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DGS: Doherty, Goudge, Simmons JJ.A. DGS: [104] Even apart from these criminal sanctions for non- compliance, the MMAR constitute significant state interference with the human dignity of those who need marihuana for medical purposes. JCT: Notice how they keep blaming the MMAR "bad permission" for the effects of the CDSA "prohibition system." Mislabelling the problem has to have a reason. Regardless, as long as we can keep clear that it's the prohibition system that's violating all these rights, who cares what the elderly judges think as long as they can be appealed? DGS: To take the medication they require they must apply for an ATP, comply with the detailed requirements of that process, and then attempt to acquire their medication in the very limited ways contemplated by the MMAR. These constraints are imposed by the state as part of the justice system's control of access to marihuana. JCT: The constraints imposed by the CDSA. Seems they just can't seem to focus on the CDSA prohibition. DGS: As such, they are state actions sufficient to constitute a deprivation of the security of the person of those who must take marihuana for medical purposes. They are state actions within the administration of justice that stand between those in medical need and the marihuana they require. JCT: And with all those corpses around, they failed to reach the conclusion that the right to life is involved. DGS: [105] In summary, we conclude that the MMAR constitute a scheme of medical exemption which deprives those who need to take marihuana for medical purposes of the rights to liberty and security of the person. JCT: It's the CDSA that deprives, the MMAR fails to provide. Interesting how they just can't accept that it's the CDSA prohibition and not the MMAR prohibition that's the problem. DGS: This is a threshold violation of s. 7. We are therefore required to turn to the question of whether this deprivation is in accordance with the principles of fundamental justice. JCT: Remember, so far they are ignoring the corpses and they're going to debate whether there was sufficient balance against their rights to liberty and security, not life. DGS: (c) Stage two: Is the threshold violation inconsistent with the principles of fundamental justice? (1) Introduction [106] The phrase "the principles of fundamental justice" in s. 7 is of necessity general and abstract. JCT: Maybe to them but I thought I explained to them rather well. I guess they're not only forgetful but also slow learners. DGS: The court must articulate with as much precision as possible the core principles of our legal system engaged by the specific state action in issue and the specific alleged deprivation of the individual's rights. In articulating the operative principles, the court must avoid describing those principles at a level of generality that suggests little more than a personal assessment of the wisdom of the impugned state conduct. The principles of fundamental justice are not the constitutional equivalent of equity's Chancellor's foot: Rodriguez, supra, at 590-91. [107] Context is crucial to both the identification of the operative principles of fundamental justice and the determination of whether any threshold violation of an individual's rights under s. 7 is consistent with the principles of fundamental justice at play: R. v. White, supra, at 436-40. The Hitzig applicants assert the right to make a fundamental personal decision concerning how best to treat serious symptoms associated with life threatening medical problems: R. v. Parker, supra, at 228-29. JCT: Oh that's right. So far, they're only dealing with Alan Young's weaker Hitzig claim for liberty and security. They still have to deal with life when they get to us. But like Lederman, they'll probably duck our real issue once they've filled this judgment with off-target musings. DGS: The Government has recognized since 1999, that for some seriously ill individuals, marihuana is a medically useful and appropriate medication. The Government has accepted that those individuals must be able to obtain and use marihuana for medical purposes without fear of criminal prosecution. At the same time, however, the Government is obliged to protect the public health and safety of all of its citizens through the regulation of the medicinal use of substances like marihuana. JCT: Notice they didn't have the audacity to call marijuana a "dangerous substance." Protect public health from "substances like marijuana" is silly when we realize that there are many other non-toxic, non-fatal substances like marijuana. Government has to protect us from other no-toxic substances? Of course, they've assume tacitly that the substances that are like marijuana are cocaine and heroin. Passing on a false premise by tacit mis-labelling. DGS: The Government contends that public health and safety concerns include potential health risks from long-term use, the Government's need to comply with stringent international controls on the use and distribution of marihuana, and the Government's obligation to combat the criminal drug trade, which includes the illicit distribution of marihuana for non-medical purposes. JCT: Notice the word "potential." No proof after 80 years and still worrying about "potential" harms is laughable to any real scientist. DGS: [108] The nature of the individual right asserted and the purpose animating the Government action are important contextual considerations at the second stage of the s. 7 analysis. The actual effect of the state action is an equally important contextual consideration. State action that may on its face be benign or even promote individual interests may, in its actual operation, be inconsistent with the principles of fundamental justice: R. v. Morgentaler, supra. The Hitzig applicants stress the effects of the scheme implemented by the MMAR in asserting a violation of their s. 7 rights both in respect of the supply issue and the eligibility issue. (2) The supply issue and the principles of fundamental justice [109] It is undeniable that the effect of the MMAR is to force individuals entitled to possess and use marihuana for medical purposes to purchase that medicine from the black market. JCT: It is undeniable that the effect of the CDSA is to force them there. The effect of the MMAR is to not allow them out. They keep mislabelling the bad law. This has to have a reason. DGS: As Lederman J. put it at para. 159: "As a result, the regulatory system set in place by the MMAR to allow people with a demonstrated medical need to obtain marijuana simply cannot work without relying on criminal conduct and lax law enforcement." [110] Lederman J. found that the absence of a legal supply of marihuana for people entitled to possess and use it under the MMAR resulted in a breach of s. 7, holding at para. 160: "To my mind, this aspect of the scheme offends the basic tenets of our legal system. It is inconsistent with the principles of fundamental justice to deny a legal source of marijuana to people who have been granted ATPs and licences to produce. Quite simply, it does not lie in the government's mouth to ask people to consort with criminals to access their constitutional rights." [111] We agree with the conclusion reached by Lederman J. He does not, however, expressly identify the principle or principles of fundamental justice which he finds are violated by the failure to provide for a legal source of supply. In attempting to identify that principle or principles, we begin with the words of Lamer J. (as he then was) in the seminal case of Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486 at 503, 512: "In other words, the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy, but in the inherent domain of the judiciary as guardian of the justice system." [T]hey [the principles of fundamental justice] represent principles which have been recognized by common law, the international conventions, and by the very fact of entrenchment in the Charter, as essential elements of a system for the administration of justice which is founded upon a belief in the dignity of the human person and the rule of law. [112] The rule of law, identified by Lamer J. as a bulwark of our administration of justice, has been described as "the root of our system of government" and a "highly textured expression, importing many things": Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at 257. Several principles of fundamental justice, including some which are entrenched in the Charter, trace their roots to various components of the rule of law (e.g., s. 9, s. 11(g), s. 11(h)). At its most general level, the rule of law refers to the regulation of the relationship between the state and individuals by pre- established and knowable laws. The state, no less than the individuals it governs, must be subject to and obey the law: Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 730 at 748-51; Reference Re Amendment of the Constitution of Canada, [1981] 1 S.C.R. 753 at 805-06; and R. v. Campbell; R. v. Shirose, [1999] 1 S.C.R. 565 at 582-83. [113] The state's obligation to obey the law is central to the very existence of the rule of law. Without this obligation, there would be no enforceable limit on the state's power over individuals. Human dignity, the second essential component of the administration of justice identified by Lamer J. in Reference re s. 94(2) of the Motor Vehicle Act8 supra, could not long survive a system where the Government was free to do as it saw fit without regard to established laws. [114] The state's obligation to obey its own laws not only serves as an invaluable brake on the exercise of state power against the individual, it also makes the state a role model for its citizens. By adhering to the law, the state encourages its citizenry to do likewise: Rodriguez, supra, at 608. Because it obeys and honours the law, the state can assume the moral high ground, which justifies state prosecution and punishment of individuals who break the law. As the entrapment jurisprudence demonstrates, loss of that moral high ground, through for example, active solicitation of criminal conduct, will foreclose prosecution by the state: R. v. Mack, [1988] 2 S.C.R. 903. [115] The state's obligation to obey the law is fundamental to our system of justice. No one would argue that it does not have general acceptance among reasonable people: Rodriguez, supra, at 607. The state's obligation to obey the law is well established at common law through the process of judicial review, is implicitly recognized in the preamble to the Constitution Act, 1867, (U.K.), 30 and 31 Vict., c. 3, is expressly recognized in the preamble to the Constitution Act, 1982, and is further recognized in s. 52 of the Constitution Act, 1982. We have no hesitation in concluding that the state's obligation to obey the law is a principle of fundamental justice. [116] The MMAR do not require the state to violate the law. They do, however, create an alliance between the Government and the black market whereby the Government authorizes possession of marihuana for medical purposes and the black market supplies the necessary product. The MMAR provide a viable medical exemption to the prohibition against possession of marihuana only as long as there are individuals who are prepared to commit a crime by supplying the necessary medical marihuana to the individuals that the Government has determined are entitled to use the drug. At the same time, the MMAR force seriously ill individuals who have been found to be in need of medical marihuana to consort with criminals to fill that medical need. JCT: Notice the mislabelling again. It's not the MMAR permission system that forces them to the black market, it's the CDSA prohibition system. The MMAR just fails to let them out of the black market. They keep mislabelling the bad law and I'll keep correcting them. DGS: Forcing sick people to go to the black market to get their medicine can only discourage respect for the law and at the same time signal that the medical needs of these people are somehow not worthy of the same kind of consideration as other medical needs. [117] A Government scheme that depends on the criminal element to deliver the medically necessary product, and that drives those in need of that product to the black market strikes at the same values that underlie the state's obligation to obey the law. The MMAR, far from placing the Government in the position of a positive role model or on the moral high ground, are calculated to bring the law into disrepute and devalue the worth and dignity of those individuals to whom the MMAR are applied. The Government's obligation to obey the law must include an obligation to promote compliance with and respect for the law. [118] The inevitable consequences of the absence of a legal source of marihuana for those who have been determined to be in medical need of the drug are inconsistent with the fundamental principle that the state must obey and promote compliance with the law. In our view, the absence of a legal source of supply renders the MMAR inconsistent with the principles of fundamental justice. [119] There is an alternative approach to the second stage of the s. 7 inquiry which also leads to the conclusion that the provisions in the MMAR are inconsistent with the principles of fundamental justice. This alternative approach begins by recognizing that it is a principle of fundamental justice within our legal system that the individual rights identified in s. 7 may be subordinated, at least to some extent, to substantial and compelling collective interests: Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at 898-900, per La Forest J.; and R. v. Pan (1999), 134 C.C.C. (3d) 1 at 61-62 (Ont. C.A.), aff'd [2001] 2 S.C.R. 344 at 386-89. [120] The application of this approach to the principles of fundamental justice requires that the court determine whether there is a substantial and compelling state interest served by the impugned state action which has resulted in the threshold violation of the individual rights identified in s. 7. JCT: There has to be a different standard for the state's interest that deprives someone of their liberty or security versus when it deprives someone of their life. Not being specific allows the court keep looking at the Young's weaker straw rights and ignore Parker's power right to life. Of course, it's easier for them to then comply with the weaker rights and claim the MMAR now works. Remember, now that PPS mails to doctors, they say that hurdle is met. DGS: If the action is in furtherance of a substantial and compelling interest, then the question becomes whether the state action imposes an undue burden on the individual's rights: R. v. Beare, [1988] 2 S.C.R. 387 at 401-04. Determining when the balance struck by the state can be said to effect a fair balance between state interests and individual rights can be a very difficult question which pushes the court to the brink of the forbidden world of policy-driven decision making. JCT: Especially if you want to keep letting 10 epileptics a day die for nothing like these judges seem to think is necessary. DGS: [121] In this case, however, the Government's attempt to rely on the assertion that the MMAR serve a substantial and compelling collective interest justifying the absence of any legal source of medical marihuana fails at its most basic level. The substantial and compelling interest advanced by the Government is the need to preserve and promote public health and safety. We accept that this can be a substantial and compelling collective interest for the purposes of s. 7 of the Charter. However, a scheme which depends on the criminal black market and which forces individuals to go to the black market to obtain necessary medical treatment cannot possibly further public health and safety. In fact, it has the opposite effect. By failing to provide for a lawful source of medical marihuana, the MMAR not only compromise individual rights, but undermine the very collective interests which the Government contends are promoted by these regulations. Lederman J. made this point at paras. 161, 163: "That the Government relies on the criminal underworld in this manner is rather surprising when it has declared that the goals of the MMAR and its interlocking regulatory scheme include controlling the illicit drug trade and upholding Canada's international narcotics control obligations." As a result, production licences offer the applicants an illusory remedy which can only be accessed through reliance on black market distributors. Despite ostensibly being concerned with avoiding diversion and illegal use of marihuana, to say nothing of conforming with international drug conventions, the MMAR force medical marihuana users into the arms of suppliers whom the state has deemed criminal drug dealers. This position is untenable, and is certainly not consistent with the principles of fundamental justice." [122] Our conclusion that a scheme which does not provide for lawful access to medical marihuana is inconsistent with s. 7 of the Charter should not surprise anyone who has read this court's decision in R. v. Parker, supra, or the decision of the Alberta Court of Queen's Bench in R. v. Krieger (2000), 225 D.L.R. (4th) 164, aff'd (2003), 225 D.L.R. (4th) 183 (C.A.), leave to appeal sought by Canada: [2003] S.C.C.A. No. 114 (QL). Although neither case dealt with the MMAR, both made it clear that any medical exception to the criminal prohibition against possession of marihuana would have to address not just possession, but also the means of obtaining the drug needed for the medical purpose. JCT: That's my "possession for the purpose of trafficking in something medically necessary." DGS: In determining that the prohibition against cultivation of marihuana in the former Narcotic Control Act was unconstitutional absent an adequate medical exception, Rosenberg J.A. said in Parker, at 249-50: To conclude, the deprivation of Parker's right to liberty and security of the person because of the complete prohibition on the possession of cultivation of marihuana in the former Narcotics Control Act does little or nothing to enhance the state interest. In my view, Parker established that his rights under s. 7 were violated by the absolute prohibition of cultivation of marihuana in the Narcotics Control Act. Parker has no practical means of obtaining the drug for his medical needs. I did not understand the Crown to suggest that we should distinguish between the possession and cultivation for medical use, for the purpose of the s. 7 analysis. [123] Rosenberg JA reached the same conclusion with respect to the cultivation prohibition in the CDSA, saying, at 262- 63: However, it is apparent from these reasons and the reasons dealing with the cultivation offence under the Narcotics Control Act that if the cultivation prohibition had been before this court, I would hold that it too infringes Parker's s. 7 rights. Since there is no legal source of supply of marihuana, Parker's only practical way of obtaining marihuana for his medical needs is to cultivate it. In this way, he avoids having to interact with the illicit market and can provide some quality control. [Emphasis added.] JCT: Shouldn't this be a defence to all trafficking charges? Even if I did possess for the purpose of trafficking, as long as it's medicine, what's the beef? DGS: [124] We read Rosenberg JA as requiring "a practical way of obtaining" the necessary medical marihuana as an integral part of any legitimate medical exemption. We also read him as clearly eliminating the black market as a suitable means of obtaining the necessary medical marihuana.[10] ([10] We see no inconsistency between the holding in Parker and this court's refusal in the subsequent case of Wakeford v. Canada (2002), 58 OR (3d) 65 (C.A.) to make an order compelling the Government to supply marihuana to the holder of a medical exemption. Nothing said in Parker, or in this case, compels the Government to supply marihuana to anyone.) JCT: Of course, that's not our straw horse. We're not asking that they supply, we're asking that they stop impeding supply. I know it sounds the same but they're not and the judges never seem to have grasped the difference. DGS: (Furthermore, the refusal to make the order in Wakeford was based on specific findings of fact, including the fact that the Government did not have access to a safe supply of marihuana. Those facts were supported by the evidence adduced in Wakeford, but some of them are inconsistent with the evidence heard in this case.) JCT: How about Terry being able to qualify as an integral part of the exemption, which means doctor participation as an integral part of the exemption. As long as the doctor can refuse, and is advised to refuse, then it impedes someone's rights somewhere. No doctors, no workable MMAR. Period. DGS: [125] The trial judge in R. v. Krieger, supra, concluded that the cultivation prohibition in the CDSA was unconstitutional, opining at 178-79: "Obtaining a s. 56 exemption from the Minister of Health triggers the absurdity that an individual who has been granted an exemption has the legal right to produce, possess and use cannabis marihuana. However, in order to obtain the product, the individual is required to participate in an illegal act, since whoever sells the exempted person either the raw cannabis marihuana or the seeds to grow their own does so in breach of s. 5(2) of the CDSA." I am not satisfied that the absurdity that I mentioned above has been properly addressed. In my view, when a minister has the discretion to allow someone an exemption to produce and use a substance for proper medical purposes, that substance must be something that is available to the individual by legal means at the time exemption is granted. As a s. 56 exemption has no practical purpose without a legal source for cannabis marihuana, s. 56 cannot serve to delineate the boundaries of the Applicant's s. 7 rights or to justify violation of those boundaries. [Emphasis added.] [126] In affirming the trial decision, the Alberta Court of Appeal said, at para. 5: "We agree with the trial judge that s. 56 [CDSA] creates an absurdity because there was no legal source of marihuana. That absurdity is not removed by the fact that the respondent had a personal supply at the time the charge was laid. There is no evidence as to how long the supply would last nor as to the duration of the potential s. 56 exemption." [127] The previous appellate decisions dealing with the constitutionality of medical exemptions to the prohibition against marihuana possession point directly at the result reached by Lederman J. on the supply issue. [128] Thus, we conclude that in setting up a scheme of medical exemption which depends on an illicit source of supply, the MMAR do not accord with the principles of fundamental justice. (3) The eligibility issue and the principles of fundamental justice JCT: Here's where the Parker issue is raised and where the Hitzig lawyers got permission to argue our case for us too. [129] Before Lederman J., the Hitzig applicants argued that in depriving those who need to use marihuana of their rights to liberty and security of the person, the MMAR do not accord with the principles of fundamental justice because they throw up so many barriers to eligibility for a medical exemption a crock. They may satisfy judicial performance standards but certainly not engineering standards. Imagine, engineers getting off for their bridges falling down because a few don't! It's like Alice in Justiceland. You can never tell when bad performance will pass and when ideal performance will get rejected. DGS: [131] On their cross-appeal, the Hitzig applicants seek to reverse that finding in this court. In addressing the eligibility issue, they raised a number of aspects of the MMAR in their written material: the daily dosage limits imposed by the scheme; the reliance on physicians to determine if marihuana is needed by the individual; and the requirement for support from specialists to qualify, unless the individual is terminally ill. In argument, the focus was very much on the last of these. [132] We will deal with each of these in turn, but in the end we differ with Lederman J.'s. conclusion in only one respect. In our view, only the requirement for a second specialist for individuals in category 3 has been shown by these applicants not to accord with the principles of fundamental justice. JCT: An unnecessary extra 2 doctors is bad but an unnecessary 1 doctor isn't? DGS: [133] The legal context for this analysis is best provided by the balancing approach to the principles of fundamental justice that we already have described. Here, it is useful to begin with the words of McLachlin J. (as she then was) in Cunningham v. Canada, [1993] 2 S.C.R. 143 at 151-52: "The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally." [Emphasis added.] JCT: And that's why it's so important that they keep the evidence on life, or taking of it, out of the discussion. 10,000 dead epileptics since the Parker Court made their first genocidal mistake in 2000 by suspending a right to life for a year is a hard issue to delve into. DGS: [134] This approach is elaborated in Godbout, supra, at 899-900, where La Forest J. said this on behalf of the three judges who dealt with s. 7 in that case: "But just as this Court has relied on specific principles or policies to guide its analysis in particular cases, it has also acknowledged that looking to "the principles of fundamental justice" often involves the more general endeavour of balancing the constitutional right of the individual claimant against the countervailing interests of the state. In other words, deciding whether the principles of fundamental justice have been respected in a particular case has been understood not only as requiring that the infringement at issue be evaluated in light of a specific principle pertinent to the case, but also as permitting a broader inquiry into whether the right of life, liberty or security of the person asserted by the individual can, in the circumstances, justifiably be violated given the interests or purposes sought to be advanced in doing so." JCT: So can all those epileptics's lives be justifiably violated to protect society from a non-toxic herb? No. "To my mind, performing this balancing test in considering the fundamental justice aspect of s. 7 is both eminently sensible and perfectly consistent with the aim and import of that provision, since the notion that individual rights may, in some circumstances, be subordinated to substantial and compelling collective interests is itself a basic tenet of our legal system lying at or very near the core of our most deeply rooted juridical convictions. We need look no further than the Charter itself to be satisfied of this. Expressed in the language of s. 7, the notion of balancing individual rights against collective interests itself reflects what may rightfully be termed a "principle of fundamental justice" which, if respected, can serve as the basis for justifying the state's infringement of an otherwise sacrosanct constitutional right." [135] Related to this principle is the concept described by Sopinka J. in Rodriguez, supra, where he said that if the state action which causes the deprivation does little or nothing to enhance the state's interest, it can properly be seen as arbitrary and not in accordance with fundamental justice. In such circumstances there cannot possibly be a fair balance between the individual's rights and the collective interests. Sopinka J. put it this way, at 594: "Where the deprivation of the right in question does little or nothing to enhance the state's interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual's rights will have been deprived for no valid purpose. This is, to my mind, essentially the type of analysis which E. Colvin advocates in his article "Section Seven of the Canadian Charter of Rights and Freedoms" (1989), 68 Can. Bar Rev. 560, and which was carried out in Morgentaler. That is, both Dickson C.J. and Beetz J. were of the view that at least some of the restrictions placed upon access to abortion had no relevance to the state objective of protecting the foetus while protecting the life and health of the mother. In that regard the restrictions were arbitrary or unfair." -- Abolitionist Slave Leader John C."The Banking Systems Engineer" Turmel for UNILETS interest-free time-based currency in U.N. resolution C6 to Governments in the http://www.un.org/millennium/declaration.htm http://www.cyberclass.net/turmel 519-756-1325 USENET: can.politics
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