R.v.Smith Supreme Court of Canada Transcripts

36059
SUPREME COURT OF CANADA
BETWEEN:
Her Majesty the Queen
v.
Owen Edward Smith
(B.C.) (Criminal) (As of Right)
***********
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
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
Party: Sant Cannabis
Counsel
Julius H. Grey
Genevive Grey
Grey, Casgrain
1155 Ren-Lvesque Ouest
Suite 1715
Montral, Quebec H3B 2K8
t: 514-288-6180 Ext: 229
f: 514-288-8908
Agent
Franois Lacasse
Director of Public
Prosecutions of Canada
160 Elgin Street
12th Floor
Ottawa, OntarioK1A 0H8
t: 613-957-4770
f: 613-941-7865
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
Agent
Guy Rgimbald
160 Elgin Street
26th Floor
Ottawa, Ontario
K1P 1C3
t: 613-786-0197
f: 613-563-9869
Party: Criminal Lawyers' Association (Ontario)

Counsel
Agent
Nader R. Hasan
Guy Rgimbald
Gerald Chan
Ruby Shiller Chan Hasan
160 Elgin Street
11 Prince Arthur Ave.
26th Floor
Toronto, Ontario
Ottawa, Ontario
M5R 1B2
K1P 1C3
t: 416-964-9664
t: 613-786-0197
f: 416-964-8305
f: 613-563-9869
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- iii APPEARANCES
Party: Canadian Civil Liberties Association
Counsel
Agent
Andrew K. Lokan
D. Lynne Watt
Debra McKenna
Paliare, Roland, Rosenberg,
Rothstein, LLP
160 Elgin Street
155 Wellington Street West
Suite 2600
35th Floor
Ottawa, Ontario
Toronto, Ontario M5V 3H1
K1P 1C3
t: 416-646-4300
t: 613-786-8695
f: 416-646-4301
f: 613-788-3509
Party: British Columbia Civil Liberties Association
Counsel
Agent
Jason B. Gratl
D. Lynne Watt
Gratl & company
601-510 West Hastings Street
160 Elgin Street, Suite 2600
Vancouver, B.C.
Ottawa, Ontario
V6B 1L8
K1P 1C3
t: 604-694-1919
t: 613-786-8695
f: 604-608-1919
f: 613-788-3509
Party: Canadian AIDS Society, Canadian HIV/AIDS Legal Network and
HIV & AIDS Legal Clinic Ontario
Counsel
Agent
Paul K. Burstein
Marie-France Major
Ryan Peck
Richard Elliott
Burstein, Bryant, Barristers
Supreme Advocacy LLP
6 Adelaide Street East, 5th Flr
100- 340 Gilmour Street
Toronto, Ontario
Ottawa, Ontario
M5C 1H6
K2P 0R3
t: 416-927-7441
t: 613-695-8855 Ext: 102
f: 416-488-9802
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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- iv TABLE OF CONTENTS
PAGE
Argument for the Appellant,

by Mr. Riley, Q.C.
Argument for the Respondent,

Owen Edward Smith
by Mr. Tousaw
52
Argument for the Intervener,

Criminal Lawyers Association (Ontario)
by Mr. Chan
94

Canadian Civil Liberties Association
by Mr. Lokan
98

British Columbia Civil Liberties Association
by Mr. Gratl
102
Written submissions only for the Intervener,

Sant 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,

by Mr. Riley, Q.C.
105
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1
2
3
Ottawa, Ontario
--- Upon commencing on Friday, March 20, 2015
at 9:00 a.m.
(0900)
seated.
6
7
Kirk I. Tousaw and John Conroy, Q.C., Matthew

J. Jackson and Bibhas D. Vaze for the Respondent;
Gerald Chan and Nader R. Hasan for the
Intervener, Criminal Lawyers Association;
12
13
Andrew K. Lokan and Debra McKenna for the

Intervener, Canadian Civil Liberties Association;
14
15
Jason B. Gratl for the Intervener, British

Columbia Civil Liberties Association;
16
17
Julius H. Grey and Genevieve Grey for the

Intervener, Sant Cannabis, written submissions only;
18
19
You may be
W. Paul Riley, Q.C. and Kevin Wilson for the Appellant;
10
11
Thank you.
Her Majesty the Queen versus Owen Edward Smith,
8
9
MADAM CHIEF JUSTICE:
And no one appearing for the Interveners,

Canadian AIDS Society, et al.
20
Ms. Riley...?
21
ARGUMENT FOR THE APPELLANT, HER MAJESTY THE QUEEN
22
(0901)
23
Charter of Rights does not include a freestanding
24
Constitutional right to medical marihuana, much less a
25
freestanding right to produce and distributive marihuana
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MR. RILEY, Q.C.:
Chief Justice, Justices, the
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products.
The question in this case was whether a
particular legislative scheme that provided for medical
access to marihuana but did not allow for access to
derivative marihuana products was shown to infringe the
rights of life, liberty and security of the person in
section 7 of the Charter.
Court is whether the courts below applied the correct legal
or constitutional standards when trying to resolve that
10
The specific question for this
issue.
11
So in bringing this appeal, the Crown is not
12
asking this Court to reweigh the evidence.
13
inviting the Court to pronounce on any evidentiary issues
14
with respect to botany.
15
asking the Court to interpret the evidence concerning the
16
significance of glandular trichomes on a marihuana plant.
17
We are not
So, for example, the Crown is not
The Crown is asking the Court to apply and, if
18
necessary, clarify the legal standards or thresholds under
19
20
address legal standards or thresholds under both phases of
21
the section 7 Charter analysis.
And the Crown argument will
22
And to be clear, this is just an overview of
23
the arguments the Crown will present and I will obviously
24
get into them in more detail.
25
At the first stage, the Crown is asking the

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Court to pronounce on the legal threshold that an applicant
must meet to establish that liberty and security of the
persons interests are engaged.
controlled substances, is it enough for an applicant to
merely assert or believe that he or she is making a medical
decision?
threshold?
8
9
In the context of access to
Or must a claim meet some objective standard or

Thats at the first stage.
At the second stage if it is reached the Crown
is asking the Court to address and apply the burden of proof
10
required for an applicant to demonstrate that a deprivation
11
of liberty or security of the person is inconsistent with
12
the principles of fundamental justice.
13
burden is on the applicant.
And we say that
14
The Crown will also address --
15
I just want to be clear
16
just that this Court has come out with a very thorough
17
examination of those legal principles in Carter.
18
asking us to refine, explain; change Carter in some way?
19
MR. RILEY, Q.C., Q.C.:
Are you
On the first stage I
20
would say this:
21
to be met I say fair enough.
22
but its a particular context here and the context is access
23
to controlled substances for a medical purpose.
24
require some refinement of how that threshold works in that
25
particular context.
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That with regard to the threshold that has

Apply the principles in Carter
It may
We say that if the courts below had in
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effect applied the threshold that has been applied in a
leading case in this area, Parker, then there is no basis on
which the claims could have succeeded at the first stage of
the analysis.
At the second stage of the analysis there was a
clear error on the part of the courts below.
In effect --
and effectively reversing the burden under the principles of
fundamental justice to show not that the applicant had to
show that the deprivation of liberty was inconsistent with
10
the principles of fundamental justice but actually requiring
11
the Crown to prove the opposite.
12
that the law was not arbitrary.
13
especially in the context of a regulatory scheme that
14
operates on the basis of the reverse proposition.
15
will explain what I mean by that as we go.
16
The Crown had to prove

Thats a key point
And I
I should say also by way of introduction the
17
Crown will also address as a preliminary point the question
18
of who should have standing to advance a section 7 Charter
19
claim and here the question is:
20
someone who operates entirely outside of a particular scheme
21
has the ability to allege -- raise alleged deficiencies in
22
that scheme as a defence to a criminal charge under a
23
related act.
24
25
Is there a point at which
Thats the question.

So its not asking the Court to overturn or
revisit the leading cases of Big M, Morgentaler but, rather,

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ask is there a refinement or a point at which that reasoning
falls down or doesnt apply.
So I will say this as well, that this case is
not about dried marihuana versus other forms of marihuana.
Its about whether a scheme that allows for access to
marihuana for medical purposes must as a matter of
constitutional law be extended to all other substances
listed in Schedule 2 of the CDSA.
marihuana derivatives.
So were talking about
These are separate substances that
10
are derived from the marihuana plant, so THC, cannabis resin
11
and other derivatives that are called cabinoids.
12
The CDSA regulates these derivatives in much
13
the same way that it regulates opium, heroin and other
14
opiates that are all derived from opium poppies but they are
15
all discrete substances and they have different potencies,
16
different concentrations; different risk profiles.
17
And so the question is not, well, dried
18
marihuana versus some other kind of marihuana.
19
discrete substances that are scheduled in the CDSA.
20
trial judges ruling said, Well, you must apply the medical
21
access regime to all of them.
22
about.
23
These are
The
And thats what the case is
Now, with regard to the facts every
24
constitutional issue arises in a particular set of facts and
25
context is obviously very important.

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But the facts in this

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case are fully set out in the Crowns factum and Im just
going to say enough to set the table for the arguments.
I will say this:
So
Firstly, with regard to respondent -- this is
Owen Edward Smith -- he was charged with the offence of
possession of THC for the purpose of trafficking.
found in possession of a large quantity of -- he was engaged
in producing derivative marihuana products, cookies, oil, et
cetera, all containing THC.
10
He was
The evidence at the Charter application was
11
that his intent was to provide these substances to an
12
unincorporated enterprise, the Cannabis Buyers Club of
13
Canada CBCC, engaged in the distribution of marihuana and
14
derivative marihuana products to people who were believed by
15
the principal of that enterprise, the principal of the CBCC
16
to require marihuana for medical purposes.
17
Now, that brings me then to the CBCC witnesses.
18
There were four witnesses who were customers or members of
19
the CBCC who testified.
20
dried marihuana and derivative cannabis products and they
21
believe that the derivative products were either beneficial
22
to their health or helped them to treat some of their health
23
problems.
24
impossible to discern, one, what is the actual basis for
25
that belief or, two, whether marihuana alone or any other

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All four used both.
They used both
However, based on their testimony, it would be
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legally available product could have been used to reasonably
treat each of the conditions that they suffered from.
So there was no real link between the
conditions that they were suffering from and the use of
derivative marihuana products as the only realistic way to
treat those conditions.
There was no evidence about that.
To summarize the evidence of the CBCC
witnesses, I say this.
subjective preference to use derivative marihuana products
10
The witnesses each expressed a
to treat some of their ailments some of the time.
11
MADAM JUSTICE ABELLA:
12
13
The expert witnesses?

Yes.
And that brings
me to the expert evidence.
14
The expert evidence -- this much we can say is
15
clear.
Marihuana has -- marihuana has some medicinal
16
properties but the precise basis for its efficacy is not
17
clearly established through a body of scientific research.
18
And what I mean by that is there havent been a great number
19
of double-blind studies the way other drugs have been
20
studied and regulated.
21
By contrast, the evidence was clear.
There are
22
three pharmaceutical drugs containing cannabis or one of its
23
extracts.
24
the regulatory process, have been tested and approved for
25
sale in Canada.
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Its active ingredients which have gone through
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Moving on, if we look at cannabis, marihuana,
the evidence was that there were five ways of adjusting it,
and Ill explain why this is relevant in a minute:
vaporization, oral ingestion, trans-mucosal spray and
topical administration.
Smoking,
Now, if we look at the cannabis products that
are actually available, legally available for use in Canada;
dried marihuana, Marinol, Cesamet and Sativex.
legally available products provide for every form of
These
10
ingestion except topical use.
11
the trial judge reached no conclusion.
12
of administration was controversial and he reached no
13
conclusion.
14
allow for every method of ingestion that, on the evidence,
15
was accepted to be in some way effective.
16
17
And on topical administration

He said that method
So there are legally available products that
I thought the evidence
was that the least safe method was smoking.
18
19
The least safe?

Method of ingesting
20
marihuana was the one that is legally available under the
21
scheme.
22
Right.
I think when
23
you talk about safety I mean you really are involved in a
24
guessing game because there is not a lot of scientific
25
research in terms of double-blind studies of the substances.

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But I will say this --
About smoking?
Well, no question that
smoking.
But in every case when someone engages in using
marihuana its sort of a cost-benefit analysis between the
detriments of smoking versus the medical -- the medicinal
properties that one gets from marihuana use.
alleviates certain conditions or symptoms but it has
detriments.
10
So it
But Ill just say this as well, that even dried
11
marihuana you dont have to smoke it.
You can use a
12
vaporizer if you choose to do so and that doesnt involve
13
the same kind of inhalation issues as smoking does and,
14
indeed, the CBCC, the entity that was in issue in this case
15
provided to the members of its club -- it had available
16
vaporizers.
17
I will say this, though, that if someone says,
18
I need marihuana but I dont want to smoke it they have a
19
host of legally available options.
20
authorization to possess marihuana and they can use a
21
vaporizer.
22
which is a pill, for Cesamet which is a capsule or for
23
Sativex which is a whole plant extract administered by a
24
trans-mucosal spray.
25
legally.
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They can obtain an
They can obtain a prescription for Marinol
They can do any one of those things
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10
MR. JUSTICE CROMWELL:
Can you just refresh my
memory as to what conditions the three products you just
mentioned are suitable for?
I think that they are
in effect -- they are replicates of -- Sativex is a whole
plant extract.
position to address, Sativex would be in a position to
address as well but I dont have -- Im sorry, Justice
Cromwell -- at the tip of my mind each of the conditions
So anything that marihuana would be in a
10
that each of those substances would treat.
11
compliance in the record would show that.
The notices of
12
I could say this that the expert evidence
13
didnt identify any particular condition, any specific
14
condition that could not reasonably be treated by either
15
dried marihuana or some other legally available means.
16
expert evidence didnt do that.
17
theoretical and it was in effect, well, you know, in theory
18
derivative marihuana products could offer these benefits.
19
There had been no study of those things and there were no
20
specific conditions that were identified that were said you
21
cant treat these conditions with either dried marihuana or
22
with these legally available derivative marihuana products.
23
The
The expert evidence was
Just while I have you
24
stopped there, Justice Chiasson in dissent seemed to be of
25
the view that a person could legally obtain the dried

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11
marihuana and then change its form legally.
struggling with how one could do that and not be in
possession of the other substances.
Yes.
I was
I will say that
question is raised squarely, I think.
And I will say this, that as from the
governments perspective the CDSA and the Medical Marihuana
Access Regulations, the MMARs, regulate possession and
access to marihuana, not use or ingestion.
So neither the
10
CDSA nor the MMARs purport to regulate use or ingestion.
11
The CDSA makes it an offence to possess, to
12
produce or to traffic in these drugs.
13
anything about use and the Regulations authorize access in
14
the form of authorized possession or authorized production.
15
Neither of those schemes say anything about use or
16
administration.
17
It does not say
And if you actually look at the Medical
18
Marihuana Access Regulations and the Regulatory Impact
19
Statements to some of them they make this point that the
20
Regulations dont purport to regulate that component.
21
we look at Tab --
22
23
So if
I understand that they
dont purport to regulate that --
24
25

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Right.
-- what I was struggling
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12
with is how one could change the form from dried to some
other prohibited form and not be in possession of the
latter.
Right.
I think its
because at a certain point when you possess dried marihuana
and you are in the process of using it.
some common sense.
8
9
You have to use
If you apply the strictest definition of the

offence of production which means to alter the physical or
10
chemical properties of a substance, if you take dried
11
marihuana and you smoke it then on the broadest, most absurd
12
definition someone would say, Well, youre producing THC
13
because youre changing dried marihuana into THC.
14
dont approach it that way.
15
must use common sense.
16
But we
We use some common sense and we
And so for example we used -- we must use
17
common sense here the same way we would in distinguishing
18
between trafficking and someone who purchases drugs.
19
broadest definition of being a party to trafficking a
20
purchaser could be said to be aiding and abetting the
21
trafficking by participating in the transaction.
22
23
Well, those are a lot of
lawyer words but is Justice Chiasson right or wrong?
24
25
On the
Hes right that the
Regulations do not purport to proscribe the manner in which

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13
people use or ingest the substance that they are authorized
to possess.
dried marihuana and if you choose to ingest it orally or mix
it into tea and use it thats not proscribed by the
Regulations.
And so at the end of the day you can acquire
They dont say anything about that.

And so it becomes a question of drawing lines.
In every case -- in many, many fields its necessary for
courts to draw lines.
a distinction between, on the one hand, mass production of
But one thing is clear.
You can draw
10
derivative marihuana products in a sort of an assembly line
11
situation like we saw in Mr. Smiths case, producing large
12
quantities of dried marihuana -- Im sorry -- of derivative
13
marihuana products for distribution to others.
14
side.
15
Thats one
And the other side -- on the other side of the
16
equation clearly very different, choosing to smoke marihuana
17
and thereby transforming its qualities or its chemical
18
makeup by smoking it or mixing it into tea and ingesting it.
19
And so our point is Justice Chiasson is right.
20
The Regulations dont regulate or proscribe that.
21
do is authorize -- they authorize possession and they
22
authorize possession of what is in effect the known
23
substance that has been identified in some of the literature
24
that leads to some medical properties thats dried marihuana
25
and allow people to access it and then use it as they

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All they
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14
determine necessary.
2
3
Im sorry to delay you
but I just want to be very clear.
Justice Chiasson says, paragraph 153:
This contention which I want to get back
to is based on the proposition that it
would be illegal for a person who is
authorized to possess marihuana to
transform the dried product into another
10
form.
(As read)
11
Now, do you say thats correct?
12
Yes, not all -- if you
13
are engaged in use and you technically transform the dried
14
marihuana into another form even, for example, smoking it,
15
thats common sense.
16
that that is production of a separate substance.
17
using the substance you are authorized to possess and we
18
really have to use common sense when we apply that.
19
That happens.
No one is suggesting
Thats
Perhaps I can just take you to -- if you look
20
at the condensed book and this is Tab 7 of the condensed
21
book -- and to be clear, this is the Marihuana for Medical
22
Purposes Regulations which are the most recent regulations.
23
The old regime that was in place in this instance has now
24
been replaced by a new regime, the MMPR, but to be clear the
25
new regime maintains this restriction.

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It only authorizes
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15
access to marihuana and not derivative marihuana products.
And if we go to the last page in Tab 7, if you
go to the second-last page the issue at the bottom is --
this is in the Regulatory Impact Analysis Statement, the
RIAS statement that accompanies the Regulations, the RIAS
statement is not evidence and its not part of the
Regulations but it shows the regulators approach to
particular issues -- so in the RIAS statement at the bottom
of page 1756 they are dealing with a question of marihuana
10
infused products should be allowed under the MMPR.
11
are considering that.
12
So they
And if you go over to the next page the health
13
response is listed.
Then the reasons for that are given and
14
I am going to come back to this.
15
last two sentences in that paragraph it says this:
But if we just go to the
16
There are no restrictions on how dried
17
marihuana is to be ingested or inhaled and
18
patients may choose to use it, for example,
19
in foods or by vaporizing.
20
limit or recommend a particular method of
21
administration.
22
H.C. does not
(As read)
And thats entirely consistent with the
23
regulatory model which just says you are authorized to
24
possess it.
25
You use it how you see fit.

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This is what you are authorized to possess it.
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16
But there is a little
difference if you are actually changing it into another oral
product and keeping that around so that you can put it in
your brownies or whatever next week.
about that situation?
What would you say
Would that not be offside?
Im going to say that -
- as I alluded to a few minutes ago, there is a necessary
exercise in line drawing in many, many areas of the law and
this may be one of them where something goes from use or
10
ingestion to actual production of a derivative substance and
11
where that line is drawn is going to depend on the facts.
12
Now, if you have a particular quantity of dried
13
marihuana that you are authorized to possess and you produce
14
or you are using that and you mix it into something to
15
ingest thats one thing.
16
are carrying those around with you outside of your house you
17
are entering an area of risk.
18
risk where you are authorized to possess dried marihuana and
19
then you are allowed to use it or the law doesnt regulate
20
how you use it.
21
But if you produce batches and you
You are entering an area of
But you are not authorized to produce batches
22
of separate substances.
23
continuum, and its going to involve line drawing and we
24
know -- as we know in the abstract its often very difficult
25
to do but when you have actual facts its not so difficult.

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So at a certain point in that
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17
This case is not a difficult one because its mass
production of large quantities of a derivative substance.
You have a criminal
prohibition and you are telling us that the line drawing is
very difficult.
That seems constitutionally problematic.
I dont agree with that
assertion in the sense that I am saying there may be some
cases where the line drawing is very difficult.
But what I am saying is if you have -- if you
10
are authorized to possess a certain quantity of dried
11
marihuana and you are engaged in using that and you, in the
12
process of using it put it into forms to allow you to ingest
13
it, thats not the same thing as producing.
14
from common sense it wouldnt be producing to smoke it.
15
wouldnt be producing to mix it into something and eat it.
16
And we know
It
Can I keep you then on
17
the line drawing common sense framework that you are urging
18
on us?
19
line at dried marihuana is legal, constitutional.
20
the level of common sense looking at the evidence that was
21
before the court can you explain in ordinary language why
22
since the scheme permits medical use of marihuana with the
23
doctors permission the line was drawn at dried marihuana?
This is a case about line drawing and whether the
24
25
Yes, I can.
Just on
I think
the best way to do this is to actually go back to the very

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document that I just referred you to.
point that this is a Regulatory Impact Analysis Statement.
Its not part of the law but in answer to your question,
Justice Abella, this expresses the point in a way that I --
in a better way than I actually could.
6
7
I want to make the
So if you look at page -- its Tab 7, page

1757.
The Department of Health responds:
The new Regulations will limit producers
to the production and distribution of dried
10
marihuana only.
11
extractions of active ingredients, i.e.
12
resin, to be sold for therapeutic purposes.
13
The only clinical studies on therapeutic
14
use to date have been carried out, used
15
dried marihuana that was either smoked or
16
vaporized.
17
on the use of cannabis edibles, e.g.
18
cookies, baked goods or topical products
19
for therapeutic use.
20
all products that claim to have health
21
benefits must go through a drug approval
22
process outlined in the Food and Drugs
23
Regulations.
24
25
The MMPR will no authorize
There are no clinical studies
(As read)
And so thats really it.

would summarize that.
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As with other drugs,
So this is the way I
I would say that if the government is
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forced to carve out a judicially-mandated exception to the
general principle under which the regulatory scheme
operates.
and limit that exception based on what scientific evidence
is available.
Its not irrational for the government to frame
So to be clear, the principle under which the
FDRs and the FDA operates is that drugs should not be
authorized for therapeutic use unless they are shown by
scientific data to be safe and effective.
10
Now, there has been, in effect, a judicially-
11
mandated exception to that for marihuana based on the Parker
12
decision and the governments response to it.
13
is this:
14
to that general principle, its not arbitrary for the
15
government to frame that exception on the basis of what
16
information there is out there and that does exist.
17
what Health Canada is saying is leave aside anecdotal
18
opinions of individual witnesses.
19
But my point
If the government is forced to create an exception
And so
The science -- what science there is on
20
marihuana has been done with respect to dried marihuana.
21
Thats the known quantity.
22
and effects and utility of derivative products which are in
23
effect -- many of them much more concentrated like THC and
24
Canadas resin.
25
going to regulate them because to do that would be to go

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We dont know the implications
We dont know those things so we are not
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against the general principle of the Regulations.
So let me explain it this way; the regulatory
approval process for drugs in Canada.
Access to drugs in
Canada is strictly controlled.
pillars for Canadas drug regime, the CDSA and the FDA.
These statutes operate together to prohibit access to drugs
with a history of abuse.
access to all drugs for therapeutic purposes.
FDA.
There are two statutory
Thats the CDSA and to regulate

Thats the
So its prohibiting drugs that are liable to abuse,
10
CDSA, regulating access to drugs for therapeutic purposes,
11
the FDA.
12
Now, under the legislative scheme there are
13
three means of obtaining access to a new drug for
14
therapeutic purposes:
15
One, the new drug approval process.
And as I
16
already pointed out, there are three cannabis-based
17
pharmaceuticals that have actually gone through that
18
process.
19
So its not as though its impossible.

Two, clinical trials.
So in the course of
20
seeking a new drug approval you can seek approval to conduct
21
a clinical trial on a substance thats not yet been approved
22
for use.
23
Third, the special access program.
And this is
24
a case-by-case authorization to use a presently unapproved
25
drug based on demonstrated need by a physician in a

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particular case.
So a very, very flexible -- okay, this
drug is cutting edge and controversial, not yet approved,
but here I have a patient who cant be treated by other
means.
of the scheme.
I want special access.
Thats a very nimble element
Now, Ill say this that on the approach the
courts have taken there appears to be a fourth means of
obtaining access to a new drug in Canada.
is what I would call an extra regulatory means.
The fourth means

You produce
10
the drug.
11
call evidence in court to prove on an anecdotal basis that
12
someone believes they need the drug and that it helps them.
13
Thats the fourth extra regulatory model.
14
You distribute it and if you are prosecuted you
Now, there are court cases where this has
15
happened, most notably Parker.
16
identified highlights the need for deference when courts are
17
being asked to pronounce on the manner in which Health
18
Canada classifies, regulates and approves drugs for
19
therapeutic purposes.
20
But the concern that Ive
If its not carefully circumscribed this fourth
21
route has the potential to overwhelm or overtake the entire
22
premise of the regulatory model which is that drugs should
23
not be made available for therapeutic purposes unless shown
24
by scientific study to be safe and effective.
25
Now, this point that I have just made goes

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directly to the burden of proof at the second stage of the
section 7 analysis.
effect the courts below said, well, arbitrariness -- the
government hasnt shown why there are specific health risks
associated with derivative marihuana products that are not
present with regard to dries marihuana.
How so?
Because as I said earlier, in
And the problem with that approach is that it
flips the burden under the section stage of the section 7
analysis on its head by saying the government has to prove
10
that the law is not arbitrary when the rule is that the onus
11
is on the applicant, the proponent, to show that the law is
12
inconsistent with the principle of fundamental justice, that
13
it is arbitrary.
14
And Ill go one step further.
15
the trial judge accepted that it might be rational or it
16
might be reasonable or logical.
17
logical.
18
concerns were present but I would have expected to see
19
better evidence of that.
20
The court below,
I think the word was
It might be logical to assume that certain
And that is -- thats the point is that here
21
the courts are applying expectations that certain risks be
22
proven by evidence in court when the entire basis for the
23
regulatory model is unless things are shown by scientific
24
evidence to be safe and effective we are not going to allow
25
them to be approved.
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having with this is that its a criminal model.
keep talking about it being a regulatory model and
everything you say may apply to that.
about criminal law here and exceptions to criminal law.
The difficulty that I am

And you
But we are talking
Certainly it is a way of regulating but its
regulating with the heaviest instrument the law can apply.
And when you do that you come into section 7 territory.
That is a concern I have.
10
Right.
11
12
13
Ill say this that the kind of concern that
Perhaps you can allay it.

Yes.
14
Chief Justice you just articulated is not one of
15
irrationality or arbitrariness.
16
well, thats not a rational way of doing it.
17
its the heaviest hand.
18
19
So you are not saying,

You are saying
Thats a question of is it grossly

disproportionate or overbroad.
20
That becomes the question.
Well, what becomes the
21
question is that you are putting people in risk of
22
imprisonment as opposed to the usual regulatory scheme where
23
they are --
24
25
Mhmm, right.
Well,
Ill just say this that consider the conduct of the person
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who is charged in this case, okay.
Mass producing large quantities of derivative
products for distribution by a dispensary that was operating
completely outside the regulatory scheme, okay, even under
the Regulations as they exist, Medical Marihuana Access
Regulations, you are not authorized to run a dispensary.
The Regulations authorize possession and production for
medical purposes.
third parties.
10
They dont authorize dispensation by
Take it beyond that.
This organization had
11
some four -- 3,700 to 4,000 members, only 5 to 10 percent of
12
whom had medical marihuana authorizations to begin with.
13
And the same organization, the evidence from -- the
14
principal of this organization I think is Leon Smith.
15
testified that of those members he had to take away 500 to
16
600 memberships from people that he suspected were reselling
17
marihuana.
18
maintain strict controls over marihuana and access to
19
marihuana because its a drug of abuse.
20
He
All of that to show that its necessary to
And that question, Chief Justice, that was
21
resolved in Malmo-Levine.
We dont need to have that debate
22
again.
23
marihuana as a controlled substance.
24
Malmo-Levine.
25
has international commitments to regulate that.
We dont need to say is it appropriate to have
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That was resolved in
Its not even an issue here.
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narrow one.
regulatory scheme because --
My point was a very
It may be slightly different than an ordinary
Yes.
Well, it --
-- because of, as you
say, the legitimate to some extent potential for
imprisonment.
But it is a different sort of situation.
It -And so when you are
10
bringing in all these regulatory principles and saying well,
11
you know, you have got to give a lot of leeway to the
12
government, et cetera, et cetera, it may take on a different
13
complexion when the result of not -- of running afoul of one
14
of those Regulations is a criminal record, incarceration and
15
so on.
16
Really, Chief Justice,
17
in my respectful submission what you are alluding to there
18
are questions of gross disproportionality and overbreadth.
19
Is this the right tool?
20
And even those are highly circumscribed.
21
think in Carter the court appeared to allow for a
22
considerable degree of deference in respect of complex
23
regulatory responses.
24
that the regulation of drugs from the -- along the spectrum
25
from preventing abuse of drugs that are liable to abuse,

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Im going to suggest no one would say
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psycho-active drugs, et cetera, all the way to allowing
access to drugs for therapeutic purposes.
suggest thats not a complex field that requires many
different parts.
No one would
And so what the Court said in Carter was in
contra-distinction to the scheme.
scheme in issue there which had to do with prohibitions
against assisted suicide, it was not a complex regulatory
field and so less deference was owed.
10
regulatory field.
11
12
They are saying the
Here it is a complex
The deference is owed.
Now, I need to move on then to address the

specific issues.
13
The question of standing.
This Court has
14
consistently held that no one can be convicted under a law
15
thats unconstitutional.
16
whether this point applies to the respondent in this case
17
and let me explain why.
18
Now, I say its questionable
He was charged with possession of THC for the
19
purpose of trafficking under the CDSA.
In response to that
20
charge he argued that the Medical Marihuana Access
21
Regulations were unconstitutional.
22
conduct, he chose to supply marihuana products to an
23
organization that was operating completely outside the MMAR
24
scheme.
Now the underlying
And let me explain what I mean by that.
25
The MMAR scheme authorizes possession and

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production of marihuana for medicinal purposes.
has authorized distribution.
It never
It doesnt do that.
And so this was an organization that was
operating completely outside that model.
So the scheme does
not allow for and has never allowed for the operation of
marihuana dispensaries.
constitutionality of a scheme that authorizes the possession
and production of marihuana for medical purposes could be
relevant to someone charged with possession of THC for the
So its hard to see how the
10
purpose of trafficking and in response to the charge he
11
alleges a deficiency in a regulatory scheme that could never
12
authorize his conduct.
13
Thats the point.
Is there a point at which someone who operates
14
entirely outside a particular regulatory scheme has the
15
ability to raise alleged deficiencies in that scheme as a
16
defence to a criminal charge even though that scheme could
17
never apply to them.
18
where the person is charged under a criminal section and the
19
defence is in that section.
20
offence under this provision under a statute and pointing to
21
a regulatory scheme that operating in a different context
22
could in theory authorize some conduct by other people but
23
not even in respect of the very offence that you have been
24
charged with trafficking.
25
Its not the same thing as Morgentaler
Its being charged with an
And I also --

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question of standing or is it more related to remedy because
another way of putting what you are saying is that if the
Court cures the unconstitutionality by reading something
into the statute or reading something out of it and that has
no impact on the particular accused, then the law remains in
force.
No, because what
happens in the situation you have just described, Justice
Cromwell, is someone who could never have benefitted from
10
the alleged constitutional infirmity in law, not to say,
11
well, the offence is unlawful, invalid.
12
still -- its still present -- is somehow bringing an
13
application, getting relief and that relief can never apply
14
to them and it leaves in the air this finding of
15
unconstitutionality that doesnt in effect change anything
16
in that case.
17
The offence was
And so the bottom line is that, sure, no one
18
can be convicted under a law thats unconstitutional but
19
here its a regulatory scheme that might provide an escape
20
to a conviction but that regulatory scheme couldnt have
21
applied to this applicant in these circumstances and thats
22
the refinement that we are saying should be considered.
23
Now, I should also address some of the
24
interveners have referred to public interest standing and
25
on that question, public interest standing, I would say

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this.
If the person is not -- is caught in a criminal
case and doesnt have standing as a result of the Big M Drug
Mart principle, is it appropriate to allow them to say,
well, even though I dont really have standing in response
to the charge Im facing I should be allowed to raise this
matter as a question of public interest when we know from
cases like Downtown Eastside Sex Workers, Carter, Bedford.
We know from those cases there are situations where if
10
someone feels that a law is unconstitutional and wants to
11
raise it in a forum that does involve breaking the law they
12
can do it.
13
So if its not appropriate for a person to --
14
they dont have standing in respect of a criminal charge,
15
they should in the same case have access to the pubic
16
interest standing principles.
17
That brings me then to the Charter analysis and
18
the two stages of the Charter analysis.
19
the life, liberty or security of the person analysis.
20
The first one is
At the outset Ill acknowledge that because Mr.
21
Smith was charged with a criminal offence his liberty
22
interests were engaged.
23
courts below is what is the scope of the liberty and
24
security of the persons interests at stake?
25
jurisprudence makes it clear that the scope of the liberty

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and security of the persons interests that are at stake
will involve or will dictate the nature of the principles of
fundamental justice analysis, the second stage.
So if its just a liberty interest thats
engaged by the fact of a criminal charge then the general
answer would be, okay, well, if youre at risk of going to
jail then the principles of fundamental justice demand that
you have a fair criminal trial based on proof beyond a
reasonable doubt and all the principles of fairness that are
10
entailed in that.
11
The question here is are there additional
12
liberty and security of the person interests beyond near
13
imprisonment that require a fuller consideration of, well,
14
is this law arbitrary, disproportionate?
15
failing in one of those principles?
16
Is it in some way
And so thats the same kind of analysis that
17
you will see in Malmo-Levine where the Court looked at the
18
question of imprisonment and then went beyond that and said,
19
Are there broader interests at stake that require
20
consideration?
21
werent because lifestyle choices didnt get caught by
22
23
The answer in that case was, no, there
The same analysis took place in Parker.
The
24
Court accepted that liberties engage because of the
25
potential for imprisonment but went on to say, But are

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there medical issues at stake here?
question here.
And thats the
Our position is this; that when you look at
liberty and security of the persons interests and whether
those are engaged in the context of claims to access to a
substance thats otherwise illegal.
objective standard or threshold and it has to be one that
involves a consideration of, well, are there other
reasonable legal alternatives available other than the one
10
It has to be an
that you are seeking?
11
So if you are claiming access to a medical
12
treatment and there are other available treatments that are
13
actually lawful, its not a breach of the principles of
14
fundamental justice to say, well, you might prefer this
15
illegal treatment over the legal one but that doesnt
16
intrude upon your liberty.
17
the condition that you are suffering from.
18
There are ways for you to treat
You accept, I think,
19
that the liberty interests of the users is implicated
20
because what they are doing would be criminal?
21
22
Justice Cromwell, yes, that they could be prosecuted, yes.
23
24
On the same basis,
And if thats the only
section 7 interests implicated is your case better or worse?
25

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because you say, well, someone is facing prosecution and
could go to jail for committing an offence, the offence
being unauthorized possession or production of a controlled
substance.
And the question is if there are no medical
issues associated with that, no additional liberty or
security of the person concerns, the question is, is it
consistent with the principles of fundamental justice to
allow that person to be convicted of that offence?
10
The answer would be if the Crown proves the
11
offence beyond a reasonable doubt and the accused has a fair
12
trial then the principles of fundamental justice are
13
addressed.
14
Its only -MR. JUSTICE CROMWELL:
But I thought that
15
whats being challenged is the criminalization of the
16
possession of the particular substance and the legal issue
17
is whether thats arbitrary.
18
what difference it makes what other section 7 interests are
19
implicated.
20
Im having difficulty seeing
Its not a challenge to
21
the criminal offence of possession of those substances.
22
Its a challenge to the under-inclusiveness of a regulatory
23
scheme that allows for medical access.
24
25
The result of which is
to make the offence unconstitutional.

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Right.
But the claim
is I need a substance to treat a medical condition that I
cant otherwise treat or that should be the scope of what
is protected by section 7.
illegal treatment over that one.
what you have is based on health concerns.
It shouldnt be, I prefer this

If thats all it is then
So there is a recent case about access to raw
milk.
You know, I believe that pasteurized milk is not --
its not healthy and it causes health problems so I want to
10
have access to a raw milk collective.
11
prohibits me from doing that, I think, is just my section 7
12
rights.
13
And the law that
And the Ontario Court of Appeal said, Well,
14
no.
Just because you personally believe that pasteurized
15
milk has health concerns doesnt -- theres no objective
16
basis to your claim that infringes upon your liberty because
17
there is no objective support for that.
18
And I dont want to
19
delay because you have a lot of ground to cover in a short
20
amount of time.
21
following this line of reasoning at all.
22
23
Right.
Well, I guess I
would say this.
24
25
I just want to signal to you that Im not
If we look at the condensed book and, in

particular, the Malmo-Levine decision which is at Tab 8,
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paragraph 84, we say at once:
The availability of imprisonment for the
offence of simple possession is sufficient
to trigger section 7 scrutiny.
Malmo-Levines position requires us to
address whether broader considerations of
personal autonomy short of imprisonment
are also sufficient to invoke section 7
protection.
10
However,
So it is, are there are a broad range of
11
interests that have to be considered at the section stage of
12
the analysis?
13
was lifestyle choice.
14
Are there -- and so in this -- in Malmo it
In the case at bar it is health concerns.
That
15
more specific issues was dealt with in the Parker case.
16
Thats at Tab 10 and if you look at Parker at paragraph 81
17
in one sense -- this is paragraph 81, second sentence:
18
In one sense it would have been sufficient
19
to identify the clearest of those
20
infringements, the possibility of
21
imprisonment ... his interference with
22
Parker's liberty interest would conceivably
23
be sufficient to require a determination of
24
whether the deprivation was in accordance
25
with the principles of fundamental justice.

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However, in my view, this would not
adequately capture the defects in the
legislation and would fail to come to grips
with the context in which the issue
arises.
6
7
And then there is a reference to another case

where it says:
The contextual approach attempts to bring
into sharp relief the aspect of the right
10
or freedom which is truly at stake in the
11
case as well as the relevant aspects of any
12
values... Thus, the importance of the
13
right or freedom must be assessed in
14
context rather than in the abstract and its
15
purpose must be ascertained in context.
16
And so the Court then goes on in paragraphs 82
17
and following to say -- sorry, in 83 and following to say
18
the question is are there liberty and security of the person
19
interests associated with health that are above and beyond
20
imprisonment that are in issue here.
21
And it would only be if those health concerns
22
are ones that are caught by liberty or security of the
23
person that you would say, Well, you need to scrutinize the
24
law and the principles of fundamental justice against those
25
deprivations.
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think it was only.
that you amplify it.
Just glancing, I didnt
I thought the contextual argument was
Thats right.
But its -- the way your
argument was sounding to me was we forget about the
imprisonment part of it all.
No.
No.
We have just focused on
10
whether standing alone this would be a deprivation of
11
liberty and, therefore, alternatives are an answer.
12
problem some of us may be having is that its not just a
13
simple question of whether thats the deprivation of
14
liberty.
15
deprivation of liberty which resides in this right of
16
imprisonment.
But the
Thats part of it but there is a fundamental
You cant wash that out --
17
18
19
You cant.
You cant.
-- these other aspects.

But my point is this.
20
If there is no health component or infringement upon
21
autonomy to obtain treatment for a medical condition thats
22
part of the liberty interests that are engaged in a
23
particular context then you dont consider those things when
24
you are saying is the deprivation consistent with the
25
principles of fundamental justice.

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You dont ask yourself, well, does this law
deprive people of of access to healthcare in a way thats
arbitrary?
only the potential for imprisonment.
Because there is no healthcare concern.
Its
So it affects the subsequent analysis and the
arbitrariness test would be completely different.
question of does a law that prohibits access to a substance
--
9
10
But it seems to me -- I
think you have to look at them both.
11
Its a
Dont you?
I mean its a healthcare issue.
You have one
12
side of that.
13
healthcare is part of the picture and deprivation and mixed
14
in is the fact that its a criminal regime used to enforce
15
this and you are facing imprisonment as a result of how this
16
healthcare scheme is being -- has been set up.
17
The other people have the other.
Thats what I thought they were saying in
18
Parker.
19
it interacts.
20
you look at the other.
You have to look at the whole ball of wax and how

And you seem to be saying you look at one or
21
MR. RILEY, Q.C.:
22
23
misunderstanding.
24
25
But
Well -Perhaps Im
Im sorry.
MR. RILEY, Q.C.:
Yes.
Well, Chief Justice,
youre saying, well, there is no question its a healthcare

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issue.
My point is that its only a healthcare issue that
engages liberty or security of the person if you show at the
first stage of the analysis that what youre talking about
are limits on healthcare that actually engage liberty or
security of the person.
So its not enough to say, well, its
healthcare.
We claim healthcare.
Lets then ask you, Does
the deprivation of my access to healthcare intrude upon the
principles of fundamental justice?
Its only if the
10
healthcare limitations rise to the level of restrictions on
11
liberty.
12
And so in Parker the Court made a thorough
13
analysis of the infringement on Mr. Parkers access to
14
healthcare and said, Well, in that case it actually is met
15
because the law prohibits him from treating a very serious
16
and life-threatening medical condition with the only
17
substance that he has shown is effective in treating that
18
condition, marihuana.
19
been considered and ruled out.
20
ruled out, other treatments.
21
And all the other alternatives had

So synthetic drugs had been
The Court considered and carefully scrutinized
22
that.
I say if you apply that template to these facts you
23
dont get any further than saying these applicants expressed
24
a subjective preference for derivative marihuana products
25
for some of their conditions some of the time.

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didnt --
What do you say about the
evidence that the trial -- the findings of fact of the trial
judge on that?
MR. RILEY, Q.C.:
Right.
I say two things.
One, if you take the evidence at his highest the question
becomes:
Does it meet the legal threshold?
And without debating the evidence I say if you
actually look at the evidence, not debating or weighing it,
10
looking at it.
11
Can we just at this level
12
focus on the findings of fact, because we dont really get
13
into the evidence the findings of fact of the trial judge?
14
Could you address those?
15
MR. RILEY, Q.C.:
Right.
Well, I think the
16
judge -- the judge held -- the problem here, the judge held
17
this is access to medically necessary treatment.
18
only substance that he has shown is effective in treating
19
that condition, marihuana.
20
had been considered and ruled out.
21
been ruled out, other treatments.
22
But the
And all the other alternatives

So synthetic drugs had
The court considered and carefully scrutinized
23
that.
I say if you apply that template to these facts you
24
dont get any further than saying these applicants expressed
25
a subjective preference for derivative marihuana products

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for some of their conditions some of the time and they
didnt --
What do you say about the
evidence at the trial -- the findings of fact of the trial
judge on that?
MR. RILEY, Q.C.:
Right.
I say two things.
One, if you take the evidence at its highest the question
becomes does it meet the legal threshold?
debating evidence I say if you actually look at the
10
And without
evidence, not debating or weighing it -- looking at it --
11
Can we just at this level
12
focus on the findings of fact because we dont really get
13
into the evidence?
14
could you address those?
15
The findings of fact of the trial judge,
MR. RILEY, Q.C.:
Right.
Well, I think the
16
judge -- the judge held -- the problem here is the judge
17
held this is access to medically necessary treatment but the
18
question becomes what evidence -- what were the findings
19
that supported that question?
20
And at the end of the day what it was, three
21
things:
One, the subjective views of the witnesses that
22
said, Well, we use derivative marihuana products some of
23
the time for some of our conditions and then expert
24
evidence that was not -- it was not medical evidence saying
25
this person cant treat their condition, this specific

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condition with nay other means.
2
3
Well, we have rules for
when we can override a finding of fact or fact in law --
MR. RILEY, Q.C.:
Right, and --
called Howson and there is lots of other cases.
MR. RILEY, Q.C.:
-- and they are in a case
Yes.
And we just cant go
beyond as you are invited us to do.
Its not permissible.
10
So you have got to tell us that the finding of fact -- show
11
us why the finding of fact was totally unfounded on the
12
evidence.
13
MR. RILEY, Q.C.:
14
15
with it.
16
Right.
Not that you disagree
We know you disagree with it.

MR. RILEY, Q.C.:
Right.
The best I can do at
17
this point, given my limited time, is I can say I have
18
addressed that question of factum by saying that the legal
19
effect of an undisputed set of facts is a question of law.
20
There is lots of support for that.
21
the courts said that, the legal effect of undisputed facts.
22
Taken at its highest the evidence in this case
J.M.H is one case where
23
was not legally possible, legally capable of meeting the
24
threshold thats articulated in Parker.
25
The second point, and I have made it in the

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factum.
I wont be able to go through it in detail, is that
there were extricable errors on the part of the court of
appeal
the conclusion.
relying on subjective expressions of preference by lay
witnesses suggesting, well, that that may be enough in some
circumstances.
in its assessment of whether the evidence supported
8
9
And those extricable errors had to do with
In effect, Justice Garson said that relying

upon expert evidence that did not go to the specific
10
question.
It was general.
11
theory, because I havent done any studies, but in theory
12
these forms of -- these derivative marihuana products could
13
in theory be better treatments for certain things.
14
The expert evidence as in
That included your own
15
witness.
Dr. Abramovici from the Department of Health
16
confirmed everything that Dr. Pate said.
17
MR. RILEY, Q.C.:
I think what he said was in
18
theory some of these things are true but sometimes when we
19
apply them in practice we dont know until we actually do
20
the studies.
21
But he had never applied
22
them in practice because his role was simply collating all
23
the research?
24
MR. RILEY, Q.C.:
25

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Right.
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Our point is --
There was no dispute in

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the evidence, was there?
2
3
MR. RILEY, Q.C.:
Our point is no one has
applied them in practice because they havent been studied.
And the third aspect that the trial judge
relied upon was the fact that some of the witnesses after
the events in question on this case, after the charges
against Smith were laid, obtained medical marihuana
authorizations under the scheme.
for two reasons.
10
11
Thats legally irrelevant
One, it doesnt relate to the timeframe in

which the substances were being produced and;
12
Two, those are for -- those are for access to
13
dried marihuana.
They authorize those individuals to have
14
access to dried marihuana and they dont say you are
15
authorized to have derivative marihuana products.
16
And then the court of appeal
referenced, well,
17
some of those forms reference routes of administration.
18
Justice Chiassons point about that:
19
restrict the manner in which you choose to use the
20
substance.
The Regulations dont
21
So I have very limited time and I have to move
22
on to the question of the principles of fundamental justice
23
if the second stage of the -- I say this to summarize.
24
you apply Parker and what an Ontario court of appeal
25
subsequently said about Parker in a case called Mernagh --if

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you apply those thresholds to this evidence because in
Mernagh the Court said, Look, you need to have more than
just a subjective preference for marihuana in order to
establish that your rights have been infringed, that your
right to liberty and security of the person has been
infringed.
is a reasonably necessary means for you to treat a condition
that you cant otherwise treat.
You need to present evidence to show that that
Thats what the Court said in Mernagh.
If you
10
apply that threshold to this evidence it cant meet that
11
threshold.
12
The evidence never addressed those questions.

And so if you go to the second stage of the
13
analysis our argument is that -- fundamentally this, that
14
the court of appeal and the trial court when we look at the
15
principles of fundamental justice they reverse the burden by
16
saying -- and I wont have time to take you through the
17
passages.
18
But the Court said at a number of stages,
19
Well, this may be logical but we didnt see any proof.
20
Crown didnt prove that regulating these substances is more
21
difficult than regulating dried marihuana.
22
prove that there are additional risks, health and safety
23
risks associated with these derivatives that arent present
24
with respect to marihuana.
25
The
The Crown didnt
And my point about that is that the Crown

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doesnt have to prove it.
Under the arbitrariness analysis
the burden is on the proponent to show that the deprivation
of interests is inconsistent with the principles of
fundamental justice.
Here the court seemed to accept that there was
some logic to the governments regulatory model but said we
didnt prove it.
hits the road is that the very nature of the model is it
operates on the premise that unless you can show that
And the problem with that where the rubber
10
something is safe and therapeutically effective it shouldnt
11
be authorized under this scheme because we are not going to
12
be in a business of authorizing therapeutic uses of
13
substance that havent been properly studied for reasons
14
that relate to cases like thalidomide and other drugs that
15
people assumed were okay but they ended up not being.
16
Without the science they dont know.
17
fundamental point with respect to the principles of
18
fundamental justice.
19
So thats the
There is another area in which the court erred.
20
The court said there might be other ways other than
21
criminalization that would address some of these concerns
22
about misusing drugs.
23
the one I made at the outset in response to a question from
24
the Chief Justice.
25
Thats gross disproportionality or overbreadth.

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And my point on that is the same as
Thats not a question of arbitrariness.
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46
said this law fails on arbitrariness and there the question
is only the rationality of the means, not whether there are
other approaches that might be more effective.
When we look at gross disproportionality and
overbreadth youll see that this scheme is actually very
flexible.
prohibition.
8
9
Its not, as it was in Parker, a blanket
It allows for medical access to the one

substance thats been -- which is a known quantity, at least
10
to some extent, which is dried marihuana or marihuana.
11
doesnt allow access to substances that are -- as yet there
12
is no medical study to show that they have any medicinal
13
benefit that cant be obtained by the one thats available.
14
So its flexible in that respect.
15
mentioned before, other means to obtain approval for drugs
16
that are not presently authorized including a special access
17
program.
18
It
It also has, as I
And a special access program allows an
19
individual who cant get access to a drug through legal
20
means to apply with the support of a physician to say, I
21
need to get access to this drug.
22
treat my condition thats legally viable so I need access to
23
this experimental drug to do so.
24
25
There is no other way to
That provides flexibility that shows that this

scheme which, as a general rule, has built-in flexibility
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and its much different than a simple blanket prohibition.
Its a more flexible scheme.
Now, I need to address in the last three
minutes that I have the question of remedy.
And I will say
this that the Crown says we should succeed on the merits for
the reasons I have given and the reasons mentioned in the
factum.
there is an adverse ruling the Crown will need time to
respond.
But if the Crown doesnt succeed on the merits and
10
This is the first time that this Court has --
11
will have pronounced on the validity of the medical
12
marihuana access regime.
13
will be a ruling of national application on this question in
14
an appellate court.
15
regulatory environment.
16
consulted.
17
grounds and on the basis of the rule of law.
18
Its the first time that there
Its a complex area, a complex

There are many stakeholders to be
A suspension is justified on both public safety
With respect to public safety there is
19
significant public safety interests in the continued
20
enforceability of the CDSA prohibition against possession,
21
production, trafficking.
22
unconstitutional is up -- unconstitutionality is upheld, it
23
could be construed as leaving a gap in the legislative
24
stream -- scheme.
25
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613.521.0703
A finding on -- if a finding of
This could jeopardize the ability to
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production.
With regard to the risk of diversion I dont
need to go any further than this case in which one of the
witnesses, Leon Smith, testified that his club had revoked
500 to 600 so-called memberships that it offered to
individuals who were suspected of reselling drugs.
terms of the risk of diversion its present on the ground
here and thats just one piece of evidence.
So in
With regard to the rule of law, if a ruling
10
that the MMARs are invalid is upheld this could be perceived
11
as leaving a gap or lacuna in the law that would cause
12
considerable confusion.
13
environment, evidenced by the host of interrelated statutes
14
and regulations that are listed in the Crowns factum.
15
Addressing the rule of law, the Court May consider whether -
16
- or the extent to which there has been what is referred to
17
as a dialogue between the courts and the legislative
18
branches of government.
19
Its a complex regulatory
If we look at the history of the MMARs you will
20
see that the government has responded to various court
21
rulings robustly, with substantive changes and refinements
22
each time the scheme has been challenged.
23
has to balance its concerns over the control of substances
24
identified nationally7 and internationally as substances of
25
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The government would need time to develop an
appropriate regulatory response and take steps to implement
it.
statements for each of the iterations of the Regulations,
and there have been many, there is common ground with my
friends that this is an area that has been exceptionally
litigious.
If you look at the RIAS statements, the impact
8
9
If you look at the RIAS statements you will see

each time the government has made a regulatory response it
10
has to consult with stakeholders, many of them, consider the
11
implications of its programs and address refinements to the
12
scheme trying to balance all the interests that it has to
13
deal with.
14
If you look at the magnitude or the complexity
15
of the problem, how many people it affects, its not
16
insignificant.
17
regulatory model which carries on with this restriction to
18
dried marihuana and doesnt allow for derivatives, it says
19
this.
20
authorizations to possess marihuana under the scheme.
21
2013 there were 29,000 individuals with authorizations and
22
it was estimated that by 2014 there would be 50,000.
So the RIAS statement for the MMPR, the new
In 2002 there were 477 individuals with

In
23
Its already a massive and complex program and
24
expanding it to include all substances listed in Schedule 2
25
of the CDSA which is what the judge did, didnt just say
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delete dried marihuana.
the way to fix this is to read into the MMARs the reference
to all -- marihuana means every substance listed in Schedule
2.
and it would require time to consider it.
Expanding that would be a very, very significant change
6
7
He said in a subsequent oral ruling
Just ask you one narrow
question.
You are not seeking an order for a retrial?
MR. RILEY, Q.C.:
To be clear, if the Crowns
10
appeal is allowed we are seeking an order for a retrial, and
11
let me explain why that is.
12
The judge in a pre-trial ruling held that the
13
MMARs were constitutionally deficient.
14
shouldnt have done that for the reasons -- didnt have
15
standing and on its merits it was wrong.
16
the day, because of that ruling the Crown was not in a
17
position to prosecute its case.
18
is.
19
We say the judge
But at the end of
And let me explain why that
The defence had indicated at the outset of this
20
case We are going before a jury and we are going to argue
21
the common law defence of necessity.
22
presented to the jury as a defence the Crown would have
23
said, Well, that defence fails because there is a
24
reasonable legal alternative to the conduct that you were
25
involved in, namely the Medical Marihuana Access Regulations

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provide a means for medical access.
And in response to that argument I think it
would be absolutely certain that Mr. Smith would say, yes,
but the judge has already struck down that provision --
already found that that provision or that scheme is
constitutionally deficient.
to comply with that?
alternative and faced with that in trying to instruct a jury
on that question on the basis of a law that had been in
So could we have been expected
Was there really a reasonable legal
10
effect ruled unconstitutional by the law, it was completely
11
unworkable.
12
And so the Crown made a decision, Look, this
13
ruling has significantly impacted on our ability to
14
prosecute this case.
15
of this ruling.
16
to prosecute the case.
17
18
MR. RILEY, Q.C.:

appeal from an acquittal.
Right.
Well, I mean, its an
I mean I --
Okay.
Anyway, I think
weve taken enough time on this.
23
MR. RILEY, Q.C.:
24
25
Well, you dont say that.
You just ask that the appeal be allowed.
21
22
If the ruling is overturned the Crown wants
19
20
We cant prosecute the case in light
(1003)
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Right.
Thank you.
(Off microphone)
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ARGUMENT FOR THE RESPONDENT, OWEN EDWARD SMITH
(1004)
will take you to the index of the condensed book of
Mr. Smith and after the table of contents on the third page
begins the outline of argument that I have prepared for
todays purposes.
MR. TOUSAW:
Madam Chief Justice, Justices, I
My intention is to take you first to the facts
of the case.
In Mr. Smiths respectful submission the
Crowns position largely imports the factual findings made
10
by the trial judge below and of necessity must ignore those
11
factual findings in order to prevail.
12
13
I will then discuss the standing issue and then

move on to section 7 and section 1 and the issue of remedy.
14
With respect to the facts, and they are
15
unchallenged in this Court, the trial judge found certain
16
key things.
17
cannabis are contained in resin glands that are grown on the
18
plant.
The first is that the medicinal compounds in
The plant material itself is inert.
19
The governments position would have you
20
conflate dried marihuana as a compound, as a substance with
21
a derivative compounds and say that they are somehow
22
different substances, that dried marihuana is different from
23
edible products, its different from topical products, its
24
different even from Sativex which is a conventional
25
derivative product of cannabis.

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The difficulty of course is that the findings
of fact run contrary to that position.
compounds are contained in the resin glands.
contained in the plant.
provide a therapeutic effect whether those compounds are
smoked, whether those compounds are orally ingested, whether
those compounds are sprayed under the tongue by a trans-
mucosal mechanism such as its the Sativex compounds that
provide the therapeutic benefit.
10
material.
The medicinal
They are not
And it is those compounds that
It is not the dried plant
And that fact is unchallenged.
11
The trial judge also found that the compounds
12
can be ingested in a variety of ways.
13
inhaled using a vaporizer if one can avail themselves of
14
that particular product.
15
Smoking increases risk.
They can be smoked or
Smoking is indeed the
16
key risk associated with consumption of cannabis as
17
identified both by the Crown, by Health Canada, by the
18
Crowns witness, by the trial judge and by judicial
19
decisions in this area, as pointed out by one of the
20
interveners.
21
risk.
22
Smoking has repeatedly been described as the
And I can even take you to the Crowns
23
condensed book of authorities at Tab 8 -- sorry, not 8.
24
--- Pause
25
MR. TOUSAW:
613.521.0703
At Tabs 4 and 5 -- oh, the very
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last page of each tab sets out the issue of smoking and its
very clear under Issue 14 at Tab 4 of concerns in response:
Smoking marihuana for medical purposes in
a public setting thereby potentially
exposing others to the drugs effects is
unacceptable.
expected to use common sense.
8
9
10
Patients are therefore

(As read)
At Tab 5, the very last page again there is a

description of physicians opinions with respect to the use
of cannabis for medical purposes:
11
Physicians generally express concerns that
12
marihuana is most often ingested by smoking
13
and encourage development of alternative
14
forms and routes of administration.
15
read)
(As
16
So smoking, as Dr. Pate described, and as the
17
trial judge accepted, inhalation, is a method of ingesting
18
the medicinal compounds that has utility.
19
therapeutic benefit quickly.
20
happens fast, tapers off very quickly.
21
conditions.
22
He described it as good for using -- if you feel a migraine
23
coming on you would smoke.
24
effects quickly.
25
It produces
That therapeutic benefit

Its good for acute
Its good for breakthrough pain, for example.
You would get the medicinal
They would taper off quickly.
Oral ingestion does not provide or produce the

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same potential harms as smoking.
testified, and as the trial judge accepted, for things like
chronic conditions; glaucoma, chronic pain, conditions where
you need to have a systemic load of the medicinal compounds
at all times in order to deal with your medical conditions.
And so you eat it.
effect but the effects last for hours.
8
9
It is good, as Dr. Pate
It takes a little bit longer to take
And so youre not forced into a situation where

you are repeatedly consuming the medicine by way of smoking
10
all day long or, as Ms Herman testified, waking up in the
11
middle of the night in pain after two hours and then having
12
to smoke, fall back to sleep for another couple of hours,
13
wake up again in pain, smoke again and you go through this
14
cycle of constantly ingesting the medicine by way of smoking
15
when you can orally ingest it and achieve the benefits over
16
a longer term.
17
Those are unchallenged facts.
There is a difference in effectiveness.
That
18
is a factual issue that was found that the Crown can avoid
19
and, therefore, retreats very quickly from the findings of
20
fact to dwell in the area of subjective preference.
21
Ill have more to say about that later.
22
And
What do you say about
23
his argument that it hasnt been clinically tested the way
24
dried marihuana has and so even if there are dangers to
25
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in having other forms of marihuana available?
MR. TOUSAW:
Three things.
Firstly, one of the
declarations that is required by the Marihuana Medical
Access Regulations before a patient is granted an
authorization to possess dried marihuana is that the
physician and the patient understand that there has been no
regulatory approval given and that there hasnt been a great
deal of scientific study about dried marihuana generally.
So I think that detracts from the point of the Crown that,
10
Well, we know -- dried marihuana is a known quantity.
11
know a bit more about it.
12
We
Secondly, the Information for Health Care
13
Practitioners book, assembled by Dr. Abramovici and put into
14
evidence before the trial judge from which he made findings
15
of fact, details the other methods of ingesting cannabis and
16
is heavily referenced with citations of scientific
17
authority.
18
benefit are the compounds.
19
the effectiveness and the risk profile of how you take those
20
compounds but the compounds arent different.
21
are the same.
22
Lets remember whats providing the therapeutic

The mode of ingestion changes
And thirdly, I would say this.
The compounds
With respect to
23
Sativex which is a conventional treatment made, as the
24
government pointed out just moments ago, from a whole plant
25
extract, there have been clinical studies done.

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it obtained regulatory approval.
not a known quantity.
The trial judge made findings of fact that these methods of
ingesting the medicine were as safe, or safer, than smoking
it.
Its not as if cannabis is
We know a tremendous amount about it.
The witnesses testified to no harms arising as
a result of using these particular modes of ingestion.
And
all of this was confirmed by and conceded to by the Crowns
witness at trial and was further confirmed by the
10
information that Health Canada assembled for provision to
11
doctors before they sign off on someones access to dried
12
marihuana.
13
And so I say the suggestion that somehow there
14
are greater dangers associated with oral ingestion or
15
topical application of cannabinoids is belied by the facts
16
that were found below.
17
you.
18
Those are the facts that are before
The facts are that these products are safe, as
19
safe, or safer, than conventional over-the-counter -- some
20
conventional over-the-counter and prescription medicines.
21
We know they are safe.
22
shown before the trial judge and his findings of facts amply
23
support that.
24
25
There arent any risks and none were
There is a further benefit from either oral

ingestion or topical applications found and thats the
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delivery of the medicine directly to the site or
pathogenecity.
was not unique to cannabis.
Its the reason why when you have a rash you put a cream on
the rash instead of taking a pill to deal with the rash.
You certainly can do both but wouldnt you rather use less
on the site that needs the medicine as opposed to taking
more and developing a systemic low.
This is a principle that Dr. Pate testified

This is for all medicines.
The patient witnesses themselves all benefitted
10
from the use of these medicinal cannabis products.
11
did so in forms other than smoking or vaporizing the dried
12
plant matter, including the particular products which Mr.
13
Smith stood charged at trial below.
14
And they
The trial judge found and the court of appeal
15
agreed that while patients can possess dried marihuana
16
lawfully pursuant to the MMARs, and I believe that this
17
addresses the question that you asked the government,
18
Justice Cromwell, about Mr. Justice Chiassons dissent, they
19
commit crimes punishable by severe deprivations of liberty
20
when they extract the medicinal compounds from the dried
21
plant matter and discard the dried plant matter.
22
in my respectful submission, clear from the language of the
23
Controlled Drugs and Substances Act.
24
25
That is,
And my friend says and urges this Court to

apply common sense in its line drawing exercise.
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Smiths position is that the Court should apply the Charter
and not common sense to this exercise and should look at
what the Controlled Drugs and Substances Act prohibits.
4
5

--- Laughter
6
7
MR. TOUSAW:
Fortunately in this case they line
up.
8
9
We dont have to choose.
The Controlled Drugs and Substances Act

prevents production which includes a broad definition of
10
manufacturing, deriving products.
Its illegal to produce
11
THC oil.
12
purpose of trafficking because he was making oil, an
13
extracted product.
14
Mr. Smith to do it.
15
either.
16
for them to possess those products either.
17
an authorization to possess dried marihuana and dried
18
marihuana alone.
Mr. Smith was charged with possessing THC for the
Thats not lawful.
Its not lawful for
Its not lawful for a patient to do it
They can be criminally charged.
19
Its not lawful

They are granted
I should also -- am constrained to point out
20
that my friend, I think, was in error when he suggested that
21
the MMARs have nothing to do with distribution of marihuana.
22
A designated producer is perfectly entitled to produce
23
marihuana plants and to distribute dried marihuana to up to
24
two patients that have designated that producer to produce
25
marihuana for them.

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distribution of marihuana.
of the changes the government made in 2005 to the regulatory
scheme, to receive compensation from your patients for
engaging in that activity.
marihuana to patients.
Youre even entitled as a result
That is selling marihuana, dried
So the MMARs do authorize distribution.
What
they dont authorize is the production and distribution of
anything other than dried marihuana.
before you today.
And thats why we are
Its that restriction of the dried
10
marihuana alone that gives rise to the constitutional
11
problems identified.
12
And that really brings me to the standing
13
issue.
It is difficult to get around the Big M problem.
14
friend says, well, Mr. Smith didnt available himself in any
15
way of the regulatory scheme.
16
outside that scheme.
17
My
He was operating completely
Anyone charged with a criminal offence is
18
operating outside the regulatory scheme.
19
principle.
20
charged with a criminal offence.
21
Thats a basic
What you are doing is unlawful and you are
Now, Mr. Smith didnt challenge the MMARs.
He
22
challenged the Controlled Drugs and Substances Act under
23
which he was charged.
24
exemption scheme because it was the exemption scheme that
25
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But he wasnt charged with an offence under the MMARs.
There is no offence provision under the MMARs.
He was charged with a criminal offence and he
raised the Charter as a defence to those charges, in much
the same way that Big M Drug Mart charged with an offence
was able to raise the unconstitutionality pursuant to
section 2 of the Charter as to other people.
dont hold religious beliefs.
say this is an unconstitutional law for which this
10
corporation stands charged with violating and its
11
unconstitutional not as to Big M.
12
religious belief.
13
to others that do hold religious beliefs or atheists who
14
hold no religious beliefs.
15
Corporations
But, yet, Big M was able to
Big M doesnt hold a
Its a company.
Its unconstitutional as
Therefore --
Does it matter that the
16
constitutional fix, if I can use that word, the judge gave
17
as a remedy, leaves the scheme intact as regards Mr. Smith?
18
MR. TOUSAW:
It matters not on the issue of
19
standing.
20
the Crown has said about seeking a new trial.
21
It does matter, I think, when considering what
Because what the Crown has said is, well, after
22
the judge made his ruling we felt that he was -- we were
23
unable to convict Mr. Smith.
24
think what he said was, well, how do you instruct a jury?
25
How do you make those arguments?

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And yet, in this Court, I
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Well, in this Court he has made the arguments.
He said he is operating entirely out of the side of the
regulatory scheme.
And presumably that would have been the
argument at trial.
Well, yes, the law has been stricken
down as a result of its unconstitutional effects on
patients.
producer operating completely outside the regulatory scheme
and therefore he should be convicted for the offence.
Thats the argument.
10
Mr. Smith isnt that patient.
Mr. Smith is a
The Crowns decision was to call no evidence
11
and to have Mr. Smith acquitted.
12
this at the end of my submissions but Ill say it now.
13
And so I was going to say
Under no circumstances, in my respectful
14
submission, should this Court send Mr. Smith back down to be
15
retried on these charges even if he doesnt prevail on the
16
Charter arguments.
17
him.
It was the Crowns decision not to try
They could have.
18
They chose not to.
So I guess just for the
19
purposes of this standing argument, we are getting into a
20
pretty narrow distinction here in the sense that it boils
21
down to saying that he had the right to make the arguments
22
that he made and have them ruled on, but having got the
23
remedy he had didnt affect his liability under the section.
24
25
MR. TOUSAW:
It didnt in the sense that he was
operating outside the regulatory scheme as it stood.

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had the regulatory scheme been constitutional -- in other
words, had it --
Im assuming that you
get the remedy you got.
the way of being tried on the indictment?
MR. TOUSAW:
Then there was nothing to stand in
The trial was scheduled and seven
months or so after the Charter voir dire the Crown elected
to call no evidence at the trial.
And thats the
10
difference between this case and Big M that after the
11
constitutional ruling there was no offence to try?
12
MR. TOUSAW:
And I want to make this point very
13
clearly.
14
restriction not been in place, and Mr. Smith been or others
15
been permitted to have access to non-dried forms of medical
16
cannabis, Mr. Smith could have been designated by, for
17
example, the two patients, Ms Quin and Ms Herman, who
18
received authorizations to possess dried marihuana and he
19
could have been designated to produce the products that he
20
was producing for the club for that.
21
Had Mr. Smith -- had the unconstitutional impugn
Would that -- if he had operated outside of
22
that and produced for other people it could have given rise
23
to a further challenge based on the principles in
24
Sfetkopolous and Hitzig, having to do with the ratio between
25
patients and producers.
Thats a different case.
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be arguing a different case.
But had the impugn restriction not been in
place there would have been a way to operate within the
regulatory scheme to produce these products for the patients
that required them for their health.
to operate outside the regulatory scheme is because of the
impugn restriction.
my friends position on standing.
The reason that he had
And I think that that fully undermines
I would certainly also urge this Court not to
10
narrow the principle in Big M.
11
had quite a bit to say about the issue of standing and the
12
importance of being able to raise Charter defences.
13
are being charged with criminal offences and the narrowing
14
of that would really take away from the fact that the
15
Charter is the supreme law of the land.
16
I think that the interveners
They
It would, in effect, allow prosecutorial
17
discretion to be a substitute for the supremacy of the
18
Charter.
19
laws, laws that violate the Charter and take away autonomy,
20
in arbitrary overbroad and grossly disproportionate ways
21
simply by not prosecuting the wrong people or by realizing
22
when someone brings a constitutional challenge perhaps now
23
is the time to stay the charges to avoid a decision on the
24
Charter merits of the issue.
25
Charter protects are courts, not the discretion of Crown

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prosecutors.
If, however, the Court is inclined to accept my
friends position on standing in terms of direct standing,
Mr. Smith certainly urges that this case be considered a
public interest case.
as the government just pointed out.
affect many, many people across the country.
8
9
This is a serious judiciable issue,

These regulations
It is a case of nationwide importance.
It is a
case that has been thoroughly litigated both at trial and
10
briefed at trial and in the courts of appeal and in this
11
Court.
12
is engaged with the issues and the case has been brought
13
before you in a reasonable and efficient manner.
They meet the test for public interest standing.
14
He
It would be unreasonable and inefficient to
15
deny standing at this point simply to have a patient come
16
forward and then challenge these Regulations and return here
17
some years hence.
18
Now, in terms of the section 7 threshold, my
19
friends argument is twofold.
20
the clear liberty violation arising from the spectre of
21
imprisonment for persons that possess forms of marihuana
22
other than dried marihuana, this case should not be
23
considered on section 7 grounds because there is no
24
objective evidence in the record suggesting that these
25
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He says first that despite
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for an illegal form of treatment over a lawful one.
In order to make this argument my friend has to
essentially ignore the findings of fact of the trial judge
because those findings of fact run completely contrary to
that position.
differential effectiveness to different modes of ingestion,
that there are risks attendant with smoking that are not
present in the other forms of ingestion and that the
patients benefited medically from these other modes of
10
The trial judge found as fact that there are
ingestion.
11
In addition, in the record are documentary
12
evidence from, in some cases, the physicians of the patients
13
and, in particular, I would say, with respect to Ms Quin,
14
and I wont take you to the record but it is in the
15
appellants record, Part 4, Volume 1 at page 159.
16
There is a letter from her physician describing
17
how Ms Quin is using a topical application of cannabinoids
18
on her incision that she had a post-mastectomy incision to
19
help reduce swelling and allow the healing of that incision.
20
He says it works remarkably well and also describes how she
21
is ingesting orally cannabis products and how those products
22
are assisting her.
23
called to the stand but the exhibit went in to evidence
24
below.
25
makes his findings of fact.
This is from her physician.
He wasnt
Its part of the basis upon which the trial judge
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In addition to that, as the court of appeal
recognized and as the trial judge recognized, its a bit of
a red herring to say that there is no medical evidence or
objective medical evidence.
two of the witnesses authorizations to possess dried
marihuana on the basis of their physicians declarations
required in the regulatory scheme that conventional
treatments have been tried or considered and were found to
be medically inappropriate or ineffective.
10
The Government of Canada issued
The physicians declaration that the patient
11
should have access to dried marihuana and, in the case of Ms
12
Herman, the physicians checking off a box on the
13
application form that says the mode of ingestion ought to be
14
oral ingestion; these are objective facts that are in the
15
record that support the trial judges findings of fact on
16
these particular points.
17
Further to that, as was pointed out during my
18
friends submissions, Dr. Abramovici, the Crowns expert,
19
conceded essentially that Dr. Pate was right.
20
conditions inhalation will deliver the benefits quickly.
21
For chronic conditions oral ingestion will deliver the
22
benefits over an extended period of time.
23
supports exactly what the patients describe as their own
24
individual experience with their own medical conditions and
25
was accepted again by the trial judge on facts that are not
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directly challenged in this Court.
friend, in order to prevail, needs to have this Court
overlook some of those findings of fact or at least minimize
their relevance to the particular issues that are joined.
Because I think my
Liberty and security of the person rights are
concerned with individual autonomy and dignity, as was
pointed out in the beginning of my friends submissions by
Justice Abella, I think.
opportunity in Carter to discuss autonomy in the context of
10
This Court recently had the
making medical decisions.
11
Ill take the Court to the condensed book that
12
I have provided at Tab -- I think its Tab K.
Sorry, its
13
Tab M.
14
commencing at paragraph 64 where this Court said directly
15
that:
This will be the back side of the second page
16
Underlying both of these rights ... [that
17
is, the right to liberty and security of
18
the person] is a concern for the protection
19
of individual autonomy and dignity.
20
Liberty protects the right to make
21
fundamental personal choices free from
22
state interference.
23
interference.]
24
encompasses a notion of personal autonomy
25
involving ... control over ones bodily

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[Free from state
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integrity free from state interference and
it is engaged by state interference with an
individuals physical or psychological
integrity, including any state action that
causes physical or serious psychological
suffering.
the person are distinct interests, for the
purpose of this appeal they may be
considered together.
10
While liberty and security of
These are issues that are directly impugned
11
restriction.
12
of Ms Herman who describes the impact on her quality of life
13
resulting from the use of pharmaceutical substances and the
14
fact that, as the trial judge said, she got her life back.
15
One needs to go no further than the testimony
She repaired her relationship with her husband.
16
She repaired her relationship with her children.
17
experienced a cessation of the kind of pain she was
18
experiencing, the waking up in the middle of the night in
19
pain and the inability to sleep, the acting like a zombie
20
and being unable to participate in a social event as a
21
result of the use of the products that the MMARs make
22
unlawful for her to possess or produce as a result of using
23
those products.
24
Her physical health improved.
25
She
Her psychological state of mind improved.
And the state here wants to interpose the

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criminal law, the criminal law between her and access to
those medicines in a manner that is completely unrelated to
her individual needs, her wants, her desires and her
dignity.
Thats a severe violation of both liberty and security of
the person.
Mr. Smith says thats absolutely inappropriate.
7
8
This Court went on to say in Carter at

paragraph 65:
The trial judge concluded that the
10
prohibition on assisted dying limited Ms.
11
Taylors s. 7 right to liberty and security
12
of the person, by interfering with
13
fundamentally important and personal
14
medical decision-making (para. 1302),
15
imposing pain and psychological stress and
16
depriving her of control over her bodily
17
integrity (paras. 1293-94).
18
Ill pause to say thats precisely what the
19
effect of the MMARs restriction is on persons like Ms Quin
20
and Ms Herman.
21
conditions.
22
compounds contained in cannabis.
23
permission by the Government of Canada to access those
24
compounds.
25
They are suffering from serious medical
They are finding relief from the medicinal

They have been granted by
And what the MMAR say is you can only access

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those compounds in the form of dried marihuana.
You cant
use the products that are actually working for you.
you essentially to smoke cannabis all day long or all night
long.
friends condensed book in the Tab 4 of the last page --
this despite the fact that in the RIAS accompanying the MMAR
the Government of Canada says that smoking marihuana for
medical purposes in a public setting thereby exposing others
to the drugs effects is unacceptable.
10
according to the Government of Canada.
We want
This despite the fact, as I referenced earlier my
11
Its unacceptable
So Ms Herman who wants to perhaps go watch her
12
son play soccer isnt supposed to smoke her medicine in a
13
public setting.
14
probably wouldnt go over very well.
15
As a soccer coach I can tell you that
But the government is telling you its
16
unacceptable to use her medicine in public in the manner
17
that it only allows you to use the medicine because if you
18
turn the medicine into a capsule that you can then take
19
before you go out into public thats unlawful.
20
produced an unlawful substance.
21
unlawful substance.
22
convicted and imprisoned for doing so.
23
You have
You are in possession of an
You could be arrested, charged,
Now, my friend says use common sense.
Again, I
24
would expect the Crown to use common sense in determining
25
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circumstances.
whether or not its in the public interest to prosecute a
patient in those circumstances.
I would expect them to apply the test of
It does not change the fact that that conduct
is criminal conduct and that imposes a severe psychological
burden on people.
people should not be told, Well, were going to use common
sense in whether or not to prosecute you for breaking the
law if we catch you in possession of these medicines.
10
People dont want to break the law.
Sick
Thats not an answer to the Charter.
11
The Charter says an infringement of the liberty
12
and security of the person that deprives one of the
13
fundamental choices that one is entitled to make about
14
personal medical decisions violates section 7 unless its in
15
accordance with the principles of fundamental justice.
16
on the findings of fact that were made below, applying the
17
proper analysis, perhaps using it not in exact language but
18
applying the proper analysis at the end of the day, the
19
trial judge and the court of appeal agreed that these --
20
that this restriction was arbitrary.
21
because it produces effects that are inconsistent with the
22
laws objectives.
And it was arbitrary
23
And I should move now --
24
25
there for one moment?

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And
Can I just stop you
Mr. Riley also mentioned the, I
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think, three products that are legally available and the
vaporization --
MR. TOUSAW:
smoking.
of the patients?
Yes.
-- alternatives to
Was there evidence about that in relation to any
MR. TOUSAW:
There was.
Some of the patients
did vaporize from time to time.
Vaporization, of course,
still produces an exhalation, an odour.
The use in public
10
would presumably be unacceptable according to the Government
11
of Canada.
12
Sativex
13
The patients had not experienced the use of
The two that qualified for authorizations to
14
possess, their positions had indicated and were required to
15
declare that conventional treatments were medically
16
inappropriate or ineffective.
17
treatment.
18
process.
19
physicians didnt agree it was useful.
20
Sativex is a conventional
Its gone through the Food and Drug approval
Its a fair inference from that to say that the
And you did ask, Justice Cromwell, about what
21
conditions Sativex was approved for.
22
Notice of Compliance with conditions and its been approved
23
for neuropathic pain associated with multiple sclerosis and
24
subsequent, I believe, to the decision at trial was also
25
approved for neuropathic pain associated with cancer.

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The difficulty of course is -- think about Ms
Quin.
What is she doing?
have this in my condensed book at Tab D, the second full
page, top of the page 93.
She at one point describes, and I
Ms Quin says firstly that she didnt want to
smoke because had a bad reaction to pesticide-laden product
that she had taken and got a lung infection.
says after her mastectomy she didnt want to smoke because
it made her cough and she was worried about ripping her
But then she
10
incisions open as a result of that coughing.
11
did is she mostly rubbed the cannabis oil on the incisions
12
to reduce swelling.
13
an anti-inflammatory.
14
reduce the swelling.
15
Tab D in the condensed book.
16
So what she
THC is an anti-inflammatory.
CBDD is
She would rub that on the incision to

This is halfway down the page 93 of
You dont spray Sativex on incisions.
17
what you do.
Its a sub-mucosal spray.
18
your tongue.
It has the same rapid absorption that
19
inhalation does.
20
delivery.
21
tapers off quickly just like -- just like smoking.
22
Its not
You spray it on to
Thats one of the benefits of that mode of
It gives you the effects very quickly but it also
So it doesnt provide the same types of
23
benefits and certainly one -- its an alcohol extract.
24
think one can infer that you are not spraying alcohol
25
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just not the way the medicine is intended to be used in
addition to the fact that its a Notice of Compliance with
conditions that only relates to two particular and discrete
areas of medical practice.
5
6
I want to bring you to
remedy but are you finished with the section 7 argument?
MR. TOUSAW:
I was going to move -- Im happy
to discuss remedy now, Justice Abella, but I was going to
make just a few more points about --
10
11
MR. TOUSAW:
All right.
Sure.
-- section 7 because I think I
12
have only gotten to the threshold of our liberty and
13
security of the person implicated on the facts of the case.
14
And I do want to say -- I have said a bit about
15
subjective versus objective evidence.
16
the record.
17
arbitrariness, overbreadth and gross disproportionality.
18
I think that fails on
But I do want to talk a bit about
And arbitrariness in Mr. Smiths, in Mr.
19
Smiths submission, is made out here in much the same way it
20
was made out in Carter, in Morgentaler, in Chaoulli and in
21
PHS.
22
legislation is.
23
the objective as state control over drugs by means of a
24
comprehensive legislative scheme.
We need to think about what the objective of the
25
And my friend urges this Court to consider
As I said in my factum, thats a conflation of

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the objective with the means that the state goes about in
achieving that objective.
regulatory scheme.
section 1, not for section 7.
The means are the comprehensive
Those considerations are best left for

Whats the objective?
Mr. Smiths submission is that the objective is
the protection of health and safety of people that have been
granted permission by the Government of Canada and have
access to these medicinal compounds, not some sort of
general protection of health sand safety.
10
You have to draw the objective, as this Court
11
said in Bedford, narrowly to avoid essentially swallowing up
12
the analysis.
13
of health and safety, when you have a restriction that
14
actually creates a set of conditions in which patient health
15
is harmed and they are denied access to more effective ways
16
of taking medicinal compounds also harming their health and
17
causing risk to health, causing physical pain and physical
18
suffering that is arbitrariness.
19
But even if the objective is the protection
I think the example of Ms Herman is a good one.
20
Ms Herman testified that she would take her dried marihuana
21
that she is lawfully entitled to possess and she would make
22
a tea solution with it in the morning.
23
up the dried marihuana.
24
into a tea strainer.
25
strainer into the tea with a little bit of milk because the
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Thats lawful.
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She would put it
She would put the tea
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fat and milk will then solubilize with the resin glands and
you will have an extraction process.
now produced THC in a weak oral solution and then she would
take the tea strainer out and set it off to the side because
thats what you do.
Not legal.
She has
What she is holding in her hand now is a weak
oral solution of THC and CBDD and other cannabinoids.
has produced that.
derived it.
10
She manufactured it.
She
Those are the words of the Controlled Drugs and
Substances Act.
11
She made it.
She
She is possessing it.
My friend says, well, there is no -- there is
12
no rules in the MMAR about how you use your cannabis
13
substances.
14
MMPR, Well, there is no rules about how you use your
15
cannabis.
16
use your cannabis.
See, we say here in the RIAS statements to the
No, there is no rules in the MMAR about how you
17
There is a rule in the Controlled Drugs and
18
Substances Act that says its unlawful to do what I have
19
just described Ms Herman as doing.
20
holding that dried cannabis.
21
medicinal tea out of it.
22
my respectful submission, highlights the arbitrariness of
23
these restrictions and it does so in a way that is difficult
24
to reconcile with the factual record.
25
So she is perfectly fine
She is not fine holding her
And that is arbitrary.
That, in
The compounds -- you know, my friend says,

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Well, these things, these derivative products, they are
untested.
Their safety profile is not known on the one hand.
the other hand he is saying the Government of Canada doesnt
have any restrictions on patients making these substances
and they can consume them any way you want.
There is no clinical studies.
They are untried.

But on
There is a contradiction there.
I mean, its
either an untested, untried substance that should be kept
out of the hands of people to protect their safety or it
10
isnt.
And if it isnt doesnt that undo my friends point
11
entirely if patients are really able to do whatever they
12
want with their dried cannabis and adjust the compounds in
13
any way they want?
14
It completely undermines my friends point
15
about the line being drawn at dried marihuana because we are
16
worried about patient health if they consume these other
17
products.
18
products any way they want to.
19
contradiction in my friends position that there is no way
20
to reconcile on the argument.
21
Apparently they are able to consume these other

Thats a fundamental
I say, further, this in terms of overbreadth.
22
Even if, as respect to some persons, the restriction does
23
have some minimal rational connection to the objective of
24
protecting health and safety, to the patients that testified
25
at the trial there is no rational connection.

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their conduct even though their conduct doesnt implicate
the objectives.
what this Court described overbreadth as in Carter, Bedford
and the other cases.
And thats what overbreadth is.
Thats
And then I say gross disproportionality.
The
regulation is grossly disproportionate to those objectives
because the effects on patients as described by the
witnesses and supported by the objective evidence of the
experts is to harm them and to criminalize their conduct, to
10
criminalize their choices of how to best treat their
11
individual medical conditions.
12
that does not further the goals of the legislative scheme.
13
And I think this is where the comments of the
14
trial judge about evidence related to a diversion or harms
15
of the products comes into play.
16
you look at the objective but when the burden has been met,
17
when the rights claimant has met the burden of showing the
18
infringement of liberty and of showing an infringement of
19
security of the person and of showing that those
20
infringements are not in accordance of principles of
21
fundamental justice its fair to say where is -- where is
22
the evidence that there is any benefit being derived?
23
And it does so in a manner
We know that the law says
And I think its more appropriately considered
24
in section 1 but that evidence didnt exist on the record.
25
It wasnt there and it undermines -- I think Ill conclude

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what what I have to say about section 7 there -- and it
undermines any position on section 1 as well.
And the evidence is firstly, as the case has
made clear, its very difficult to, on section 1 grounds,
justify the overriding of section 7 rights generally,
particularly where the restrictions have been shown to
intrude on liberty and security of the person in a way
thats arbitrary or overbroad.
connection there.
10
There is a failure of
There is a failure of rational connection there
11
that is stark in the section 7 analysis that really undoes
12
the ability to justify it, at least in the facts of this
13
case on section 1 because there were no facts provided by
14
the government in terms of the section 1 analysis that would
15
support that these products are dangerous, that patient
16
health is harmed, that public safety is implicated, that
17
diversion is occurring by patients in particular.
18
facts were just simply absent.
19
is no rational connection.
20
Those
And so there is no -- there
In addition, the existence of other legislative
21
schemes that would be applicable to the commercial
22
production and sale of these products but for their
23
inclusion in the Controlled Drugs and Substances Act
24
demonstrates that the restriction is not minimally
25
intrusive.
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lacuna and a threat to the rule of law in his discussions on
remedy and says, Well, if the MMARs are stricken down or if
this restriction is stricken down there is going to be this
vacuum.
The remedy that -- Im coming to remedy,
Justice Abella -- the remedy that Mr. Smith seeks is a
reading in of an exemption from the Controlled Drugs and
Substances Act.
The end of the day, the problem is that the
10
government is treating medical cannabis in the same way that
11
it treats recreational cannabis, what it calls a drug of
12
abuse.
13
not abusing it.
14
their physician.
15
use.
16
recognized in Malmo-Levine.
People that use cannabis for medical purposes are

They are using it on the recommendation of
That is not abuse.
That is legitimate
It is a very distinct situation, as this Court
17
There is a very stark difference between
18
recreational and medical.
19
of these substances, the medical distribution of these
20
substances; the medical consumption and possession of these
21
substances is prohibited, generally speaking, by the
22
criminal law with a narrow exemption drawn by the MMARs.
23
Thats the difference.
24
25
And, yet, the medical production
Im sorry.
How is your
remedy different than the trial judge going through and

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taking out dried from the Regulation?
MR. TOUSAW:
And it was a thorny issue before
the trial judge because the trial judge was attempting to
provide an effective remedy to patients principally in the
first instance.
the declaration of invalidity that he made as it related to
patients but did suspend it as it related to produce it to
allow the government to step in and regulate.
Thats why the trial judge did not suspend
And what came about as we are working through
10
the regulatory scheme is that striking the word dried out of
11
the MMAR left in place the definition of marihuana.
12
Marihuana in the MMARs is specific to cannabis marihuana as
13
defined in Schedule 2(1)(2).
14
doesnt mean resin.
15
the cannabinoids.
16
It means the plant.
It doesnt mean THC.
It
It doesnt mean
It just means the plant.
And so really the remedy without turning it
17
into meaning all the Schedule 2 substances would have been
18
an ineffective remedy because it would have just left
19
patients in the same position.
20
plant.
21
They could produce the
They could possess the plant but the minute
22
they turned it into resin, even if they just tapped the
23
flowers into their hands and were left with a small bed of
24
the medicinal compounds in their hands, would have still
25
been unlawful extracting it into oil and then having a

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solution of THC and the other cannabinoids would have
remained unlawful.
to read Section 2.
Thats why the trial judge redefined it
The difficulty with that remedy sitting here
today is that the MMARs dont exist anymore.
repealed by operation of the MMPR.
The MMARs were
As referenced in one of the interveners
factums, there is ongoing litigation.
There has been an
injunction granted preserving for some people aspects of the
10
MMAR regime.
11
of constitutional exemption but as a regulatory scheme it
12
doesnt exist anymore.
13
So in a limited sense the MMARs live on by way
And so the difficulty in the trial judges
14
remedy and the difficulty in the court of appeals remedy is
15
that it doesnt provide an effective and responsive to the
16
patients who require access to these other forms of the
17
medicine, because redefining a definition or striking down a
18
restriction in a regulatory scheme that doesnt exist any
19
more leaves them still captured by the regulatory scheme
20
that does exist which has the exact same restriction.
21
Notwithstanding what my friend said from the
22
Regulatory Impact Analysis Statement accompanying the MMPRs,
23
and he took you to it where he said, well -- and its at the
24
last page of Tab 7 of my friends book where he says, Well,
25
there is no restrictions on how dried marihuana is to be

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ingested or inhaled.
The problem of course is that its not the
restriction in, as I said, the MMPRs thats the problem.
Its the restriction in the Controlled Drugs and Substances
Act that is the problem.
before this Court and says what is really required to follow
the principle elucidated in Doucet-Boudreau, the Charter
remedies must be effective and responsive to the problems
identified as a read-in of an exemption to the Controlled
10
Drugs and Substances Act.
11
12
And that is why Mr. Smith comes
And that --
Sorry.
That brings me
to the questions that I had.
13
MR. TOUSAW:
Yes.
14
Was that put before the
15
court of appeal, the argument about -- it just strikes me
16
that we are dealing now with a very different set of
17
constitutional remedies.
18
MR. TOUSAW:
19
20
MR. TOUSAW:
21
It was not put before the court of
So its being put before
us for the first time?
24
25
It was not put --
appeal.
22
23
It was not.
MR. TOUSAW:
It is being put before you for the
first time.
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And the argument against
just saying to the government if we accept your argument
that its unconstitutional, find a way to make it
constitutionally compliant within a period of time is...?
5
6
MR. TOUSAW:
I would say here is the problem.
And there are two problems.
The first is that there has been no evidence
put before this Court or any court on why the Schacter
criteria for suspending declarations of invalidity ought to
10
apply in this case.
There is no threat to the public
11
safety.
12
a case of where you strike down a statue and all of a sudden
13
no one will have the benefit of that statue.
There is no threat to the rule of law.
This is not
14
In fact, exempting medical cannabis from the
15
Controlled Drugs and Substances Act will automatically by
16
operation of law put medical cannabis into the Natural
17
Health Product Regulation.
18
Regulation governs the commercial production, marketing and
19
sale of medicinal plant and plant-based products.
20
21
exemption?
22
read in a medical exemption.
23
another persons poison.
24
25
The Natural Health Product
How do you define medical
You simply say at paragraph 195 you want us to

One persons medicine is
Is there not going to be problems just saying

anything that you think is medical is going to be okay?
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would think there would have to be more, more detail
provided unless we want simply everybody to self-medicate.
MR. TOUSAW:
Mr. Smith at trial took no issue
with a requirement that a physician be a gatekeeper in the
MMAR regime.
It is reasonable for this Court if it reads a
medical exemption into the Controlled Drugs and Substances
Act to say that that has to truly be medical.
could be defined by reference to the approval of a
And medical
10
physician.
11
all manner of substances potentially including cannabis
12
under section 53 of the Narcotic Control Regulation.
13
And physicians of course are able to prescribe
Isnt this very
14
conversation a reason for us not to wade in -- reading in is
15
usually something we do when the circumstances are so clear
16
about what the effect would be of reading in and the
17
government really doesnt have any range of options to think
18
about.
19
Here its a new remedy that is being proposed
20
for the first time before this Court without any argument or
21
discussion about the utility, the precision.
22
point about the fact that they have had three years
23
effectively since the decision was made.
24
argue for less time than the year given by the court of
25
appeal rather than for reading in?

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1
2
MR. TOUSAW:
Ill say two things in response,
Justice Abella.
First, I would say the government has had more
than three years to come up with a constitutional scheme.
On this particular point they have had three years.
On the issue of the constitutionality of the
medical exemption scheme generally this issue has been
litigated for the last 15 years.
than three court of appeal
Its resulted in no less
decisions finding the regulatory
10
scheme to be unduly restrictive, one decision in the B.C.
11
Supreme Court which proceeded by way of direct leave
12
application to this Court that was denied, finding the
13
regulatory scheme to be insufficient on Charter grounds.
14
My friend has described the governments
15
responses to those declarations of invalidity as robust.
16
With the greatest of respect to my friends position I think
17
that the history that I have provided in my remedy section
18
tells a different story.
19
robust.
The response has been anything but
And I will give you one stark example.
20
In the case called Sfetkopolous which was
21
ultimately decided in the Federal court of appeal , a court
22
of national impact which I think runs contrary to my
23
friends point that this Court is the first to deal with
24
this case and have a national impact.
25
appeal did have national impact.

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But in the case called Sfetkopolous one
producer and about 15 patients challenged the one to one
ratio between producer and patient that was contained in the
MMARs.
Rights and Freedoms as arbitrary and unduly restrictive.
Now, keep in mind this is one producer and 15 patients of
the factual matrix of that case.
That restriction was found to violate the Charter of
8
9
The governments response to that was to amend

the regulatory scheme.
My friend calls it a robust
10
response.
They made it one producer and two patients.
In
11
my respectful submission its not even responsive to the
12
case.
They prompted the response.
13
And so there has been 15 years of opportunity
14
and what keeps happening, what we keep coming back to is
15
that medical production, medical delivery, medical
16
possession remains a criminal offence and that puts patients
17
at significant jeopardy of their liberty and their security
18
of the person.
19
their medical choices.
20
It interposes the state in between them and
Mr. Smith says thats unacceptable.
Mr. Smith
21
says the only way to effectively respond to that is to take
22
the medical canvas out of the Controlled Drugs and
23
Substances Act.
24
product.
25
Immediately it becomes a natural health
And so the commercial aspects that my friend is

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concerned about, the commercial marketing, the commercial
production, the commercial sale remain regulated behaviour.
The Natural Health Product Regulation contains non-criminal,
non-CDSA offence provisions.
manage the commercial aspects of this endeavour.
The government can continue to
However, what the Natural Health Product
Regulation does not do is criminalize individual patient
conduct and it does not then interfere with their liberty
and their security of person in a way that using the
10
criminal law, the heavy hand of the criminal law does.
11
Thats why, in my respectful submission, the read-in is the
12
appropriate remedy.
13
I should also say this:
Proving intent,
14
medical intent or other intent, is not a concept foreign to
15
law.
16
result of the 2012 amendments brought about by the Safe
17
Streets and Communities Act put very precisely into the
18
production offence for producing marihuana plants between
19
six and 200 a requirement that in order for the mandatory
20
minimum sentences to apply the Crown would need to prove
21
beyond a reasonable doubt that the production was for the
22
purposes of trafficking.
In fact, the Controlled Drugs and Substances Act, as a
23
Thats an intention.
Thats not -- so its not
24
unknown in the law to have intent be part of the
25
prosecutions case in chief.

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which Mr. Smith stood charged was possession for the purpose
of trafficking.
would have had to prove beyond a reasonable doubt that he
possessed these products for the purpose of trafficking
them.
And in order to convict him, the Crown
Now, we admitted that, obviously, in this
particular case.
But in terms of reading in a medical
exemption, if the Crown and the prosecutorial authority
after a case comes to it from the law enforcement authority,
10
reviews the facts and sees that in the ordinary course of
11
investigation of marihuana offences someone is trafficking
12
marihuana and there is no indicia of medical need
13
whatsoever, that person is going to be convicted.
14
Thats the way the system works.
Thats the
15
way the criminal justice system works.
Its not an
16
impediment to that to say, You cant convict a patient,
17
particularly a patient of these offences if the patient is
18
using the products for medical purposes.
19
And that is the way that we solve the thorny
20
problems that have been plaguing patients for 15 years or
21
more and plaguing the courts for that same span of time.
22
some point the endless cycle of litigation on this issue
23
needs to cease and there needs to be a clear line of
24
demarcation between what conduct the state is entitled to
25
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criminalize.
We know that recreational cannabis as a result
of Malmo-Levine, we know that the state is entitled to
criminalize for recreational purposes.
said, its a very different thing indeed when the cannabis
is intended for medical purposes.
But as this Court
In my respectful submission thats a
distinction that this Court needs to drive home and make
clear so that the courts understand what the law is, so that
10
the state understands where its powers are circumscribed and
11
so that the patients can understand that they are free from
12
the spectre of criminality for their medical cannabis
13
possession/consumption and their making of these products
14
that provide them a benefit to health.
15
16
Could I take you back to
your arbitrariness point just for a second?
17
MR. TOUSAW:
Absolutely.
18
The way you presented
19
the point orally, at least as I understood it, was it was
20
premised on the patient having or being eligible for an
21
authority to possess and the irrationality resided in the
22
fact that you had legal authority to possess the compound
23
but not in different forms.
24
MR. TOUSAW:
25

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whether your arbitrariness point is premised on a patient
who is otherwise entitled to the authority to proceed to
possess.
MR. TOUSAW:
We did not challenge at trial the
gatekeeper provisions in the MMAR requiring physician
approval before one became a lawful possessor of dried
marihuana.
called Mernagh that my friend has referenced.
That was being challenged at the time in a case
It was decided at least on evidentiary grounds
10
in Mernagh that the physicians gatekeeper problem did not
11
render the defence illusory in the way that the Morgentaler
12
case described an illusory defence.
13
pursue that line of argument either at trial or in the court
14
of appeal.
15
And so we did not
So for purposes of this hearing before this
16
Court what we are talking about is patients that are
17
medically qualified as a result of being approved for access
18
for therapeutic compounds by their physicians.
19
20
And in the record in
this case there were two and one pending.
21
MR. TOUSAW:
Is that --
Thats correct; two and one
22
pending and then further that 5 percent of the several
23
thousand, 5 to 10 percent of the several thousand members of
24
the Cannabis Buyers Club of Canada at least at the time of
25
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marijuana.
Now, that number has grown since then, but it
is certainly the case that at least two of the patients were
medically approved by their physicians on the basis of very
serious medical conditions that they treated effectively,
safely and without the risk of harms of smoking as a result
of having access to forms of marihuana other than dried
cannabis.
the restriction violates the Charter of Rights and Freedoms.
10
And its for those reasons that Mr. Smith says
But your remedy seems to
11
me to go well beyond arbitrariness that you have identified
12
because you want us to dismantle the regime.
13
MR. TOUSAW:
I am asking this Court to read a
14
medical exemption into the Controlled Drugs and Substances
15
Act.
16
effectiveness on a physician signing off either under the
17
Narcotic Control Regulation, section 53 or other --
If that medical exemption depends for its
18
You would have to say
19
that the whole regulatory regime is gone and all thats
20
required is a physicians letter or something of that sort.
21
MR. TOUSAW:
I think the Government of Canada
22
has a regulatory regime in place that will govern the
23
production and commercial sale of these products for medical
24
purposes already.
25
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What I am saying is that in respect of
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the criminal law for making the choice to use cannabis in
all of its forms.
And to the extent that Schedule 2 includes
synthetic substances those were not before the trial judge.
Those are not a concern of Mr. Smith.
Thank you.
(1105)
Court will rise for its morning recess.
--- Upon recessing
10
--- Upon resuming
11
(1123)
12
Thank you very much.
Thank you.
Mr. Chan...?
13
ARGUMENT FOR THE INTERVENER, CRIMINAL LAWYERS ASSOCIATION
14
(ONTARIO)
15
(1123)
16
Justices.
17
18
MR. CHAN:
Thank you, Chief Justice and
The Criminal Lawyers Association is concerned

with both the issues of standing and remedy.
19
With respect to standing I echo much of what my
20
friend, Mr. Tousaw, said.
21
additional case for your consideration.
22
Wholesale Travel in which corporations of course were
23
allowed to assert the section 7 rights of individuals and
24
challenge to an unconstitutional law under which they were
25
charged even though there can never be any connection

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between the accused corporations and the section 7 rights
asserted because corporations cannot enjoy the right to
life, liberty and security of the person.
And I simply say that if a corporation can
assert the constitutional rights of individuals then surely
a supplier of medical marihuana who operates entirely
outside the regulatory scheme can assert the section 7
rights of a supplier who may have at least one foot inside
the scheme.
The only connection required under Big M Drug
10
Mart is that the accused be charged under the impugned law.
11
And this principle in our respectful submission should be
12
reaffirmed and not narrowed in any way, particularly given
13
the trend in this Court to broaden the rules of standing as
14
we have seen most recently in Downtown Eastside.
15
The second point I wish to make to standing,
16
and this goes to the question, Justice Cromwell, you asked
17
as to whether my friend from the Crowns complaint is really
18
more about remedy.
19
And we say that it is.
An accused has standing to challenge the
20
constitutionality of a law under which he is charged because
21
he can obtain a declaration of invalidity.
22
operate as a complete defence to the charge.
23
remove the basis for the prosecution.
24
25
That would
It would
Now, just because the accused may not

ultimately succeed in obtaining his desired remedy, for
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example if the Court ultimately decides to read the
legislation down in a way that still sustains its
applicability to the accused doesnt mean that the accused
should never have been granted standing in the first place.
In our submission to allow speculation as to
what the ultimate remedy might be, to dictate the terms of
standing would be to put the cart before the horse.
this exact point was dealt with by Chief Justice Lamer in
his concurring opinion in a case of Ontario and Canadian
10
And
Pacific Limited [1995] in which Chief Justice Lamer said:
11
...the fact that an accused has standing
12
to challenge law does not inevitably mean
13
that he or she will benefit from a finding
14
that the law is unconstitutional,...
15
Standing just gets your foot in the door so
16
that you can make your arguments.
It does not guarantee
17
success but that door should not be closed simply because
18
you are not guaranteed success.
19
Dealing then with the issue of remedy, the
20
CLAs position is that this Court should recognize that
21
there is a fundamental conflict between the suspended
22
declaration of invalidity when it is used in this context,
23
when we are dealing with an unconstitutional and, arguably,
24
unconstitutional criminal offence.
25
There is a conflict between the suspended

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declaration here and the principal in Big M Drug Mart that
no one shall be convicted under an unconstitutional law.
And that conflict arises because when we leave -- when we
grant the suspended declaration this Court is leaving on the
books for a period of time an unconstitutional offence that
can be used to arrest, to imprison in pre-trial custody and
potentially convict people despite its unconstitutionality.
And because of this conflict we urge this Court to insist
that the government justify a suspended declaration and show
10
that there is a compelling reason to override the principle
11
of Big M Drug Mart if its to be used in this context.
12
The Schacter criteria, in our submission,
13
provides useful guidance as to when it may be appropriate to
14
temper this constitutional principle with practical
15
necessity if there is a rule of law problem, if there is a
16
public safety problem or if you are dealing with an under-
17
inclusive benefits regime and you dont want to strip away
18
those benefits from all those who would otherwise be
19
entitled to it.
20
My friend tried to -- from the Crown tried to
21
place this case within the rule of law category in terms of
22
justifying why a suspended declaration would be appropriate
23
and argued that because there is a gap in the law that poses
24
a rule of law problem.
25
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problem.
Otherwise, you would always be suspending
declarations of invalidity.
problem to leave on the books an unconstitutional offence
that can result in the arrest, incarceration and potential
conviction of individuals.
It is a bigger rule of law
MR. CHAN:
submissions.
(1128)
10
Thank you.
Subject to questions those are my
Very good.
Mr. Lokan...?
11
ARGUMENT FOR THE INTERVENER, CANADIAN CIVIL LIBERTIES
12
ASSOCIATION
13
(1129)
14
Justices of the Court.
15
16
MR. LOKAN:
Thank you, Chief Justice and
On behalf of the CCLA I will address three

brief points arising from the section 7 analysis.
17
First, the liberty interest is engaged by the
18
threat of imprisonment and this is enough on the Courts
19
principles and case law to shift the analysis to the
20
principles of fundamental justice stage.
21
need to be a further showing that patients liberty or
22
security of the person interests are engaged by interference
23
with fundamental personal health choices although that
24
appears to have been made out on the findings of the case.
25
There does not
The second point is to the extent its

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necessary to show that marihuana products are a reasonable
treatment choice the evidentiary bar should not be set too
high because of access to justice concerns.
the requirement for medical or scientific proof may be
unrealistic and contrary to access to justice.
That is to say
Thirdly and finally, we say the courts below --
the courts below did not alter the burden of proof when it
comes to arbitrariness.
evidentiary burden as the case unfolded.
10
At most there was a shifting of the
So on the first point we say that the liberty
11
interest is engaged by the statutory scheme because both
12
patients and providers may be imprisoned for supplying or
13
possessing cannabis products other than dried marihuana.
14
That has always been enough to pass the threshold stage of
15
section 7 and move on to principles of fundamental justice.
16
You have seen that in Malmo-Levine and in the PHS case
17
thats very clear on the law.
18
My friend for the Crown says, Well, all that
19
gets you is a review of whether you had a fair trial.
20
doesnt get you into any other kind of review.
21
is no authority for that proposition and thats wrong in
22
principle.
23
That
I say there
And if I could just give a little hypothetical
24
example, if there was a law on the books which made it
25
illegal to have a last name beginning with L -- so thats

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a completely arbitrary law -- it would be no answer if the
government says, okay, you can be imprisoned for that.
But you have a fair trial.
They have produced
your birth certificate.
Its been proven.
You had a chance
to make your case.
purely arbitrary law because of the threat of imprisonment
to take to court to say its completely arbitrary.
would be an arbitrariness review.
You would still be entitled on that
There
Now, in this case we have, as in several other
10
cases of this Court -- we have the liberty interest engaged
11
from threat of imprisonment as well as the patient choice of
12
medical treatment.
13
the analysis but we say that either gets you to principles
14
of fundamental justice.
15
Both elements are there and both are in
Now, on the point about the evidentiary bar not
16
being set so high that medical or scientific proof is the
17
only way of establishing your case, we would say the courts
18
below have found that the derivative products were
19
reasonably required through the use of patient testimony and
20
expert evidence on a process of what the Ontario Court of
21
Appeal has described as ordinary fact finding.
22
findings of fact are palpable or of writing error there is
23
no basis to say that doesnt meet the standards that have
24
been set.
25
-- you need to have medical professionals testify or

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physicians testify and you need also to have scientific
studies thats going to render illusory the scope of the
medical exemptions that has been developed in the case law.
That would be an unduly credentialist approach with serious
implications for access to justice.
On my final point we disagree that the courts
below reversed the (indiscernible) proof in the analysis of
arbitrariness.
and court of appeal made some comments about how they would
10
have expected to see some evidence in certain areas such as
11
the alleged difficulties in estimating quantities of THC and
12
derivative products as opposed to dried marihuana.
13
respect, that was simply a practical -- what judges do in
14
practical circumstances and its a shifting of the
15
evidentiary, not the legal burden.
16
The appellant complains that the trial judge
With
What the respondent did was to bring
17
arbitrariness in play that derivative marihuana products are
18
more effective for some patients in some conditions.
19
raised the question of why it is that they should be
20
prohibited under the statutory scheme.
21
matter the appellants then found itself in a position where
22
it would be advisable to provide some support for the claims
23
that are made about why this is necessary but that was not a
24
shifting of the legal burden.
25
evidentiary burden.
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That
As a practical
It was only a shifting of the
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And subject to any questions those are my
submissions.
the questions of standing and remedy as very important
questions and we adopt the submissions of the CLA on those
points.
(1134)
I do want to simply add that the CCLA regards

MR. LOKAN:
Thank you.
Thank you.
ARGUMENT FOR THE INTERVENER, BRITISH COLUMBIA CIVIL
LIBERTIES ASSOCIATION
10
(1134)
11
British Columbia Civil Liberties Association says that the
12
criminalization of modes of ingestion of medical marihuana
13
is an infringement of the right to liberty that extends
14
beyond the mere threat of incarceration, the threat of
15
incarceration.
16
for consistency with the principles of fundamental justice
17
we say.
18
MR. GRATL:
Chief Justice, Justices, the
Standing alone is enough to trigger scrutiny
Similarly, we adopt the respondents
19
submissions in respect of the very significant effect on the
20
security of the person regarding which there were clear
21
findings of fact.
22
But we would say that this case affords an
23
opportunity to bring clarity to a zone of the right to
24
liberty that rarely receives treatment, precisely because
25
cases like Morgentaler, Bedford, Portland Hotel Society,

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Chaoulli and Carter tend to deal with life and death
situations or very, very serious bodily harm.
raised because the Crown asks that the right to life be
triggered only where there is a life or death situation and
where there is serious bodily harm.
Its also
In response the British Columbia Civil
Liberties Association under section 7 should afford
protection to important choices, the restriction of which
detracts from the sphere of personal autonomy, individual
10
dignity or independence from state interference.
11
to liberty should only be restricted in scope where it would
12
debase the administration of justice to hear the issue.
13
The right
In Malmo-Levine the examples were given by this
14
Court, golfing for example, lifestyle choices.
15
argues that all non-trivial choices, especially of a medical
16
nature, all non-trivial choices should trigger the right to
17
liberty.
18
Here BCCLA
The reason for that is twofold.

Firstly, its found in the place accorded to
19
the right to life, liberty and security of the person in the
20
overall architecture of the Constitution.
21
liberty, security of the person and life are -- they are all
22
triggers for further scrutiny of laws for accordance with
23
the principles of fundamental justice and for justification.
24
So thats the first aspect.
25
respectful submission, appropriate at this first triggering

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The right to
Its not, in my clients
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stage to take into account the issue of whether affording
too much liberty will make society ungovernable.
suitable in my clients respectful submission to have
concerns at that stage about unbridled liberty.
Its not
The bridle metaphor, in my respectful
submission, is not appropriate to the governance of
constitutional affairs where it ought to be recognized that
the state exists for the benefit of the individuals
constituting it rather than the other way around.
10
The second imperative, also a constitutional
11
imperative, is the role of the courts in defining the rule
12
of law, in providing transparent and intelligible rationales
13
for a restriction of liberty.
14
defined too narrowly the Court will not have an opportunity
15
to serve its proper constitutional role in providing
16
transparent and intelligible reasons for the restrictions of
17
liberty if we are properly scrutinizing the justifications
18
afforded by the Crown for those limitations.
19
imperative to provide intelligible justifications is
20
underscored by this Courts comments in the succession
21
reference that democracy for its justification relies on the
22
application of the rule of law.
23
If the scope of liberty is
That
There is no social compact, no real contract
24
that citizens sign when they are born into citizenship.
25
Instead we are left for surrogates for that constitutional

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legitimacy and that legitimacy derives from the
justification exercise engaged in by the courts to ensure
the privacy of the individual over the state in the form of
demanding justification and consistency with the principles
of fundamental justice.
That brings my time to an end.
MR. GRATL:
(1139)
Thank you very much.
Thank you.
Reply...?
10
REPLY ARGUMENT FOR THE APPELLANT, HER MAJESTY THE QUEEN
11
(1139)
12
first with respect to remedy, the statement of
13
constitutional question in this case is very specific;
14
whether the restriction of the MMARs to dried marihuana is
15
inconsistent with section 7 of the Charter.
MR. RILEY, Q.C.:
16
Chief Justice, Justices,
I think we have to
17
remember that statements of constitutional questions are
18
only intended to provide notice to attorney generals and
19
others.
20
that the real gravamen here has to take into account the law
21
as well.
They are not in any way binding and it may well be
Otherwise, of course, there would be no offence.
22
MR. RILEY, Q.C.:
23
24
is an exception.
25
What we are dealing with
So I just --
MR. RILEY, Q.C.:

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Right.
Yes.
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-- dont want to cut off
your argument but I wouldnt put too much weight on the
constitutional questions.
MR. RILEY, Q.C.:
Chief Justice, I think you
may be -- I may not have made the -- made it clear the
reason I am saying that.
The specific issue is alleged constitutional
infirmity with respect to one component of the regime.
Thats the restriction to dried marijuana.
So Mr. Tousaw
10
refers to all the number of producers and the many other
11
aspects of the regulatory scheme which have drastically
12
changed with the introduction of the new regime, the MMPRs,
13
a totally different scheme; moves to a model where instead
14
of designated producers you have commercially licenced
15
producers treating this substance as closely as possible;
16
that is, marihuana, to other drugs that are regulated for
17
pharmaceutical purposes.
18
So my point is that the issue is the
19
restriction to dried marihuana, not all of the other
20
complaints that have been litigated in other cases and have
21
been responded to and are still undergoing litigation.
22
And so if there is a remedy the Crown says its
23
right on the merits but if the Crown isnt right on the
24
merits, if there is a remedy its got to be focused on the
25
question of restriction to dried marihuana and not

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jettisoning an entire government program that has at least
30,000 licenced individuals operating under it.
be drastic and in favour of a judicially legislated defence
whats ill defined, frankly.
That would
I will just say one more specific point.
My
friend says that the response to Sfetkopolous which was the
limit to the number of producers was to move from one to
two.
Statement for the new MMPRs which is in the condensed book
And if you look at the Regulatory Impact Analysis
10
at Tab 4, I believe, what you will see -- oh, its going to
11
be -- this part isnt in the condensed book because I didnt
12
realize it would arise.
13
But if you look at the appellants authorities,
14
Tab 13, thats the complete Regulatory Impact Analysis
15
Statement.
16
responded to the Sfetkopolous ruling by moving from one
17
designated producer to two and that the amendment was an
18
inter-measure intended to address the Courts decision while
19
the program and the MMARs were being reassessed.
20
ultimate conclusion was the MMPRs, an entirely new regime
21
that moves to licence producers.
22
completely irrelevant issue at this point.
23
At page 1725 it shows that the government
The
So its not -- its a
With respect to my friend, Mr. Tousaw, says,
24
Look, derivative marihuana products are as safe or are
25
safer than many approved pharmaceuticals.

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My friend cant
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108
say that and there is no finding to that effect.
No one can
say that.
been no scientific study over -- with a statistically
significant number of participants to show thats the case.
The reason no one can say it is because there has
Indeed, what the court of appeal said was the
Crown hasnt produced evidence to show that these products
are any less safe or more dangerous.
very beginning has been that thats a reversal of the burden
under section 7 of the Charter.
10
With respect --
11
And my point from the
(Off microphone)
12
interrupt you.
13
suspension of a declaration of invalidity of a scheme that
14
is no longer in force?
15
But can you explain why it is you need a
MR. RILEY, Q.C.:
Yes.
I think its this, and
16
it goes to the rule of law question.
17
there is a new scheme now which has many different facets
18
but that new scheme maintains the impugn distinction by
19
saying only authorizes dried marihuana.
20
There is no question
So I appreciate the Court will be saying the
21
restriction in the old regime is invalid.
22
question, though, that in terms of the rule of law everyone
23
will take guidance from what this Court says about that
24
restriction.
25
-- that point would be decided.

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There is no
It will have to be -- obviously it would have

So with regard to the new
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regime since it envelops and adopts that new provision even
though its not subject to challenge, the government would
have to obviously look at responding to the ruling to make
sure that the ruling corresponds with, or that the
Regulations correspond with the ruling.
6
7
I had more points and Im not sure if I will be

given the time to make them.
MR. RILEY, Q.C.:
10
Well, very quickly.
Yes.
Thank you.
With respect to my friend, Mr. Tousaw,
11
referenced doctors notes and I will just point out of the
12
CBCC patients, the Crown at the trial objected to any
13
testimony from patient witnesses about medical opinions of
14
doctors and said that they could give that evidence but it
15
would not be permissible for a hearsay purpose.
16
trial judge accepted that limitation.
17
record, Part 3, Volume 2, page 77, line 1 to 19, and page
18
83, line 40 to page 84, line 7.
19
20
And the
That comes from the
And then --
Would you confine your
points to things that really matter?
21
MR. RILEY, Q.C.:
22
I think that we --
Oh.
-- have findings and
23
whatever that particular evidence is we will be looking at
24
it.
25
MR. RILEY, Q.C.:

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I guess I would just

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say this, and I will leave it at this, Chief Justice, that
my friend is saying, Well, look, there is support for the
CBCC witness opinions that they need to use other kinds of
substances other than dried marihuana.
from a doctor.
it clear on the record that the witnesses could testify
about their dealings with their doctors but any medical
opinions through those witnesses would be hearsay and the
trial judge accepted that limitation.
Thats a hearsay letter and the Crown made
10
11
MR. RILEY, Q.C.:
12
(1146)
13
its decision.
14
15
Look at this letter
Thank you.
Thank you.
The Court will reserve
We thank all counsel.

We are adjourned.
--- Whereupon the hearing concluded at 11:46 p.m.
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CERTIFICATION
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I HEREBY CERTIFY that I have
18
accurately transcribed the foregoing
19
to the best of our skill and ability
20
from the audio provided.
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___________________________
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Karen Par
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Verbatim Court Reporter

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36059

SUPREME COURT OF CANADA

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

Party: Criminal Lawyers' Association (Ontario)

Argument for the Appellant,

Argument for the Respondent,

Argument for the Intervener,

Argument for the Intervener,

Argument for the Intervener,

Written submissions only for the Intervener,

Written submissions only for the Interveners,

Reply Argument for the Appellant,

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

Andrew K. Lokan and Debra McKenna for the

Jason B. Gratl for the Intervener, British

Julius H. Grey and Genevieve Grey for the

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

Her Majesty the Queen versus Owen Edward Smith,

MADAM CHIEF JUSTICE:

And no one appearing for the Interveners,

ARGUMENT FOR THE APPELLANT, HER MAJESTY THE QUEEN

Charter of Rights does not include a freestanding

Constitutional right to medical marihuana, much less a

freestanding right to produce and distributive marihuana

MR. RILEY, Q.C.:

Chief Justice, Justices, the

The question in this case was whether a

particular legislative scheme that provided for medical

access to marihuana but did not allow for access to

derivative marihuana products was shown to infringe the

rights of life, liberty and security of the person in

section 7 of the Charter.

Court is whether the courts below applied the correct legal

or constitutional standards when trying to resolve that

The specific question for this

So in bringing this appeal, the Crown is not

asking this Court to reweigh the evidence.

inviting the Court to pronounce on any evidentiary issues

with respect to botany.

asking the Court to interpret the evidence concerning the

significance of glandular trichomes on a marihuana plant.

So, for example, the Crown is not

The Crown is asking the Court to apply and, if

necessary, clarify the legal standards or thresholds under

section 7 of the Charter.

address legal standards or thresholds under both phases of

the section 7 Charter analysis.

And the Crown argument will

And to be clear, this is just an overview of

the arguments the Crown will present and I will obviously

get into them in more detail.

At the first stage, the Crown is asking the

Court to pronounce on the legal threshold that an applicant

must meet to establish that liberty and security of the

persons interests are engaged.

controlled substances, is it enough for an applicant to

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

In the context of access to

Or must a claim meet some objective standard or

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

required for an applicant to demonstrate that a deprivation

of liberty or security of the person is inconsistent with

the principles of fundamental justice.

burden is on the applicant.