 patients challenged the one to one 2

ratio between producer and patient that was contained in the 3

MMARs. That restriction was found to violate the Charter of 4

Rights and Freedoms as arbitrary and unduly restrictive. 5

Now, keep in mind this is one producer and 15 patients of 6

the factual matrix of that case. 7

The government’s response to that was to amend 8

the regulatory scheme. My friend calls it a robust 9

response. They made it one producer and two patients. In 10

my respectful submission it’s not even responsive to the 11

case. They prompted the response. 12

And so there has been 15 years of opportunity 13

and what keeps happening, what we keep coming back to is 14

that medical production, medical delivery, medical 15

possession remains a criminal offence and that puts patients 16

at significant jeopardy of their liberty and their security 17

of the person. It interposes the state in between them and 18

their medical choices. 19

Mr. Smith says that’s unacceptable. Mr. Smith 20

says the only way to effectively respond to that is to take 21

the medical canvas out of the Controlled Drugs and 22

Substances Act. Immediately it becomes a natural health 23

product. 24

And so the commercial aspects that my friend is 25


89

concerned about, the commercial marketing, the commercial 1

production, the commercial sale remain regulated behaviour. 2

The Natural Health Product Regulation contains non-criminal, 3

non-CDSA offence provisions. The government can continue to 4

manage the commercial aspects of this endeavour. 5

However, what the Natural Health Product 6

Regulation does not do is criminalize individual patient 7

conduct and it does not then interfere with their liberty 8

and their security of person in a way that using the 9

criminal law, the heavy hand of the criminal law does. 10

That’s why, in my respectful submission, the read-in is the 11

appropriate remedy. 12

I should also say this: Proving intent, 13

medical intent or other intent, is not a concept foreign to 14

law. In fact, the Controlled Drugs and Substances Act, as a 15

result of the 2012 amendments brought about by the Safe 16

Streets and Communities Act put very precisely into the 17

production offence for producing marihuana plants between 18

six and 200 a requirement that in order for the mandatory 19

minimum sentences to apply the Crown would need to prove 20

beyond a reasonable doubt that the production was for the 21

purposes of trafficking. 22

That’s an intention. That’s not -- so it’s not 23

unknown in the law to have intent be part of the 24

prosecution’s case in chief. Indeed, the very offence for 25


90

which Mr. Smith stood charged was possession for the purpose 1

of trafficking. And in order to convict him, the Crown 2

would have had to prove beyond a reasonable doubt that he 3

possessed these products for the purpose of trafficking 4

them. 5

Now, we admitted that, obviously, in this 6

particular case. But in terms of reading in a medical 7

exemption, if the Crown and the prosecutorial authority 8

after a case comes to it from the law enforcement authority, 9

reviews the facts and sees that in the ordinary course of 10

investigation of marihuana offences someone is trafficking 11

marihuana and there is no indicia of medical need 12

whatsoever, that person is going to be convicted. 13

That’s the way the system works. That’s the 14

way the criminal justice system works. It’s not an 15

impediment to that to say, “You can’t convict a patient, 16

particularly a patient of these offences if the patient is 17

using the products for medical purposes”. 18

And that is the way that we solve the thorny 19

problems that have been plaguing patients for 15 years or 20

more and plaguing the courts for that same span of time. At 21

some point the endless cycle of litigation on this issue 22

needs to cease and there needs to be a clear line of 23

demarcation between what conduct the state is entitled to 24

make criminal and what conduct the state is not entitled to 25


91

criminalize. 1

We know that recreational cannabis as a result 2

of Malmo-Levine, we know that the state is entitled to 3

criminalize for recreational purposes. But as this Court 4

said, it’s a very different thing indeed when the cannabis 5

is intended for medical purposes. 6

In my respectful submission that’s a 7

distinction that this Court needs to drive home and make 8

clear so that the courts understand what the law is, so that 9

the state understands where its powers are circumscribed and 10

so that the patients can understand that they are free from 11

the spectre of criminality for their medical cannabis 12

possession/consumption and their making of these products 13

that provide them a benefit to health. 14

MR. JUSTICE CROMWELL: Could I take you back to 15

your arbitrariness point just for a second? 16

MR. TOUSAW: Absolutely. 17

MR. JUSTICE CROMWELL: The way you presented 18

the point orally, at least as I understood it, was it was 19

premised on the patient having or being eligible for an 20

authority to possess and the irrationality resided in the 21

fact that you had legal authority to possess the compound 22

but not in different forms. 23

MR. TOUSAW: Yes. 24

MR. JUSTICE CROMWELL: So I want to know 25


92

whether your arbitrariness point is premised on a patient 1

who is otherwise entitled to the authority to proceed to 2

possess. 3

MR. TOUSAW: We did not challenge at trial the 4

gatekeeper provisions in the MMAR requiring physician 5

approval before one became a lawful possessor of dried 6

marihuana. That was being challenged at the time in a case 7

called Mernagh that my friend has referenced. 8

It was decided at least on evidentiary grounds 9

in Mernagh that the physician’s gatekeeper problem did not 10

render the defence illusory in the way that the Morgentaler 11

case described an illusory defence. And so we did not 12

pursue that line of argument either at trial or in the court 13

of appeal. 14

So for purposes of this hearing before this 15

Court what we are talking about is patients that are 16

medically qualified as a result of being approved for access 17

for therapeutic compounds by their physicians. 18

MR. JUSTICE CROMWELL: And in the record in 19

this case there were two and one pending. Is that -- 20

MR. TOUSAW: That’s correct; two and one 21

pending and then further that 5 percent of the several 22

thousand, 5 to 10 percent of the several thousand members of 23

the Cannabis Buyers Club of Canada at least at the time of 24

trial had been approved for authorizations to possess dried 25


93

marijuana. 1

Now, that number has grown since then, but it 2

is certainly the case that at least two of the patients were 3

medically approved by their physicians on the basis of very 4

serious medical conditions that they treated effectively, 5

safely and without the risk of harms of smoking as a result 6

of having access to forms of marihuana other than dried 7

cannabis. And it’s for those reasons that Mr. Smith says 8

the restriction violates the Charter of Rights and Freedoms. 9

MR. JUSTICE CROMWELL: But your remedy seems to 10

me to go well beyond arbitrariness that you have identified 11

because you want us to dismantle the regime. 12

MR. TOUSAW: I am asking this Court to read a 13

medical exemption into the Controlled Drugs and Substances 14

Act. If that medical exemption depends for its 15

effectiveness on a physician signing off either under the 16

Narcotic Control Regulation, section 53 or other -- 17

MR. JUSTICE CROMWELL: You would have to say 18

that the whole regulatory regime is gone and all that’s 19

required is a physician’s letter or something of that sort. 20

MR. TOUSAW: I think the Government of Canada 21

has a regulatory regime in place that will govern the 22

production and commercial sale of these products for medical 23

purposes already. What I am saying is that in respect of 24

patients, they should not be subject to the heavy hand of 25


94

the criminal law for making the choice to use cannabis in 1

all of its forms. 2

And to the extent that Schedule 2 includes 3

synthetic substances those were not before the trial judge. 4

Those are not a concern of Mr. Smith. 5

Thank you. 6

(1105) MADAM CHIEF JUSTICE: Thank you very much. 7

Court will rise for its morning recess. 8

--- Upon recessing 9

--- Upon resuming 10

(1123) MADAM CHIEF JUSTICE: Thank you. 11

Mr. Chan...? 12

ARGUMENT FOR THE INTERVENER, CRIMINAL LAWYERS’ ASSOCIATION 13

(ONTARIO) 14

(1123) MR. CHAN: Thank you, Chief Justice and 15

Justices. 16

The Criminal Lawyers’ Association is concerned 17

with both the issues of standing and remedy. 18

With respect to standing I echo much of what my 19

friend, Mr. Tousaw, said. I add -- wish to add an 20

additional case for your consideration. That’s the case of 21

Wholesale Travel in which corporations of course were 22

allowed to assert the section 7 rights of individuals and 23

challenge to an unconstitutional law under which they were 24

charged even though there can never be any connection 25


95

between the accused corporations and the section 7 rights 1

asserted because corporations cannot enjoy the right to 2

life, liberty and security of the person. 3

And I simply say that if a corporation can 4

assert the constitutional rights of individuals then surely 5

a supplier of medical marihuana who operates entirely 6

outside the regulatory scheme can assert the section 7 7

rights of a supplier who may have at least one foot inside 8

the scheme. The only connection required under Big M Drug 9

Mart is that the accused be charged under the impugned law. 10

And this principle in our respectful submission should be 11

reaffirmed and not narrowed in any way, particularly given 12

the trend in this Court to broaden the rules of standing as 13

we have seen most recently in Downtown Eastside. 14

The second point I wish to make to standing, 15

and this goes to the question, Justice Cromwell, you asked 16

as to whether my friend from the Crown’s complaint is really 17

more about remedy. And we say that it is. 18

An accused has standing to challenge the 19

constitutionality of a law under which he is charged because 20

he can obtain a declaration of invalidity. That would 21

operate as a complete defence to the charge. It would 22

remove the basis for the prosecution. 23

Now, just because the accused may not 24

ultimately succeed in obtaining his desired remedy, for 25


96

example if the Court ultimately decides to read the 1

legislation down in a way that still sustains its 2

applicability to the accused doesn’t mean that the accused 3

should never have been granted standing in the first place. 4

In our submission to allow speculation as to 5

what the ultimate remedy might be, to dictate the terms of 6

standing would be to put the cart before the horse. And 7

this exact point was dealt with by Chief Justice Lamer in 8

his concurring opinion in a case of Ontario and Canadian 9

Pacific Limited [1995] in which Chief Justice Lamer said: 10

“...the fact that an accused has standing 11

to challenge law does not inevitably mean 12

that he or she will benefit from a finding 13

that the law is unconstitutional,...” 14

Standing just gets your foot in the door so 15

that you can make your arguments. It does not guarantee 16

success but that door should not be closed simply because 17

you are not guaranteed success. 18

Dealing then with the issue of remedy, the 19

CLA’s position is that this Court should recognize that 20

there is a fundamental conflict between the suspended 21

declaration of invalidity when it is used in this context, 22

when we are dealing with an unconstitutional and, arguably, 23

unconstitutional criminal offence. 24

There is a conflict between the suspended 25


97

declaration here and the principal in Big M Drug Mart that 1

no one shall be convicted under an unconstitutional law. 2

And that conflict arises because when we leave -- when we 3

grant the suspended declaration this Court is leaving on the 4

books for a period of time an unconstitutional offence that 5

can be used to arrest, to imprison in pre-trial custody and 6

potentially convict people despite its unconstitutionality. 7

And because of this conflict we urge this Court to insist 8

that the government justify a suspended declaration and show 9

that there is a compelling reason to override the principle 10

of Big M Drug Mart if it’s to be used in this context. 11

The Schacter criteria, in our submission, 12

provides useful guidance as to when it may be appropriate to 13

temper this constitutional principle with practical 14

necessity if there is a rule of law problem, if there is a 15

public safety problem or if you are dealing with an under-16

inclusive benefits regime and you don’t want to strip away 17

those benefits from all those who would otherwise be 18

entitled to it. 19

My friend tried to -- from the Crown tried to 20

place this case within the rule of law category in terms of 21

justifying why a suspended declaration would be appropriate 22

and argued that because there is a gap in the law that poses 23

a rule of law problem. I simply say the two are distinct. 24

A gap in the law does not necessarily create a rule of law 25


98

problem. Otherwise, you would always be suspending 1

declarations of invalidity. It is a bigger rule of law 2

problem to leave on the books an unconstitutional offence 3

that can result in the arrest, incarceration and potential 4

conviction of individuals. 5


MR. CHAN: Subject to questions those are my 7

submissions. 8

(1128) MADAM CHIEF JUSTICE: Very good. 9

Mr. Lokan...? 10

ARGUMENT FOR THE INTERVENER, CANADIAN CIVIL LIBERTIES 11

ASSOCIATION 12

(1129) MR. LOKAN: Thank you, Chief Justice and 13

Justices of the Court. 14

On behalf of the CCLA I will address three 15

brief points arising from the section 7 analysis. 16

First, the liberty interest is engaged by the 17

threat of imprisonment and this is enough on the Court’s 18

principles and case law to shift the analysis to the 19

principles of fundamental justice stage. There does not 20

need to be a further showing that patients’ liberty or 21

security of the person interests are engaged by interference 22

with fundamental personal health choices although that 23

appears to have been made out on the findings of the case. 24

The second point is to the extent it’s 25


99

necessary to show that marihuana products are a reasonable 1

treatment choice the evidentiary bar should not be set too 2

high because of access to justice concerns. That is to say 3

the requirement for medical or scientific proof may be 4

unrealistic and contrary to access to justice. 5

Thirdly and finally, we say the courts below -- 6

the courts below did not alter the burden of proof when it 7

comes to arbitrariness. At most there was a shifting of the 8

evidentiary burden as the case unfolded. 9

So on the first point we say that the liberty 10

interest is engaged by the statutory scheme because both 11

patients and providers may be imprisoned for supplying or 12

possessing cannabis products other than dried marihuana. 13

That has always been enough to pass the threshold stage of 14

section 7 and move on to principles of fundamental justice. 15

You have seen that in Malmo-Levine and in the PHS case 16

that’s very clear on the law. 17

My friend for the Crown says, “Well, all that 18

gets you is a review of whether you had a fair trial. That 19

doesn’t get you into any other kind of review”. I say there 20

is no authority for that proposition and that’s wrong in 21

principle. 22

And if I could just give a little hypothetical 23

example, if there was a law on the books which made it 24

illegal to have a last name beginning with “L” -- so that’s 25


100

a completely arbitrary law -- it would be no answer if the 1

government says, okay, you can be imprisoned for that. 2

But you have a fair trial. They have produced 3

your birth certificate. It’s been proven. You had a chance 4

to make your case. You would still be entitled on that 5

purely arbitrary law because of the threat of imprisonment 6

to take to court to say it’s completely arbitrary. There 7

would be an arbitrariness review. 8

Now, in this case we have, as in several other 9

cases of this Court -- we have the liberty interest engaged 10

from threat of imprisonment as well as the patient choice of 11

medical treatment. Both elements are there and both are in 12

the analysis but we say that either gets you to principles 13

of fundamental justice. 14

Now, on the point about the evidentiary bar not 15

being set so high that medical or scientific proof is the 16

only way of establishing your case, we would say the courts 17

below have found that the derivative products were 18

reasonably required through the use of patient testimony and 19

expert evidence on a process of what the Ontario Court of 20

Appeal has described as ordinary fact finding. Unless those 21

findings of fact are palpable or of writing error there is 22

no basis to say that doesn’t meet the standards that have 23

been set. And if you were to go on and say, well, wait for 24

-- you need to have medical professionals testify or 25


101

physicians testify and you need also to have scientific 1

studies that’s going to render illusory the scope of the 2

medical exemptions that has been developed in the case law. 3

That would be an unduly credentialist approach with serious 4

implications for access to justice. 5

On my final point we disagree that the courts 6

below reversed the (indiscernible) proof in the analysis of 7

arbitrariness. The appellant complains that the trial judge 8

and court of appeal made some comments about how they would 9

have expected to see some evidence in certain areas such as 10

the alleged difficulties in estimating quantities of THC and 11

derivative products as opposed to dried marihuana. With 12

respect, that was simply a practical -- what judges do in 13

practical circumstances and it’s a shifting of the 14

evidentiary, not the legal burden. 15

What the respondent did was to bring 16

arbitrariness in play that derivative marihuana products are 17

more effective for some patients in some conditions. That 18

raised the question of why it is that they should be 19

prohibited under the statutory scheme. As a practical 20

matter the appellants then found itself in a position where 21

it would be advisable to provide some support for the claims 22

that are made about why this is necessary but that was not a 23

shifting of the legal burden. It was only a shifting of the 24

evidentiary burden. 25


102

And subject to any questions those are my 1

submissions. I do want to simply add that the CCLA regards 2

the questions of standing and remedy as very important 3

questions and we adopt the submissions of the CLA on those 4

points. 5

(1134) MADAM CHIEF JUSTICE: Thank you. 6

MR. LOKAN: Thank you. 7

ARGUMENT FOR THE INTERVENER, BRITISH COLUMBIA CIVIL 8

LIBERTIES ASSOCIATION 9

(1134) MR. GRATL: Chief Justice, Justices, the 10

British Columbia Civil Liberties Association says that the 11

criminalization of modes of ingestion of medical marihuana 12

is an infringement of the right to liberty that extends 13

beyond the mere threat of incarceration, the threat of 14

incarceration. Standing alone is enough to trigger scrutiny 15

for consistency with the principles of fundamental justice 16

we say. 17

Similarly, we adopt the respondent’s 18

submissions in respect of the very significant effect on the 19

security of the person regarding which there were clear 20

findings of fact. 21

But we would say that this case affords an 22

opportunity to bring clarity to a zone of the right to 23

liberty that rarely receives treatment, precisely because 24

cases like Morgentaler, Bedford, Portland Hotel Society, 25


103

Chaoulli and Carter tend to deal with life and death 1

situations or very, very serious bodily harm. It’s also 2

raised because the Crown asks that the right to life be 3

triggered only where there is a life or death situation and 4

where there is serious bodily harm. 5

In response the British Columbia Civil 6

Liberties Association under section 7 should afford 7

protection to important choices, the restriction of which 8

detracts from the sphere of personal autonomy, individual 9

dignity or independence from state interference. The right 10

to liberty should only be restricted in scope where it would 11

debase the administration of justice to hear the issue. 12

In Malmo-Levine the examples were given by this 13

Court, golfing for example, lifestyle choices. Here BCCLA 14

argues that all non-trivial choices, especially of a medical 15

nature, all non-trivial choices should trigger the right to 16

liberty. The reason for that is twofold. 17

Firstly, it’s found in the place accorded to 18

the right to life, liberty and security of the person in the 19

overall architecture of the Constitution. The right to 20

liberty, security of the person and life are -- they are all 21

triggers for further scrutiny of laws for accordance with 22

the principles of fundamental justice and for justification. 23

So that’s the first aspect. It’s not, in my client’s 24

respectful submission, appropriate at this first triggering 25


104

stage to take into account the issue of whether affording 1

too much liberty will make society ungovernable. It’s not 2

suitable in my client’s respectful submission to have 3

concerns at that stage about unbridled liberty. 4

The “bridle” metaphor, in my respectful 5

submission, is not appropriate to the governance of 6

constitutional affairs where it ought to be recognized that 7

the state exists for the benefit of the individuals 8

constituting it rather than the other way around. 9

The second imperative, also a constitutional 10

imperative, is the role of the courts in defining the rule 11

of law, in providing transparent and intelligible rationales 12

for a restriction of liberty. If the scope of liberty is 13

defined too narrowly the Court will not have an opportunity 14

to serve its proper constitutional role in providing 15

transparent and intelligible reasons for the restrictions of 16

liberty if we are properly scrutinizing the justifications 17

afforded by the Crown for those limitations. That 18

imperative to provide intelligible justifications is 19

underscored by this Court’s comments in the succession 20

reference that democracy for its justification relies on the 21

application of the rule of law. 22

There is no social compact, no real contract 23

that citizens sign when they are born into citizenship. 24

Instead we are left for surrogates for that constitutional 25


105

legitimacy and that legitimacy derives from the 1

justification exercise engaged in by the courts to ensure 2

the privacy of the individual over the state in the form of 3

demanding justification and consistency with the principles 4

of fundamental justice. 5

That brings my time to an end. 6

MADAM CHIEF JUSTICE: Thank you very much. 7

MR. GRATL: Thank you. 8

(1139) MADAM CHIEF JUSTICE: Reply...? 9

REPLY ARGUMENT FOR THE APPELLANT, HER MAJESTY THE QUEEN 10

(1139) MR. RILEY, Q.C.: Chief Justice, Justices, 11

first with respect to remedy, the statement of 12

constitutional question in this case is very specific; 13

whether the restriction of the MMARs to dried marihuana is 14

inconsistent with section 7 of the Charter. 15

MADAM CHIEF JUSTICE: I think we have to 16

remember that statements of constitutional questions are 17

only intended to provide notice to attorney generals and 18

others. They are not in any way binding and it may well be 19

that the real gravamen here has to take into account the law 20

as well. Otherwise, of course, there would be no offence. 21


MADAM CHIEF JUSTICE: What we are dealing with 23

is an exception. So I just -- 24

MR. RILEY, Q.C.: Yes. 25


106

MADAM CHIEF JUSTICE: -- don’t want to cut off 1

your argument but I wouldn’t put too much weight on the 2

constitutional questions. 3

MR. RILEY, Q.C.: Chief Justice, I think you 4

may be -- I may not have made the -- made it clear the 5

reason I am saying that. 6

The specific issue is alleged constitutional 7

infirmity with respect to one component of the regime. 8

That’s the restriction to dried marijuana. So Mr. Tousaw 9

refers to all the number of producers and the many other 10

aspects of the regulatory scheme which have drastically 11

changed with the introduction of the new regime, the MMPRs, 12

a totally different scheme; moves to a model where instead 13

of designated producers you have commercially licenced 14

producers treating this substance as closely as possible; 15

that is, marihuana, to other drugs that are regulated for 16

pharmaceutical purposes. 17

So my point is that the issue is the 18

restriction to dried marihuana, not all of the other 19

complaints that have been litigated in other cases and have 20

been responded to and are still undergoing litigation. 21

And so if there is a remedy the Crown says it’s 22

right on the merits but if the Crown isn’t right on the 23

merits, if there is a remedy it’s got to be focused on the 24

question of restriction to dried marihuana and not 25


107

jettisoning an entire government program that has at least 1

30,000 licenced individuals operating under it. That would 2

be drastic and in favour of a judicially legislated defence 3

what’s ill defined, frankly. 4

I will just say one more specific point. My 5

friend says that the response to Sfetkopolous which was the 6

limit to the number of producers was to move from one to 7

two. And if you look at the Regulatory Impact Analysis 8

Statement for the new MMPRs which is in the condensed book 9

at Tab 4, I believe, what you will see -- oh, it’s going to 10

be -- this part isn’t in the condensed book because I didn’t 11

realize it would arise. 12

But if you look at the appellant’s authorities, 13

Tab 13, that’s the complete Regulatory Impact Analysis 14

Statement. At page 1725 it shows that the government 15

responded to the Sfetkopolous ruling by moving from one 16

designated producer to two and that the amendment was an 17

inter-measure intended to address the Court’s decision while 18

the program and the MMARs were being reassessed. The 19

ultimate conclusion was the MMPRs, an entirely new regime 20

that moves to licence producers. So it’s not -- it’s a 21

completely irrelevant issue at this point. 22

With respect to my friend, Mr. Tousaw, says, 23

“Look, derivative marihuana products are as safe or are 24

safer than many approved pharmaceuticals”. My friend can’t 25


108

say that and there is no finding to that effect. No one can 1

say that. The reason no one can say it is because there has 2

been no scientific study over -- with a statistically 3

significant number of participants to show that’s the case. 4

Indeed, what the court of appeal said was the 5

Crown hasn’t produced evidence to show that these products 6

are any less safe or more dangerous. And my point from the 7

very beginning has been that that’s a reversal of the burden 8

under section 7 of the Charter. 9

With respect -- 10

MR. JUSTICE CROMWELL: (Off microphone) 11

interrupt you. But can you explain why it is you need a 12

suspension of a declaration of invalidity of a scheme that 13

is no longer in force? 14

MR. RILEY, Q.C.: Yes. I think it’s this, and 15

it goes to the rule of law question. There is no question 16

there is a new scheme now which has many different facets 17

but that new scheme maintains the impugn distinction by 18

saying only authorizes dried marihuana. 19

So I appreciate the Court will be saying the 20

restriction in the old regime is invalid. There is no 21

question, though, that in terms of the rule of law everyone 22

will take guidance from what this Court says about that 23

restriction. It will have to be -- obviously it would have 24

-- that point would be decided. So with regard to the new 25


109

regime since it envelops and adopts that new provision even 1

though it’s not subject to challenge, the government would 2

have to obviously look at responding to the ruling to make 3

sure that the ruling corresponds with, or that the 4

Regulations correspond with the ruling. 5

I had more points and I’m not sure if I will be 6

given the time to make them. 7

MADAM CHIEF JUSTICE: Well, very quickly. 8

MR. RILEY, Q.C.: Yes. Thank you. 9

With respect to my friend, Mr. Tousaw, 10

referenced doctors’ notes and I will just point out of the 11

CBCC patients, the Crown at the trial objected to any 12

testimony from patient witnesses about medical opinions of 13

doctors and said that they could give that evidence but it 14

would not be permissible for a hearsay purpose. And the 15

trial judge accepted that limitation. That comes from the 16

record, Part 3, Volume 2, page 77, line 1 to 19, and page 17

83, line 40 to page 84, line 7. And then -- 18

MADAM CHIEF JUSTICE: Would you confine your 19

points to things that really matter? I think that we -- 20

MR. RILEY, Q.C.: Oh. 21

MADAM CHIEF JUSTICE: -- have findings and 22

whatever that particular evidence is we will be looking at 23

it. 24

MR. RILEY, Q.C.: Right. I guess I would just 25


110

say this, and I will leave it at this, Chief Justice, that 1

my friend is saying, “Well, look, there is support for the 2

CBCC witness opinions that they need to use other kinds of 3

substances other than dried marihuana. Look at this letter 4

from a doctor”. That’s a hearsay letter and the Crown made 5

it clear on the record that the witnesses could testify 6

about their dealings with their doctors but any medical 7

opinions through those witnesses would be hearsay and the 8

trial judge accepted that limitation. 9


MR. RILEY, Q.C.: Thank you. 11

(1146) MADAM CHIEF JUSTICE: The Court will reserve 12

its decision. We thank all counsel. 13

We are adjourned. 14

--- Whereupon the hearing concluded at 11:46 p.m. 15

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I HEREBY CERTIFY that I have 17

accurately transcribed the foregoing 18

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Verbatim Court Reporter 25

Documents

R.v.Smith Supreme Court of Canada Transcripts