via CanLII – 2016 FC 236 (CanLII).

Terrific job!  Let’s hear it for Plaintiff’s counsel!  Thank you AGAIN!!      John Conroy, Q.C.    Kirk Tousaw    and  Tonia Grace,  Bibhas Vaze, Matthew Jackson

257]      In sum, the law goes too far and interferes with some conduct that bears no connection to its objectives.

(b)               Positions – Summary

[258]      The Plaintiffs submit that in this case, the Defendant conceded at trial that the impugned restrictions apply to persons whose conduct did not implicate the objectives of protecting health and safety. None of the patient witnesses engage in diversion, and there was no evidence that any had suffered any harm to either their health or safety, or caused any harm to public health or safety, as a result of their cannabis cultivation and consumption. Health Canada was unable to produce any significant records of any such problems generally throughout the history of the MMAR.

The Plaintiffs’ factual argument is accurate.

[259]      If the evidence of possible harms associated with personal production of cannabis and cannabis-based medicines is accepted, the blanket prohibition catches people outside of the class of persons who are suffering and/or causing such harms and is, therefore, overbroad. The blanket prohibition on production, possessing more than 150 grams and consuming forms other than dried marihuana is not proven to be connected to the objective of protecting health and safety.

[260]      The evidence establishes that the great majority of patients were able to produce their own cannabis as medicine without any threat to their own health and safety or that of the public. It follows that the limitation on their rights is not connected to the objective of protecting public safety and health. The law punishes everyone who produces cannabis as medicine for themselves, possesses more than 150 grams or possesses/produces cannabis-based medicines without distinguishing between those who do so safely and securely without any risk to public safety or health.

[261]      In response, the Defendant states that it is only required to establish that the personal cultivation of cannabis gives rise to a reasoned apprehension of harm and the evidence of harms set out goes far beyond that standard. Additionally, the Defendant states that the Plaintiffs do not dispute that the personal residential cultivation of medical marihuana entails some inherent risk and the extensive health and safety precautions for commercial LPs are necessary. The aforementioned undermines the contention that the restriction on personal cultivation is overly broad.

[262]      The Defendant submits that it has implemented a complex regulatory regime, and the public health and safety objectives of that regime cannot be achieved in the context of home cultivation. The Defendant further submits that it is simply not possible to determine who is a “good” or “bad” grower without an elaborate system of regulatory and inspection requirements.

[263]      The Defendant submits that home cultivation requires an expansive and complex regime and without such regime, the inherent risks would persist. Thus the demand is a plea for a de facto subsidization of personal production and such positive obligations are not protected by the Charter.

[264]      There is evidence with respect to the extraordinary cost associated with Health Canada’s inspection of a handful of the MMAR residential growing operations. If the medical marihuana program continues to grow at its current pace, it is reasonable to expect tens of thousands of additional home growing operations will materialize. In order to inspect these sites, Health Canada would have to hire numerous inspectors, increasing the cost of the regime. The Defendant also references the costs of inspections to local municipalities to ensure compliance with by-laws. This cost is submitted to be borne by the Canadian public. Even if inspections were economically or logistically feasible, there are still privacy issues that may present hurdles to such inspections.

[265]      In contrast to the difficulties of inspecting personal production sites, the regulatory oversight of LPs is achievable and Health Canada conducts four different types of inspections at these facilities.

[266]      Relying on the goodwill and best efforts of individual growers to adhere to appropriate health and safety protocols is not a viable means by which a stable, consistent and safe medicine can be produced. Rigorous regular testing conducted by trained individuals is necessary to detect the presence of microbial contaminants and address other safety concerns.

(c)               Analysis

[267]      If this Court was to accept that there was some rational connection between the purposes of the law and some, but not all, of its impacts, the restriction would still be overbroad. As explained in the arbitrary analysis, there is no rational connection between the object of the law and the limits it imposes; however, it can be argued that eliminating cultivation essentially eliminates all risk associated with that activity and thus, there is a rational connection between the objective and this impact. The Court addresses this argument below.

[268]      Firstly, although there was evidence of MMPR participants and the LP market growing, there was no direct evidence on how the law has improved access compared to the MMAR. It may be reasonable to assume, given the previous decisions of the Court in Stefkopolous and Beren that some individual patients benefit from the LP regime, as they can avoid the time commitment necessary for cultivation and are not limited to purchasing from Health Canada. However, there is no evidence to qualify this assumption as an improvement in access over the previous regime.

[269]      Secondly, with respect to health and safety, the Defendant extensively relies on the cost of inspections necessary to reduce risk if cultivation was permitted. I find that this cost consideration, if necessary to discuss, is to be engaged at the section 1 stage. To the extent that the Court considers cost of the regime when justifying an infringement, it does so with scepticism. The reason for scepticism – the all too easy position that budgets trump rights – is well set out in the following paragraph:

72        The result of all this, it seems to me, is that courts will continue to look with strong scepticism at attempts to justify infringements of Charter rights on the basis of budgetary constraints.  To do otherwise would devalue the Charter because there are always budgetary constraints and there are always other pressing government priorities.  Nevertheless, the courts cannot close their eyes to the periodic occurrence  of financial emergencies when measures must be taken to juggle priorities to see a government through the crisis.  It cannot be said that in weighing a delay in the timetable for implementing pay equity against the closing of hundreds of hospital beds, as here, a government is engaged in an exercise “whose sole purpose is financial”.  The weighing exercise has as much to do with social values as it has to do with dollars.  In the present case, the “potential impact” is $24 million, amounting to more than 10 percent of the projected budgetary deficit for 1991-92.  The delayed implementation of pay equity is an extremely serious matter, but so too (for example) is the layoff of 1,300 permanent, 350 part-time and 350 seasonal employees, and the deprivation to the public of the services they provided.

Newfoundland (Treasury Board) v N.A.P.E., 2004 SCC 66 (CanLII), [2004] 3 SCR 381

[270]      Thirdly, if the risks to health and safety are accepted particularly mould, fire and potential criminal abuse, the restriction has no connection to outdoor cultivation as the evidence adduced was largely in the context of indoor cultivation at residential dwellings. More obviously, the restriction catches those whose health and safety were never at risk. Additionally, indoor cultivation issues can be addressed. As mentioned above, the restriction is contrary to both elements of the objective.

[271]      Therefore, in addition to being arbitrary, the law is overbroad.

(5)               Grossly Disproportionate

(a)               Law

[272]      The Supreme Court in Bedford stated the following with respect to gross disproportionality:

[120]   Gross disproportionality asks a different question from arbitrariness and overbreadth.  It targets the second fundamental evil:  the law’s effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported.  The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure.  This idea is captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk.  The connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society.

[121]   Gross disproportionality under s. 7 of the Charter does not consider the beneficial effects of the law for society.  It balances the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law. As this Court said in Malmo-Levine:

In effect, the exercise undertaken by Braidwood J.A. was to balance the law’s salutary and deleterious effects. In our view, with respect, that is a function that is more properly reserved for s. 1. These are the types of social and economic harms that generally have no place in s. 7. [para. 181]

[122]   Thus, gross disproportionality is not concerned with the number of people who experience grossly disproportionate effects; a grossly disproportionate effect on one person is sufficient to violate the norm.

[Court underlining]

(b)               Positions – Summary

[273]      The Plaintiffs submit that the state does not have a legitimate interest in prohibiting medicinal marihuana patients from producing medicine for their own personal consumption, possessing more than 150 grams or choosing modes of ingestion other than smoking the dried cannabis. Even if those interests are legitimate, the criminalization of the conduct is far too extreme of a response.

[274]      In this aspect of section 7, the Court is concerned with the negative effect on the individual balanced against the purpose of the restriction. A grossly disproportionate effect on one patient alone is sufficient to violate this principle of fundamental justice. Here, the purpose of the law is to protect the health and safety of medical cannabis consumers (or the public, on a broader conception of the objective). The negative effects of the law on patients include the imposition of criminality; the attendant negatives that flow from criminalizing; the stripping away of autonomy and choice in medical decision-making; tacitly forcing some patients to choose between an adequate supply of medicine and institutionalized poverty; the forced ingestion of cannabis medicine by smoking or vaporization with the attendant harms on account of the restrictions on permissible forms of marihuana; and the removal of the benefits of oral and topical modes of ingestion.

[275]      The Plaintiffs submit that the restriction’s negative impact on liberty and security of the person is very high. The law imposes unnecessary suffering on some patients, deprives them of self-determination in respect of what they do with their own bodies and confines their choice in how to ingest cannabis to options that are more harmful, less effective and often impractical or impossible.

[276]      Further, those who are unable to afford LP prices will continue to be placed in a position where they have to choose between their liberty and their health. Patient health will be negatively impacted if they are unable to access sufficient amounts of the medicine. The Plaintiffs use the example of Ms. Beemish and Mr. Hebert. It is submitted that Ms. Beemish is suffering grossly disproportionate consequences by having to go without her medicine to the point of lengthy hospitalization, and both are at a risk of grossly disproportionate consequences if Mr. Hebert decides to continue to produce for her notwithstanding the lack of authority to do so under the MMPR.

[277]      The Defendant states that the possibility of incarceration as a deterrent for deliberately growing marihuana is not grossly disproportionate to its purposes, particularly given the lack of mandatory minimum sentence. In Malmo-Levine, the Supreme Court stated at paragraph 158 that “the lack of any mandatory minimum sentence together with the existence of well-established sentencing principles mean that the mere availability of imprisonment on a marihuana charge cannot, without more, violate the principle against gross disproportionality”.

(c)               Analysis

[278]      It is unnecessary to conduct an analysis on gross disproportionality after considering arbitrariness and overbreadth. The considerations assessed under those principles are sufficient to deem the restriction contrary to the principles of fundamental justice.

C.                 Section 1

[279]      As outlined above, the objective of the prohibition is the same in both section 7 and section 1 analyses. Accordingly, the same disconnect between the prohibition and its object that renders the restrictions arbitrary or overbroad under section 7 frustrates the requirement under section 1 that the limit on the right be rationally connected to a pressing objective and minimally impairing.

[280]      The s 1 analysis applicable in the present case is well supported by the Supreme Court’s reasons in Smith at paragraph 29:

[29]      The remaining question is whether the Crown has shown this violation of s. 7 to be reasonable and demonstrably justified under s. 1 of the Charter.  As explained in Bedford, the s. 1 analysis focuses on the furtherance of the public interest and thus differs from the s. 7 analysis, which is focused on the infringement of the individual rights: para. 125.  However, in this case, the objective of the prohibition is the same in both analyses: the protection of health and safety.  It follows that the same disconnect between the prohibition and its object that renders it arbitrary under s. 7 frustrates the requirement under s. 1 that the limit on the right be rationally connected to a pressing objective (R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103). Like the courts below, we conclude that the infringement of s. 7 is not justified under s. 1 of the Charter.

[281]      A “minimal impairment” type of analysis is appropriate at this s 1 stage as set out in Bedford at paras 161 and 162:

[161]   The appellant Attorneys General have not seriously argued that the laws, if found to infringe s. 7, can be justified under s. 1 of the Charter.  Only the Attorney General of Canada addressed this in his factum, and then, only briefly. I therefore find it unnecessary to engage in a full s. 1 analysis for each of the impugned provisions. However, some of their arguments under s. 7 of the Charter are properly addressed at this stage of the analysis.

[162]   In particular, the Attorneys General attempt to justify the living on the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships, which can be difficult to identify.  However, the law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non-exploitative relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships.

[282]      I agree that the Plaintiffs have, on a balance of probabilities, demonstrated that cannabis can be produced safely and securely with limited risk to public safety and consistently with the promotion of public health. I again emphasize that the object of the restriction is not to eliminate the risk to health and safety but to reduce it, and on that conception, there are very simple measures that can be taken to minimally impact the section 7 interests.

[283]      Accepting that fire, mould, diversion, theft and violence are risks that inherently exist to a certain degree – although I note that these risks were not detailed – this significant restriction punishes those who are able to safely produce by abiding with local laws and taking simple precautions to reduce such risk. A complete restriction is not minimal impairment. As mentioned above, the mould and fire risks are addressed by complying with the Safety Standards Act and installing proper ventilation systems. Further, as demonstrated by the Plaintiffs, a security system reduces risk of theft and violence. Finally, risk of diversion is also present in the LP regime; thus, it is not demonstrated how this restriction has the effect of reducing this risk.

[284]      The Defendant’s s 1 argument must fail for the same reasons that I have found the restriction arbitrary and overbroad.

[285]      I conclude that the infringement of section 7 is not justified under section 1 of the Charter.

D.               Possession Limits – Specific Issue

[286]      The Plaintiffs argue the 150 gram restriction is overbreadth and disproportional, while the Defendant approaches the restriction separately. Specifically, the Plaintiffs argue that the 150 gram possession restriction limits their freedom of movement and ability to travel; that the state does not have a legitimate interest in this prohibition; and that it does not acknowledge those who possess it safely without endangering others.

[287]      I agree with the Defendant, in the section 7 analysis, that the burden is on the Plaintiffs to establish that the 150 gram possession limit impacts them in a significant way. Although the Plaintiffs may have to purchase their marihuana more frequently and restrict the number of days they travel or transport the drug because of this restriction, the cap is not overbroad or grossly disproportionate because it bears a connection to the objective – it reduces the implied risk of theft, violence and diversion for which there has been no substantial or persuasive evidence.

[288]      Overall, this restriction is significantly different than the restriction on cultivation as the cultivation restriction is a complete ban without minimal impairment that affects individuals adversely to the legislation’s objective. The possession cap still allows one to possess more than their necessary amount of marihuana. There is nothing stopping Parliament from legislating cultivation in a similar way that ensures that significant measures are taken to reduce risk, such as mandatory installation of security or ventilation systems (assuming that these measures are constitutionally sound).

VIII.      Conclusion

[289]      For all these reasons, the Court has concluded that the Plaintiffs have established that their s 7 Charter rights have been infringed by the MMPR and that such infringement is not in accordance with the principles of fundamental justice or otherwise justified under s 1.

IX.            Disposition and Remedy

[290]      For these reasons, I find that the MMPR regime infringes the Plaintiffs’ s 7 Charter rights and such infringement is not justified.

[291]      In several decisions regarding the MMAR, the Courts have struck out either certain provisions or certain words in certain provisions, but otherwise left the structure of the regulation in place. Most of these decisions related to criminal charges where such narrow, feasible and effective excising was appropriate.

[292]      In the present case, the attack has been on the structure of the new regulation. It would not be feasible or effective to strike certain words or provisions. That exercise would eviscerate the regulation and leave nothing practical in place.

The Defendant has recognized the integrated nature of the MMPR provisions.

[293]      It is neither feasible nor appropriate to order the Defendant to reinstate the MMAR (as amended by current jurisprudence). It is not the role of the Court to impose regulations. The MMAR may be a useful model for subsequent consideration; however, it is not the only model, nor is a MMAR-type regime the only medical marihuana regime, as experience from other countries has shown.

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

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

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

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

[298]      The Plaintiffs have been successful and have brought a case that benefits the public at large. They shall have their costs on a substantial indemnity basis in an amount to be fixed by the Court.

“Michael L. Phelan”

Judge

Vancouver, British Columbia

February 24, 2016

SCHEDULE A

PLAINTIFFS’ LAY WITNESSES

Neil Allard Plaintiff
Shawn Davey/Brian Alexander Plaintiffs
Tanya Beemish/Dave Hebert Plaintiffs
Mike King Fact Witness on LP situation
Jason Wilcox Fact Witness on MMAR Coalition
Danielle Lukiv Fact Witness on MMAR Complaints
Jamie Shaw Fact Witness on Dispensaries in Canada
Eric Nash Fact Witness on MMAR/MMPR

PLAINTIFFS’ EXPERT WITNESSES

Zachary Walsh Expert on Affordability and Access and on Medical Evidence including Strain and Dosage
David Pate Expert on Botany and Pharmacology
Caroline Farris Rebuttal Expert on Use and Dosage
Robert Clarke Rebuttal Expert on Cannabis Use
Remo Colasanti Expert on Cultivation
Thomas Baumann Expert on Horticulture
Eric Nash Expert on MMAR/MMPR
Jason Schut Rebuttal Expert on Mould Remediation
Tim Moen Rebuttal Expert on Fire Risk
Robert Boileau Rebuttal Expert on Fire Safety
Scott Wilkens Expert on Insuring Properties
Susan Boyd Key Rebuttal Expert (Community Impacts)
Paul Armentano Rebuttal Expert (United States)

DEFENDANT’S LAY WITNESSES

Jocelyn Kula Fact Witness on Regulatory Structure
Eric Ormsby Fact Witness on Treatment of Other Drugs
Jeannie Ritchot Fact Witness on MMPR and MMAR
Todd Cain Fact Witness on MMPR and Industry Status

DEFENDANT’S EXPERT WITNESSES

Dr. Grootendorst Expert on Cost Economics
Yehuda Baruch Expert on Cannabis Use in Israel
Paul Daenick Expert on Cannabis Use and Dosage
Harold Kalant Expert on Medical Cannabis Use
John David Miller Expert on Mould
Len Garis Expert on Fire Risk
Shane Holmquist Expert on Safety Risk
Larry Dybvig Expert on Property Value
Catherine Sandovos Expert on Regulatory Structure (Netherlands)
Hendrik J. Van Den Bos Expert on Medical Practises (Netherlands)
Richard Bardenstein Expert on Regulatory Structure (Israel)
Mahmoud ElSohly Expert on US Preferred Cultivation (United States)
Lynn Mehler Expert on Legislative Structure (United States)
Robert Mikos Expert on Marihuana Law (United States)

 

 

FEDERAL COURT

SOLICITORS OF RECORD

 

DOCKET: T-2030-13

 

STYLE OF CAUSE: NEIL ALLARD, TANYA BEEMISH, DAVID HEBERT AND SHAWN DAVEY v HER MAJESTY THE QUEEN IN RIGHT OF CANADA

 

PLACE OF HEARING: Vancouver, British Columbia

 

DATE OF HEARING: February 23-26, 2015

MARCH 2-5 and MARCH 9-13, 2015

APRIL 30 and MAY 1, 2015

 

REASONS FOR JUDGMENT: PHELAN J.

 

DATED: FEBRUARY 24, 2016

 

APPEARANCES:

John Conroy, Q.C.

Kirk Tousaw

Tonia Grace

Bibhas Vaze

Matthew Jackson

 

For The Plaintiffs

 

B.J. Wray

Jan Brongers

Carl Januszczak

Melissa Nicolls

Philippe Alma

 

For The Defendant

 

SOLICITORS OF RECORD:

Conroy & Company

Barristers and Solicitors

Abbotsford, British Columbia

 

For The Plaintiffs

 

William F. Pentney

Deputy Attorney General of Canada

Vancouver, British Columbia

 

For The Defendant
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